50796 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 178

RIN 0790–AG46

Closed, Transferred, and Transferring

Ranges Containing Military Munitions

AGENCY: Department of Defense.

ACTION: Proposed rule.

SUMMARY: The Department of Defense

(DoD) is proposing a rule that identifies

a process for evaluating appropriate

response actions on closed, transferred,

and transferring military ranges.

Response actions will address safety,

human health, and the environment.

This rule contains a five-part process

that is not inconsistent with the

Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA) and is tailored to the

special risks posed by military

munitions and military ranges. All

closed, transferred, and transferring

military ranges will be identified. A

range assessment will be conducted in

which a site-specific accelerated

response (various options for protective

measures, including monitoring) will be

implemented. If these measures are not

sufficient, a more detailed site-specific

range evaluation will be conducted.

Recurring reviews will be conducted,

and an administrative close-out phase

also is included.

DATES: Written comments on this

proposed rule will be accepted until

December 26, 1997.

ADDRESSES: Written comments (one

original and two copies) should be

addressed to: DoD Range Rule, P.O. Box

4137, Gaithersburg, MD 20885–4137.

Comments may also be submitted

electronically by sending electronic

mail (‘‘e-mail’’) through the internet to:

fbarrule@b-r.com. All electronic

comments must be submitted as an

American Standard Code for

Information Interchange (ASCII) file

without special characters or any form

of encryption, or as a Microsoft Word

file. The administrative record for this

rulemaking will be kept in paper form.

Accordingly, the Department of Defense

will convert all documents received

electronically into printed paper form as

they are received and will place the

paper copies in the administrative

record. In addition, comments may be

faxed to (800) 870–6547.

Public comments and the supporting

information used for this rule will be

made available for public inspection

and copying at the DoD range rule

administrative record located at 910

Clopper Road, Gaithersburg, MD 20878–

1399. This administrative record is open

from 9:00 a.m. to 4:00 p.m., Monday

through Friday, excluding Federal

holidays. To review the administrative

record materials, the public must make

an appointment by calling (301) 258–

8753.

FOR FURTHER INFORMATION CONTACT: To

request a copy of the Range Rule or to

ask a general question, please call the

toll-free DoD range rule information

request line (available 24 hours a day,

7 days a week) at (888) 541–1081. The

toll-free number for the hearingimpaired is (800) 870–6557. In addition,

this proposed rule may be downloaded

from the World Wide Web at http://

www.acq.osd.mil/ens/. For specific

technical questions, please contact Mr.

Joseph Murphy, U.S. Army

Environmental Center Range Rule

Office, or Ms. Karen Heckelman, U.S.

Army Environmental Center Office of

Counsel, at (410) 612–7104.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Legal Authority

II. Background

III. Summary of Proposed Rule

IV. Section-by Section Analysis

I. Legal Authority

II. Background

III. Summary of Proposed Rule

IV. Section-by-Section Analysis

A. Purpose, scope, and applicability

B. Definitions

1. Military munitions

2. Military range

3. Closed range

4. Transferring range

5. Transferred range

6. Inactive range

7. Active range

8. Unexploded ordnance

9. Other constituents

10. Federal land manager

11. American Indian tribe

12. Property owner

C. Summary of challenges

1. Safety

2. Current technological capabilities

3. Technology development

4. Magnitude

D. Overview of the range response process

1. Introduction

2. Program overview

3. Programmatic concepts

E. Detailed discussion of the phases of the

range response process

1. Identification of closed, transferred, and

transferring military ranges

2. Range assessment/accelerated responses

3. Evaluation of RA/AR results

4. Range evaluation

5. Range evaluation findings

6. Site-specific response evaluation

7. Site-specific response implementation

8. Recurring reviews

9. Ending the range response process

F. Other issues

1. DoD environmental response authorities

and relationship to other laws

2. Water ranges

3. Other range activities

4. Chemical agent constituents

5. Buried military munitions

6. Depleted uranium

7. Regulator, American Indian tribe, and

public involvement

8. Small arms ranges

9. Guidance

10. Dispute resolution

11. Allocation of operation and

maintenance costs between federal

agencies

12. Future land use issues for transfers

between federal agencies

V. Discussion of other major alternatives

A. General

B. Comprehensive Environmental

Response, Compensation and Liability

Act

C. Defense Environmental Restoration

Program

D. Resource Conservation and Recovery

Act

E. DoD explosives safety standards

promulgated pursuant to 10 U.S.C. 172

F. Status quo

VI. Administrative requirements

A. Regulatory impact analysis

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Environmental justice

E. Unfunded mandates

VII. References/docket

I. Legal Authority

This part is proposed under the

authorities of the Defense

Environmental Restoration Program

(DERP), in 10 U.S.C. 2701 et seq.; the

DoD Explosives Safety Board (DDESB),

in 10 U.S.C. 172 et seq.; and Section 104

of CERCLA, in 42 U.S.C. 9601 et seq.,

as delegated to the DoD by Executive

Order (E.O.) 12580 (59 FR 2923, January

23, 1987).

II. Background

Section 107 of the Federal Facility

Compliance Act of 1992 amended the

Resource Conservation and Recovery

Act (RCRA) and required the U.S.

Environmental Protection Agency (EPA)

to promulgate regulations identifying

when conventional and chemical

military munitions become hazardous

waste subject to RCRA Subtitle C

regulations. EPA’s proposed military

munitions rule (60 FR 56476, November

8, 1995) would have identified military

munitions left on a closed range or a

range transferred from military control

as meeting the statutory definition of

solid waste in RCRA Section 1004(27),

potentially subject to RCRA corrective

action or Section 7003 authorities.

However, EPA’s proposed rule also

stated that if the Department of Defense,

pursuant to the Department of Defense’s

own statutory authority, were to
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50797

1 The NGB will be the Department of Defense

agency responsible for evaluating and

implementing response actions on closed,

transferred, and transferring military ranges that are

owned, leased, or otherwise possessed by a State

National Guard if NGB validates that the military

range is or was used for a military purpose. The

DoD point of contact for military ranges owned or

leased by a State National Guard will be located at

the NGB.

promulgate a rule that addressed

military munitions on closed or

transferred ranges in a manner that was

protective of human health and the

environment and that allowed for public

involvement in addressing these ranges,

EPA would interpret the statutory

definition of solid waste as not

including military munitions left on

closed or transferred ranges. The

Department of Defense began

development of this proposal, the ‘‘DoD

Range Rule,’’ in response to EPA’s

proposed military munitions rule.

The final EPA military munitions rule

was published on February 12, 1997 (62

FR 6622). In this final rule, EPA

postponed action on whether to identify

as solid waste military munitions left on

closed or transferred ranges. EPA will

reach its final decision on this issue

based on further analyses of comments

received on the military munitions rule

and on the Department of Defense’s

final regulation governing the cleanup

of munitions on closed and transferred

ranges. In the final military munitions

rule, EPA indicated that it is prepared

to address this issue under Federal

environmental laws if the Department of

Defense does not promulgate the range

rule or if EPA finds that the range rule

does not adequately protect human

health and the environment.

The Department of Defense is

including transferring ranges within the

scope of the range rule, even though

they were not included in the scope of

EPA’s proposed military munitions rule,

to more comprehensively address this

issue. The DoD proposed rule addresses

the unique explosives safety

considerations associated with military

munitions (including unexploded

ordnance (UXO)) and the need for

environmental protection, and it does so

under DERP, 10 U.S.C. 172, and

CERCLA authorities rather than under

RCRA.

III. Summary of Proposed Rule

This proposal identifies a process for

evaluating response actions on closed,

transferred, and transferring military

ranges. These response actions fully

encompass safety, are protective of

human health and the environment, and

address risks based upon reasonably

anticipated future land use.

Closed ranges include those ranges

that are within military control but are

put to a use incompatible with range

activities. Transferring ranges include

those ranges associated with Base

Realignment and Closure (BRAC)

activities and other property transfers to

nonmilitary entities. Transferred ranges

include those being identified in the

Formerly Used Defense Site (FUDS)

program.

The Department of Defense’s

proposed rule contains a phased

process, with accelerated response (AR)

options as part of an early phase. All

closed, transferred, and transferring

military ranges will be identified. Then

a site-specific range assessment (RA), in

which an AR involving various

protective measures such as monitoring

is implemented, will determine if the

protective measures are sufficient to

safeguard safety, human health, and the

environment. If the protective measures

in and of themselves are not sufficient

at a specific military range, the range

evaluation (RE) process will be initiated.

The RE process includes more detailed

data collection to support a site-specific

safety risk assessment and a site-specific

human health and ecological risk

assessment. At the completion of the RA

and/or RE, the Department of Defense

will document its decision after input

from Federal and State regulators,

American Indian tribes, and the public.

Recurring reviews will also be

conducted. The final phase is an

administrative close-out of range

responses that have been completed.

In this proposed rule, the Department

of Defense articulates the nature and

extent of its environmental response

authorities under DERP, 10 U.S.C. 172,

and CERCLA. It is doing so in the form

of creating a formal military range

response process based on the general

delegation of response authority given

to the Department of Defense by

Congress under DERP and by the

President under CERCLA; the specific

emphasis in DERP and 10 U.S.C. 172 on

limiting risks posed to human health

and the environment by military

munitions (including UXO) and military

ranges; and the unique nature of the

risks posed by military munitions and

military ranges, for which the

Department of Defense alone has special

responsibility and expertise.

IV. Section-by-Section Analysis

A. Purpose, Scope and Applicability

This proposal applies to all the DoD

components, such as the Office of the

Secretary of Defense, the Military

Departments, the Chairman of the Joint

Chiefs of Staff, the National Guard

Bureau (NGB), and the U.S. Coast Guard

(USCG). It applies to military munitions

on closed, transferred, and transferring

military ranges previously or currently

owned by, leased to, or otherwise

possessed or used by the United States.

These military ranges may not be under

the administrative control of the

Secretary of Defense (or the Secretary of

War prior to 1949); however, the

munitions themselves remain under the

jurisdiction of the Secretary of Defense.

For this reason, this proposal applies to

military munitions on closed,

transferred, or transferring military

ranges where the range itself is under

the administrative control of another

Federal agency or property owner,

provided that the activity that led to the

munitions being on those ranges was in

support of the Department of Defense’s

national defense or national security

mission. For example, the national

laboratories under the U.S. Department

of Energy (DOE) conduct research,

development, training, and evaluation

of military munitions on behalf of the

Department of Defense. Similarly, USCG

conducts training activities involving

the use of military munitions as part of

their mission in support of the

Department of Defense’s national

defense mission. In these cases the

munitions remain under the jurisdiction

of the Secretary of Defense, but the

range may fall under the administrative

control of the Secretary of Energy or the

Secretary of Transportation. This rule

uses the term ‘‘Federal Land Manager’’

to refer to Federal agencies having or

clearly anticipated to receive

jurisdiction, custody, or control of land

affected by this proposal. The scope of

this proposal is thus not inconsistent

with DERP (10 U.S.C. 2701(c)),

CERCLA, and EPA’s military munitions

rule.

In some instances, however, the

United States does not own the property

utilized as a military range but instead

leases or leased the property, or

otherwise possesses, possessed or used

the property. Additionally, the land

could be owned by a State entity, as

when National Guard activities are

conducted. For this reason, this

proposal would be applied to military

ranges owned by an entity other than

the United States but where military

activities, such as operation of a range

by the NGB,1 have occurred.

This rule does not apply to any

closed, transferred, or transferring

military ranges that are subject to

response activities pursuant to any

specific statutory authority (e.g., Title X

of Pub. L. 103–139, DoD Appropriations

Act, 1994, Conveyance of Kaho’olawe

Island, Hawaii to the State of Hawaii,
50798 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

where Congress has mandated special

response actions, and a special cleanup

agreement was developed between the

Secretary of the Navy and the State of

Hawaii) or pursuant to any agreements

that were negotiated prior to the

effective date of this rule and that cover

military ranges. However, in either case,

should any aspects of this proposed rule

be useful in making a given response

more efficient or cost-effective, then,

upon mutual consent of the parties to

the agreement, nothing in this rule

would prevent the response from being

so adapted for use at such a range. This

rule also does not apply to ranges

located outside the United States,

Puerto Rico, Guam, American Samoa,

the Commonwealth of the Northern

Mariana Islands, or the Virgin Islands.

Under CERCLA Section 120(e), the

DoD component must enter into an

interagency agreement with the EPA

Administrator ‘‘for the expeditious

completion * * * of all necessary

remedial action’’ at a DoD site on the

National Priorities List (NPL). Where a

closed, transferred, or transferring range

was identified and included in the

interagency agreement for an NPL site,

the interagency agreement, even if

negotiated prior to the effective date of

this rule, will govern. If the interagency

agreement provides that subsequently

identified areas of concern are included

automatically in the interagency

agreement, then for purposes of

§ 178.2(b)(2), such subsequently

identified areas of concern would be

considered to be ‘‘identified and

included in an interagency agreement

for an NPL site.’’ As stipulated in the

preceding paragraph, nothing would

prevent the response from following this

rule instead, upon mutual consent of the

parties to the agreement. If the range

was not ‘‘identified and included in the

interagency agreement for an NPL site,’’

this rule will be utilized. In some cases,

UXO investigations or response actions

are underway on closed, transferred, or

transferring ranges at facilities where

there are unresolved issues concerning

the scope of the interagency or Federal

facility agreement. This proposal does

not apply to ongoing UXO response

actions at such facilities, unless

mutually agreed to by all parties to the

interagency or Federal facility

agreement.

Finally, this proposal does not apply

to explosives or munitions emergency

responses, as defined in EPA’s military

munitions rule (62 FR 6622, February

12, 1997). In the final rule, EPA defines

an explosives or munitions emergency

as all immediate response activities by

an explosives and munitions emergency

response specialist to control, mitigate,

or eliminate the actual or potential

threat encountered during an explosives

or munitions emergency. As defined by

EPA, an explosives or munitions

emergency response may include inplace render-safe procedures, treatment

or destruction of the explosives or

munitions, and/or transport of those

items to another location to be rendered

safe, treated, or destroyed. Explosives

and munitions emergency responses can

occur on either public or private lands.

The Department of Defense may not be

the first responder to a military

munitions emergency (for example, the

local police or another Federal agency

may be the first to arrive on the scene).

Under EPA’s military munitions rule,

explosives or munitions emergency

response activities are exempted from

most requirements under RCRA.

Because explosives or munitions

emergencies may or may not involve

military munitions on a closed,

transferred, or transferring military

range, the Department of Defense has

decided to exclude these activities from

the scope of this rule and to conduct the

activities in accordance with the

provisions of EPA’s military munitions

rule. The fact that an area has been

subject to an emergency response in the

past should not, however, preclude that

area from being subject to the range rule.

The Department of Defense solicits

comments on proposed §§ 178.1—178.3,

which address the purpose, scope, and

applicability of this rule.

B. Definitions

This proposal includes definitions for

several terms that clarify the scope and

applicability of this proposed rule.

While the Department of Defense is not

separately defining the nine criteria

from the National Contingency Plan

(NCP), the nine criteria mentioned in

§§ 178.7(c) and 178.9(d) have the same

meanings as the nine criteria as set out

in the NCP. The Department of Defense

requests comments on the following

proposed definitions.

1. Military Munitions

This proposal includes a definition of

military munitions in § 178.4(g). This

definition is the same as the definition

in EPA’s final military munitions rule

(62 FR 6622, February 12, 1997).

2. Military Range

This proposal includes a definition of

a military range in § 178.4(h). A military

range is any land mass or water body

that is or was used for the conduct of

training, research, development, testing,

or evaluation of military munitions or

explosives. A military range can be used

for many purposes. Examples include

missile, artillery, aerial bombing, tank,

naval surface warfare, mortar,

antiaircraft, grenade, small arms,

demolition, and multipurpose ranges

where combined arms are utilized. The

definition in § 178.4(h) is the same as

EPA’s definition in the final military

munitions rule (62 FR 6622, February

12, 1997), except that additional

information is provided on activities

and locations that do not meet the

definition of a military range.

A classic setup of a live fire area

military range consists of a central area

called the ‘‘impact area.’’ The impact

area varies in size depending on the

type of military munitions employed.

The impact area contains the targets that

are fired upon and thus poses the

greatest potential safety risk due to the

concentration of military munitions

employed (i.e., the impact area will

normally contain the greatest

concentration of UXO). Surrounding the

impact area is a buffer zone. This area

is not intentionally fired into but may

include some UXO; thus military

activities are not conducted in this area.

Outside the buffer zone are the firing/

release points from which military

munitions are employed (e.g., fired,

dropped, placed).

Another example of a military range

includes designated land and water

areas set aside for the purpose of

training and conducting ‘‘maneuvers.’’

These maneuver areas are used to

conduct military exercises and create an

environment that simulates an area of

conflict or an active war zone. During

these maneuvers, training aids and

military munitions simulators are used

and expended. Examples are training

ammunitions, artillery simulators,

smoke grenades, pyrotechnics, mine

simulators, and riot control agents used

to simulate a chemical agent attack.

Even though these training aids and

simulators are used to create an

environment that is safer than a war or

open conflict, they may still pose an

explosives safety concern. For this

proposed rule, the definition of military

ranges includes current and former

designated maneuver areas on land and

water.

Airspace and water or land areas

underlying airspace used for aircraftrelated training, testing, or research and

development where military munitions

were not used do not fall within the

definition of military range solely as a

result of the aircraft-related activities.

Examples of airspace and underlying

water or land areas that would not be

considered a military range for purposes

of this rule include areas used for airto-air training, electronic scoring site

ranges, military operations areas, and
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50799

2 CERCLA Section 101(8) defines ‘‘environment’’

as including ‘‘(A) the navigable waters, the water of

the contiguous zone, and ocean waters of which the

natural resources are under the exclusive

management authority of the United States under

the Magnuson Fishery Conservation and

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

water, ground water, drinking water supply, land

surface or subsurface strata, or ambient air within

the United States or under the jurisdiction of the

United States.’’

military training routes (MTR).

Electronic scoring site ranges provide

bomber aircraft with a weapon drop

score without the aircraft’s actually

releasing any military munitions.

Military operations areas are areas that

separate certain military activities (e.g.,

air-to-air training) from civil and

military aircraft traffic under instrument

flight rules. MTRs are used to conduct

low-altitude navigation and tactical

training in excess of 250 knots air speed

below 10,000 feet mean sea level

altitude. No military munitions are

dropped or fired in MTRs.

A water range is another example of

a military range. CERCLA and DERP

address releases or threats of releases of

hazardous substances, pollutants, and

contaminants into the ‘‘environment,’’

which is defined in CERCLA as

including navigable waters, the water of

the contiguous zone, and ocean waters.2

In general, in 33 CFR 2.05–1 to 2.05–35,

the terms ‘‘navigable waters,’’

‘‘contiguous zone,’’ and ‘‘ocean waters’’

are defined as being, respectively, the

internal waters of the United States and

its coastal waters out to a distance of 3

nautical miles, 12 nautical miles from

the U.S. coast, and 200 nautical miles

from the U.S. coast. As a result, the DoD

ranges located on water courses within

these three zones are likewise subject to

this proposed regulation.

Over the life of a military range, the

types and quantities of military

munitions expended on the range vary

greatly due to changes in mission and

technology. An important characteristic

of military ranges is that their use and/

or the military munitions employed

normally changes over time. As

technology improves and weapons

systems are replaced, new types of

military munitions are developed and

employed. Because of limited land

availability and safety requirements,

new ranges are often constructed on top

of old ranges. Thus a variety of military

munitions (including UXO) exist on a

military range because of the different

types of weapons that have been

employed on a particular range during

its life cycle. Changes in training needs

over the years also contribute to the

occurrence of several classes and types

of military munitions at military ranges.

Historic battlefields are not covered

by this proposed definition of a military

range. Battlefields were used for actual

combat and thus were not used for

training, research, development, testing,

and evaluation. The Department of

Defense has transferred areas that were

historic battlefields and may contain

UXO from past conflicts. Even though

these areas are not ‘‘military ranges’’

and are not covered by this proposal,

the Department of Defense will continue

to provide explosive ordnance disposal

(EOD) support to civil authorities for

any UXO discovered on historic

battlefields.

3. Closed Range

This proposal includes a definition of

a closed range in § 178.4(d). This

definition was provided in EPA’s

proposed military munitions rule (60 FR

56476, November 8, 1995) and is

consistent with the final military

munitions rule (62 FR 6622, February

12, 1997). Closed ranges are ranges that

have been taken out of service and

either have been put to new uses that

are incompatible with range activities or

are not considered by the military to be

potential range areas. Examples of

incompatible use may include the

construction of a permanent building

not compatible with range operations or

training, such as houses, schools,

hospitals, clinics, commissaries,

libraries, and other such buildings.

Closed ranges remain under the control

of the military. Closed ranges would

include those ranges that are on Federal

lands or otherwise possessed by the

military, determined at the respective

military department’s Secretariat-level

position to be closed, and where future

use is incompatible with range

activities. Areas that meet the definition

of a closed range will be regulated under

this rule.

4. Transferring Range

This proposal includes a definition of

a transferring range in § 178.4(n). Under

that definition, a military range that is

proposed to be leased, transferred, or

returned from the Department of

Defense to another entity, including

Federal entities, is a ‘‘transferring

range.’’ To qualify as a military range

‘‘proposed’’ to be leased, transferred, or

returned, within the meaning of this

rule, the proposal must be concrete and

specific. Further experience likely will

be needed to develop and clarify this

definition, particularly the requirement

that a proposal be ‘‘specific and

concrete.’’ DoD notes that where a

Federal agency might receive

jurisdiction, but the transfer is not

sufficiently concrete or specific to be

‘‘proposed’’ within the meaning of the

definition, the agency may sit on the

project team for informational purposes

only, and such participation is

encouraged.

A number of military ranges are

proposed for transfer outside of the

military control. Transferring ranges

include military ranges associated with

the BRAC program, as well as any other

property transactions in which military

ranges are transferred to nonmilitary

entities. It is important to note that,

immediately prior to becoming a

transferring range, a military range

could be considered closed, inactive, or

active. Transferring ranges remain under

military control until they have been

officially transferred to another party.

Transfer may be by deed or lease, or by

return under the terms of a withdrawal,

special-use permit or authorization,

right-of-way, public land order, or other

instrument under which the Department

of Defense used the property. An active

range will not be considered to be a

‘‘transferring range’’ until the transfer is

imminent. While an active or

transferred range is easier to identify,

classifying a military range as

‘‘transferring’’ is more complex, and is

based on multiple site-specific factors.

Reasonably anticipated land uses for the

range property will be identified and

agreed to prior to the land transfer.

In some situations, the Department of

Defense may not transfer a military

range or a portion of the range if during

the assessment it is determined that the

risks cannot be reliably managed or

reduced (unless such transfer is

congressionally mandated). If

technology limits the range response

and thus restricts the use of the land,

but later improvements in technology

allow for a change in the designated

land use, the Department of Defense is

responsible for conducting a later

response, if doing so is consistent with

the land transfer agreement and

reasonably anticipated land uses that

were originally identified. Areas that

meet the definition of a transferring

range will be regulated under this rule.

EPA’s military munitions rule does not

address transferring ranges; the

Department of Defense has included a

definition in this proposal to more

comprehensively address the issue.

5. Transferred Range

This proposal includes a definition of

a transferred range in § 178.4(m). A

transferred range is a military range that

has been released from military control.

FUDS are areas that were once

controlled by the Secretary of Defense

and may have portions that were used

as military ranges. Transferred ranges
50800 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

include those being identified in the

FUDS program. These areas could have

been transferred to other Federal

agencies (U.S. Department of the

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

governments, or private citizens.

The transfer may have been by deed

or lease, or by return under the terms of

a withdrawal, special-use permit or

authorization, right-of-way, public land

order, or other instrument under which

the Department of Defense used the

property. For example, public lands

may be federally owned lands under the

jurisdiction of the Secretary of the

Interior and administered by the Bureau

of Land Management (BLM). These

lands may be withdrawn (by statute,

executive order, or public land order)

from the operation of the public land

laws and reserved for other Federal

agencies’ uses, including the

Department of Defense. Agencies

holding withdrawn public lands that

they no longer need are to file with BLM

a notice of intent to relinquish such

lands (43 CFR 2372; 41 CFR 101–

47.202–6). The BLM will then

determine if the lands are suitable for

return to the public domain for

administration under the public land

laws. If the lands are no longer suitable

for return to the public domain, they

will be processed as ‘‘real property’’

under the Federal Property and

Administrative Services Act of 1949, as

amended (40 U.S.C. 472), or under the

property management and disposal

provisions of the defense base closure

laws, as applicable.

6. Inactive Range

This proposal includes a definition of

an inactive range in § 178.4(f). As

defined in EPA’s military munitions

rule (62 FR 6622, February 12, 1997), an

inactive range is ‘‘a military range that

is not currently being used, but that is

still under military control and is

considered by the military to be a

potential range area, and that has not

been put to a new use incompatible

with range activities.’’ The Department

of Defense has military range areas that

have been used in the past for training,

research, development, testing, or

evaluating military munitions. Inactive

ranges are held in reserve in case the

Department of Defense has a change in

mission that requires additional range

areas. Some inactive ranges remain

under military control to protect

national security, as the activities

conducted on them were classified.

Therefore, inactive ranges would not be

considered ‘‘closed’’ under this rule.

Inactive ranges are not covered by this

proposed rule or EPA’s military

munitions rule, but they do fall under

existing environmental and DoD

regulations if the source of possible

contamination is other constituents, not

military munitions, or if contamination

from range activities is moving off the

range. Active and inactive ranges will be

addressed in a forthcoming DoD policy

to be issued by DDESB on proper safetybased management techniques for such

sites. The Department of Defense will

issue guidance on when an inactive

range should be classified as a closed

range. Factors in this decision-making

process include future testing, training,

and new weapons development needs,

as well as needed range rotation.

7. Active Range

This proposal includes a definition of

an active range in § 178.4(b), which is

the same as the definition of an active

range in EPA’s military munitions rule

(62 FR 6622, February 12, 1997). The

scope of the DoD range rule is limited

to closed, transferred, and transferring

ranges; a definition of active ranges is

included in this proposal for the sake of

clarity.

8. Unexploded Ordnance

This proposal includes a definition of

UXO in § 178.4(o). This definition is the

same as the definition of UXO in EPA’s

military munitions rule (62 FR 6622,

February 12, 1997). Military munitions

are designed to be safe during storage

and handling operations and will not

normally detonate until an item is

actually employed. A military munition

becomes UXO only after it has been

employed and failed, in total or in part,

to function properly. Due to the

complex design of many military

munitions and the large number of

military munitions employed, some of

them are almost certain to become UXO.

The highly likely presence of UXO on

closed, transferred, and transferring

military ranges creates a safety risk.

9. Other Constituents

This proposal includes a definition of

other constituents in § 178.4(j). Due to

their complexity and varied functions,

military munitions may contain many

other constituents that may be a source

of concern on military ranges.

Military munitions can be composed

of propellants, explosives, and

pyrotechnics (PEP); chemical agents;

metal parts; and other inert components.

When munitions are employed on a

range, the PEP components generally are

consumed, leaving behind metal parts

and other inert components that may be

distributed in small pieces across a large

area. The risk caused by the metal parts

and other inert components will depend

on the types of materiel used, the

susceptibility of this materiel to

leaching and other transport

mechanisms, the physical

characteristics of the range (the climate,

amount of rainfall, soil type, etc.), and

the quantity of military munitions

employed. These components of

military munitions, if released into the

environment, are included in the

definition of other constituents.

A small percentage of military

munitions employed on military ranges

fail to function as intended, which can

result in UXO remaining on the range.

UXO can pose a safety hazard (as

discussed in Section IV.C.1. of this

preamble, Safety) and/or an

environmental concern. PEP

compounds in military munitions could

be released to the environment when

the munitions casing is damaged or

deteriorated. To a lesser extent, metal or

other materials could build up over time

in the environment. While UXO itself is

not considered an other constituent,

compounds released from the UXO are

included in the definition of other

constituents. At significant

concentrations, other constituents may

present explosives safety risks.

Other constituents that may be

identified on military ranges also could

include fluids from vehicles used as

targets or from activities that occurred

prior to the area’s being used as a

military range (e.g., landfill, industrial

operations). Other constituents that are

present on a military range and that fall

under other regulatory authorities may

be addressed by the appropriate agency

(see Section IV.F.1.b. of this preamble,

Relationship to Other Laws, and Section

V, Discussion of Other Major

Alternatives).

10. Federal Land Manager

This proposal includes a definition of

Federal land manager in § 178.4(e).

DERP applies to property ‘‘owned by,

leased to, or otherwise possessed by the

U.S. and under the jurisdiction of the

Secretary [of Defense]’’ (10 U.S.C. at

2701(c)). For simplicity, the Department

of Defense has used the term ‘‘Federal

land manager’’ throughout the rule to

refer to a Federal agency that has

received or is clearly anticipated to

receive jurisdiction, custody, or control

over the property. The phrase ‘‘clearly

anticipated to receive jurisdiction’’

refers to situations where the transfer to

the Federal agency is statutorily

established; legally required;

incorporated in a legislative proposal

formally supported by the

Administration; designated under the

land reuse plan; or where the transfer to

the Federal agency is otherwise

recognized as being clearly anticipated,
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50801

such as where both the Federal agency

and the DoD component have agreed

that such transfer will take place. Where

a Federal agency has been proposed to

receive jurisdiction, custody, or control

of a former range, but the agency is not

yet a Federal land manager as defined

in this rule, the agency may sit on the

project team for informational purposes

only.

11. American Indian Tribe

This proposal includes a definition of

American Indian tribe in § 178.4(c). This

term is used in the proposed DoD range

rule to describe Native American tribes

and Native Alaskan villages that meet

specific criteria so that they can be

afforded substantially the same

treatment as States under this rule, and

thus receive a concurrence role in the

range response process. The governing

body of the American Indian tribe must

be federally recognized by the

Department of Interior; have an

appropriate tribal governing body that

performs health, safety, or

environmental functions; and have real

property interests, as defined in

§ 178.4(l) of this rule, over some or all

of a closed, transferred, or transferring

range at which a response, including

pre-response activities, is ongoing or

contemplated.

12. Property Owner

This proposal includes a definition of

a property owner in § 178.4(l). The term

‘‘property owner’’ as used in this

proposal refers to non-Federal entities

that now own property that is a closed,

transferred, or transferring military

range, and to Native American tribes

and Native Alaskan villages that own

property or land held in trust by the

United States for that tribe or village or

its individual members. ‘‘Property

owner’’ also includes any non-Federal

entity legally entitled to control access

to the property, to the exclusion of the

right of the legal owner to control

access, if known to the responsible DoD

component. This situation may exist if

the person legally entitled to control

access to the property is different from

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

situations).

C. Summary of Challenges

Military munitions are designed to

injure or kill people and/or to damage

or destroy property. Thus, during any

environmental response activity, the

presence or suspected presence of

military munitions creates unique

challenges due to explosives safety

concerns. Before undertaking any

response action on a closed, transferred,

or transferring military range, the

Department of Defense must first

consider the explosives safety risks

inherent in locating, investigating,

evaluating, and responding to military

range areas where military munitions

are known or suspected to be present.

The explosives safety risk is equally

great regardless of whether military

munitions (including UXO) or other

constituents are being addressed in the

response action. Response personnel,

even those specially trained to deal with

the explosives safety hazards associated

with military munitions, must not be

exposed to an unreasonable explosives

safety risk in order to address less

compelling environmental concerns.

The risk to response personnel increases

as the density of military munitions,

e.g., UXO, increases. Additionally,

rough terrain and thick vegetation

restrict visibility and mobility, thereby

substantially increasing the explosives

safety risks associated with response

activities. Response activities are made

more difficult and dangerous because

technology is not yet sophisticated

enough to ensure positive detection,

identification, and subsequent removal

of all military munitions in any given

area.

1. Safety

The Department of Defense is

committted to the management of safety

risks associated with exposure of the

public and clearance personnel to

military munitions. As discussed

throughout this rule, the explosives

safety risks from locating and clearing

unstable materials such as UXO are very

high. The investigation and restoration

activities associated with other

constituents present similar risks, as

they usually occur in areas that also

contain UXO. The Department of

Defense is the recognized expert in the

management of these risks. Federal,

State, and local regulators typically seek

DoD’s expertise in safely managing

military munitions and other ordnance

discovered at non-DoD sites. Unless the

explosive risk is first eliminated or at

least reduced, catastrophic injury or

fatalities may result from any response

activity.

Typical military munitions/UXO on

military ranges may include: bombs (up

to 2,000 pounds), artillery, mortar,

aircraft cannon, or tank-fired projectiles

(20-millimeter through 16-inch),

dispensed munitions, submunitions,

rockets, guided missiles, grenades,

general demolition materials, bulk

explosives, pyrotechnics, torpedoes,

mines, small arms ammunition, and

chemical munitions. Military munitions

are designed to be safe during storage,

handling, and transportation. The fuzes

used with these items also have built-in

safety features to preclude arming of the

munition until actual employment

(firing, placing, etc.) of the item. It is not

until after the munition has been

employed and failed to function (totally

or in part) that it becomes UXO.

Although the fuze is the most

sensitive portion of the UXO, the filler

may pose an even greater danger to

human health and the environment. By

their nature, high-explosive fillers

present risks. Explosives may

deteriorate over time to form sensitive

crystals that could detonate if subjected

to heat, shock, or friction. Chemical

munitions contain chemical agents that

present additional safety risks. Highexplosive fillers, deteriorated

explosives, and chemical munitions are

a few examples of military munitions

where the filler itself requires special

safety consideration, even if the fuzing

mechanism is no longer capable of

firing.

Fuzes are designed to initiate a train

of fire or detonation in ordnance by an

action such as mechanical or electronic

timing, electrical or mechanical energy,

impact, radar, chemical, pyrotechnic,

hydrostatic pressure, etc. Once safety

devices (such as safety pins, safety

blocks, and arming wires) are removed,

a fuze can require one or more of the

following forces to fully arm:

acceleration, deceleration, setback, or

centrifugal force. EOD personnel cannot

visually determine if a fuze is armed.

Therefore a fuze must be considered

armed and ready to fire if the right force

is applied. For example, a clockwork

mechanism fuze that has armed but

failed to function contains a firing pin

under spring tension which, if

disturbed, could fire. Also, many

military munitions pose even more

serious risks because they have a

secondary system that will, should the

munition fail to operate as intended,

detonate the munition if it is disturbed

in any way.

Addressing the unique problems

associated with UXO on military ranges

requires that knowledgeable UXO

personnel and specialized safety

procedures be used. The acute hazard

associated with the presence of armed

and potentially deadly UXO is the

primary factor that drives the sequence

of investigative and remedial actions. In

essence, acute safety concerns direct

and determine the sequence of site

activities. Once the explosives hazards

are identified and addressed, further

response actions may occur. In some

cases, normal activities may be delayed

(e.g., drilling monitoring wells in UXO

areas), or additional requirements may

have to be met (e.g., UXO surface
50802 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

clearance, followed by downhole

magnetometry at regular intervals to

detect subsurface ordnance present in

the area where a well is being drilled).

The most acute risk is to the response

personnel who come near the UXO. In

some cases, the risk may be so high as

to preclude a clearance action.

2. Current Technological Capabilities

a. Military munitions/UXO detection:

Military munitions detection, which is

often referred to as ordnance detection,

has been undertaken since the first

military munitions were found on the

battlefield. The clearing of military

munitions requires personnel to have

the capability to safely and precisely

locate these items regardless of whether

they are lying on the surface, covered

with heavy overgrowth, buried deeply

in the soil, or located underwater and

potentially buried in the sediments.

Several recent tests and evaluations

have identified shortfalls in UXO

detection technology. Detection

technologies can be hampered by the

depth of penetration of the munition.

The penetration depth is dependent on

the munition’s velocity upon impact,

size, weight, shape, angle of entry, and

the type and composition of soil.

Obvious physical signs made by

military munitions, such as entry holes,

are quickly erased by natural weather

processes or are often destroyed by

other impacting ordnance. The growth

of grass and brush compound the

problem by covering munitions lying on

the surface. Since many of the ranges

covered by this proposed rule have not

been active for many years, vegetation

often hinders the ability to detect the

munitions. Methods to address the

problems of dense vegetation, such as

deforestation and controlled burns, can

cause other environmental problems.

Underwater items often are buried by

silt or covered with marine growth. In

addition, military munitions on water

ranges can be greatly affected by coastal

storms and tidal actions that can

immerse the military munitions in a bed

of sediments or uncover military

munitions that were previously

embedded in sediments. Furthermore,

the depth or condition of a water range

may make analysis, much less retrieval,

effectively impossible, or may pose an

unreasonable risk to the health and

safety of range response personnel.

In summary, items that affect UXO

detection include: munition size,

composition, depth, and orientation;

soil composition and geology;

vegetation and terrain; and background

interference from metal scrap. Strides

will have to be taken to eliminate the

high degree of uncertainty associated

with UXO detection. Safe clearance

operations require technologies that can

detect and determine the precise

location of a broad spectrum of military

munitions in a wide variety of soil and

surface conditions, both on land and

under water. Safe clearance operations

also require the capability to internally

examine items to identify hazardous

contents, including fuzing as well as

filler material.

Detection and location of military

munitions depend primarily on the

ability to distinguish their physical

characteristics from those of the

surrounding environment.

Characteristics that have the most

impact on the effectiveness of current

detection and removal technologies

include the materials used in the

ordnance case, fuzing, and filler. The

majority of casings are constructed of

ferrous (i.e., iron-containing) metal.

Nonferrous metals and plastics,

however, are used for some

submunitions and land mines.

Nonferrous military munitions make

detection much more difficult and

subsequent clearance more dangerous.

Fuzing systems include combinations of

ferrous and nonferrous metals, plastics,

electrical circuits, and small amounts of

explosive materials. Filler materials

include a variety of high explosives,

chemical agents, pyrotechnics, and inert

items such as concrete and sand.

Common methods used to detect

military munitions include visual

searches, magnetometers,

electromagnetic induction (metal

detectors), and ground-penetrating radar

(GPR). A visual search for military

munitions is restricted to the surface

and often is hindered by vegetation and

terrain. Magnetometers are the most

commonly used form of detecting

military munitions below the surface

and can be adapted for underwater use.

Low-sensitivity magnetometers have a

limited depth of detection capability,

while high-sensitivity magnetometers

have a large number of false detections.

Magnetometers can only detect

munitions that contain ferrous metal.

Metal detectors can locate both ferrous

and nonferrous metallic objects and can

be adapted for use under water;

however, metal detectors can only

detect munitions that are located very

near the surface. GPR can collect rough

images of buried metallic and

nonmetallic munitions, but its

effectiveness is severely limited in

certain soil conditions. In general, the

material used in the construction of

military munitions, the munition’s size

and depth, and the soil’s composition

all affect the effectiveness of available

technology.

(1) Advanced technology

demonstrations. Congress authorized

and appropriated funding in fiscal years

1993 to 1995 to conduct unexploded

munition technology demonstrations. In

response, the U.S. Army Environmental

Center established the UXO Advanced

Technology Demonstration (ATD)

Program with technical support from

the U.S. Naval EOD Technology

Division. The objective of this program

was to evaluate and identify innovative,

cost-effective, commercially available

systems for the detection, identification,

and removal of UXO. These

demonstrations have established a

technology baseline for UXO detection

and removal. In addition, the ATDs

have progressively monitored state-ofthe-art UXO technology advancements.

There are four separate and distinct

projects associated with the multiyear

Congressional funding:

(1) Jefferson Proving Ground (JPG)

Phase I ATD, conducted during summer

1994.

(2) JPG Phase II ATD, conducted

during summer 1995.

(3) Live Site ATDs, conducted during

summer 1995.

(4) JPG Phase III ATD, conducted

during summer and fall 1996.

The JPG Phases I through III ATDs

were conducted at a controlled test site,

which contained numerous types of

inert ordnance precisely located at

various depths and orientations. The

Live Site ATDs were conducted at five

sites across the United States that

contained live ordnance. Commercial

companies were invited to demonstrate

their system’s ability to detect,

characterize, or remotely excavate UXO.

To date, more than 60 technologies

have been demonstrated and evaluated

as part of the ATD program. The

demonstrators represented airborne,

ground vehicle, and man-portable

platforms; magnetometer, GPR,

electromagnetic induction, and infrared

sensors; target processing software; and

excavation technologies.

To date, technology performance ATD

results have shown systems exhibiting

ordnance detection capabilities ranging

from 0–85%. JPG Phase III results,

although not yet published and

released, once again indicate increased

detection performance. While

commercial technology has exhibited

less than desirable capabilities

(especially evidenced during JPG Phase

I), private industry has made strides to

identify technology performance weak

points. Phases II and III show evidence

of increased private industry teaming

efforts, commercial research and

development efforts, and clearer

understanding of government needs.
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50803

3U.S. Army Corps of Engineers, ‘‘Sensor

Technology Assessment for Ordnance and

Explosive Waste Detection and Location,’’ page 134

(March 1, 1995).

4The Department of Defense, Inspector General,

Memorandum for Deputy Under Secretary of

Defense (Environment Security), ‘‘Review of

Policies and Procedures Guiding the Cleanup of

Ordnance on Department of Defense Lands,’’ page

35 (November 22, 1994).

5The Department of Defense, Inspector General,

Memorandum for Deputy Under Secretary of

Defense (Environment Security), ‘‘Review of

Policies and Procedures Guiding the Cleanup of

Ordnance on Department of Defense Lands,’’ page

35 (November 22, 1994).

6The Department of Defense, Inspector General,

Memorandum for Deputy Under Secretary of

Defense (Environment Security), ‘‘Review of

Policies and Procedures Guiding the Cleanup of

Ordnance on Department of Defense Lands,’’ page

42 (November 22, 1994).

Combined, this translates into enhanced

systems and capabilities. However,

throughout all ATDs, UXO detection

technology continues to exhibit

extremely high false alarm rates and

minimal or no discrimination ability.

Systems are unable to determine if a

detected anomaly is ordnance or a piece

of scrap metal. For example, if 100

ordnance items are located on a range

scheduled for remediation, a technology

may be able to detect 85 of the 100 UXO

items. However, the demonstrator

would also falsely identify over 200

other locations. For excavation

purposes, this translates into many

empty holes and unnecessary

excavation.

(2) Other assessments of UXO

technology. The Army Corps of

Engineers recently evaluated UXO

detection technology applications at 33

specific sites. The Army Corps of

Engineers stated that, in general:

[T]hree [main types of UXO sensor]

technologies [(magnetometry, infrared, and

ground-penetrating radar)] for the detection

and location of [UXO] tend to dominate.

While other evolving technology is

promising, there is considerable development

yet remaining. The most important

observation, however, is that there is no

single technology that can accomplish this

task unambiguously. For all their merits,

neither magnetometers, GPR, nor [metal

detectors] alone can assure more than a

modicum of success probability. While each

is a powerful technology with distinct

advantages, none has the breadth of

capability to interpret all of the phenomena

that are typically encountered in the search

for [UXO]. This includes the capability to

discriminate [UXO] from background

artifacts, the ability to resolve individual

entities below-ground, and the ability to

determine depth below the surface

independent of geology.3

Of the 28 systems the Army Corps of

Engineers evaluated, only 5 were rated

above average. Four were rated as

average, while 19 were rated as below

average. The Army Corps of Engineers

concluded that ‘‘the vast diversity of

ordnance * * * coupled with the very

nature of its designed use * * * renders

the detection and location of [UXO] a

very difficult task.’’

Additionally, the DoD Inspector

General has reviewed UXO detection

technologies and stated that ‘‘the

technology currently employed to detect

and remove ordnance is primitive and

labor intensive.’’ 4 In a 1994 report, the

DoD Inspector General stated:

To date, there has been limited success in

identifying UXO on or near the cleared

surface. Detecting and identifying UXO

underground present a much greater

challenge * * *. We found that relatively

primitive detection and ‘‘pick and shovel’’

removal methods are typically used for

ordnance and explosive waste cleanup. The

basic approach is to remove as much

vegetation as possible, mark off grids, then

use crews with hand held magnetometers to

‘‘sweep’’ the area. The magnetometers will

detect any metal to a maximum depth of

approximately three feet. When a metal

object is detected, it is exposed by careful

hand excavation. Most of the objects

identified through that procedure are simply

non-explosive scrap metal. However, when

UXO is found, it is either destroyed in place

or removed to a safe location for destruction.

Those procedures are usually labor intensive

and thus very expensive. The dangerous

nature of the work requires the use of highly

trained Explosive Ordnance Disposal

personnel.5

The Inspector General concluded that

UXO cleanup operations were

‘‘relatively simplistic, labor intensive,

sometimes environmentally disruptive,

and expensive.’’ 6 Thus, despite the

efforts placed on developing effective

detection technology, UXO detection

technology cannot currently support a

totally efficient response effort.

b. Clearance technology and

activities: In earlier years, military

munitions generally were detonated in

place. Even now, detonation in place is

a primary response when moving a

munition presents a safety risk. Section

IV.C.1 of this preamble, Safety,

describes some of the basic elements

that affect the explosives safety risk of

UXO. To accomplish range clearance, a

series of complex detection and location

tasks must be undertaken, such as

locating surface and subsurface objects,

distinguishing if the object is or may be

a munitions item, and identifying the

type of device and the type of filler

used. Once located, there are two types

of clearance methods available: point

recovery and area recovery. Point

recovery relies heavily on technologies

to locate possible ordnance items and

uses current construction, mining, and

drilling technologies to unearth the

detected objects. Area recovery is the

removal and sifting of all soil to a

certain depth, utilizing heavy

equipment to remove ordnance items

and debris.

The safe excavation of buried military

munitions requires the removal of large

quantities of soil. As the clearance

depth increases, fewer military

munitions are found, but the items that

are found typically contain large

amounts of explosives. The precise

location of the buried items becomes

more difficult, so their recovery often

becomes a major excavation effort. Both

methods are labor intensive, timeconsuming, and expensive. They also

present a high risk of injury or death to

clearance personnel due to the larger

amounts of explosives in the buried

munitions. Results from the

demonstration at JPG showed that

robotic excavation of located UXO is

feasible. Robotic responses are timeconsuming, however, and could have a

significant adverse impact on the speed

of response operations if a large quantity

of UXO requires excavation.

c. Other constituents: This rule

addresses military munitions and other

constituents on a military range. The

Department of Defense recognizes that

other constituents include materials that

are uniquely military in nature. EPA has

not established a scientific

environmental baseline relative to fate,

transport, and toxicological impact of

these materials, or the degradation

products on the environment. Although

some scientific data have been collected

on some of these materials on a sitespecific basis, these data cannot be

directly extrapolated to a national risk

analysis profile. The Department of

Defense will need to gain a better

understanding of the adverse

environmental impact, if any, of these

uniquely military materials through

ongoing research and development. In

order to ensure the most effective

response to other constituents that are

uniquely military materials on ranges,

the Department of Defense will prepare

and implement an overall technology

research and development plan based

on information needed to complete the

range hazards analysis and range

response prioritization.

3. Technology Development

The Department of Defense recognizes

the potential negative environmental

impacts presented by UXO and is

committed to reducing the quantity of

UXO generated to the greatest extent

possible. This commitment is evidenced

across the life-cycle management of

military munitions. The UXO reduction

effort begins during the design phase of
50804 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

new munitions, where attempts to

produce ‘‘green munitions’’ by

eliminating toxic components are

underway. Significant research and

development efforts are also underway

to find environmentally acceptable ways

to dispose of or destroy munitions at the

end of their life cycle. For example, the

Department of Defense now is fielding

a UXO tracking system based on geoprepositioning technology. This tracking

system is designed to provide range

managers with the location, type, and

quantity of UXO and will assist them in

reducing or eliminating unidentified

UXO during routine range sweep

operations. Finally, fully recognizing

the limits of current technology to

reliably find subsurface UXO, the

Department of Defense is committing

resources to develop, in concert with

the private sector, new and emergent

technologies that will improve the

ability to locate and eliminate UXO.

Therefore, the Department of Defense

sees a pressing need for additional

research in these areas. This is

particularly true when safety

considerations prevent entering the

range to conduct site-specific

investigations of other constituents or

when the available methods to address

UXO, such as a large-scale excavation,

are known to have serious

environmental impacts.

While detecting, approaching,

detonating, and even in some cases

excavating and moving UXO is possible,

the process for assessing ranges and for

evaluating alternatives for site-specific

responses provides only limited

opportunity for technological

advancement. Due to the current need

for advancement in these areas, both

here in the United States and

throughout the world, the Department of

Defense believes that there must be a

commitment to conducting research and

technology development in these areas

separate from the actions being taken at

specific ranges. Since fiscal year 1993,

Congress authorized and appropriated

$25 million for a DoD program at JPG to

identify and demonstrate the ‘‘state-ofthe-art’’ in UXO detection and

remediation technologies. The JPG

program did establish what state-of-theart detection technology existed and

highlighted areas in need of future

development. Congress has authorized

and appropriated an additional $5

million (beginning in fiscal year 1997)

to continue the ATD Program, JPG Phase

IV.

Opportunities to evaluate and

implement new technologies can occur

anywhere from range assessments to

recurring reviews. The Department of

Defense is soliciting recommendations

on means to integrate research and

technology development into the range

response program as outlined in this

proposal.

Realizing that the only true way to

eliminate UXO is to reduce the use of

live munitions, the Department of

Defense is focusing additional efforts on

greater use of simulators, practice

munitions, or less-than-lethal

technology to reduce the quantity of

UXO being introduced on active ranges.

It is a fact, however, that to prepare for

war, the nation’s servicemen and

women must train with live munitions.

The Department of Defense has

therefore committed to minimizing to

the greatest degree possible the

introduction of UXO into the

environment through aggressive range

management practices.

4. Magnitude

Military munitions have been

expended in the United States since preRevolutionary War times. Employment

of military munitions has always led to

some percentage of the munitions not

functioning as intended, resulting in the

presence of UXO. Through the end of

the 1800s, the bulk of military

munitions was expended in the United

States during armed conflicts. Although

no battles other than in Hawaii, Alaska,

Guam, and several other territories have

been fought on U.S. soil in the 20th

century, military training and weapons

development to deter and prepare for

armed conflicts have resulted in the

presence of military munitions at ranges

throughout the country. During both

World Wars, extensive defenses were

established along the Atlantic and

Pacific coasts. Many of the military

installations established to train and

support U.S. armed forces during World

War II continued to use military ranges

throughout the Cold war era. As the

extent of the U.S. military force’s

structure varied throughout the 20th

century, military installations have

expanded or decreased operations, and

some have ceased operating entirely.

a. Transferred ranges: Many

transferred ranges are a subset of FUDS,

but not all of them qualify for the FUDS

program. The FUDS program has

identified approximately 8,000 former

DoD properties. Of these, fewer than

1,000 have the potential to be classified

as transferred ranges. The largest

amount of acreage affected resides on

the 169 sites identified on DOIcontrolled lands. The current estimate is

that more than 7 million acres of DOI

property potentially contain military

munitions. A large number of these DOI

sites are suspected of having been used

as military ranges during the World War

II era. The Department of Defense may

identify transferred ranges through

archive searches, aerial photography,

interviews with past employees, and

other available sources of

documentation.

b. Transferring ranges: Transferring

ranges are frequently the result of

closure decisions under BRAC. The

Department of Defense also leases

properties from other parties for use as

military ranges. When a decision is

made to terminate a lease, the affected

range will be classified as a transferring

range. In addition, the Department of

Defense can excess property that may

contain military ranges. However, the

Department of Defense has established

policies over the past decade to prevent

the release from DoD control of

additional properties containing

military munitions that may pose risks

to the public.

c. Closed ranges: Closed ranges are

located on active military or National

Guard installations. Military ranges on

active military installations can be

divided into three categories: active

ranges that are currently being used to

train or test military munitions; inactive

ranges that are being kept in the range

inventory in case conflict would break

out requiring an increased level of

training in the future; and closed ranges

that are no longer needed for training or

testing by the military and have been

converted to an incompatible use. The

Department of Defense began to keep

records of inactive and active ranges in

the mid-1970s. The Department of

Defense recognizes the need to identify

and maintain an inventory of closed

ranges. The Department of Defense may

identify closed ranges through archive

searches, aerial photography, interviews

with past employees, and other

available sources of documentation.

D. Overview of the Range Response

Process

1. Introduction

Addressing the unique problems

associated with military munitions and

other constituents on military ranges

demands an approach that modifies the

one taken under the CERCLA response

and RCRA corrective action programs.

The most significant reason for this

difference is the absolute need to

minimize explosives safety risks in

planning, conducting, and

implementing response actions. This is

because the acute hazards associated

with military munitions (especially

UXO) are the primary factor driving the

scope, sequence, and types of actions

that are possible on the range. These

concerns are unique to military ranges
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50805

in that most actions on CERCLA

response or RCRA corrective action sites

do not need to consider an explosion

hazard posed by the presence of a

munition or explosive. For example,

installation of a monitoring well at most

CERCLA sites does not require

surveying the access route for buried

military munitions or conducting a

magnetometer survey as the well is

drilled. Another example where range

responses require a different approach is

in balancing the risks and impacts of

addressing the military munitions and/

or UXO and other constituents against

the risks involved in not taking an

action. Minimizing explosives safety

risks while achieving the proper balance

between these competing concerns is

the goal of the program described in this

proposal.

The requirements of 10 U.S.C. 172,

DERP, and CERCLA to respond to

environmental risks at ranges provide a

basis for the Department of Defense to

develop a response program that

addresses the same factors as are

applied at CERCLA response or RCRA

corrective action sites where military

munitions or UXO are not present, but

with a different and overarching

emphasis: to protect not only the public

and environment in general but the

response personnel as well. In

developing this proposal, the

Department of Defense sought to be as

consistent as possible with the overall

process used in CERCLA response and

RCRA corrective action programs. In

taking this approach to developing this

proposed rule, the Department of

Defense drew not only on its experience

and expertise with respect to ranges but

also on its own experience with site

investigation and response under

CERCLA response and RCRA corrective

action. Further, the Department of

Defense drew on the experience of other

Federal agencies. One very important

source was EPA’s own reviews of, and

recommendations for improving, the

CERCLA response and RCRA corrective

action programs.

In developing the response process for

military ranges described in this

proposal, the Department of Defense

established the following basic

parameters. First, the process must

minimize explosives safety risks; protect

human health and the environment; and

directly include the public, American

Indian tribes, and appropriate Federal

and State agencies by seeking their

active participation throughout the

process. Second, the process should

focus on informed risk management

decision-making and risk management

actions rather than protracted study.

Third, the process should, where

possible, draw on the lessons learned in

the CERCLA response and RCRA

corrective action programs, and

incorporate into its basic approach the

recommended changes to improving

those programs.

The Department of Defense is

developing, in consultation with other

Federal agencies, a conceptual time

frame to establish timeline goals for

beginning the first two phases of the

range response process. The Department

of Defense expects this conceptual time

frame to be included in the final rule.

See also § 178.6(a). Conceptual time

frames for the later three phases will be

made publicly available when

developed.

2. Program Overview

The process for addressing military

ranges has five basic phases. These are:

(1) Range identification, (2) Range

assessment/accelerated response (RA/

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

Recurring review, and (5) Ending the

range response action. A graphical

portrayal of the process appears in

figure 1, DoD Range Rule Process

Overview. The demarcations between

the phases are mostly for discussion

purposes and are not distinct starting

and stopping points. A military range

addressed through this process can fall

into more than one phase at any given

time, depending on site-specific

considerations.

BILLING CODE 5000–04–P
50806 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50807

BILLING CODE 5000–04–C
50808 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

The process for conducting response

actions at military ranges integrates site

assessment functions into a process that

allows for an informed decision on how

to best manage the risks posed by

military munitions and other

constituents at the range. Furthermore,

the range response process as outlined

in this proposal relies heavily on taking

prompt action to address risks. One of

the principal ways the range response

process will achieve this is through

implementation of ARs. ARs use readily

available means to address the

identified risks posed by UXO or other

constituents (e.g., access controls,

techniques to reduce the migration

potential of other constituents), while

continuing the assessment of the range

to determine the need for subsequent

actions, such as detailed studies or

implementation of more complex

solutions. Under this process, the

decision whether to carry out an AR

occurs as soon as there is enough

information showing that conditions

warrant such action. Further assessment

of range conditions would focus on

gathering additional data to assess the

effectiveness of the AR, as well as on

identifying other problems. Any further

assessment must support decisions on

how to address the identified risks

remaining at the site. Should site

conditions suggest a need for additional

studies or responses, these can take

place either through continuation of the

RA/AR phase or, if these studies or

actions require long periods to conduct

or implement, by proceeding to the RE/

site-specific response evaluation (SSRE)

phase.

As can be seen from the overview

flowchart in figure 1, the Department of

Defense is providing the public,

American Indian tribes, and regulatory

agencies opportunities for involvement

or access to information at every step of

the process. The Department of Defense

sees early and frequent interaction with

the public and government agencies

(including American Indian tribal

governments) as essential to the success

of this process, as it not only enhances

risk management decisionmaking but

also helps prevent disputes over the

actions taken. Emphasis is placed on

public, regulatory agency, and American

Indian tribal involvement throughout

the process.

3. Programmatic Concepts

a. Public and government agency

involvement: In this proposal, the

Department of Defense has committed to

involving the public and government

agencies throughout the range response

process. The process provides for this

involvement through widely accepted

mechanisms such as public notice and

comment periods, public meetings, and

public availability of information. It also

expands on these basic mechanisms

through making information on each

range as readily accessible to the public

and government agencies as is practical,

and by offering opportunities for public,

government agency, and American

Indian tribal interaction directly with

the project team conducting the

response. Where public interest is

sufficient, the public will be involved

through implementation of a public

involvement plan (PIP) that is not

inconsistent with CERCLA.

There are several mechanisms that the

Department of Defense intends to use to

involve the public, Federal and State

regulators, American Indian tribes, and

other Federal agencies in the range

response process. These mechanisms

are not inconsistent with the public

participation requirements under the

CERCLA program and, as with CERCLA,

occur at various points in the process.

In general, these requirements

(described in greater detail later in this

proposed rule) seek to: (1) Make

information on response activities

publicly available; (2) keep the public

and appropriate Federal, State, and local

agencies and American Indian tribes

aware of planned and completed

actions; (3) solicit written comments

from the public and government

agencies on proposed actions, and

provide a responsiveness summary for

public comments before the final

decision to proceed; and (4) provide an

opportunity for concurrence by the

appropriate Federal and/or State

environmental regulatory agencies,

American Indian tribe, and Federal land

manager. The responsible DoD

component will also be responsible for

operating an information repository

where the public will have access to

releasable documents. An

administrative record for all actions will

be included in the information

repository.

As part of its effort to provide for

meaningful regulator and public

participation in the site-specific range

response process, the Department of

Defense will provide a technology

education program to assist regulators,

American Indian tribes, and the public

in obtaining a layperson’s

understanding of the complex subject of

UXO detection and removal technology.

The objective of the program is not to

make the participants experts in the

science of UXO detection and removal

technologies, but rather to increase their

general knowledge. At the RA/AR

phase, the responsible DoD component

will provide an explanation of available

UXO detection and remediation

technologies to the Restoration Advisory

Board (RAB) or Extended Project Team

(EPT). This program will consist of a

focused presentation (2 to 8 hours in

duration) on current UXO detection and

removal technologies and, if necessary,

technology update presentations (2 to 4

hours in duration) to capture significant

technology advancements that have

been made since the initial presentation.

The program’s objective will be to

increase the participants’ general

understanding of the science, its

capabilities and its limitations.

In addition to these means for

involving the public and government

agencies, the Department of Defense

also is examining other mechanisms for

making information readily accessible.

First, as part of the identification phase

of the range response process, the

Department of Defense will identify an

official point of contact (POC) for each

range addressed under these provisions.

Whenever there is an inquiry by the

public, a tribe, or a Federal, State, or

local agency, the POC will be

responsible for providing any relevant

and releasable information, or for

providing a formal written response

explaining in detail why that

information was not provided.

Second, the Department of Defense

plans that the information contained in

the range inventory and tracking system

to be established under the provisions of

proposed § 178.6(a)(1) will be readily

accessible to the public, possibly

including via the internet. The

Department of Defense is also

examining the practicality of making

information about specific ranges (e.g.,

reports, updates, decision documents)

available through this same venue. In

the final rule, the Department of Defense

will specifically address the types of

information that will be available

through the internet and how to obtain

it.

Third, as part of the identification

phase, the Department of Defense

proposes that it will submit for

inclusion in the permanent land record

at the local jurisdiction level for a parcel

of land identified as a closed,

transferred, or transferring range, a

formal notice addressing: (1) The

identification of the parcel of land as a

known or possible military range,

including the unique identifier and

common name assigned to that range;

(2) a statement that the land may have

been a military range; (3) a statement

about the potential hazards associated

with military ranges; (4) the DoD

component to contact for additional

information. As the range progresses

through the range response process, the
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50809

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

Department of Defense may permit the

establishment of a restoration advisory board in

connection with an installation (or group of

installations) where [the Department of Defense] is

planning or implementing environmental

restoration activities.’’ Since this proposed rule

establishes a formal process for planning and

implementing response actions at military ranges,

creation of EPTs within existing RABs (or

establishment of a RAB for this purpose) will be

utilized to the maximum practicable extent and in

accordance with DoD policies and guidance on the

establishment of RABs.

8The project team consists of the responsible DoD

component and, as appropriate, the Federal land

manager(s). Federal land managers will have direct

access to information through the project team. The

project team will have meetings, conference calls,

and/or other methods to ensure regular

communication and input. The project team is

responsible for:

(1) Scoping of the response action, including but

not limited to, problem definition, establishing data

quality objectives, selection of response alternatives

for evaluation, and project planning.

(2) Preparing all necessary planning documents

for conducting the response.

(3) Preparing all reports (including

recommendations on appropriate responses) and

decision documents related to the response.

(4) Managing the project for purposes of

assignment of responsibilities to any subteams,

budget, procurement, allocation of resources, and

resolution or elevation of disputes.

(5) Coordinating response activities with the EPT,

the RAB, or other forums for public involvement.

Department of Defense will append

summaries of information contained in

formal decision documents to this

notice.

Where RABs exist or can be

established, they will be utilized to

involve the regulators, American Indian

tribes, and the public in this rule’s

proposed process. If a RAB does not

exist and sufficient interest to establish

a RAB is not obtainable, a mechanism

the Department of Defense is

considering to involve the public and

government agencies is the use of EPTs.

When a RAB cannot be established, the

Department of Defense will identify

interested members of the community

from the RAB solicitation process and

seek support for the establishment of an

EPT. An EPT is a highly focused

subcommittee similar to a RAB.7 While

most RABs address installation-wide

remedial activities, an EPT is intended

to involve the public and other agencies

at the individual military ranges where

response actions are planned and

implemented. A primary objective of the

EPT is to develop a common

understanding of the scope and

proposed approach to the upcoming

range response activities. Under this

concept, the EPT consists of the DoD

staff and contractors responsible for

planning, conducting, and

implementing response actions at a

specific range (i.e., the internal project

team) 8; specific representatives of the

public (where a RAB exists, EPT

representatives would be nominated

from the RAB; where a RAB does not

exist, EPT representatives would be

nominated from interested members of

the community); specific personnel

from Federal and State regulatory

agencies (e.g., environmental regulatory

personnel, as identified by their

respective agency); and American

Indian tribes and others with direct

technical expertise or a significant

interest in the results of the action.

EPT meetings should provide

opportunities to: (1) Communicate the

initial understanding of the range and

the project team’s initial approach for

planning and conducting a response; (2)

identify issues of concern; and (3) solicit

viewpoints. The success of an EPT

depends largely on the commitment of

all the parties to consistent and

continued involvement. With such a

commitment, the EPT becomes the

primary forum for presentation and

discussion of identified problems,

recommended solutions, and

unresolved concerns to the public and

the other Federal or State agencies.

Through this exchange, the Department

of Defense can address public,

government agency, and tribal concerns

as the response process proceeds, rather

than at its conclusion. The Department

of Defense believes that the use of EPTs

not only will foster mutual exchange of

ideas, concerns, and technical

information at the working level, but

also will allow DoD decision-makers the

opportunity to redirect planned

response actions as necessary before

committing to a course of action. The

Department of Defense will also

consider other forums for public

involvement as the specifics of the site

and the interest of the community

dictate. The EPT will be conducted in

a manner that is consistent with the

final published rule on RABs, which

was proposed on August 6, 1996 (61 FR

40764–40772) and is planned to be

published in calendar year 1997.

In § 178.14 of this proposed rule, a

concurrence role is included for Federal

and/or State environmental regulatory

agencies, American Indian tribes, and

Federal land managers when a response

will be conducted on a closed,

transferred, or transferring range under

their jurisdiction, custody, or control.

The concurrence role specifically

applies to Federal and/or State

environmental regulators, American

Indian tribes, and Federal land

managers, as appropriate. Regulatory

agencies are given a concurrence role

because other regulatory authorities may

apply to a military range. Federal land

managers are given a concurrence role

due to the independent statutory

authorities they have pertaining to lands

under their jurisdiction, custody, or

control. American Indian tribes are a

given a concurrence role in order to

provide them with substantially the

same role as States. Specifically, the

Department of Defense will seek review

of and concurrence on the draft decision

document identified in § 178.14(d) in

this proposed rule. In addition, the

Department of Defense will seek

concurrence on the RA work plans

identified under § 178.7(b)(2). Technical

impracticability (TI) and no further

action determinations, as well as

requests for applicable or relevant and

appropriate requirements (ARAR)

waivers, will be contained in the draft

decision document appropriate to the

specific response phase underway, and

thus will be provided for review and

concurrence. Procedures for ARs

described in § 178.7(e)(4) are not

inconsistent with time-critical removals

taken under CERCLA, and the

Department of Defense intends to apply

the same administrative procedures as

those that are applicable to CERCLA

time-critical removals. However, the

Department of Defense does not intend

to ask for concurrence on these AR

decision documents, but does intend to

make them available for comment.

Section 178.14 provides for document

review times of 45 days. This will allow

the response process to progress more

rapidly. Additionally, § 178.14 of this

rule encourages the use of site-specific

or area-wide agreements between the

Department of Defense and Federal or

State environmental agencies, the

Department of Defense and American

Indian tribes, or the Department of

Defense and Federal land managers.

These agreements may modify, upon

mutual agreement of the parties, the

review times and dispute resolution

procedures, as well as cover other

pertinent issues. If nonconcurrence is

received, then dispute resolution will be

invoked. If no written response is

received by the responsible DoD

component within the established

review period (including extension, if

applicable), then the responsible DoD

component may proceed with a range

response action or invoke the dispute

resolution process, or both.

The Department of Defense requests

comment on the general mechanisms

described for involving the public and

government agencies and seeks specific

comments on establishing EPTs. The

Department of Defense requests that

commentors provide specific

recommendations on mechanisms to

identify public and government

agencies that might be interested in
50810 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

participating in EPTs, especially groups

that represent the public.

b. Development of a risk assessment

model for use at ranges: The

Department of Defense recognizes that

there is an urgent need to develop a risk

assessment model for military ranges in

order to carry out the requirements of

these regulations. Although there are

already several risk assessment models

for ranges under various stages of

development, none comprehensively

address the risks posed by both military

munitions and other constituents. In

implementing these provisions, the

Department of Defense intends to

develop a model or protocol that: (1)

Addresses the risks posed by military

munitions and UXO and (2)

incorporates to the maximum extent

possible the models EPA has developed

for assessing the acute and chronic risks

posed by releases at CERCLA and RCRA

sites. The Department of Defense does

recognize that completing this model/

protocol by the promulgation date of

this rule is a very ambitious objective.

Should the Department of Defense not

be able to finalize the risk model/

protocol, an interim model/protocol will

be put into place before the

promulgation date of this rule. The

Department of Defense will develop the

model/protocol in consultation with

EPA and also will seek input from

Federal land managers, States,

American Indian tribes, and the public

in the development of the model/

protocol. The Department of Defense

will seek public input by publishing a

notice of availability of the interim and/

or draft final version of the risk model/

protocol. The notice will provide for

public comment on this guidance

document. Further, the Department of

Defense plans to develop a streamlined

version of this model/protocol to use as

a screening tool, as EPA did with its

streamlined version of the Hazard

Ranking System (HRS) for screening

sites during the CERCLA response

process. This streamlined version will

rely more on qualitative information

than quantitative information. The

primary use of this streamlined model/

protocol will be to focus the RA/AR

process and to assess the need for

implementing ARs. The decision to

utilize the more detailed risk assessment

model/protocol (versus solely the

streamlined version) will be made by

the Department of Defense in

consultation with regulators and the

RAB or EPT.

In the explosives safety element of the

model/protocol, the Department of

Defense plans to consider the following

types of factors:

(1) The specific type(s) of military

munitions employed on the range.

(2) The quantity of each type of

munition employed.

(3) The fuze types used on these

military munitions.

(4) The density (i.e., spatial

distribution) of UXO on the range.

(5) The estimated depth of the

military munitions (based on

penetration data).

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

likelihood of exposure of the public).

(7) The terrain, vegetation, soil type,

and climate.

(8) Current and anticipated land use.

In the other constituents element of

the model/protocol, the Department of

Defense plans to incorporate many of

the factors considered in the HRS and

EPA’s ‘‘Risk Assessment Guidance in

Superfund (RAGS).’’ In general, these

models assess the risk posed by the site

based on:

(1) The identity and concentration of

the constituents known or believed

present at the site.

(2) The environmental setting of the

site (e.g., surface and groundwater

features, soils and geology, terrain,

climate, vegetation).

(3) The human and environmental

receptors potentially exposed at or near

the site.

(4) The exposure pathways of concern

(e.g., direct contact, inhalation,

ingestion).

(5) The known or suspected acute and

chronic hazards posed by exposure.

(6) Current and anticipated land use.

The Department of Defense requests

recommendations on additional factors

to consider in both the explosives safety

and constituent elements of the model/

protocol. Further, the Department of

Defense solicits recommendations on

whether it should integrate these

explosives safety and environmental

protection elements into a single,

unified model.

c. Technical impracticability: At a

limited number of sites, the Department

of Defense foresees that explosives

safety concerns and limitations of

existing UXO detection and destruction

technologies may lead to consideration

of site-specific remedies that are limited

to institutional controls and monitoring.

Institutional controls, such as fences or

barriers to control public access, would

be implemented to restrict access to

unsafe areas and thereby limit the

explosives safety risks and constituent

threats to human health. Monitoring

would be implemented to ensure that

constituent releases do not migrate to

where they pose unacceptable risks to

human health and the environment. At

other sites, safety and technical

considerations may allow a limited,

active response in conjunction with

institutional controls and monitoring.

A TI determination may occur during

the site evaluation and response action

process. An example where active

response actions may not be technically

practicable is a water range that may be

too deep to allow investigation or

implementation of an accelerated or

site-specific response using current

technologies. Other conditions may

exist at range sites where it is readily

apparent that on-range response actions

are technically impracticable due to

explosives safety concerns or lack of

adequate technology to address the site

conditions. Where it is readily apparent,

as in the deep water range scenario, that

it is technically impracticable to

implement active response actions, the

Department of Defense may make a TI

determination and approve only

institutional controls without initial

attempts to actively remove UXO from

the range. Conversely, there may be

range sites where the Department of

Defense will extensively investigate and

evaluate site conditions and feasible

alternatives, implement active response

actions, and subsequently discover that

the site conditions render a particular

type of response action technically

impracticable due to explosives safety

or technological limitation concerns.

As discussed later in this proposed

rulemaking, the Department of Defense

proposes to use a range response

process that is similar to the NCP

process developed by EPA for sites

addressed under CERCLA. In arriving at

a TI determination, the Department of

Defense proposes to develop a TI

recommendation that would be

included in the appropriate report for

the applicable phase or stage of the

range response process. The TI

recommendation will address the

specific information and analyses

necessary to support a TI decision and

recommendations for actions that may

be needed to prevent deterioration of

the environmental conditions at the site.

These actions may typically include

measures to prevent further

environmental degradation,

implementation of management and

institutional controls, and continuation

of adequate monitoring to ensure that

constituent releases do not migrate from

the range and that the constituents left

in place do not pose a risk equal to or

greater than the explosives safety risk.

Reports supporting TI recommendations

are subject to review and comment (see

§ 178.14(c) of this proposal). Decision

documents recommending TI

determinations are subject to
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50811

9Copies of EPA’s ‘‘Guidance for Evaluating the

Technical Impracticability of Ground-Water

Restoration, Interim Final, OSWER Directive

9234.2–25’’ (September 1993) can be obtained, at

cost, from the National Technical Information

Service, 5285 Port Royal Road, Springfield, VA

22161 (telephone 703–487–4650).

concurrence (see §§ 178.14 (d) and (e) of

this proposal).

The Department of Defense will seek

regulator and American Indian tribe

concurrence and will consider public

comments received on the TI

recommendation in deciding whether to

approve a TI determination. The

Department of Defense will issue a

formal decision document if the TI

recommendation is approved at the DoD

level. A notice of availability for any

report containing a TI recommendation

will be published. The decision

document for such a report,

recommending a TI determination, will

explain the basis for the decision, a

synopsis of comments received and the

Department of Defense’s responses to

relevant comments, any conditions

required as part of the TI determination,

and the frequency of subsequent

periodic reviews (‘‘recurring reviews’’)

to reevaluate the TI determination.

(Recurring reviews are discussed in

more detail later in this proposed rule.)

The recurring review would determine

if: (1) The control measures in place are

functioning adequately, and (2)

advances in UXO detection or

destruction technologies can acceptably

reduce the explosives safety risk posed

to personnel entering the site. If the

recurring review process indicates that

the reasons for having issued the TI

determination can be overcome, the

Department of Defense will reevaluate

the need to pursue additional response

actions for the range sites. If practicable

from a safety and technological

viewpoint, the Department of Defense

will implement the new response action

based on advances in technology.

The concept of TI determinations to

forgo certain response actions due to

safety or technological limitations is not

novel. For example, although used in a

different context and on a more limited

scale, EPA has previously issued

guidance on evaluating the technical

impracticability of groundwater

restoration at certain sites having

hydrogeologic constraints or

contaminant-related factors that

severely impede the success of active

restoration. (For an example, see

Guidance for Evaluating the Technical

Impracticability of Ground-Water

Restoration, Interim Final, OSWER

Directive 9234.2–25 9 (September 1993)).

Under appropriate conditions, EPA’s

guidance allows a waiver of Federal or

State cleanup standards that otherwise

would be normally required for

groundwater restoration efforts under

CERCLA. EPA’s guidance also allows

selection of alternative remedial

technologies commensurate with the

waiver of the cleanup standards. Due to

the extreme safety risks associated with

range sites containing UXO and the

limited detection technology currently

available for effectively locating UXO,

the Department of Defense proposes to

use EPA’s TI waiver concept to

implement appropriate and protective

institutional controls and to periodically

review the practicability of

implementing additional response

actions.

E. Detailed Discussion of the Phases of

the Range Response Process

1. Identification of Closed,

Transferred, and Transferring Military

Ranges

The first phase of the range response

process is the identification of closed,

transferred, and transferring ranges. In

this phase, a list of the ranges subject to

these requirements will be developed.

Proposed § 178.6, Identification of

closed, transferred, and transferring

ranges, defines the specific

requirements for the identification

phase of the range response process.

a. Identification and establishment of

a tracking system: In summary, upon

the effective date of these regulations,

the Department of Defense will

undertake a coordinated effort to

identify all land and water areas

potentially subject to these provisions.

This information will form a permanent

record and centralized tracking system

for closed, transferred, and transferring

military ranges. Such a system provides

a valuable tool for the Department of

Defense’s internal use in managing the

program. Furthermore, the Department

of Defense intends that the information

in this tracking system be readily

accessible to the public and other

governmental agencies. As mentioned

before, one alternative the Department

of Defense intends to examine is

whether the internet could serve as a

means for public access to the tracking

system.

The Department of Defense believes

the following information about each

range is the minimum necessary to

include in this tracking system:

(1) A unique identifier for the range.

(2) The common name for the range.

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

transferring, transferred).

(4) The name, address, and telephone

number of a POC at the Department of

Defense or Military Service organization

with responsibility for implementing

the range rule at that range.

(5) The States and counties (including

independent cities and towns) in which

the range lies.

(6) A representation or description of

the range showing its location,

boundaries, and areal extent.

(7) The general type(s) of military

munitions used on the range (e.g.,

artillery, small arms, naval gunnery).

(8) A list of parties other than the

Department of Defense or a military

department with ownership interest in

or governmental administrative control

of the land or its resources.

The Department of Defense requests

comments on these basic information

requirements, specifically with respect

to recommendations for additional

information to include in the

centralized tracking system. In addition,

the Department of Defense requests

recommendations on other mechanisms

for making this information accessible

to the public. The Department of

Defense plans to update the tracking

system, including the priority assigned

to each range, at least once per year to

indicate which military ranges have

entered the RA/AR phase and which

ranges have been identified for entering

the RA/AR next.

b. Notices in official land records:

This proposal makes use of current DoD

recordkeeping practices. For example,

permanent records are required for each

range area. These records indicate

known and suspected range areas, and

identify military munitions used, their

hazard, quantity, locations, and UXO

rates. Another example is that transfer

records are required to detail past

ammunition and explosives use,

provide information on other

constituents present, and advise the

user not to excavate or drill in range

areas without a metal detection survey.

This information is required to be

entered in the permanent land records

of the civil jurisdiction in which the

property is located. To the extent to

which any of these records are available

for closed, transferred, or transferring

ranges, they will be used in the range

identification process.

Following identification and

collection of sufficient information

about the location and boundaries of a

range identified under these provisions,

the Department of Defense will examine

the appropriate land records. A formal

notice in the official local land record

for that range should include, at a

minimum:

(1) The proper legal description of the

land that was or may have been used as

a military range, including the unique
50812 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

identifier and common name assigned

to that range.

(2) A statement that the land may

have been a military range.

(3) A summary description of the

hazards commonly encountered at

military ranges (e.g., UXO).

(4) The DoD component to contact for

additional information about that range.

Upon analysis of additional

information and the implementation of

accelerated or site-specific responses,

the Department of Defense will update

this notice to reflect the current

conditions at the range.

c. Supply of information to Federal

mapping agencies and State and tribal

geographic information systems (GIS):

The Department of Defense also plans to

provide certain information on the

ranges identified under these

requirements to those Federal, State,

and Native American tribal agencies

charged with the development and

distribution of official maps and charts.

The Department of Defense will

recommend that these agencies include

in updates to these maps and charts a

means of delineating these areas, as well

as several pertinent pieces of

information. This information includes

the unique identifier for each range, the

name of the DoD organization with

responsibility for implementing these

provisions on that range, and a brief

statement of the potential hazards

associated with entry into these areas. In

addition, the Department of Defense

requests comments as to whether this

information would be useful to local

governmental entities with mapping or

zoning responsibilities or to private

firms that prepare and print maps for

public distribution. If the commentor

believes this to be the case, the

Department of Defense requests the

commentor’s recommendations on

means to provide that information to

those entities.

d. Prioritization for range assessment/

accelerated response: While the

Department of Defense believes that,

immediately following their

identification, all ranges should enter

the RA/AR phase of the range response

process, current fiscal realities show a

need for a system to determine the order

in which ranges enter the RA/AR phase.

Of the various approaches available, the

Department of Defense believes that one

consideration for ranking these ranges

for entry into the RA/AR phase is the

degree to which the Department of

Defense or a Military Service can

control access to the area, since this is

one simple yet effective means of

managing the potential risk posed by the

range. Access control sets forth a basis

for prioritization, but other

environmental factors will be

considered, such as imminent hazards,

and the likelihood of release migration

within 1 year.

Based on the consideration of access

controls and risk management, the first

group of ranges that would be addressed

are those already transferred from DoD

control, because the Department of

Defense has the least ability to exercise

control over those areas. The second

group would be the ranges planned or

scheduled for transfer from DoD control;

these ranges are still subject to DoD

control, but failure to transfer the range

in a timely manner can impact other

activities, for example a land transfer

under BRAC Act provisions. The final

group will be those ranges that, while

closed, are still under DoD control. The

Department of Defense recognizes,

however, that other factors may

influence the need to conduct a

response action. Therefore, in

determining which ranges will enter

into the RA/AR phase, the Department

of Defense will consider factors relating

to safety and environmental hazard

potential, such as:

(1) Whether a site access can be

controlled and the population is at risk.

(2) The potential for direct human

contact and evidence of people entering

into the range area.

(3) Whether a response action has

been or is being taken at that range

under the FUDS program or other

environmental restoration programs.

(4) Planned or mandated dates for

transfer of the range from DoD control.

(5) Documented incidents involving

UXO or off-range releases of other

constituents from the range.

(6) The potential for drinking water

contamination.

(7) The potential for destruction of

sensitive ecosystems.

(8) The potential for damages to

natural resources.

(9) The potential for releases to the

air.

(10) The degree of public interest in

the range.

(11) The degree of Federal land

manager interest in the range.

(12) The degree of state or Federal

regulator or American Indian tribe

interest in the range.

The priority assigned to each range is

another element the Department of

Defense plans to include in the tracking

system. The Department of Defense

plans to update the tracking system,

including the priority assigned to each

range, at least once per year to indicate

which military ranges have entered the

RA/AR phase and which ranges have

been identified for entering the RA/AR

next. The Department of Defense solicits

comments on this approach to

prioritizing military ranges, with

specific emphasis on other factors to

consider when assigning a priority

ranking to a given range.

e. Public and government agency

involvement: One of the basic

requirements the Department of Defense

established when developing this

proposal was the commitment to

involving the public and government

agencies in each phase of the range

response process. The responsible DoD

component will work with the

community to provide information

concerning response activities, respond

to inquiries, and provide information

concerning the conditions at the range.

The responsible DoD component will

notify, at a minimum, immediately

affected citizens, State and local

officials, and, when appropriate, civil

defense or emergency management

agencies. During the identification

phase, one of the primary goals is to

ensure public access to information on

each range subject to these

requirements. The Department of

Defense does, however, recognize an

additional opportunity for public and

government agency involvement during

this phase. The Department of Defense

proposes allowing public and

government agency submission of

documents identifying the location of

closed, transferred, or transferring

ranges. Upon verification of the

accuracy of such submissions, the

Department of Defense would enter that

range into the tracking system of ranges

subject to these provisions.

The Department of Defense solicits

comments on additional mechanisms to

involve the public and government

agencies in the identification process

and means to provide access to

information about ranges identified

subject to these requirements.

2. Range Assessment/Accelerated

Responses

One goal of the RA/AR is to determine

the condition of the property. Another

goal of the RA/AR phase is finding ways

to accelerate the response process by

delineating areas within the range

where response activities are necessary

and by limiting the effort spent

collecting data to only the level

necessary to address the uncertainties

that accompany prompt action. The

Department of Defense intends that the

RA/AR phase use readily available

information to determine if additional

investigation or implementation of an

AR is warranted, based on range

conditions. Therefore, the RA/AR phase

is dependent on: (1) Identification of the

types and sufficiency of data needed for
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50813

an informed risk management decision;

(2) the ability to implement ARs when

appropriate; and (3) analysis of

information to know when (a) enough

information either has been or cannot be

gathered to make an informed risk

management decision, and (b) when an

identified risk can or cannot be

addressed by an AR. The Department of

Defense will be issuing detailed

guidance on how to conduct the RA/AR

phase and believes that it will be

possible to develop standardized

procedures and reporting requirements

for RA/AR activities.

For clarity, the following discussion

presents the RA and AR separately.

However, the Department of Defense

intends for them to be concurrent,

interrelated activities.

a. Range assessment: The RA is a

limited-scope investigation designed to

distinguish between ranges, and areas

within ranges, posing little or no safety,

human health, or environmental risks

and ranges, or areas within ranges, that

do pose such risks. Ranges that pose a

risk warrant further investigation or

implementation of an AR. The

Department of Defense intends that the

initial effort in an RA be a compilation

and analysis of existing information

about the range and its surroundings,

similar to the CERCLA preliminary

assessment or a RCRA facility

assessment. The RA emphasizes

collection of available information

through a combination of file searches

and ‘‘desktop’’ information collection

and analysis. If, based on analysis of the

existing information about the range,

collection of additional information is

believed necessary to better delineate

the range or areas within the range

where response activities are warranted,

then visual inspection of the range or

sampling of environmental media may

be undertaken to provide an improved

understanding of the conditions at the

range. The Department of Defense will

be issuing guidance on the specific

requirements and procedures for

conducting an RA.

(1) Scope of the range assessment. The

Department of Defense envisions

implementing the RA by conducting

several levels of information collection

and assessment. The first level of the RA

is to determine if the range is subject to

these requirements and if there is

readily available information suggesting

that the range poses a hazard. This

usually can be done by reviewing the

official records of the installation, local

records, or other references. Such

documents are often the primary source

of information on range locations and

operations conducted at those ranges.

If in fact the area was or is a military

range subject to these provisions, the

next phase of the RA is collection of

information on the types and quantities

of military munitions employed at the

range. At a minimum the Department of

Defense sees a need for the following

types of information:

(1) The type(s) of military munitions

employed on the range.

(2) The estimated quantity of military

munitions employed.

(3) Time frames during which the

military munitions were employed on

the range.

(4) The chemical constituents of those

munitions.

(5) The fuze types used on these

military munitions.

(6) Identification of locations within

the range where these military

munitions are known or suspected to

have been employed.

(7) The estimated density of UXO in

those locations.

(8) The estimated depth of the

munitions (based on penetration data).

(9) Information on range clearance

operations or reported incidents

involving UXO on the range.

(10) Safety issues related to military

munitions employed on the range.

(11) The type(s) of any targets that

may have been used on the range.

(12) Other past and present uses of the

range.

This information feeds into the

assessment of the risks posed by the

military munitions and UXO potentially

found on the range.

One of the critical early efforts during

the RA is the identification and

delineation of areas within a range that

pose varying explosives safety hazards

and environmental threats. Delineation

procedures will adequately define

different types of range areas.

Delineation of range areas would likely

include, but not necessarily be limited

to: Impact areas; buffer zones; firing

areas; maneuver areas; military

munition stockpile areas; open burning/

open detonation areas; disposal areas;

and any other areas of concern

(including off-range areas where

constituents may have migrated from

on-range sources). Environmental

threats can include, but are not limited

to, chronic, mutagenic, or teratogenic

effects.

A goal of this effort will be to identify

areas with a higher explosives safety

risk from those areas that are either

unaffected or minimally affected. Once

delineated, a range area would proceed

through the five-phase process

independently of other areas. For

example, an impact area with a high

explosives safety risk that is confirmed

to be too dangerous to assess or

remediate would proceed on a distinctly

different path through the five-phase

process than would an adjacent buffer

zone that was confirmed to have a lower

explosives safety risk but has significant

quantities of other constituents. The

buffer zone and other site areas that fit

into this category would, as a group,

proceed to the RE/SSRE phase, where

focused characterization and response

activities ultimately would take place.

Another goal of range delineation

during the RA will be to assess what

ARs can be implemented at areas

geographically outside ranges with a

high explosives safety risk, but where

constituent levels from employed

munitions or other constituents are

significant. It is likely that all ranges

will include areas with a lower

explosives safety risk, where

characterization and possible response

efforts may be feasible in order to

provide for incremental risk reduction.

This will serve to specifically address

releases from other constituents.

If the Department of Defense, in

consultation with the RAB and/or EPT,

determines that any of the following

conditions exist, the affected portion(s)

of the range should proceed without

delay to the RE phase. These conditions

are (1) that the range presents issues that

are too complex to be addressed in the

RA; (2) that all or part of the range poses

an imminent threat to human health or

the environment which cannot be

mitigated effectively through an AR; or

(3) that an AR had been implemented

but substantial environmental threats

remain.

To address the risks posed by other

constituents, including CERCLA

hazardous substances, known or

suspected to be present on the range, the

Department of Defense will use existing

information on the constituents

identified during the assessment of the

military munitions employed on the

range and any other potential

constituents identified from other

activities on the range. The goal of this

aspect of the RA is to develop an initial

‘‘target’’ list of constituents and to

suggest locations for sampling for use in

later phases in which environmental

samples may be collected and analyzed;

to identify the corresponding ARARs;

and to address the ability of that RA to

meet the ARAR requirements and

protect human health and the

environment. This assessment also will

collect readily available existing

information on the identity,

concentration, and characteristics (e.g.,

toxicological, fate and transport) of the

identified constituents. This

information feeds into the initial
50814 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

assessment of the risk posed by other

constituents at the range.

The RA also will require collection of

existing data on the environmental

setting of the range, the location and

identity of receptors potentially

impacted by the range, and specific

routes of exposure of concern.

Specifically, the RA involves collection

of existing information on such factors

as:

(1) Local hydrologic and

hydrogeologic conditions (which

includes groundwater).

(2) Soils and geology.

(3) Terrain.

(4) Climate and meteorological data.

(5) Vegetation.

(6) Current and predicted land use.

(7) Cultural resources.

(8) Receptors (i.e., humans, ecological

receptors).

(9) Exposure pathways of concern

(e.g., direct contact, inhalation,

ingestion, or exposure to radionuclides).

The Department of Defense believes

that a significant portion of the

information needed to address these

factors is available from existing sources

such as topographic maps, aerial

photographs, on-line databases, and

published studies.

The preliminary phases of the RA,

which depend primarily on existing

information, can suggest that a visual

inspection of the range or limited-scale

sampling of environmental media is

necessary to develop a more complete

understanding of the conditions at the

range or to better delineate areas

requiring response activities. In either

case, entry onto the range requires the

development of an explosives safety

plan and submittal of the plan to DDESB

for coordination. If the information

suggests a need for sampling of

environmental media, the DoD

organization conducting the response

should develop a work plan describing

the objectives and plan for conducting

the sampling, including the standard

operating procedures (SOPs) to be used

for the range response. Typically, the

plan for sampling and analysis of

environmental media will use a format

similar to the one used when

conducting these activities under a

CERCLA response or RCRA corrective

action.

Once collected, the information on

the military munitions employed at the

range, the other constituents believed

present, and the environmental setting

of the range serves the following

purposes:

(1) Identification of any actual or

potential threats posed by the site (e.g.,

reported incidents involving UXO,

documented releases of other

constituents from the range).

(2) Initial assessment of the identified

risks posed by the military munitions

and other constituents on the range,

with a qualitative identification of the

source-pathway-receptor chain and

UXO density potential.

(3) Focus of follow-on studies or

monitoring.

(4) Assessment of the need to

implement ARs.

(2) Accelerated responses. An AR is

any readily available, proven method of

addressing the identified risks posed by

military munitions or other constituents

at ranges subject to these requirements.

Some examples of ARs include:

(1) Posting signs warning of the

danger associated with range.

(2) Erecting fences or other measures

to control access.

(3) Implementing simple erosion

controls (e.g., silt fences).

(4) Suspending incompatible land

uses (where the Department of Defense

can do so).

(5) Implementing community

education and awareness programs.

(6) Requiring ‘‘dig permits’’ at areas

where the Department of Defense has

control over site activities.

(7) Conducting source removals or

surface sweeps for UXO.

(8) Implementing deed restrictions.

(9) Implementing a monitoring

program (for example, to assess if

constituents are migrating off the range

in stormwater runoff or percolating into

groundwater).

(10) Providing alternative sources of

drinking water.

(11) Performing other effective

engineering, institutional, or exposure

controls.

This is by no means a complete listing

of the types of ARs available to address

the identified risks posed by ranges. The

Department of Defense plans to develop

detailed guidance on ARs in the near

term which will be not inconsistent

with CERCLA.

The Department of Defense sees merit

in using the same criteria for evaluating

AR alternatives and for evaluating more

complex and tailored site-specific

responses. A later section of this

proposal provides a detailed discussion

of these criteria. The primary

differences are in the scope of the

evaluation of alternatives, and that the

AR analyses rely on qualitative rather

than quantitative information. In these

ways, the AR process is similar to the

process identified in the NCP for nontime-critical removal actions (at least 6

months’ planning time) and time-critical

removal actions (less than 6 months’

planning time). For example, the

process for selecting an AR is similar to

the engineering evaluation/cost analysis

performed as part of non-time-critical

removal actions identified in the NCP.

In general, using the data collected

during the RA, this process will be a

qualitative evaluation of the sourcepathway-receptor link that creates the

risk. These data will be analyzed to

determine which AR options would

most effectively sever that link or

reduce its impacts.

(3) Public and government agency

involvement. Before beginning the RA/

AR phase, the DoD organization

responsible for that range will send a

written notice to the appropriate

Federal, State, and local officials and

American Indian tribes informing them

that these activities will be starting. This

notice will also request that these

officials name a POC within their

organization and identify that POC to

the project team.

Throughout the RA/AR phase, the

public, government agencies, and

American Indian tribes will have access

to validated information about range

conditions, the potential hazards posed

by the site, and any ARs undertaken to

address those hazards. In addition, the

public will have access to RA/AR

reports and decision documents.

Usually, access to this information is

through the information repository;

however, unresolved questions or

concerns can be taken to the DoD POC

or to the EPT, if one exists. Other

venues for information exchange are the

RAB (if one exists), and/or informal

meetings with community leaders or

other government officials.

For all ARs where implementation of

an on-site action is expected to take

more than 120 days to complete, within

that period the responsible DoD

component will conduct interviews

with local officials, community

residents, public interest groups, or

other interested or affected parties, as

appropriate, to solicit their concerns,

information needs, and how or when

citizens would like to be involved in the

range response process. The Department

of Defense also will prepare a formal PIP

based on community interviews or other

relevant information, specifying the

public involvement activities that are

needed during the response.

Before undertaking an AR, the DoD

organization responsible for the

activities at that range will formally

document its decision. This document

will briefly summarize conditions at the

range, explain the hazards the AR was

to address, and provide other useful and

relevant information.

Except where an emergency response

is required to address an imminent
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50815

threat to human health or the

environment, the public, regulators,

American Indian tribes, and (where

appropriate) Federal land managers will

be provided a reasonable opportunity to

comment on proposed RA/AR actions,

based on information included in the

RA/AR report. This report will be

subject to a 45-day review and comment

period prior to implementation of the

AR. If requested, the Department of

Defense also will hold a public

availability session. If the physical

construction associated with an AR,

including implementation of site access

control measures, is reasonably

expected to be completed within 120

days of the commencement of the AR

(i.e., completion of the RA), the

opportunity for review and comment

may be provided during or when the AR

has been implemented. While an AR

might be fully protective, the majority of

ARs will be interim responses by nature,

particularly those for which the

physical construction is reasonably

expected to be completed within 120

days of commencement. In cases where

an AR is expected to be fully protective

and to make a site-specific response

unnecessary, public participation

through review and comment on the RA

prior to implementation of the AR

should be afforded, even when the AR

can be implemented within 120 days.

3. Evaluation of Range Assessment/

Accelerated Response Results

As discussed in Section IV.E.2 of this

preamble; one goal of the RA/AR

process is to couple existing information

with a limited gathering of additional

information to make informed risk

management decisions at the range. If

the range poses a hazard, ARs, as

appropriate, can be taken to address that

hazard. This process continues until

enough information is available to make

an informed risk management decision

(or, alternatively, the effort necessary to

collect that information is beyond the

scope of the RA); and all identified

hazards have been addressed through

implementation of an AR (or a

determination has been made that ARs

are unable to address the identified

hazards).

Once at this point, the DoD

organization conducting activities at the

site may implement a time-critical AR

or will make the RA/AR report available

for comment and will then issue a

decision document for the proposed

action. The RA/AR report will

document the findings of all assessment

activities and the reasons for and

effectiveness of each AR at the range.

The RA/AR report will also make one of

the following recommendations:

(1) Issue a determination of no further

action (typically where the area was not

a range or there is no appreciable risk

associated with the range).

(2) Conduct recurring reviews because

all identified risks have been effectively

managed and are expected to remain

effectively managed in the long-term.

(3) Conduct an RE because of a need

for additional information to make an

informed risk management decision or

in anticipation of a site-specific

response to address the remaining

hazards.

(4) Issue a TI determination because,

while a risk remains, there are no

alternatives available capable of

addressing the identified risk. For

example, a TI determination would be

appropriate at a naval gunnery range

located in deep water (i.e., over 300 feet

deep), where existing technology is not

available to effectively implement a

response. Another example would be an

artillery range with a large number of

UXO located in a small area of rugged

terrain where manual clearance is

required. Due to the density of the UXO,

entry into the area may be too hazardous

to undertake; clearance of one UXO by

detonation may lead to sympathetic

detonation of nearby rounds, due to the

proximity of the UXO item to other

UXO items. This situation would

present an unacceptable explosives

safety risk, in that the sympathetically

detonated round may undergo a loworder detonation, scattering

unconsumed explosives over a wide

area, worsening the problem. In a case

such as this, not directly addressing the

UXO while implementing other types of

control measures may be the most

appropriate response action. Typically,

recommendations for other appropriate

control measures and recurring reviews

will be a part of a recommendation for

the TI determination.

Once the draft RA/AR report is

complete, the Department of Defense

will include it in the administrative

record and make it publicly accessible

at the information repository. The

Department of Defense also will publish

a notice of availability of the draft RA/

AR report and brief description of the

action being proposed in the report in

a major local newspaper of general

circulation and announce a 45-day

period for submission of written

comments to the DoD POC for that

range. If requested, the Department of

Defense will hold a public meeting or

availability session. Following the

comment period, the Department of

Defense will develop written responses

to significant comments received during

the comment period, consider any

issues brought out by these comments,

and prepare a formal decision document

outlining which recommendation will

be adopted. A copy of the decision

document and all supporting

information will become a part of the

administrative record for the military

range, and the Department of Defense

will mail a copy of the decision

document to all appropriate government

agencies and the current property

owner.

4. Range Evaluation

REs are detailed investigations of the

military munitions employed on the

military range, the other constituents

believed or known to be present, and

the environmental setting. Generally, an

RE will be performed when making an

informed risk management decision

requires the collection and analysis of a

significant quantity of quantitative

information not otherwise available.

This information collection often is a

complex, long-term effort (e.g.,

groundwater monitoring) that demands

careful planning before its execution.

This phase includes evaluation of site

safety, and potential human health and

ecological impacts. RE examples

include, but are not limited to:

(1) Military ranges where chemical

munitions were employed and where

the RA/AR process shows a potential

exposure from a chemical agent release.

(2) Military ranges where land use or

the degree of public access is

incompatible with the condition of the

range following the RA/AR process.

(3) Military ranges with a reasonable

potential for contamination of surface

water or groundwater that is in excess

of applicable standards and which is a

potential source of drinking water.

a. Scope of a range evaluation: The

types of information collected during

the RE are similar to those collected

during the RA/AR phase and serve the

same purposes; however, the

information collected is far more

specific and typically quantitative in

nature. For example, while the RA/AR

phase sought information on the type(s)

of military munitions employed on the

range, an RE might seek to determine

the specific military munitions

employed. Similarly, where the RA/AR

used estimates of various values such as

the quantity of military munitions

employed on the range and the density

(i.e., distribution) of UXO, the RE uses

a combination of detailed ‘‘desktop’’

evaluations and field sampling to refine

the estimates.

The first step in conducting the RE is

reviewing the available information to

focus the RE. The Department of

Defense intends all REs to be focused

studies, tailored to answering specific
50816 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

questions. Conducting such a focused

study requires defining:

(1) The objective of the information

collection effort (i.e., what question is to

be answered).

(2) The boundaries of the information

collection effort.

(3) The role of the data in supporting

risk management decisions.

(4) The specific type, quantity, and

quality of information to collect to meet

the objective.

(5) The acceptable level of uncertainty

(in terms of the accuracy) of the

information.

For example, to assess the risk posed

by the other constituents known or

suspected to be present on the range, the

Department of Defense will use existing

information on the other constituents

identified during the RA, as well as any

other readily available sources. This

review will provide the basis for

developing a ‘‘target’’ list of potential

constituents. This approach also will

focus the collected information on the

health and environmental

characteristics of the constituents that

may be present on the range. Similarly,

it is possible to focus collection of

information on the environmental

setting. If, for example, the range is in

an area where, due to an extremely high

concentration of total dissolved solids,

the groundwater is not useful for

drinking or agriculture, it may be

appropriate to limit assessment of

potential groundwater impacts.

b. The range evaluation plan: The

Department of Defense intends this

focusing effort to lead to the

development of a single, concise

document, the RE plan. The RE plan

will provide all necessary information

about the objectives established for the

RE, the rationale for those objectives,

and how those objectives will be

achieved. For example, this document

would explain the focus of the RE,

define the objective(s), boundaries, data

uses, sampling and analysis protocols,

safety, and data analysis procedures

required to complete the RE. The

Department of Defense will issue

detailed guidance on how to conduct an

RE, and believes that it will be possible

to develop a standard RE plan that, with

minor modifications, can be adopted for

use at the majority of these ranges. The

DoD organizations conducting the RE

will make this document a part of the

administrative record and will publish a

notice of availability in a local

newspaper. The notice will summarize

the purpose of the document and inform

the public how to gain access to the RE

plan. At a minimum, the RE plan will

be made available at the information

repository.

c. The range risk assessment: The

collection and analysis of additional

information about conditions at the

range lead to the primary purpose of the

RE, a detailed, quantitative assessment

of the risks posed by the military

munitions and other constituents at the

range. The level of risk posed by the site

is one element in making an informed

risk management decision about the

need for a site-specific response.

In general terms, the military range

risk assessment model/protocol the

Department of Defense plans to develop

requires similar types of information for

military munitions and other

constituents. These information

requirements include:

(1) Identification of the source of the

risk (e.g., identification of the specific

military munitions or other

constituents).

(2) Identification of receptors,

pathways, and potential for exposure.

(3) Identification of the effects of

exposure (e.g., the types of injuries that

accidental explosion of military

munitions can cause; the acute, chronic,

and carcinogenic effects of exposure to

other constituents).

While the explosives safety and other

constituent risk assessments generally

require similar types of information, the

specific information requirements are

different and reflect the basic

differences between explosives safety

risks and constituent releases. For

example, injury from the detonation of

conventional military munitions

requires either direct or indirect

exposure to the energy (as pressure or

heat) released by the explosion, or to

energy imparted to materials by the

explosion (e.g., shrapnel); generally, the

injury is due to physical trauma. In

contrast, exposure to other constituents

usually involves entry into the receptor

by ingestion, inhalation, or dermal

absorption, and the effects are due

primarily to disruption of physical

functions in the receptor. Therefore, the

specific information required to assess

the effects of exposure will be different.

Currently, the risk assessment models

used for military munitions and UXO do

not adequately address the potential

risks associated with constituent

exposure. Likewise, the risk assessment

models for constituent exposure do not

address the effects of explosions or

other injuries caused by military

munitions. For these reasons, the

Department of Defense will be

developing, in consultation with and

with the assistance of EPA, a risk

assessment model or protocol to use at

military ranges. This risk assessment

model or protocol will provide an

assessment of risks posed by military

munitions and UXO at the range, as well

as the human health and environmental

risks posed by the constituents to: (1)

Provide an estimate of the risks posed

by military range conditions; and (2) to

serve as a tool for assessing (a) the

effectiveness of a given response at

addressing those risks and (b) the

potential consequences (either positive

or negative) of implementing a response

targeted at addressing a specific risk.

The Department of Defense, in

conjunction with EPA, will seek Federal

land manager, State, American Indian

tribe, and public input during the

development of the risk assessment

model or protocol. Because of the

importance of this model/protocol, an

interim version is to be developed and

made publicly available prior to the

promulgation of the final rule. A final

version will be developed and made

publicly available no later than 1 year

after the final rule is promulgated.

It is equally important to note that,

since the explosives safety element of

the overall range RA examines the

identified risks posed by military

munitions and UXO on the range, an

evaluation of these risks must be

conducted concurrently with the

development of the RE plan, especially

if on-range data collection is

contemplated. Even if very limited

information on potential explosives

safety hazards exists, any such

information is critical to assessing the

practicality of on-range actions and to

developing the explosives safety plan

(which must be submitted to DDESB for

approval before commencing any onrange activity). Like the explosives

safety risk assessment, the constituent

risk assessment examines the risks

posed by constituents known or

suspected of being present on the range.

The preliminary phases of this

assessment also will need to be

conducted concurrently with the

development of the RE plan, since the

information requirements for the

constituent risk assessment are critical

to focusing investigative efforts.

Furthermore, available data on the

constituents known to be or suspected

of being on the range are critical to

developing a health and safety plan for

on-site workers.

d. Public and government agency

involvement: During the RE, the public,

government agencies, and American

Indian tribes have access to validated

information about range conditions and

the potential hazards posed by the site.

In addition, the public will have access

to the final RE report and any related

decision documents. As with the RA/

AR, access to this information is

through the information repository, the
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50817

DoD POC, the EPT (if one exists), the

RAB (if one exists), and formal or

informal meetings. Furthermore, before

beginning the RE, the DoD component

responsible for that range will send a

written notice to appropriate Federal,

State, and local officials informing them

that these activities will be starting.

If a formal RE report is prepared, then

a 45-day public comment period on the

report will occur, as well as a public

availability session if requested. If the

recommendation is to proceed directly

to the SSRE, however, a letter report

will summarize the RE findings and the

public comment period will occur on

the SSRE report. Following the public

comment period, the Department of

Defense will develop written responses

to significant comments received during

the comment period and consider any

issues brought out by these comments.

A copy of the draft decision document

will be provided to the appropriate

Federal or State agency, American

Indian tribe, and Federal land manager

for concurrence.

5. Range Evaluation Findings

The goal of an RE is to couple existing

information with focused information

collection to assess the risk posed by the

military munitions and other

constituents on the military range. This

information is necessary to make

informed risk management decisions.

Once the objectives set for the RE are

reached, the findings and conclusions

will be presented in a formal RE report.

Depending on the scope and findings of

the RE, the RE report also will make one

of the following recommendations:

(1) Conduct recurring reviews because

the quantitative analyses demonstrated

that all identified risks are effectively

managed and will remain effectively

managed over the long term.

(2) Issue a TI determination because,

while a risk remains, there are no

available alternatives capable of

addressing the risk. Typically,

recommendations for other appropriate

control measures and recurring reviews

will be a part of a recommendation for

a TI determination.

If the findings of the RE demonstrate

a need for a site-specific response to

address remaining risks, the Department

of Defense may prepare a letter report

instead of an RE report and proceed

directly to the SSRE. If a letter report is

prepared, then the DoD organization

conducting the response must prepare a

formal decision document that

summarizes the findings of the RE,

identifies the hazards requiring a sitespecific response, and describes the

anticipated scope and starting of the

SSRE. This decision document will be

made available to the public, and

concurrence will be sought from

appropriate Federal, State, and

American Indian tribal officials.

If, however, the responsible DoD

component recommends either

proceeding to the recurring review

process or issuing a TI determination,

the responsible DoD component will

prepare a formal RE report, publish a

notice of availability and a brief

description of the RE report in a major

local newspaper of general circulation,

and announce a 45-day period for

submission of written comments to the

DoD POC for that military range. If

requested, the Department of Defense

also will hold a public meeting or

availability session. Following the

comment period, the Department of

Defense will develop written responses

to significant comments received during

the comment period, consider any

issues brought out by these comments,

and prepare a formal decision document

on which recommendation will be

adopted. A copy of the decision

document and all supporting

information will become part of the

administrative record for the range, and

a copy of the decision document will be

mailed to appropriate government

agencies and the current property

owner.

6. Site-Specific Response Evaluation

An SSRE examines various response

alternatives that address risks posed by

the range which have not been or cannot

be effectively addressed by ARs. The

SSRE process is similar to the feasibility

study under CERCLA; however, there is

one very important distinction:

explosives safety is a frequent

overriding concern. If a given response

alternative cannot minimize explosives

safety risks, then it will be dropped

from consideration. EPA stated in the

preamble to the final NCP that shortterm effectiveness:

* * * will consider who may be exposed

during the remedial action, what risks those

populations may face, how those risks can be

mitigated, and what risks cannot be readily

controlled. Workers are included in the

population that may be affected by short-term

exposures. (55 FR 8722, March 8, 1990)

Furthermore, the NCP explains that

the threshold assessment of overall

protection ‘‘draws on the assessments of

other evaluation criteria,’’ which

specifically includes the short-term

effectiveness (40 CFR

300.430(d)(iii)(A)). Hence, in the

remedy selection process, worker safety

is not only considered when

determining the short-term effectiveness

of a remedy, but is also an integral part

of the analysis in determining whether

a remedial alternative meets the

threshold requirement of overall

protectiveness. As EPA stated in

response to comments on the proposed

NCP:

EPA agrees that unacceptable short-term

impacts can cause an alternative to be

considered non-protective of human health

and the environment and can remove that

alternative from consideration as a viable

option. (55 FR 8725, March 8, 1990)

EPA adopted a similar approach, in

which one factor carries more weight

than others, in developing the

evaluation process under the NCP (40

CFR 300). Under the NCP, EPA

considers overall protection of human

health and the environment and

compliance with ARARs as ‘‘threshold

criteria’’ that each alternative must meet

to be eligible for further consideration.

The Department of Defense intends to

identify and address ARARs exactly as

prescribed under CERCLA and in the

NCP. In the event that the Department

of Defense wishes to waive an ARAR, it

will justify the waiver under the criteria

and processes stipulated under CERCLA

and in the NCP. The Department of

Defense will provide a written

description of the ARAR to be waived;

the waiver type to be invoked; and the

justification for invoking the waiver.

The Department of Defense will provide

regulators with the opportunity to

review and concur on ARAR waivers, as

appropriate. The provisions of CERCLA

Section 121(f)(2)(B), concerning a State’s

ability to challenge ARAR waivers,

remains unaffected by this range rule.

a. The Department of Defense

screening process: The NCP allows use

of a screening process to reduce the

number of alternatives to be considered

in detail if a wide array of alternatives

initially is developed. The screening

process involves three evaluative

criteria: (1) Long- and short-term

effectiveness; (2) long- and short-term

implementability; and (3) long- and

short-term cost-effectiveness.

Effectiveness of alternatives refers to

their overall performance in

eliminating, reducing, or controlling

current and potential health risks, both

during planning and implementation.

Short-term effectiveness includes

consideration of risks to workers who

are involved in conducting the

response. EPA guidance allows, at the

screening process, elimination of

alternatives that are clearly

unacceptable in terms of short- and

long-term human health risks. EPA

guidance further provides that this

evaluation is based primarily on many

simplifying assumptions and on

professional judgment at the screening
50818 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

10 In August 1996, the Department of Defense

established a UXO Technology Executive

Committee that will centralize the efforts on

research, development, and management of

technology for UXO detection, neutralization, and

remediation.

stage and is intended to identify

alternatives with clearly unacceptable

short-term risks. At DoD range sites

covered by the proposed rule, the

Department of Defense anticipates that

the explosive risks posed by military

munitions to response personnel will

warrant screening out response

alternatives that might otherwise be

considered at typical CERCLA sites. If a

given response alternative cannot

provide adequate explosives safety, this

will result in its elimination from

consideration. If however, none of the

on-range response alternatives

identified provide for adequate

explosives safety for workers involved

in the response, the Department of

Defense must consider other alternatives

that will prevent the situation from

worsening, or that will prevent or

control releases of UXO or other

constituents from the range, or prevent

community exposure.

b. Scope of the site-specific response

evaluation:As with REs, the Department

of Defense intends that the SSRE be a

highly focused investigation of response

alternatives to address a specific risk.

Where similar risks were successfully

addressed at other ranges, the SSRE

should focus on only those alternatives,

rather than on conducting research and

development of alternative

technologies. 10 In recent years, EPA has

adopted a similar philosophy and now

advocates examination of ‘‘presumptive

remedies.’’ Presumptive remedies are

preferred technologies for common

categories of sites, based on historical

patterns of remedy selection, and

scientific and engineering evaluation of

performance. Focusing on developing

standardized approaches for addressing

the identified risks posed by a military

range would allow streamlining of the

process, provide consistent resolutions

when dealing with recurring problems,

and usually result in significant savings.

c. The site-specific response

evaluation plan: The Department of

Defense intends this focusing effort to

lead to the development of an SSRE

plan. The SSRE plan will be a single,

concise document that provides all

necessary information about the

objectives established for the SSRE, the

rationale for those objectives, and how

those objectives will be achieved. As

necessary, the document will detail

sampling and analysis protocols, safety

requirements, data analysis procedures,

or treatability studies required to

complete the SSRE. The SSRE plan will

be part of the administrative record, and

the Department of Defense will publish

a notice of its availability in a local

newspaper. The notice will summarize

the purpose of the document and inform

the public how to gain access to it. The

Department of Defense will be issuing

detailed guidance on how to conduct an

SSRE and how to effectively convey the

information in the SSRE plan to the

general public.

(1) Conducting the site-specific

response evaluation. Once the SSRE

plan is complete, the first step in

conducting an SSRE is to identify a

preliminary list of objectives for the

response. These preliminary objectives

will depend on the various site-specific

factors such as the type of problems to

be addressed, environmental setting,

and subsequent land use. The second

step is to identify general classes of

response actions that meet or exceed the

preliminary objectives identified for the

response. The third step is to determine

or estimate the scope of the response

using an appropriate unit of measure.

This can be, for example, the quantity

of military munitions or media present

or the size of the range. This

determination allows elimination from

further consideration of remedial

alternatives that are incapable of

treating the necessary quantity of

military munitions or contaminated

material in a reasonable time frame. The

fourth step is to identify and screen

specific technologies and, within a class

of technologies, options for the actual

treatment process. The fifth step is

detailed evaluation of the effectiveness

of the remaining options. The sixth and

final step is to identify the alternatives

or combinations of alternatives for a

more detailed evaluation.

Any alternative that remains under

consideration after the final step may

require individual treatability studies, if

such studies are needed, to provide

sufficient data to: fully assess the

alternative’s suitability; support its

design and implementation (if selected);

or refine cost estimates and reduce

performance uncertainties. Treatability

studies are not required for all

alternatives; if enough information

exists to allow an accurate evaluation of

each remedial alternative without

conducting treatability studies, the

Department of Defense will weigh the

cost and time of conducting such a

study against the potential benefits.

The detailed analysis of range

response alternatives consists of

examining each alternative against the

following nine criteria, which are used

by EPA in evaluating CERCLA remedial

alternatives. A comparative analysis of

the proposed alternative to each of the

other alternatives is then performed. In

developing these criteria, the

Department of Defense adopted the

basic concepts embodied in the nine

evaluation criteria used to assess

remedial alternatives under the NCP.

(1) Overall protection of human

health and the environment (including

explosives safety and natural resources).

(2) Compliance with ARARs

established under Federal and State law.

(3) Long-term effectiveness and

permanence.

(4) Reduction in toxicity, mobility,

quantity, or volume.

(5) Short-term effectiveness.

(6) Implementability.

(7) Cost.

(8) Acceptability to appropriate

Federal and State officials.

(9) Community (including property

owner) acceptance.

Explosives safety and protection of

human health, including risks posed to

response personnel, are of paramount

concern. Under EPA guidance, the

detailed evaluation of responses

resulting from each alternative must

consider short-term risks. EPA considers

the short-term risk to response

personnel in evaluating whether a

proposed remedial alternative meets the

threshold criterion of overall protection

of human health and the environment.

The Department of Defense expects that

explosives safety and risk to response

personnel will be recurring issues and

overriding considerations in the

detailed evaluation of alternatives for

range responses.

The first criterion addresses the

ability of each alternative to protect

human health and the environment

from the acute, chronic, and

carcinogenic effects of exposure to the

constituents present at the range. This

criterion draws on the constituent risk

assessment and the evaluations of other

criteria, especially the long- and shortterm effectiveness evaluations. The

Department of Defense believes that, in

evaluating this criterion at military

ranges subject to this proposed rule, a

balance will need to be struck between

protection of human health (including

explosives safety) and protection of the

environment. For example, while it may

be feasible to excavate UXO to a depth

of several feet over a large area, doing

so will have a negative impact on the

local environment. If that area also were

critical habitat to a threatened or

endangered species, then the benefits of

UXO removal would have to be

balanced against the disruption of that

species’ habitat. Furthermore, if a

response alternative cannot minimize

explosives safety risks, it will be
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50819

11 Copies of EPA’s ‘‘Guidance for Conducting

Remedial Investigations and Feasibility Studies

Under CERCLA, Interim Final, EPA/540/G–89/004’’

(October 1988) can be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161 (telephone 703–

487–4650).

dropped from consideration. In

assessing this criterion, an explosives

safety plan addressing all alternatives

will be submitted to the DDESB for

evaluation.

Compliance with Federal and State

ARARs is identical to the evaluation

criteria required under CERCLA and the

NCP. This criterion requires evaluation

of the ability of each alternative to

comply with chemical-specific, actionspecific, and location-specific

requirements that are either directly

applicable to the response action or, in

best professional engineering judgment,

similar enough to the conditions of the

site and response action to warrant their

use (termed by EPA as ‘‘relevant and

appropriate requirements’’). For

example, the Department of Defense’s

on-site response actions must comply

with the substantive requirements of

RCRA. Under CERCLA, the Department

of Defense plans to adopt the process

established in the NCP for waiving an

applicable requirement. If required,

concurrence of that waiver must be

sought from the appropriate Federal or

State agencies. For the assessment of the

effectiveness of an AR, compliance with

applicable requirements is required only

to the extent practicable given the

exigencies of the situation. In this way,

this requirement is directly analogous to

the requirement for ARAR compliance

during a CERCLA removal action.

The long-term effectiveness

evaluation assesses the residual risk

posed by military munitions or other

constituents that will remain at the

range following the completion of the

response action, and considers the

reliability and adequacy of those actions

in providing a long-term or permanent

solution to the hazard posed at the

range. The Department of Defense also

believes that this criterion should

consider any long-term liabilities

associated with the response. For

example, in evaluating a response action

when wastes will be shipped to an offsite commercial facility for treatment or

disposal, the Department of Defense

should consider the potential CERCLA

liability incurred by that action.

Evaluation of how the response

reduces the explosives safety risks,

toxicity, mobility, quantity, or volume

of the military munitions or constituents

(as appropriate) involves assessment of

the effectiveness of the alternative at

treating the military munitions or other

constituents present on the range and

the quantity that will remain following

the response action.

The short-term effectiveness criterion

addresses the risks or impacts of the

alternative from the start of the action

through to the time when the response

objectives are achieved. Under this

criterion, each alternative is evaluated

to determine the degree of protection

afforded to on-site workers and the

surrounding community during

implementation. Each alternative is also

examined for possible adverse

environmental impacts arising from

implementation of the response or the

time required to achieve the response

action’s objectives.

The implementability criterion

assesses both the technical and

administrative feasibility of

implementing each alternative. Included

in this assessment are (1) consideration

of the availability of the necessary

resources to implement the alternative,

(2) an assessment of the reliability of the

alternative (also a consideration under

the short- and long-term effectiveness

criteria), and (3) whether the action will

impede other responses at the range.

Another aspect of this assessment is the

determination of the requirements for

interaction with other Federal, State, or

local agencies or American Indian

tribes. For example, this assessment

may require determining the need for

obtaining a permit for a given

alternative. Another factor the

Department of Defense may consider in

the assessment under this criterion is

the availability of on- and off-range

treatment and disposal units for wastes

generated by the response action. In the

case of chemical munitions, the

statutory provisions of 50 U.S.C. 512a

regulate the transportation, destruction,

and open-air testing of these munitions;

thus, the availability of the treatment or

disposal capacity at the nearest

chemical military munitions stockpile

facility may be one of the most

important factors limiting response

alternatives. The Department of Defense

is currently developing mobile

treatment systems for these chemical

munitions in an effort to preclude any

need to transport them off-site.

Cost evaluation requires assessment of

the direct and indirect capital costs as

well as the operating and maintenance

(O&M) costs associated with the

alternative. O&M costs are usually a

significant portion of the overall costs.

The evaluation of this cost should

consider any long-term financial

liability associated with the response.

Assessment of the last two criteria,

acceptability of each alternative to

Federal and State agencies and

community acceptance, requires

consultation with these parties. By this

point in the range response process, the

public and government agencies should

be fully engaged and their concerns

already addressed. Some of the ways the

DoD organization conducting the

response can achieve this goal is

through an EPT or RAB (if one exists),

and through mechanisms such as public

availability sessions.

Once all the alternatives are evaluated

against the nine criteria to see if they

meet the basic requirements, they are

compared to one another to determine

the pros and cons of each. For example,

one alternative might provide a

reduction in risk equal to another for a

similar cost, but have a far greater

potential for requiring another action

sometime in the future. A specific

example involves the use of off-site

disposal facilities as opposed to an onsite action. In this case, the Department

of Defense would need to consider the

potential CERCLA liability arising from

a release at the off-site facility in making

the selection. Another example would

be where one alternative provides a

slightly higher degree of protection than

another, but at vastly greater cost. The

balancing of these alternatives will need

to evaluate carefully the significance of

the difference in protection and the

significance of the cost difference. Such

a determination in balancing the

alternatives should be based on

quantitative analysis, but ultimately the

decision is largely a matter of

professional judgment.

(2) Explosives safety and the nine

NCP criteria. Explosives safety issues

will be adequately addressed under the

current CERCLA process by using the

existing nine criteria described in the

final NCP. Specifically, worker safety is

part of the analysis in evaluating the

criterion of short-term effectiveness.

EPA states in the preamble to the final

NCP that the short-term effectiveness

criterion considers: who may be

exposed during the remedial action;

what risks those populations may face;

how those risks can be mitigated; and

what risks cannot readily be controlled.

Workers are included in the population

that may be affected by short-term

exposures (55 FR 8723, March 8, 1990).

Section 2.2.9 of EPA’s Guidance for

Conducting Remedial Investigations and

Feasibility Studies Under CERCLA,

Interim Final, EPA/540/G–89/004 11

(October 1988) is consistent with the

NCP position. This guidance states,

‘‘Protecting the health and safety of the

investigative team and the general

public is a major concern during

remedial response actions. Workers may

be exposed to a variety of hazards
50820 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

including toxic chemicals, biological

agents, radioactive materials, heat or

other physical stresses, equipmentrelated accidents, and fires or

explosions.’’

Furthermore, the NCP explains that

the threshold assessment of overall

protection ‘‘draws on the assessments of

other evaluation criteria,’’ which

include short-term effectiveness (40 CFR

300.430 (d)(iii)(A)). Hence, in the

remedy selection process, worker safety

is considered not only when

determining the short-term effectiveness

of a remedy, but also as an integral part

of the threshold requirement of overall

protectiveness. As EPA stated in

response to comments on the proposed

NCP, ‘‘EPA agrees that unacceptable

short-term impacts can cause an

alternative to be considered nonprotective of human health and the

environment and can remove that

alternative from consideration as a

viable option’’ (55 FR 8725, March 8,

1990). In summary, information as

presented in the NCP, as well as EPA

guidance, ensures that risks to workers

during investigative and response

actions would be adequately addressed

within the present CERCLA process.

d. Site-specific response evaluation

report: As discussed in Section IV.E.5.

of this preamble, if the identified risks

posed by the military range require an

SSRE, an RE letter report may be

prepared in lieu of an RE report. The

SSRE report will document the findings

of both the RE and the SSRE. The SSRE

report will provide a complete summary

of the information collection and range

risk assessment conducted during the

RE, as well as the findings and

conclusions of the SSRE. Depending on

the findings of the RE and SSRE, the

SSRE report will make one of the

following recommendations:

(1) Identifying the recommended

response alternative(s) for

implementation, discussing the

hazard(s) the response is to address, the

results of the evaluation criteria, and the

means of assessing the effectiveness of

that response after it has been

implemented.

(2) Conducting recurring reviews

because the quantitative analyses

demonstrated that all identified risks are

effectively managed and are expected to

remain managed in the long term.

(3) Issuing a TI determination

because, while an identified risk

remains, there are no available

alternatives capable of addressing the

risk. Typically, recommendations for

other appropriate control measures and

recurring reviews will be part of a

recommendation for a TI determination.

e. Public and government agency

involvement: The Department of

Defense will provide a copy of the draft

SSRE report to appropriate Federal and

State agencies for review and comment.

The Department of Defense also will

publish a notice of availability and brief

summary of the SSRE report in a major

local newspaper of general circulation,

and announce a 45-day period for

submission of written comments to the

DoD POC for that range. If requested, the

Department of Defense also will hold a

public meeting or availability session.

Following the public comment period,

the Department of Defense will develop

written responses to significant

comments received during the comment

period and consider any issues brought

out by these comments.

If significant changes result from this

process, it may be necessary to issue a

revised SSRE report and solicit further

public comment. This is necessary only

if the changes are so dramatic that they

could not have been foreseen based on

information available before the public

comment period. Evaluation of new

alternatives because a waiver of an

applicable requirement was not granted

is one example of when this might

occur; however, selection of a new

preferred alternative from among those

already evaluated would not trigger the

need for further comment. Following

the comment period and development

of written responses to those comments,

the Department of Defense will formally

document its decision and reasons for

choosing the selected response

alternative.

The Department of Defense will

prepare a formal decision document

describing the actions to be taken. A

copy of the final SSRE report, the

decision document, and all supporting

information will become part of the

administrative record for the range

response at that site. A copy of the draft

decision document will be provided to

the appropriate Federal or State agency,

American Indian tribe, and Federal land

manager for concurrence.

f. Documenting the selection of

alternatives: A formal decision

document will identify the alternative(s)

to be implemented and discuss the goals

of the response (e.g., the risk to be

addressed) and how the response will

achieve those goals. This discussion

needs to provide information as to how

the alternative(s) provides for explosives

safety, protects human health and the

environment, addresses the concerns

that the public and government agencies

expressed in written comments, and

eliminates, reduces, or controls the

identified risks posed by military

munitions or other constituents present

at the military range. The decision

document also will: (1) Discuss the

Federal and State ARARs; (2) identify

any ARARs not met; (3) provide

justification for a waiver of those

requirements; (4) specify the conditions

of any waiver; and (5) discuss

coordination of the waiver with

appropriate Federal or State agencies.

Finally, the document will discuss

whether military munitions or other

constituents will remain at the range. If

so, the document also must describe the

specific mechanisms used to ensure that

land use remains compatible with any

remaining military munitions or other

constituents, and describe the frequency

of recurring reviews. A copy of the

decision document and all supporting

information becomes a part of the

administrative record for the range, and

a copy of the decision document will be

mailed to appropriate Federal and State

agencies, American Indian tribe, and the

current property owner.

7. Site-Specific Response

Implementation

Under both the CERCLA response and

the RCRA corrective action programs,

implementation of the selected

responses is a separate action from the

detailed site assessment, evaluation of

remedial alternatives, and process for

selecting the remedy. The Department of

Defense sees no real need for this

demarcation; indeed, the Department of

Defense hopes that the preliminary

phases of implementing a site-specific

response can be occurring

simultaneously with the development of

the formal decision document. This is

not an indication that the Department of

Defense will not give the comments

received on the SSRE report careful and

deliberate consideration, but rather that

the Department of Defense hopes to

speed the design, construction,

operation, and monitoring of the

response by capitalizing on existing

information, design documents, or

plans. This will be especially true if the

alternative is either an accelerated

response used by the Department of

Defense at a military range or a

‘‘presumptive remedy’’ used by the

Department of Defense, EPA, or another

Federal agency at a site undergoing a

CERCLA response or RCRA corrective

action.

a. Implementation planning: Once the

site-specific response selection process

is complete, the DoD organization

conducting the response will plan

implementation, operation, and

monitoring of the response alternative.

This planning process includes several

required steps, such as setting design

and performance specifications,
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50821

12The Department of Defense has established a

UXO Technology Executive Committee that will

centralize the assessment of new UXO technologies.

preparing complete construction

drawings and operating plans, and

starting the procurement of any required

goods or services. In addition, the

Department of Defense is considering

including another recommended

practice: preparing an implementation

strategy document to describe the

manner and methods to meet the

requirements of applicable Federal,

State, and local regulations for

performance and construction; reduce

environmental and community impacts;

address the technical factors related to

the design; account for assumptions

made in developing the design; and

account for possible sources of error in

the design process. This document also

would outline contingency plans for

managing foreseeable deviations.

b. The response implementation plan:

As with every other phase, the

Department of Defense believes that

focusing the implementation process is

critical to the success of the response.

To achieve this, the Department of

Defense proposes to develop a single,

concise document providing all

necessary information about the

objectives established for the response,

the rationale for those objectives, and

how those objectives will be achieved.

As necessary, the document also will

detail the design, construction,

operation, maintenance, monitoring,

and decommissioning of the response

alternative. An explosives safety plan

addressing explosives safety risks will

be developed and forwarded to DDESB

for approval. This document will be part

of the administrative record, and the

Department of Defense will publish a

notice of its availability in a local

newspaper. The notice will summarize

the purpose of the document and tell

the public where and how to gain access

to it.

c. Implementation of the alternative:

The first step in implementing the

response is development of appropriate

sets of construction drawings,

engineering calculations, process flow

diagrams, critical path analyses, and

lists and specifications for all

equipment and materials. Development

of operational guidance for and training

of personnel involved in implementing

the response should begin as needed.

Once these elements are in place,

implementing the response is a twophase process. The first phase involves

the actual construction and initial

operation of the response, and the

second phase involves operation until

the response achieves the response

objectives. Actual implementation or

construction includes conducting

necessary quality assurance inspections

and preparing any necessary periodic

reports on progress in executing the

response. Clearly, there must be DDESB

review of all phases of the

implementation process, including the

construction and acceptance testing

activities. This function ensures that the

construction of the remedy follows the

specifications and requirements detailed

in the planning process for

implementation and the terms of any

contracts for operation. The Department

of Defense also will monitor the

response to determine its effectiveness.

Upon completion of each phase of

monitoring, the results will be analyzed

to determine if the remedy has achieved

the response objectives.

d. Public and government agency

involvement: Any releasable documents

or reports developed during this phase

of the range response process are part of

the administrative record and will be

made available for public inspection at

the information repository. The public,

government agencies, and American

Indian tribes may take concerns or

questions about the response directly to

the DoD POC, the EPT, or the RAB.

Federal or State agencies that have

granted a waiver from an applicable

requirement may request regular

updates on the progress of the response

and its compliance with any conditions

imposed in granting the waiver.

8. Recurring Reviews

In this rule, the Department of

Defense is proposing to require

recurring reviews of ARs, conditions

imposed as part of a TI determination,

and site-specific responses. Sites issued

a determination of no further action will

not be subject to recurring reviews, but

if a previously unidentified risk is

identified at a later date, the Department

of Defense is obligated to take necessary

response actions.

The purpose of recurring reviews is to

determine if the responses taken

continue to ensure explosives safety,

protect human health and the

environment, prevent off-range releases

of other constituents, and provide an

opportunity for assessing the

applicability of new UXO technology or

other new technology that will

overcome a previous TI determination.12

The focus of the review will depend

upon the response objectives and the

specific responses implemented to

address the identified hazards at the

range. For example, for responses that

provided explosives safety or human

health protection through limiting

access to the range, the recurring review

will focus on the effectiveness of the

mechanisms and institutional controls

put into place to control access. For

ranges where a long-term response is

required, the recurring review will focus

the ability of the response to achieve its

specific performance objectives within a

specified time frame.

a. Frequency of recurring reviews:

Under CERCLA Section 121, EPA

conducts reviews of remedial actions at

sites on the NPL at least every 5 years,

starting with implementation of the

remedial action. The Department of

Defense is proposing that the first

recurring review at closed, transferred,

and transferring ranges occur after 3

years. Subsequent recurring reviews

would occur at year 7 and at 5-year

intervals thereafter, or as necessary to

ensure that the response is still

effectively addressing the identified

risks posed at the range. The

Department of Defense proposes this

frequency because problems with

responses typically manifest themselves

in the time shortly after

implementation. Recurring reviews will

be set on a more frequent schedule (e.g.,

years 2, 5, 9, 14 * * *) when necessary.

The Department of Defense also

proposes that should a problem with a

response be identified outside the

recurring review process, for example

by a private citizen, that party can

submit a request to the DoD component

responsible for the range to have the

response reviewed. Such a request will

need to provide sufficient details as to

the location of the range, the problem

noted, and the identity of the party

submitting the request so that it can be

handled in a timely manner.

b. Documenting recurring review

findings: At each recurring review, the

Department of Defense will formally

document the review procedures and

the evaluation criteria used to assess the

effectiveness of the response in a

recurring review report. The document

also will describe any information

collected or analysis conducted as part

of the review. Finally, the document

will provide a discussion of the

findings, stating whether or not the

response continues to address the

hazards at the range and if any new

problem is discovered in the period

since the last review. If the response

failed to remain effective, or if a new

problem is discovered, the DoD

component responsible for that range

will provide a discussion of what

actions will be taken to return the

response to full effectiveness. If a new

problem is identified, the responsible

DoD component will document the

actions to be taken to address that

problem and the schedule for the
50822 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

actions. For the most part, this will

involve returning to the appropriate

phase of the range response process

(e.g., go back to the RA/AR phase and

implement an AR). The responsible DoD

component then will take action as

necessary to address the risks posed by

the range.

c. Public and government agency

involvement: If the review determines

that the response remains effective, the

Department of Defense will publish a

notice to that effect in a major local

newspaper of general distribution. The

recurring review report will be included

in the administrative record and made

publicly available at the information

repository. If the review finds that the

response is not effective, the

Department of Defense will publish a

notice to that effect and will hold a

public meeting or availability session if

requested to do so by the public.

Furthermore, the Department of Defense

will prepare a formal decision

document describing any actions to be

taken and will send formal written

notice to appropriate Federal, State, and

American Indian tribal officials that

discusses the findings of the review and

the Department of Defense’s planned

actions to address the risks posed by the

military range. A copy of the draft

decision document will be provided to

the appropriate Federal or State agency,

American Indian tribe, and Federal land

manager for concurrence.

9. Ending the Range Response Process

Following completion of an

appropriate number of recurring reviews

to demonstrate that the range is unlikely

to pose an explosives safety risk or a

risk to human health or the

environment, the Department of Defense

will administratively close out and end

the range response. Typically, this will

require that:

(1) The Department of Defense has

demonstrated that any military

munitions or other constituents at the

range pose minimal hazards.

(2) The specific response objectives

are achieved and all related monitoring

activities to demonstrate that are

complete.

(3) For responses that do not involve

restoring groundwater or surface water

(for example, in-situ soil treatment), the

response is fully operational and

performing to design specifications. A

response becomes ‘‘fully operational’’

either 1 year after construction is

complete or when the remedy is

determined to be functioning properly

and is performing as designed,

whichever is earlier.

(4) For response actions involving

treatment or other measures to restore

groundwater or surface water quality to

a level that ensures protection of human

health and the environment, the

operation of such treatment or other

measures for a period of up to 10 years

after the response becomes ‘‘fully

operational’’ will be considered part of

the response action, and not O&M.

(5) The only remaining activities at

the site involve O&M. O&M measures

are initiated after the response action

has achieved its goal as outlined in the

decision document, and is determined

to be ‘‘fully operational’’ (except for

groundwater or surface water restoration

actions as described in IV.E.9.(4)).

Once these requirements are met, the

Department of Defense will prepare a

range close-out report justifying

completion of the response. This report

will include:

(1) A summary of the range’s history

and past and current conditions.

(2) Demonstration that all response

objectives have been met.

(3) A determination that sufficient

monitoring results have been collected

to demonstrate that the response

objectives have been achieved.

(4) Demonstration that any long-term

maintenance requirements for the

response are capable of being

successfully carried out.

(5) Documentation that the range

response has effectively addressed the

hazards posed by military munitions

and other constituents at the range.

a. Public and government agency

involvement: The responsible DoD

component will provide a copy of the

draft range close-out report to the

appropriate State and Federal agencies,

American Indian tribe, and Federal land

manager for their review and comment.

The Department of Defense also will

publish a notice of availability and brief

summary of the range close-out report in

a major local newspaper of general

circulation, and announce a 45-day

period for submission of written public

comments to the DoD POC for that

range. If requested, the Department of

Defense also will hold a public meeting

or availability session. The Department

of Defense will prepare a formal

decision document describing the

actions to be taken, and will provide

that document to the appropriate

regulators, American Indian tribe, and

Federal land manager for concurrence in

accordance with § 178.14 of this rule. A

copy of the draft decision document

will be provided to the appropriate

Federal or State agency, American

Indian tribe, and Federal land manager

for concurrence. The final range closeout report, decision document, and

supporting information will be placed

in the administrative record for the

range response.

b. The Department of Defense’s

continuing obligation: Under DERP and

10 U.S.C. 172, the Department of

Defense is never fully relieved of its

obligation to address environmental

damages caused by military munitions

or other constituents. If at some future

date a problem is discovered at a range

where the Department of Defense

completed the range response process,

the Department of Defense will conduct

an appropriate response to address that

problem. This response typically will be

handled as an explosives or military

munitions emergency response;

however, if the circumstances indicate a

need for a more detailed response, the

Department of Defense will reopen the

range response process and conduct any

appropriate actions. If a response is

needed due to the Federal land

manager’s or property owner’s failure to

comply with the deed restrictions or

other land-use limitations placed on the

use of the property, however, the

Department of Defense is not

responsible for conducting any part of

the response that has been made

necessary by this failure to comply.

After the range rule process has been

administratively ended, the Department

of Defense is still responsible for

continuing any long-term maintenance

or monitoring requirements that were

part of the Department of Defense

response at a given range.

The Department of Defense also has

stated that if technology limits the range

response and the use of the land is

restricted, but later, cost-effective

improvements in technology allow for

the removal of such a restriction, the

Department of Defense is responsible for

conducting a later response, if doing so

is consistent with the land transfer

agreement and reasonably anticipated

land uses that were originally identified

and there is a current need for the

removal of such a restriction.

Assessments of the applicability of new

technology typically will occur in the

recurring review phase, but also may

arise after the range response has been

administratively ended. Assessment of

the applicability of new technology will

relate to new UXO technology or other

new technology that will overcome a

previous TI determination.

F. Other Issues

1. DoD Environmental Response

Authorities and Relationship to Other

Laws

a. Regulatory and environmental

response authorities: In this proposed

rule, the Department of Defense has
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50823

13Copies of DoD Directive 6055.9 may be

obtained, at cost, from the National Technical

Information Service, 5285 Port Royal Road,

Springfield, VA 22161 (telephone 703–487–4650).

14Copies of this Attorney General opinion may be

obtained by visiting the DoD range rule

administrative record at 910 Clopper Road,

Gaithersburg, MD 20878–1399 (telephone 301–258–

8753).

15Copies of this case may be obtained by visiting

the DoD range rule administrative record at 910

Clopper Road, Gaithersburg, MD 20878–1399

(telephone 301–258–8753).

16Copies of this case may be obtained by visiting

the DoD range rule administrative record at 910

Clopper Road, Gaithersburg, MD 20878–1399

(telephone 301–258–8753).

17Note that DoD authorities under DERP also

extend to carrying out response actions consistent

with DERP and CERCLA at a ‘‘site which was under

the jurisdiction of the Secretary’’ of Defense.

articulated, for the first time in

regulatory form, the nature and extent of

its environmental response authorities

under DERP, DDESB, and CERCLA. It

has chosen to do so in the case of

response activities at closed, transferred,

and transferring ranges because of the

unique risks to safety, human health,

and the environment posed by such

sites, and because of the Department of

Defense’s expertise in safely managing

the risks posed by military munitions

and military ranges. DERP, DDESB, and

CERCLA give the Department of Defense

authority to respond to releases or

threatened releases from its facilities

(including NPL sites). Like any other

executive agency that has been directed

to carry out a legislative mandate, the

Department of Defense is entitled to

create regulations that spell out how

this mandate will be effectuated. The

Department of Defense has chosen to do

this for range responses because of two

focused, statutory mandates that direct

the Department of Defense’s attention to

the issue of ordnance and range

activities: DERP and 10 U.S.C. 172,

which established the DDESB. In this

proposed rule, the Department of

Defense intends that military munitions

and other constituents on closed,

transferred, or transferring military

ranges are to be addressed under DERP

and DDESB authorities in a manner that

is not inconsistent with CERCLA.

Accordingly, substantive requirements

of RCRA may be the source of ARARs

to any response actions deemed

necessary. This proposed rule’s process

is one that is tailored to the unique risks

posed by military munitions and

military ranges (i.e., the risks of UXO

and any other constituents that may

emanate from UXO, exploded ordnance,

or range activities).

When Congress established DERP in

1986, it directed the Secretary of

Defense to ‘‘carry out a program of

environmental restoration’’ at facilities

under the jurisdiction of the Secretary of

Defense. Section 2701(b)(2) of DERP

specifically cites one of the program

goals of DERP to be the ‘‘correction of

other environmental damage (such as

detection and disposal of unexploded

ordnance) which creates an imminent

and substantial endangerment to the

public health or welfare or to the

environment.’’ Under 10 U.S.C. 172, the

Department of Defense has a specific

charter to prevent ‘‘hazardous

conditions from arising to endanger life

and property inside or outside storage

reservations’’ when it comes to military

munitions (including UXO). The DoD

agency entrusted with carrying out this

mandate is the DDESB. The DDESB is a

multi-Service entity that has issued

military munitions safety standards and

guidance documents such as DoD

Directive 6055.9, Ammunition and

Explosives Safety Standards,13 that are

followed by all of the armed Services.

Case law and the opinion of the U.S.

Attorney General support the concept

that the DDESB has broad rulemaking

powers regarding safety issues over

munitions (1949, 41 Op. Atty. Gen.

October 27; 14 see also McQueary v.

Laird, 449 F.2d 608 (10th Cir. 1971) 15

and Pratt v. Hercules, Inc., 570 F. Supp.

773 (D. Utah 1982)).16 Thus, DERP and

DDESB are the foundation for the

Department of Defense’s creation of a

range-specific response process.

The DERP and DDESB authorities are

then combined with the preexisting

authority and obligations under

CERCLA to engage in environmental

response activities. The Department of

Defense was already involved in

removal and remediation activities at its

facilities under the auspices of its

Installation Restoration Program (IRP)

for many years prior to the creation of

CERCLA. The scope of this early IRP

was responding to the releases or the

substantial threat of releases of

hazardous substances into the

environment, as well as pollutants and

contaminants that present an imminent

and substantial danger to public health

or welfare. The Department of Defense’s

IRP continued, with certain

modifications, after the enactment of

CERCLA in 1980. The Superfund

Amendments and Reauthorization Act

(SARA) clarified the nature of the

Department of Defense’s authority to

respond to releases from its

installations. SARA created CERCLA

Section 120, which waived Federal

sovereign immunity to the requirements

of CERCLA.

CERCLA Section 104 states that the

President is authorized by Congress to

take removal and remedial actions

consistent with the NCP whenever there

is a release or a substantial threat of a

release of a hazardous substance into

the environment or a release or threat of

release of a pollutant or contaminant

into the environment that may present

an imminent and substantial danger to

public health or welfare. CERCLA

Section 115 states that the President is

authorized to delegate any assigned

duties or powers and to promulgate any

regulations necessary to carry out the

requirements of CERCLA.

In E.O. 12580 (59 FR 2923 (January

23, 1987)), the President in Section 2(d)

delegated his Section 104 authority (as

well as other authorities) to the

Secretary of Defense with respect to

releases or threatened releases where

either the release is on or the sole source

of the release is from any facility or

vessel under the jurisdiction, custody,

or control of the Department of Defense.

The President’s delegation to the

Secretary of Defense is not conditioned

on the NPL status of the release in

question. The Department of Defense

must exercise its CERCLA authority in

a manner consistent with the

requirements of Section 120 of CERCLA.

CERCLA Section 120 requires the

Department of Defense to perform

restoration activities in a manner

consistent with guidelines, rules,

regulations, or criteria developed by

EPA, such as the NCP. In the NCP, EPA

has recognized the various delegations

made in E.O. 12580 and the various

responsibilities of Federal agencies

under CERCLA Section 120 by referring

to Federal agencies that are responding

to releases from their facilities as

CERCLA ‘‘lead agents.’’ This ‘‘lead

agency’’ status applies regardless of

whether the release in question is from

an NPL or a non-NPL site (i.e., ‘‘the

Federal agency maintains its lead

agency responsibilities whether the

remedy is selected by the Federal

agency for non-NPL sites, or by EPA and

the Federal agency or by the EPA alone

under CERCLA Section 120’’ (40 CFR

300.5)).

The Department of Defense has been

designated as the lead removal response

authority with respect to military

munitions in the NCP (40 CFR

300.120(d)). Thus the Department of

Defense has lead agency authority under

CERCLA (see also 40 CFR 300.5).

Currently under the CERCLA program,

the Department of Defense has the

authority to select the appropriate

response at non-NPL sites that are under

the jurisdiction, custody, or control of

the Department of Defense.17 At NPL

sites, EPA and the Department of

Defense jointly choose the appropriate
50824 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

response. If there is a disagreement, EPA

has the final decision. The Department

of Defense wants to make it clear that

the hallmark of an effective ‘‘lead

agency’’ is effective involvement by the

public, as well as by EPA and State

regulators. The Department of Defense

believes that the process proposed in

this rule allows responses at military

ranges to be evaluated in an open

fashion, with direct public and regulator

involvement. Other Federal agencies

have been delegated similar CERCLA

authorities in E.O. 12580 in connection

with facilities under their jurisdiction,

custody, or control.

While this proposal is not

inconsistent with the CERCLA process,

an interaction and balancing of

immediate UXO safety concerns with

potential chronic environmental

concerns must occur. Unlike other

materials, UXO poses an immediate

explosives safety risk to human health

that must be considered before

environmental concerns can be

addressed. While explosives safety

remains an overriding concern, the

Department of Defense recognizes that if

CERCLA hazardous substances or RCRA

hazardous wastes exist on the range,

other regulatory authorities (e.g., State

RCRA authorities) may apply. As a

practical matter, requirements could be

imposed outside of the area suspected of

containing UXO to address

contamination from these hazardous

substances or waste (for example,

groundwater collection).

Certain regulators have designated

constituents of military munitions as a

hazardous waste or hazardous substance

under their State CERCLA/RCRA

programs. Some States may assert a

regulatory cleanup authority, despite

the Federal statutory bases for the

Department of Defense’s response

process. Should conflicts develop

between the Department of Defense and

regulators, it is the Department of

Defense’s intention to work out

compromise solutions that will respect

the statutory and regulatory authorities

of all parties and yet achieve the

necessary expedited and safe response

envisioned by this proposed rule, while

recognizing that the regulatory agency

retains decision-making authority,

consistent with CERCLA and RCRA, for

human health and the environment.

The Department of Defense’s

proposed range-specific response

process is further supported by the

unique threats that military munitions

pose to human health and the

environment. The Department of

Defense’s use of military munitions has

arisen from its mission of national

defense, and the Department of Defense

has special expertise in managing

explosives safety risks. As described

throughout this rule, the risks to safety,

human health, and the environment

inherent in locating and responding to

such relatively unstable materials as

UXO are considerable. The location and

response activities associated with other

constituents are equally dangerous

because such activities will typically

occur within areas containing UXO. The

Department of Defense is the recognized

expert in the management of these risks.

With its years of experience in safely

handling and managing UXO, the

Department of Defense has the expertise

for determining when immediate safety

concerns may prevent certain actions to

address potential environmental

concerns. Due to the specialized

mission of the Department of Defense,

the requirement for explosives safety

expertise is a critical element

unavailable within other organizations.

The Department of Defense maintains

the nation’s institutional military

munitions knowledge. EPA has formally

recognized the Department of Defense’s

expertise in explosives safety, and it is

appropriate that the Department of

Defense regulate the safety implications

of UXO on ranges. Typically, Federal,

State, and local regulators seek the

Department of Defense’s expertise when

it comes to safely managing military

munitions and other ordnance

discovered at non-DoD sites. Since it is

an expert in military munitions, it is

appropriate for the Department of

Defense to use its inherent statutory

explosives safety and environmental

response authorities in DERP, 10 U.S.C.

172, and CERCLA to address the risks

posed by military munitions and other

constituents at the Department of

Defense’s closed, transferred, and

transferring military ranges.

In summary, the Department of

Defense believes there are three reasons

that justify establishing a special

process for response activities at its

closed, transferred, and transferring

military ranges: (1) The specific

emphasis addressing the imminent and

substantial threats posed to human

health and the environment by military

munitions that is found in DERP and 10

U.S.C. 172; (2) the general delegation of

response authority given to the

Department of Defense by Congress

under DERP and by the President under

CERCLA; and (3) the unique nature of

the threats posed to human health and

the environment by military munitions

and military ranges.

b. Relationship to other laws: Under

this proposal, the Department of

Defense will follow the ARAR process

in selecting response activities at its

closed, transferred, and transferring

ranges, and as such, many

environmental laws will be considered

at this stage. If further action is

necessary and can be safely performed,

these additional environmental laws

will be considered. For example, in the

process of removing military munitions,

or even installing some protective

measures, habitat destruction may

occur. If the response action could affect

a species listed pursuant to the

Endangered Species Act, the

Department of Defense must consult

with the U.S. Fish and Wildlife Service

to ensure that the action is not likely to

jeopardize such species or adversely

impact its designated critical habitat. In

addition, prior to any excavation, the

Department of Defense will take

appropriate measures to identify

resources protected under the National

Historic Preservation Act, Archeological

Resources Preservation Act, and Native

American Graves Protection and

Repatriation Act. If any protected

resources are likely to be affected, the

Department of Defense will comply with

the requirements of these acts.

Another example of coordination with

other laws involves the Safe Drinking

Water Act (SDWA). If contaminants on

a military range are affecting the quality

of an actual or potential drinking water

supply (e.g., a Class I or II groundwater

as defined under the SDWA), then,

consistent with CERCLA Section 121,

this contamination must be addressed.

Safety factors under the DERP program

would still be considered, and it is

possible that safety factors could require

alternatives other than source removal,

such as collection and treatment of

contaminated groundwater outside the

range area.

Clean Air Act requirements such as

emission limits in a State

Implementation Plan (SIP) could be a

source of ARARs. In the case of

remedial activities that generate air

emissions, for example, the response

would have to meet the SIP’s

substantive requirements.

Under RCRA, if military munitions/

UXO are excavated from the range and

taken off-site, RCRA hazardous waste

requirements would apply, as

appropriate. As stated in EPA’s military

munitions rule, ‘‘used or fired

munitions are solid wastes when they

are removed from their landing spot and

then either (1) managed off-range * * *

or (2) disposed of (i.e., buried or

landfilled) on-range’’ (62 FR 6632,

February 12, 1997). Also, EPA has made

it clear in the preamble to the NCP and

various CERCLA guidance documents

that aspects of the RCRA corrective

action program may also be a source of
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50825

ARARs for the Department of Defense’s

response actions. For example, the

flexibility afforded to restoration

activities by RCRA’s corrective action

management unit and temporary unit

concepts may be of use in expediting

the Department of Defense’s restoration

activities.

The Department of Defense solicits

comments on the interaction of this

proposed range rule process with other

environmental laws and regulations.

2. Water Ranges

The process of conducting response

activities at closed, transferred, and

transferring water ranges is particularly

daunting. The retrieval, rendering safe,

and even the location of military

munitions in such ranges are extremely

difficult. For example, tidal action may

make maneuvering difficult and

visibility poor; deep waters require

remotely operated equipment; and

military munitions often are buried in

sediments. Orientation and location are

therefore extremely difficult in the

ocean environment. Typically, the Navy

is limited to diver point searches and

sweeps for recovery of military

munitions. There is no technology

available with the accuracy and

discrimination needed to rapidly

survey, detect, pinpoint, and classify

underwater military munitions.

UXO has a long life in the underwater

environment. Projectiles and bombs are

designed with thick metal cases that

take years to corrode. Nonetheless,

experience with aged intact military

munitions reveals that fills are typically

in deteriorated condition, with

formation of metal/explosive

compounds and other chemical

changes. Because such materials may be

more sensitive, most UXO recovered

from water ranges is destroyed soon

after it is recovered. The toxicity of

military munitions ingredients in water

ranges generally is low. Most toxic

compounds are rapidly decomposed by

hydrolysis, photolysis, and oxidation

once they are dissolved in water.

Because of the inherent difficulty in

locating, rendering safe, and/or

retrieving military munitions in water

ranges, and because of significant risks

to human health and safety posed to

Navy personnel by such activities (i.e.,

the dangers inherent in underwater

activities), as well as the water range

UXO itself (i.e., its relatively unstable

and sensitive nature), the types of ARs

and site-specific responses will likely be

significantly different than the

responses for land-based military

ranges. With regard to responses at

water ranges, this proposed rule will be

implemented in a manner consistent

with the rights and obligations of the

United States under the Law of the Sea

Convention.

3. Other Range Activities

Activities not related to training or

researching, developing, or evaluating

military munitions may occur or have

occurred on closed, transferred, and

transferring military ranges. Some

examples of these activities are open

burning/open detonation (OB/OD) and

certain explosive ordnance disposal

(EOD) activities.

OB/OD sites are used to thermally

treat waste military munitions by a

controlled burn or a controlled

detonation. Some OB/OD sites were in

use for a number of years before RCRA

was enacted. Many OB/OD sites were

located within military ranges. OB/OD

operations may not have completely

destroyed the military munitions,

resulting in the presence of UXO and its

associated explosives safety risks.

OB/OD sites that exist on closed,

transferred, and transferring ranges and

were never permitted (and did not need

to be permitted during their active life)

are covered by this rule because they

may contain UXO or other constituents.

According to current RCRA standards,

RCRA-permitted OB/OD facilities (or

OB/OD facilities that should have been

permitted) need to undergo RCRA

closure as directed in their individual

treatment facility permit or post-closure

care permit, once the decision has been

made that the facility will no longer be

operated.

In ‘‘Standards Applicable to Owners

and Operators of Closed and Closing

Hazardous Waste Management

Facilities’ (59 FR 55778, November 8,

1994), EPA recently proposed

eliminating the regulatory requirement

that it issue permits to all facilities

subject to post-closure care

requirements in favor of imposing the

same substantive requirements at the

facility by using ‘‘alternate legal

authorities.’’ Although EPA’s rule has

not been finally promulgated, the

Department of Defense intends to work

with EPA to establish its CERCLA/DERP

authorities as an adequate alternate legal

authority for purposes of CERCLA/

DERP-based response actions (in lieu of

RCRA closure activities) at appropriate

OB/OD sites located on the Department

of Defense’s closed, transferred, and

transferring ranges.

EOD ranges are not sites that are used

for routine OB/OD activities. EOD sites

are designated to be used for EOD

procedures that are conducted during

munitions or explosives emergency

responses. Individual and

organizational EOD training may also be

conducted at these sites. Often, EOD

sites are located within military ranges,

which provide the explosives safety

distances from personnel, buildings,

and facilities, as well as controlled

access to the ranges. Both of these

conditions also are required for EOD

sites. EOD sites involved in such

activities are within the scope of this

proposed rule. EOD activities that are

non-emergency and non-training are

usually waste treatment and disposal

activities and are conducted at

permitted facilities; such activities are

not covered by this rule.

4. Chemical Agent Constituents

Live chemical agent testing and

demilitarization prior to 1969 was

performed on certain military ranges.

Some of this testing occurred on closed

and transferred ranges, and possibly on

some transferring military ranges as

well. When chemical munitions were

employed on a military range, a certain

percentage of the fired military

munitions did not function and became

UXO. Chemical UXO poses a unique

and difficult situation for the technical

escort unit (TEU), an EOD team

specially trained to handle chemical

munitions. Although the explosive

component of a chemical UXO is much

less than that of the conventional highexplosive UXO, TEU personnel must

assess the round and handle the UXO

wearing personal protective equipment

and follow special procedures and

techniques unique to the Department of

Defense and the Chemical Warfare

Material program in case of a chemical

release. This greatly slows the

assessment and handling process.

Increased safety precautions are

necessary when there is a potential for

the presence of chemical UXO, due to

the potentially greater risk to the health

and safety of workers and the public

should a chemical UXO detonate. In

addition, the transport and destruction

of 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. In addition, notification

is required to be given to Congress and

affected State governors prior to any

such destruction or transportation.

5. Buried Military Munitions

The historical and then-acceptable

practice by the Department of Defense

was to bury certain military munitions.

Many of these past burial sites have

been remediated, but a number of them

still exist, and some may be located on

closed, transferred, or transferring

ranges. The Department of Defense
50826 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

believes that military munitions

disposed of by burial or disposal in a

landfill are a solid waste, and, if

hazardous, would be subject to RCRA

Subtitle C regulation when unearthed

and further managed; they could also

potentially be subject to RCRA

corrective action and/or CERCLA. These

buried munitions pose the same safety

and hazard risks as UXO. In fact, buried

munitions can involve greater safety

risks than UXO, because the number

and types of military munitions may not

be known. The presence or suspected

presence of buried military munitions

will be a significant factor in whether

response actions can be performed on

the range. Even though they are

potentially subject to RCRA, burial sites

that are located on closed, transferred,

or transferring military ranges should be

evaluated in accordance with this rule.

The Department of Defense solicits

comment on this approach of addressing

past burial sites of military munitions

on closed, transferred, and transferring

ranges.

6. Depleted Uranium

Depleted uranium (DU) is a byproduct

of the uranium enrichment processes.

DU is used in the commercial sector by

the aircraft industry as counterweights,

by the power industry as radiation

shielding, and by the military as an

armor-piercing projectile due to its

hardness, strength, and density. DU’s

potential radiation exposure is small. As

an alpha particle emitter, its radiation

does not penetrate human skin or even

ordinary paper. DU may be present on

closed, transferred, and transferring

ranges. DU is regulated by the U.S.

Nuclear Regulatory Commission.

7. Regulator, American Indian Tribe,

and Public Involvement

a. General: The Department of

Defense will ensure a substantial role

for the public, American Indian tribes,

and regulators in this rule’s process. In

addition to the detailed roles outlined in

Section IV.E. of this preamble, d etailed

discussion of the phases of the range

response process, the Department of

Defense encourages States to enter into

a Defense/State Memorandum of

Agreement (DSMOA) to increase State

involvement and strengthen the DoD/

State partnership. The Department of

Defense will make use of established

RABs to involve the public throughout

the process, or other forums, such as

EPTs, as the specifics of the site and

interest of the community dictate. While

a finalized Defense and Tribal

Memorandum of Agreement (DTMOA)

does not yet exist, a DTMOA would be

treated in a similar fashion.

The Department of Defense intends to

seek regulatory agency involvement

throughout the range response process.

Communication and participation with

environmental regulators should be

frequent and should go beyond

participation in RABs. While RABs are

a valuable forum for communication

between community, regulator, and the

Department of Defense stakeholders, the

RAB should not serve as a substitute for

regulator involvement. The level of

regulator participation should be

consistent with the BRAC guidance on

regulator involvement. Frequent

communications, such as weekly or

monthly progress meetings, data

exchanges, and early notification of new

information, are critical to building a

team approach between environmental

regulators and the DoD component

responsible for the range.

Range responses executed with BRAC

and Environmental Restoration Account

funds will be eligible to be incorporated

into the DSMOA process. The DSMOA

process is designed to account for State

oversight in the BRAC and

Environmental Restoration Account

programs, but prohibits incorporation of

other projects not funded by these two

accounts. To address the revision of the

cooperative agreements, the Department

of Defense is contemplating a special

revision cycle for the States to

incorporate new requirements resulting

from the DoD range rule.

b. American Indian tribes: The U.S.

Government has a unique legal

relationship with Native American

tribes as set forth in the U.S.

Constitution, treaties, statutes, and court

decisions. In implementing this rule’s

proposed process, the Department of

Defense will act in a manner that is

consistent with the ‘‘Government-toGovernment Relations With Native

American Tribal Governments’’

memorandum issued by President

Clinton (59 FR 22951, May 4, 1994), the

Native American Graves and

Repatriation Act (as mentioned in

Section IV.F.1.b. of this preamble,

Relationship to Other Laws), and any

military policies on Native American

relations.

Section 178.4(c) provides a definition

of American Indian tribe as used in this

proposed DoD range rule. To be afforded

substantially the same treatment as

States under this rule, and thus receive

a concurrence role, the governing body

of the American Indian tribe must be

federally recognized by the Department

of Interior; have an appropriate tribal

governing body that performs health,

safety, or environmental functions; and

have real property interests (as defined

in § 178.4(l) of this rule) over some or

all of a closed, transferred, or

transferring range at which a response,

including pre-response activities, is

ongoing or contemplated.

To ensure meaningful participation by

federally recognized tribes and villages

that do not meet this rule’s definition of

an American Indian tribe, the

Department of Defense encourages such

tribes and villages to participate in

RABs and/or EPTs as applicable, and to

participate in all public forums

provided (such as attending public

meetings and technical education

programs, and commenting on sitespecific documents and notifications

produced during the range response

process). On a site-specific basis, the

Department of Defense intends to notify,

coordinate with, and consult with

Native American tribes and Native

Alaskan villages in accordance with

tribal trust obligations and with the

presidential memorandum on

government-to-government relations.

Furthermore, the Department of Defense

recognizes that federally recognized

tribes and villages have specific rights

created under treaties, statutes, and

other regulations. For example, the NCP

provides that a Native American tribe

may bring an action for injury to,

destruction of, or loss of natural

resources belonging to, managed by,

controlled by, or appertaining to such

tribe, or held in trust for the benefit of

such tribe, or belonging to a member of

such tribe if such resources are subject

to a restriction on alienation (55 FR

8788, March 8, 1990). Nothing in this

proposal is intended to preempt or

restrict such tribal rights, privileges, or

authorities.

This proposal also describes what

information and notices are to be

provided to appropriate officials of the

American Indian tribes (see, for

example, § 178.7(e)). Notices to these

officials should also include the affected

trustee (e.g., the Department of Interior),

when applicable. The Department of

Defense particularly requests comments

on this portion of the proposed rule,

especially concerning the relationship

between federally recognized tribes and

this rule, the level of detail needed on

this subject, and the interaction between

tribes and States under the range rule.

c. State involvement in ARARs: The

Department of Defense will provide the

States 45 working days to review the

draft RA/AR report, the draft RE report

if prepared, the draft SSRE report, the

draft range close-out report, and the

draft recurring review report. A key

component of the DoD/State partnership

will be the communication of potential

Federal and State ARARs and, as

appropriate, other pertinent advisories,
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50827

18The Administrative Dispute Resolution Act (5

U.S.C. 571 et seq.) and E.O. 12778 (56 FR 12778

(October 23, 1991)) encourage Federal agencies to

utilize ADR processes to resolve issues that might

otherwise be litigated.

criteria, or guidance to be considered

(TBCs), prior to the response selection.

ARARs and TBCs will be identified

early in the alternatives analysis to

allow adequate time to identify them

and screen the alternatives

appropriately. The Department of

Defense will request that the States

review and concur in the draft decision

document for each phase of the range

response process. If the responsible DoD

component is considering a waiver of

State ARARs, it will place the waiver

request in the appropriate decision

document being submitted for

concurrence.

8. Small Arms Ranges

Small arms ranges are a subset/type of

military ranges. Military ranges are

designed to teach, sustain, and maintain

individual and collective group (i.e.,

unit) skills. Multipurpose ranges

support integrated live-fire training of

large caliber weapons (such as tanks)

with small arms (machine guns). Small

arms training is therefore not always

confined to a range dedicated solely to

a particular type of small caliber

weapon. Because small arms ranges,

along with large caliber and

multipurpose ranges, are commonly

configured around a common impact

area in a range complex, small arms

ranges can be located inside the surface

danger zone of other ranges, such as

artillery or tank ranges, thus increasing

the chance of UXO or other military

munitions and debris being present on

the range. It is also possible that the area

of the small arms range may have been

used in the past as a military range that

employed large caliber weapons, thus

again increasing the chance of UXO or

other military munitions and debris

being present.

Smaller caliber weapons also are

uniquely military in nature due to the

types and specifications of ammunition

they use; they must meet military

specifications and be manufactured to

U.S. and North Atlantic Treaty

Organization (NATO) standards. The

ammunition used is designed for a

number of purposes: for use against

armored aircraft, light armored vehicles,

concrete shelters, and other bulletresistant targets; incendiary effects

against aircraft; signaling; personnel;

and light material targets. Due to the

type and specifications of the

ammunition, small arms ranges are

covered by this proposed rule if they are

located on a closed, transferred, or

transferring military range.

9. Guidance

The Department of Defense will

develop implementing guidance on this

proposed rule. The guidance will be

coordinated with the EPA, States,

American Indian tribes, and other

Federal agencies before being issued as

final. This guidance will address, at a

minimum, implementation of the safety

risk assessment model or protocol, the

decision-making process, and record

searches.

10. Dispute Resolution

The Department of Defense has

structured this proposed process for

range response activities to maximize

frequent and meaningful public,

American Indian tribe, and regulator

involvement. As such, the process

should typically resolve issues before

they become disputes. The proposed

rule contains a formal alternative

dispute resolution (ADR) process for

Federal and State regulatory agencies,

American Indian tribes, and Federal

land managers in § 178.15(b).

If, however, a dispute arises that

cannot be resolved informally, the

Department of Defense encourages any

property owner who is not specifically

described in § 178.15(b) and who may

feel aggrieved by the Department of

Defense’s response activities to pursue

the following ADR18 mechanism with

the Department of Defense to resolve

differences: A property owner disputing

a response at a closed, transferred,

transferring range can submit the

dispute in writing to the DoD POC for

that range. The Department of Defense

will attempt to resolve the dispute

within 30 days, or a longer period if

mutually agreed upon. Negotiation and

other forms of mutually acceptable,

nonbinding ADR, which may include

non-binding mediation by a qualified

third party, may be utilized. If a

mutually agreeable resolution is

reached, it will be documented in

writing. If, after 30 days or a longer

agreed-upon period, a mutually

acceptable resolution is not reached, the

parties may exercise any rights,

remedies, or privileges available to them

under applicable law. For example, if a

hazardous substance is involved, the

citizens’ suit provision of CERCLA may

be applicable. Additionally, procedures

under the Military Claims Act (10 U.S.C.

2732 et seq.) could be utilized by private

property owners of transferred ranges.

In addition, the dispute resolution

processes spelled out in E.O. 12088 (43

FR 47707, October 13, 1978) and E.O.

12146 (44 FR 42657, July 18, 1979) are

available for disputes between Federal

agencies and between Federal and State

agencies. The Department of Defense

solicits input on whether this ADR

process for property owners should be

a mandatory requirement or if any

mechanisms should even be suggested.

A more formalized dispute resolution

procedure is included for Federal and

State environmental regulatory agencies,

American Indian tribes, and Federal

land managers in § 178.15(b). The

Department of Defense encourages

environmental regulators, American

Indian tribes, and Federal land

managers to utilize this dispute

resolution procedure instead of

asserting additional statutory authorities

over environmental remediation at

military ranges, although the use of

these procedures does not preclude the

use of other statutory authorities.

Additionally, site-specific or area-wide

agreements may be applicable to a given

military range which may provide for

alternative dispute resolution

procedures. The procedure specifically

applies to Federal and/or State

environmental regulators, American

Indian tribes, and Federal land

managers as appropriate.

The formal procedure provides for

five levels of dispute resolution: the

project manager level, the installation

commander level, the military

headquarters level, the environmental

policy-maker at the Secretariat staff

level, and an appropriate political

appointee with responsibility for

environmental policy within the

responsible DoD component. Because

the title varies among the military

departments, the terms ‘‘headquarters

level’’ and ‘‘principal environmental

policy-maker level’’ are used. For

example, for the Air Force, the term

‘‘headquarters level’’ would refer to the

Major Command to which the

installation reports, while the term

‘‘principal environmental policy maker’’

would refer to the Air Force Deputy

Assistant Secretary for Environment,

Safety, and Occupational Health. These

personnel would meet with a similarly

positioned person in the Federal or

State agency or American Indian tribe.

An additional level of dispute

resolution is available to Federal

agencies: elevating the dispute to the

Office of Management and Budget

(OMB). The dispute resolution process

recognizes that regulatory agencies

dissatisfied with an outcome under the

dispute resolution process may elect to

pursue resolution under other

applicable laws such as CERCLA or

RCRA. Nothing in this rule is intended

to preempt State regulatory or

enforcement powers or authority

concerning hazardous waste or
50828 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

19The Department of Defense notes that, under

isolated circumstances, other constituents subject to

CERCLA could be present in concentrations that

constitute an explosives safety hazard. In such case,

the Secretary of the Military Department would

resolve the explosives safety issues, and the EPA

Administrator would resolve the other issues

related to the release of those other constituents.

hazardous substances, nor is it intended

to affect the waiver of sovereign

immunity by the United States

contained in the Federal Facility

Compliance Act of 1992 or any other

environmental law.

In recognition of their unique status,

the dispute resolution mechanism

provided to American Indian tribes in

the DoD range rule is similar to that

offered to the States. The final phase of

the dispute resolution process provides

for resolution between the Secretary of

the Military Department, or his/her

designee who must be a political

appointee whose appointment requires

the advice and consent of the Senate,

and the American Indian tribal leader or

his/her designee. Because the title may

vary among the various American

Indian tribes, the term ‘‘tribal leader’’

has been used to refer to the head of the

tribe. Thus the term American Indian

tribal leader would refer to the

Governor, President, Chief Executive

Officer, or other final decision-maker for

the American Indian tribe.

In addition to this first option for the

final step in dispute resolution for

States and American Indian tribes, as

presented in § 178.15(b)(5), the

Department of Defense is considering a

second and third option. The second

option is to provide the State governor

or the American Indian tribal leader

with final decision-making authority for

issues under dispute. While the

Department of Defense is considering

this option, it believes that there are

significant legal impediments. In the

range rule, the Department of Defense

voluntarily acknowledges its

obligations, independent of any other

authorities that might be available to

State regulators or tribes, to address

UXO and other constituents from DoD

activities on closed, transferred, and

transferring ranges. Because the

Department of Defense is utilizing

statutory authorities for which it has

responsibility and no authority to

delegate, it believes it should be the

final decision-maker under the DoD

range rule. Since nothing in the range

rule removes or limits any authorities

the States and tribes have, the

Department of Defense will have a

strong incentive to ensure that any

actions it takes under the range rule will

be fully satisfactory to States and tribes.

The Department of Defense is,

however, seriously considering the third

option. Under this option, should the

Secretary of the responsible DoD

component’s military department and

the State governor or American Indian

tribal leader be unable to resolve a

dispute by consensus, then the

responsible DoD component would

prepare a written statement

acknowledging the inability of the

responsible DoD component and the

State or tribe to resolve the dispute and

recognizing that the responsible DoD

component and the State or tribe may

pursue their authorities under any

applicable law.

The Department of Defense believes

that utilization of the mechanisms in

this proposed rule, in lieu of any other

authorities that might be applicable,

would present substantial advantages

for all interested parties because

environmental and safety risks will be

addressed more promptly and more

comprehensively through this rule. As

made clear in the dispute resolution

provision, if a State or Federal agency or

American Indian tribe is dissatisfied

with the results of the application of

this rule, there is recourse outside the

Department of Defense; the State may

choose to apply other legal authorities

that might be applicable, and the

Federal agency may elevate the dispute

to OMB or choose to apply other

applicable legal authorities.

CERCLA Section 120(e)(4) requires

that the selection of a remedial action be

made by the head of the relevant

department (i.e., the DoD component)

and the EPA Administrator, or, if unable

to reach agreement on the selection of

a remedial action, by the EPA

Administrator. Section 178.15(b)(4) thus

integrates this statutory authority into

this proposed rule to avoid duplicative

procedures and unnecessary delays.

Section 178.15(b)(4) of this rule

recognizes that there may be an overlap

between EPA’s authority under CERCLA

for the final selection of a remedial

action at an NPL site and the

Department of Defense’s authority under

10 U.S.C. 172 and 2701 for explosives

safety 19 and military munitions. Thus,

consistent with Section 10 of E.O. 12580

on Superfund Implementation, the

dispute can be raised to OMB. While

such a dispute theoretically is possible,

the Department of Defense is confident

that the dispute resolution process

contained in this rule would result in

the selection of a response that is fully

satisfactory to the EPA Administrator

and to the Secretary of the Military

Department prior to the OMB stage.

Range response activities will not be

suspended during the dispute resolution

process absent extraordinary

circumstances. If the secretary of a

Federal land manager, or his/her

designee whose appointment requires

the advice and consent of the Senate,

provides a written declaration with

supporting rationale to the Department

Secretary for the responsible DoD

component, stating that an immediate

suspension of response activities during

the full dispute resolution process is

needed to prevent substantial

environmental harm that would result

from the performance of the activity

itself, then the responsible DoD

component shall immediately suspend

such activity, to the extent consistent

with the protection of human health

from any imminent and substantial

danger. The suspension issue (i.e.,

whether to suspend response actions

during the full dispute resolution

process) will be raised directly to the

Military Service Department Secretary,

or his/her designee whose appointment

requires the advice and consent of the

Senate, consistent with § 178.15(b)(4).

The Secretary of the Federal land

manager and the Military Service

Department Secretary will have 5

calendar days to arrive at a consensus

on the suspension issue. If no consensus

is reached, then the Federal land

manager will have 5 calendar days to

raise the suspension issue to OMB and

request OMB to decide whether to

continue the suspension of the response

action. Five days following the

submission of the suspension issue to

OMB, the Military Service can resume

activity unless OMB makes or has made

a determination that the response

actions should not resume pending

resolution of the underlying dispute, or

that an additional time period is needed

to consider the merits of the arguments

over whether the response action should

be allowed to resume.

Because of the extensive involvement

of the Federal land manager throughout

the range rule process, this mechanism

should be rarely used, and will typically

be based on concerns over endangered

species or other issues involving

statutory protections. This process is

intended as a true emergency measure

to assure the Federal land manager that

it will be able to protect its lands from

substantial environmental damage while

the merits of the dispute are fully aired.

Because the suspension of an action

could result in substantial contract costs

to the government and delays in the

mitigation of risks to human health and

the environment from UXO, the Federal

land manager should endeavor to raise

its concerns over substantial

environmental effects of a proposed
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50829

response action at the earliest possible

time.

One Federal commentor has suggested

that the time limits of this provision be

changed from 5 days to 10 days.

Additionally, a State commentor has

asked if States can suspend response

actions during a dispute. The

Department of Defense seeks comments

on both of these issues.

11. Allocation of Operation and

Maintenance Costs Between Federal

Agencies

The Department of Defense intends to

enter into a memorandum of

understanding (MOU) with Federal land

managers to establish the general

principle that the Department of

Defense is responsible for the

incremental O&M costs attributable to

military munitions (including UXO and

its associated constituents) employed by

the Department of Defense at ranges that

are under the responsibility of another

Federal land manager and for which the

Department of Defense would be

responsible under the proposed rule for

the costs of the response, unless

otherwise specified by law. Such an

MOU would be modified only by

mutual agreement of the parties. This

MOU would establish a workgroup to

review quality controls and the

consistency of decisions whether to

commence the RA/AR process at former

ranges managed by a Federal land

manager. The MOU would incorporate

the dispute resolution process for

allegations that the Department of

Defense arbitrarily applied the factors in

§ 178.6(b) or relied upon inaccurate

information.

The Department of Defense and the

Federal land manager also would enter

into site-specific MOUs to establish the

costs for which the Department of

Defense would be responsible at that

range. The costs and the requirements

would be established for a range as part

of the response selection process called

for under the rule, including the

selection of an AR.

12. Future Land Use Issues for Transfers

Between Federal Agencies

The Department of Defense and the

Federal land managers have agreed to

enter into a memorandum of agreement

(MOA) to discuss future land use issues.

Section 178.16 of this proposed rule

generally discusses future land use

issues at these Federal properties. The

Department of Defense has divided this

issue into three topics: Transferring

ranges, transferred ranges, and

responsibility for additional response

actions. For transferring ranges, the

Department of Defense will conduct and

fund response activities consistent with

all reasonably anticipated future land

uses that are identified and agreed to

between the parties to the land transfer

prior to the transfer. Where the transfer

of the military range is mandated by

statute, executive order, a previously

concluded agreement between the

Department of Defense and the Federal

land manager, or under terms of a

withdrawal, special-use permit or

authorization, right-of-way, public land

order, or other instrument issued by the

Federal land manager, under which the

Department of Defense used the

property, and where future land uses are

not identified or response activities are

not specified in such statute, order,

agreement, or instrument, any dispute

will be resolved through utilization of

the dispute resolution procedure

identified in the range rule. Where the

transfer is not legally mandated,

disagreement over what the reasonably

anticipated future land uses are may

result in the transfer of the property to

some other party, or no transfer.

Technology limitations may restrict

current uses or cleanup of the property.

Reasonably anticipated future land uses

for the property will not necessarily be

limited by current technological

limitations on the cleanup of UXO on

ranges.

For transferred ranges, in the absence

of a prior agreement identifying

reasonably anticipated future land uses

or imposing land use restrictions, the

Department of Defense will conduct and

fund response activities consistent with

all reasonably anticipated future land

uses at the time of the range response.

Reasonably anticipated future land uses

will be decided by the Federal land

manager with the concurrence of the

Department of Defense. If there is

disagreement, the dispute resolution

procedure identified in the range rule

will be utilized. Technology limitations

may restrict current uses or cleanup of

the property. Reasonably anticipated

future land uses for the property will

not necessarily be limited by current

technological limitations on the cleanup

of UXO on ranges.

Section 178.16 also lists a number of

specific circumstances where the

Department of Defense will conduct and

fund additional response actions at

these Federal properties (for example,

when the remedy fails or additional

UXO is found that creates conditions

inconsistent with the established

reasonably anticipated land use, the

Department of Defense will conduct and

fund additional response actions at

these Federal properties to achieve

consistency with the established

reasonably anticipated land use). The

Department of Defense seeks comments

on the applicability of these future land

use concepts to parties other than

Federal land managers.

The MOA will also discuss

responsibilities for additional response

actions should a response previously

implemented under the range rule later

conflict with a Federal land manager’s

trust obligations or statutory

management responsibilities. Where the

Federal land manager makes a

determination that the level of response

previously implemented pursuant to the

range rule is inconsistent with the

Federal land manager’s trust obligations

or statutory responsibilities for

management and stewardship of the

land and natural resources for the

United States and the public, the

Federal land manager shall identify to

the Department of Defense what further

response action is necessary to meet

those obligations or responsibilities and

shall identify how the OMB decisional

factors described in this paragraph are

implicated by the proposed additional

response action. If the Department of

Defense elects not to fund or perform

the additional response action so

identified, the Federal land manager

may invoke the dispute resolution

procedure in the range rule. If such a

dispute arises, EPA shall be provided

notice and an opportunity to participate

in discussions with OMB. When OMB

resolves a dispute as to whether the

Department of Defense or the Federal

land manager should fund or perform

additional response action identified by

a Federal land manager pursuant to this

section, OMB shall consider and

balance:

(1) The importance of the proposed

additional response action in meeting

the Federal land manager’s obligations

or responsibilities.

(2) Any reasonable alternatives by

which the Federal land manager could

satisfy its obligations and

responsibilities, including alternatives

that utilize innovative technology or

that require no additional response

action.

(3) The cost and cost-effectiveness of

the proposed additional response action

in comparison to the other reasonable

alternatives.

(4) The cost of the cleanup to the

Federal government as a whole.

(5) The availability or expected

availability of appropriated funds at

each of the respective agencies to fund

or perform the proposed additional

response action.

The Department of Defense and the

Federal land managers have agreed to

include the language of the MOA

concerning future land use in the site-
50830 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

specific agreements under which land is

to be transferred from the Department of

Defense to a Federal land manager. The

Department of Defense seeks comments

on the applicability of these future land

use concepts to parties other than

Federal land managers.

V. Discussion of Other Major

Alternatives

A. General

In proposing this rule, the Department

of Defense is considering several

alternatives to address military

munitions on closed, transferred, or

transferring ranges. In assessing each of

these alternatives, the Department of

Defense has sought to identify the

relative merits of each statutorily based

process in meeting the goals of

establishing a single, logical, and

comprehensive process that addresses

explosives safety, human health, and

environmental concerns. In the

Department of Defense’s view, a single,

specific process is necessary to avoid

confusion and to ensure that effective

response activities are undertaken in a

fiscally responsible manner. That

process must recognize and consider the

unique explosives safety hazards

associated with military munitions, and

concomitantly with any response

activity conducted on closed,

transferred, or transferring ranges. The

process must ensure that the public and

regulators are fully informed and

engaged at every stage of the process,

including substantial and meaningful

public and regulator participation in the

response selection and implementation.

The process must be accessible,

consistent, and lead to informed

decision-making. As noted elsewhere in

this rulemaking, the Department of

Defense’s response activities, both onand off-range, have been variously

subject to rules implemented under

DERP, CERCLA, RCRA, or a

combination. With respect to military

munitions, DDESB exercises

independent statutory authority over

explosives safety. As such, the

Department of Defense has identified

and continues to consider several

alternatives based on each of these

statutory authorities.

B. Comprehensive Environmental

Response, Compensation, and Liability

Act

The Department of Defense also is

considering the adequacy of CERCLA to

address military munitions on closed,

transferred, or transferring ranges. As

specified in CERCLA Section 104,

CERCLA is triggered by the ‘‘release or

substantial threat of a release into the

environment’’ of a ‘‘hazardous

substance’’ or of a ‘‘pollutant or

contaminant which may present an

imminent and substantial danger to the

public health or welfare.’’ Neither

military munitions nor UXO are, as a

class, designated as CERCLA hazardous

substances. However, the Department of

Defense is considering whether UXO

should, as a class, be recognized for

purposes of this rule as CERCLA

pollutants or contaminants. A CERCLA

pollutant or contaminant triggers a

CERCLA response if an imminent and

substantial endangerment to the public

health or welfare exists.

The procedural and technical

standards for conducting CERCLA

response activities are codified at 40

CFR 300, National Oil and Hazardous

Substances Pollution Contingency Plan

(55 FR 8666, March 8, 1990). The NCP

establishes five steps to respond to

releases or potential releases of

hazardous substances: (1) Identifying

releases; (2) conducting a removal

action if warranted; (3) conducting a site

assessment, and, if warranted, listing

the site on the NPL; (4) performing a

remedial investigation/feasibility study

(RI/FS); and (5) implementing the

remedy through remedial design/

remedial action (RD/RA).

The first step, release identification,

occurs through various means,

including: reports of releases;

investigations by Federal, State, or local

government agencies; land inventories

or surveys; or incidental discoveries. All

sites where a release is identified should

be reported to the National Response

Center and/or EPA, and all Federal sites

should be listed on the Federal agency

hazardous waste compliance docket.

The second step in the CERCLA

response process is conducting a

removal action, as appropriate. This is

not to say that removal actions cannot

be undertaken at other points in the

process; they can be conducted at any

time during a CERCLA response.

Removals, as described in 40 CFR

300.415, are actions taken to mitigate

immediate threats to human health and

the environment. There are three types

of removals: (1) Emergency removals

where action is required within hours or

days; (2) time-critical removals where

up to 6 months can elapse before action

is necessary; and (3) non-time-critical

removals, where more than 6 months

can elapse before action is taken. A nontime-critical removal requires the

development of an engineering

evaluation/cost analysis, as well as more

significant public outreach than is

required for an emergency or timecritical removal. Removal actions are

undertaken at the discretion of the lead

agency, and should, to the maximum

extent practicable, contribute to the

overall remediation of the site. The

decision to move from a removal action

to a remedial action is also at the

discretion of the lead agency (40 CFR

300.415(f)). All removal actions require

the development of an action

memorandum that describes the action

taken and the rationale for that action.

Site assessment, the third step in the

CERCLA process, has several stages and

is outlined in the NCP at 40 CFR

300.420. First, the lead agency conducts

a preliminary assessment (PA), which is

a ‘‘desktop’’ review of available

information about the site and involves

the collection of demographic

information and information about the

environmental setting of the site. Sites

not posing a sufficient threat to human

health or the environment to warrant a

CERCLA response are screened out. The

second stage, site inspection (SI), may

be required to further evaluate site

conditions. The SI is a more detailed

investigation of site conditions, usually

involving sampling of environmental

media. Information from the PA and SI

is the basis for the third stage, scoring

the site using the hazard ranking system

(HRS). The HRS is a model for assessing

the site’s relative threat to human health

and the environment. If a site scores at

or above 28.5, it may be placed on the

NPL, and an RI/FS will be required.

The fourth phase of the CERCLA

remedial process is the RI/FS (40 CFR

300.430). The RI/FS characterizes the

site and evaluates various alternatives

for remediation of the site. Unlike the

SI, the RI involves the collection of

sufficiently detailed information to fully

characterize site conditions, determine

the nature and extent of the

contamination, evaluate risks posed by

the site, and assess the performance of

options for remediation. The FS

involves development, screening, and

detailed evaluation of each remedial

option. Each alternative is evaluated

against the following nine criteria:

(1) Overall protection of human

health and the environment (including

explosives safety and natural resources).

(2) Compliance with ARARs.

(3) Long-term effectiveness and

permanence of the remedy.

(4) Reduction of the toxicity, mobility,

quantity, or volume of the contaminants

present at the site.

(5) Short-term effectiveness of the

remedy.

(6) Implementability of the remedy.

(7) Cost of the remedy.

(8) Federal and State acceptance of

the selected alternative.
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50831

20Copies of this case may be obtained by visiting

the DoD range rule administrative record at 910

Clopper Road, Gaithersburg, MD 20878–1399

(telephone 301–258–8753).

21Copies of this case may be obtained by visiting

the DoD range rule administrative record at 910

Clopper Road, Gaitherburg, MD 20878–1399

(telephone 301–258–8753).

(9) Community (including current

property owner) acceptance of the

selected alternative.

The RI/FS phase leads to the selection

of the remedial option, the development

of a proposed plan, and the signing of

a record of decision (ROD). Once the

ROD is signed, the RI/FS phase is

complete.

The fifth step of the CERCLA process,

outlined under 40 CFR 300.435, is the

RD/RA, where the selected remedy is

actually implemented. The RD involves

all aspects of designing the remedial

action, including development of

technical drawings, specifications,

operational guidance, and training. The

RA involves the actual construction,

operation, and monitoring of the

remedial action selected to clean up the

contamination at the site. Depending

upon site conditions, an RA may

continue for many years. Upon

completion of the RA and

demonstration that the site has been

remediated to the required levels, the

site is deleted from the NPL.

The Department of Defense recognizes

the fact that the NCP and E.O. 12580,

which implement CERCLA, identify the

Department of Defense as the lead

agency with respect to releases from its

facilities, including those involving

military munitions. Thus, while the

CERCLA process provides a potentially

viable alternative to the proposed rule,

the Department of Defense has

identified some initial concerns. For

example, confusion exists as to the

extent of EPA’s response authority and

the application of State ARARs. While

E.O. 12580 delegates to the Department

of Defense the authority to conduct

these response activities, the

Department of Defense is not often

directly involved in the national priority

listing of these response activities.

The Department of Defense recognizes

that CERCLA is a possible and existing

alternative to the range rule. The

Department of Defense has closely

modeled the range rule on the CERCLA

process and utilizes CERCLA and DERP,

an amendment to CERCLA, as

authorities for promulgation of the range

rule. However, the range rule has

advantages over CERCLA. The range

rule focuses exclusively on range issues,

unlike CERCLA, and will provide for a

consistent response by the Military

Services. The range rule is not limited

to those materials addressed under

CERCLA. Additionally, the range rule

will require the Department of Defense

to respond to former ranges without a

State forcing action under CERCLA or

other State authorities.

C. Defense Environmental Restoration

Program

DERP was established in 1986 by

Section 211 of SARA. DERP is codified

at 10 U.S.C. 2701, et seq. and establishes

the Department of Defense’s

responsibility and authority to address

UXO (which is a subset of military

munitions), as well as hazardous

substances, pollutants, and

contaminants on DoD property.

Likewise, DERP establishes funding

authority for these response activities.

For example, in 1996, Congress

appropriated more than $1.4 billion for

the Department of Defense’s response

activities. DERP, therefore, ensures that

the obligation to undertake response

activities is directly linked with the

Department of Defense’s authority to

undertake these response activities and

its authority to fund them. This

approach under DERP is not

inconsistent with existing statutory,

regulatory, and policy pronouncements

in CERCLA, the NCP, and E.O. 12580.

The NCP and E.O. 12580 identify the

Department of Defense as the lead

agency under CERCLA for releases or

threatened releases of hazardous

substances, pollutants, and

contaminants from the Department of

Defense’s facilities. Consistent with this

designation, the Department of Defense

has conducted removal or remedial

responses at its NPL and non-NPL sites

in accordance with the processes set

forth in CERCLA and the NCP.

Less clear, however, is the role of

explosives safety under DERP. The

Department of Defense believes that

explosives safety is inextricably linked

to any response activity that is

undertaken on a military range. Thus,

consistent with its statutory mandate

under 10 U.S.C. 172, the Department of

Defense is proposing to incorporate into

this process the additional

consideration of explosives safety when

addressing military munitions and other

constituents on closed, transferred, or

transferring ranges. In doing so, the

Department of Defense believes that

response activities on military ranges

will be expedited and will more fully

address human health and

environmental issues in the practical

context of explosives safety.

D. Resource Conservation and Recovery

Act

In its proposed military munitions

rule (60 FR 56476, November 8, 1995),

EPA proposed 40 CFR 261.2(g)(4)(i),

which would have identified military

munitions on closed and transferred

ranges as a statutory solid waste. EPA

proposed allowing the Department of

Defense’s range rule to supersede this

provision as long as the range rule was

protective of human health and the

environment and allowed for public

involvement in addressing the cleanup

of closed and transferred ranges. In its

final military munitions rule (62 FR

6622, February 12, 1997), however, EPA

decided to postpone action on this

section of the proposed munitions rule

to conduct further analyses of comments

and to evaluate the Department of

Defense’s range rule. In the final

military munitions rule, EPA indicated

that it is prepared to address this issue

under Federal environmental laws if the

Department of Defense does not

promulgate the range rule or if EPA

finds that the range rule does not

adequately protect human health and

the environment.

While the Department of Defense

recognizes the RCRA corrective action

process as an available alternative to the

proposed rule, the Department of

Defense has identified several initial

concerns that may weigh against use of

this alternative. First, the question of

whether military munitions that have

been used for their intended purpose

and that remain on a closed, transferred,

or transferring military range are a solid

waste has generated much discussion.

See Barcelo v. Brown, 478 F Supp. 646,

668–669 (D. Puerto Rico 1979) 20 and

Connecticut Coastal Fishermen’s Assoc.

v. Remington Arms Co., 989 F.2d 1305

(2d. Cir. 1993). 21 Also, the use of

munitions has not been characterized as

disposal because the ordinary use of

munitions includes placement on the

land.

In the proposed Military Munitions

Rule, EPA concluded that ‘‘the legal

arguments supporting the

characterization of munitions on closed

or transferred ranges as ‘‘solid waste,’’

and the legal arguments opposing such

a characterization are finely balanced,

with the result that EPA has the

discretion to select either interpretation

pursuant to [RCRA] Section 3004(y).’’

EPA did not repeat or reject this

discussion in the Final Rule.

Second, the applicability of RCRA’s

remedial authorities (i.e., Sections 3004

(u) and (v) or Section 3008(h)) requires

that a range be collocated at a RCRApermitted or interim status facility.

Some closed, transferred, or transferring

ranges may not be located at RCRA-
50832 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

22See footnote 13 in Section IV.F.1.a. for

information on obtaining DoD issuances.

permitted facilities or facilities with

interim status, thereby falling outside

the scope of RCRA’s authorities. The

Range Rule would, in contrast, apply to

all closed, transferred, or transferring

ranges, and would impose a uniform set

of requirements and procedures

regardless of whether or not the range is

at a site subject to RCRA.

Last, as with CERCLA, the

Department of Defense is concerned that

the RCRA corrective action process, as

outlined in the 1990 proposed rule

concerning solid waste, does not

address explosives safety issues. As

noted elsewhere in this proposed rule,

explosives safety risks must be

minimized during all phases of a

response activity involving military

munitions.

E. DoD Explosives Safety Standards

Promulgated Pursuant to 10 U.S.C. 172

Pursuant to 10 U.S.C. 172, Congress

established the DDESB, an independent

entity whose charter involves

determining appropriate safety

standards for dealing with military

munitions. While the Department of

Defense believes that such standards are

of paramount importance in any activity

involving military munitions, it

recognizes that in the environmental

context, other factors must be

considered.

The DDESB process for addressing

military munitions is set forth in

Chapter 12 of DoD 6055.9-STD.22

Specifically, the process requires that a

site-specific evaluation of the explosives

safety hazards and an explosives safety

plan be developed and submitted to

DDESB prior to the undertaking of any

response action. In the event that a sitespecific evaluation is impracticable, the

DDESB process provides for the use of

default criteria in addressing the

explosive hazards present or suspected.

In both instances, the response

undertaken is not inconsistent with the

anticipated use of the property. Absent

from this evaluation and determination

is a consideration of the chronic effects

of other constituents on the

environment.

Application of DDESB standards in

response activities would differ from the

proposed rule, as the DDESB standards

focus primarily on concern for

explosives safety. The proposed rule

accounts for explosives safety concerns,

while also addressing the effects of

other constituents on human health and

the environment.

F. Status Quo

As noted in the foregoing discussion

of alternatives, the current applicability

of all of the foregoing laws and

regulations and the lack of any clear

direction to the Department of Defense

on the appropriate process for

addressing military munitions responses

is confusing, inefficient, costly, and

time-consuming, and may be ineffective.

This confusion contributes to public

and regulator concern that military

munitions are not being addressed

adequately. The Department of Defense

is committed to sound environmental

stewardship in all of its activities. This

commitment includes addressing the

safety, human health, and

environmental effects of military

munitions on closed, transferred, and

transferring ranges.

In recent years, Congress and the

public have demanded that the

Department of Defense make available

for public use lands that are no longer

needed to perform the military’s

mission. In light of the Department of

Defense’s downsizing efforts, the BRAC

process, and increasing fiscal

constraints, more land is being

identified for transfer. These transfers

are subject to a plethora of

environmental laws and regulations,

which often involve different, and

sometimes inconsistent, processes and

decision-makers. To date, the public

and regulators have relied on RCRA and

CERCLA as the primary environmental

laws governing DoD response activities.

Additionally, the Department of

Defense’s response to military

munitions is subject to DERP and

DDESB criteria. The Department of

Defense views this confusion as an

impediment to effective, timely, and

fiscally responsible responses to

military munitions on closed,

transferred, and transferring ranges.

This rulemaking will identify a single,

specific process by which the

Department of Defense will execute its

responsibilities, while providing for

meaningful public and regulator

participation throughout all phases of

the process.

VI. Administrative Requirements

A. Regulatory Impact Analysis

Under E.O. 12866 (59 FR 51735

(October 4, 1993)), the Department of

Defense must determine whether this

regulatory action is ‘‘significant’’ and

therefore subject to review by OMB and

to the requirements of this E.O., which

include assessing the costs and benefits

anticipated as a result of the proposed

regulatory action. The E.O. defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

may adversely affect in a material way

the economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities; (2) create serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; (3) materially alter the

budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients

thereof; or (4) raise novel legal or policy

issues arising out of legal mandates, the

President’s priorities, or the principles

set forth in this E.O.

The Department of Defense recognizes

that E.O. 12866 contains an exemption

for ‘‘military functions’’; however, the

Department of Defense has decided to

prepare a cost/benefit analysis due to

the novel legal and policy issues raised

by this proposal. The Department of

Defense estimates that this proposed

rule would result in national

incremental costs of $709,000,000, or

$47 to $71 million per year over a 10-

to 15-year period. This represents a

savings from costs that would be

anticipated under a RCRA program of

$12,984,000,000, or $865 to $1,300

million per year over a 10- to 15-year

period. For more information on the

cost impacts of this proposed rule and

of some alternative approaches, see the

Department of Defense (DoD) Final

Report: Range Rule Regulatory Impact

Analysis, July 3, 1996, in the range rule

docket.

1. Cost Analysis

Implementing this proposed rule

equates to national incremental costs of

$709,000,000. These costs are less than

those of other alternatives; for example,

a RCRA program that is anticipated to

cost $12,984,000,000.

2. Benefits Analysis

Benefits include increased protection

of the public, increased protection of

UXO response workers, a consistent

process, increased public involvement

in responses, a substantial role for

regulatory agencies and for American

Indian tribes, and a substantial role for

Federal land managers. Implementing a

comprehensive approach to respond to

closed, transferred, and transferring

ranges while ensuring public safety,

worker safety, and protection of human

health and the environment is essential

and would be a beneficial outcome of

this proposed rule.
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50833

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of

1980, 5 U.S.C. 601, et seq., requires

Federal agencies to consider ‘‘small

entities’’ throughout the regulatory

process. Section 603 of the Regulatory

Flexibility Act requires an initial

screening analysis to be performed to

determine whether small entities will be

adversely affected by the regulation. If

affected small entities are identified,

regulatory alternatives must be

considered to mitigate the potential

impacts. Small entities as described in

the Regulatory Flexibility Act are only

those ‘‘business, organizations and

governmental jurisdictions subject to

regulation.’’

The Department of Defense has

determined that this proposal will

primarily affect the Department and that

few, if any, small entities will be

affected.

C. Paperwork Reduction Act

The Paperwork Reduction Act of

1995, 44 U.S.C. 3501, authorizes the

Director of OMB to review certain

information collection requests by

Federal agencies. The recordkeeping

and reporting requirements of this

proposed rule do not constitute a

‘‘collection of information’’ as defined

in 44 U.S.C. 3502(3) of the Paperwork

Reduction Act of 1995.

D. Environmental Justice

On February 11, 1994, President

Clinton issued E.O. 12898, Federal

Actions to Address Environmental

Justice in Minority Populations and

Low-Income Populations. This E.O.

requires Federal agencies to identify and

address disproportionately high and

adverse human health and

environmental effects of Federal

programs, policies, and activities on

minority and low-income populations.

This rulemaking effort will

incorporate environmental justice

concerns in promoting partnerships

with all the public and government

agencies and will carefully consider

where and how any public availability

sessions will be offered. The

Department of Defense is soliciting

comment and input from all public

entities and government agencies,

including members of the

environmental justice community and

members of the regulated community.

This proposed rule is intended to

reduce risks from military munitions.

The rule involves not one site, but will

affect property nationwide. Because of

the locations of some of this property,

in the implementation of the rule the

potential exists for impacts to minority

or low-income communities. The rule

itself, however, is not expected to cause

any disproportionate impacts to

minority or low-income communities

versus affluent or nonminority

communities.

E. Unfunded Mandates

Title II of the Unfunded Mandates

Report Act of 1995 (UMRA), Pub. L.

104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under Section 202 of the UMRA,

the Department of Defense generally

must prepare a written statement,

including a cost-benefit analysis, for

proposed and final rules with ‘‘Federal

mandates’’ that may result in

expenditures to State, local, and tribal

governments, in the aggregate, or to the

private sector, of $100 million or more

in any one year.

The Department of Defense has

determined that this rule does not

contain a Federal mandate that may

result in expenditures of $100 million or

more for State, local, and tribal

governments, in the aggregate, or the

private sector in any one year. Thus,

this proposed rule is not subject to the

requirements of Section 202 of the

UMRA.

VII. References/Docket

The regulatory docket for this

proposed rule contains a number of

background materials. To obtain a list of

these background materials, contact the

toll-free DoD range rule information

request line at (888) 541–1081 (voice),

(800) 870–6547 (fax), or (800) 870–6557

for the hearing-impaired.

Accordingly, 32 CFR part 178 is

proposed to be added to read as follows:

PART 178—CLOSED, TRANSFERRED,

AND TRANSFERRING RANGES

CONTAINING MILITARY MUNITIONS

Sec.

178.1 Purpose and objectives.

178.2 Scope.

178.3 Applicability.

178.4 Definitions.

178.5 Responsibilities.

178.6 Identification of closed, transferred,

and transferring ranges.

178.7 Range assessment/accelerated

response.

178.8 Range evaluation.

178.9 Site-specific response evaluation.

178.10 Site-specific response

implementation.

178.11 Recurring reviews.

178.12 Ending the range response process.

178.13 Information repository and the

administrative record.

178.14 Participation of and concurrence

role for Federal and State regulatory

agencies, American Indian tribes, and

Federal land managers.

178.15 Dispute resolution.

178.16 Future land use for transfers within

the Federal government.

Authority: 10 U.S.C. 2701 et seq.; 10 U.S.C.

172; 42 U.S.C. 9601, et seq.; and E.O. 12580,

3 CFR, 1987 Comp., p. 193.

§ 178.1 Purpose and objectives.

(a) This part establishes the

procedures for evaluating and

responding to explosives safety, human

health, and environmental risks on

closed, transferred, and transferring

military ranges and for providing

opportunities for full and active

participation by Federal, State, and local

agencies; American Indian tribes; and

the public in the evaluation and

responses conducted at those military

ranges.

(b) This part implements the

authorities and responsibilities of the

Department of Defense (DoD) under 10

U.S.C. 2701 et seq., the Defense

Environmental Restoration Program; 10

U.S.C. 172, Ammunition Storage Board;

42 U.S.C. 9601 et seq., the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980, as amended; and Executive

Order 12580, Superfund

Implementation, 59 FR 2923 (January

23, 1987), 3 CFR, 1987 Comp., p. 193,

as amended. When appropriate, it may

also be used in conjunction with other

authorities governing effects to land or

water.

§ 178.2 Scope.

(a) This part applies to closed,

transferred, and transferring military

ranges located in the United States,

Puerto Rico, Guam, American Samoa,

the Commonwealth of the Northern

Mariana Islands, and the Virgin Islands,

and which are or were owned by, leased

to, or otherwise possessed or used by

the United States where military

munitions have been used in training or

research, development, testing, and

evaluation (RDT&E) by the Department

of Defense or an agent of the Department

of Defense in furtherance of the national

defense or security.

(b) This part does not apply to:

(1) Active and inactive ranges.

(2) Any closed, transferred, or

transferring range that, upon [the

effective date of the final rule], was

identified and included in an

interagency agreement for a National

Priorities List (NPL) site, or which is

subject to response activities pursuant

to any specific statutory authority or

pursuant to any agreement that

addresses military ranges that has taken
50834 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

effect prior to [the effective date of the

final rule]. Should, however, any

aspects of this part be useful in making

a given response more efficient,

effective, or protective, then nothing in

this part shall prohibit their application

upon mutual consent of the parties. In

cases where unexploded ordnance

(UXO) investigations or response

actions are underway on closed,

transferred, or transferring ranges at the

time of [the effective date of the final

rule], this part, this part will not apply

unless mutually agreed to by the parties

to the interagency or Federal facility

agreement.

(3) Airspace designated as a military

operation area or military training route

(MTR), or their underlying water or land

areas where military munitions have not

been used.

(4) Properties that are historic

battlefields.

(5) Sites where military munitions or

explosives are destroyed as part of a

munitions or explosives emergency

response as defined under 40 CFR

260.10 and subject to the provisions of

40 CFR 261 through 272 (inclusive).

(6) Ranges located outside the United

States, Puerto Rico, Guam, American

Samoa, the Commonwealth of the

Northern Mariana Islands, and the

Virgin Islands.

§ 178.3 Applicability.

This part applies to the Office of the

Secretary of Defense, the Military

Departments (including the Coast Guard

when it is operating as a Military

Service in the Department of the Navy),

the Chairman of the Joint Chiefs of Staff,

the Unified Combatant Commands, the

Defense Agencies, the DoD Field

Activities, and the National Guard

Bureau (NGB) (hereafter referred to

collectively as ‘‘DoD components’’). For

purposes of this part, the Department of

War and the Department of the Navy as

they existed prior to the creation of the

Department of Defense are also

considered DoD components.

§ 178.4 Definitions.

When used in this part, the following

terms have the meanings given as

shown:

(a) Accelerated responses (ARs). Any

readily available, generally used,

reliable, and easily implemented

methods of addressing the risk posed by

military munitions, unexploded

ordnance, or other constituents at

military ranges. ARs may be fully

protective in and of themselves.

(b) Active range. A military range that

is currently in service and is being

regularly used for range activities.

(c) American Indian tribe. For

purposes of this part, the term American

Indian tribe means Native American

tribes and Native Alaskan villages that:

(1) Are federally recognized as an

Indian tribe or a Native Alaskan village

by the Secretary of the Department of

Interior, in accordance with 26 CFR

83.5;

(2) Have a tribal governing body that

is currently performing governmental

functions to promote the health, safety,

and welfare of the affected population

or to protect the environment within a

defined geographical area, and;

(3) Are the property owner, as defined

in paragraph (l) of this section, of any

portion of a closed, transferred, or

transferring range at which a response is

ongoing or contemplated.

(d) Closed range. A military range that

has been taken out of service as a range

and that either has been put to new uses

that are incompatible with range

activities or is not considered by the

military to be a potential range area. A

closed range is still under the control of

a DoD component.

(e) Federal land manager. Federal

agencies having or clearly anticipated to

receive jurisdiction, custody, or control

over the property.

(f) Inactive range. A military range

that is not currently being used, but that

is still under military control and is

considered by the military to be a

potential range area, and that has not

been put to a new use that is

incompatible with range activities.

(g) Military munitions. All

ammunition products and components

produced or used by or for the U.S.

Department of Defense or the U.S.

Armed Services for national defense and

security, including military munitions

under the control of the Department of

Defense, the U.S. Coast Guard, the U.S.

Department of Energy (DOE), and

National Guard personnel. The term

military munitions includes: confined

gaseous, liquid, and solid propellants,

explosives, pyrotechnics, chemical and

riot control agents, smokes and

incendiaries used by DoD components,

including bulk explosives and chemical

warfare agents, chemical munitions,

rockets, guided and ballistic missiles,

bombs, warheads, mortar rounds,

artillery ammunition, small arms

ammunition, grenades, mines,

torpedoes, depth charges, cluster

munitions and dispensers, demolition

charges, and devices and components

thereof. Military munitions do not

include wholly inert items, improvised

explosive devices, and nuclear

weapons, nuclear devices, and nuclear

components thereof. However, the term

does include nonnuclear components of

nuclear devices, managed under DOE’s

nuclear weapons program, after all

required sanitization operations under

the Atomic Energy Act of 1954, as

amended, have been completed.

(h) Military range. A designated land

or water area set aside, managed, and

used to conduct research on, develop,

test, and evaluate military munitions

and explosives, other ordnance, or

weapon systems, or to train military

personnel in their use and handling.

Ranges include firing lines and

positions, maneuver areas, firing lanes,

test pads, detonation pads, impact areas,

and buffer zones with restricted access

and exclusionary areas. The definition

of a military range does not include

airspace, or water, or land areas

underlying airspace used for training,

testing, or research and development

where military munitions have not been

used.

(i) Operation and maintenance

(O&M). O&M means measures that are

required to maintain the effectiveness of

response actions. O&M measures are

initiated after the response action has

achieved the goal in the decision

document and is determined to be

‘‘fully operational.’’

(j) Other constituents. Other

constituents are potentially hazardous

chemicals that are located on or

originate from closed, transferred, or

transferring ranges and are released

from military munitions or UXO, or

resulted from other activities on military

ranges. Other Constituents may be

subject to other statutory authorities,

including, but not limited to, the

Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA) (42 U.S.C. 9601, et seq.)

and the Resource Conservation and

Recovery Act (RCRA) (42 U.S.C. 6901, et

seq.).

(k) Project team. The responsible DoD

component, its designated

representatives, any Federal land

manager with jurisdiction, custody, or

control for all or part of the range, and

its designated representatives. The

designated representatives provide the

working-level direction for scoping the

response action, preparing planning

documents, conducting investigations

and studies, and preparing reports.

(l) Property owner. A non-Federal

entity that owns a piece of property, or

a Native American tribe or Native

Alaskan village that owns a piece of

property or land, held in trust by the

United States for that tribe or village or

its individual tribal or village members,

that is a closed, transferred, or

transferring military range.

(m) Transferred range. A military

range that is no longer under military
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50835

control and has been leased, transferred,

or returned to another entity, including

Federal entities. This includes a military

range that is no longer under military

control but was used under the terms of

a withdrawal, executive order, specialuse permit or authorization, right-ofway, public land order, or other

instrument issued by the Federal land

manager.

(n) Transferring range. A military

range that is proposed to be leased,

transferred, or returned from the

Department of Defense to another entity,

including Federal entities. This includes

a military range that is used under the

terms of a withdrawal, executive order,

special-use permit or authorization,

right-of-way, public land order, or other

instrument issued by the Federal land

manager. An active range will not be

considered a ‘‘transferring range’’ until

the transfer is imminent.

(o) Unexploded ordnance. Military

munitions that have been primed, fuzed,

armed, or otherwise prepared for action,

and have been fired, dropped, launched,

projected, or placed in such a manner as

to constitute a hazard to operations,

installation, personnel, or material and

remain unexploded either by

malfunction, design, or any other cause.

§ 178.5 Responsibilities.

(a) The DoD component responsible

for the military munitions or other

constituents present at a closed,

transferred, or transferring military

range, or another DoD component

designated by the Secretary of Defense

shall exercise the responsibilities set

forth in this part. This entity shall be

referred to in this part as the

‘‘responsible DoD component’’ or the

‘‘DoD component responsible for’’ a

range.

(b) In the case of closed, transferred,

or transferring ranges that are owned,

leased, or otherwise possessed by a

State National Guard and are covered by

this part, the NGB shall be the

responsible DoD component.

(c) If the closed, transferred, or

transferring military range includes

property under the jurisdiction,

custody, or control of a Federal land

manager, the responsible DoD

component must establish a project

team that will include the Federal land

manager. The project team will exercise

the responsibilities of the responsible

DoD component in the working-level

development and management of the

range response process at that range.

Where a Federal agency has been

proposed to receive jurisdiction,

custody, or control of a former range but

the agency is not yet a Federal land

manager as defined in this part, the

agency may sit on the project team for

informational purposes only.

(d) The Department of Defense

recognizes that other Federal agencies

listed in 40 CFR 300.175 have duties

established by statute, executive order,

or presidential directive that may apply

to or be impacted by response actions

conducted under the regulations set

forth in this part. These agencies may be

called upon by the responsible DoD

component or other Federal agency

during response planning and

implementation to provide assistance in

their respective areas of authority or

expertise, as described in 40 CFR

300.175, consistent with the agencies’

capabilities and authorities.

§ 178.6 Identification of closed,

transferred, and transferring ranges.

(a) Within 18 months of [the effective

date of the final rule], each DoD

component shall develop a list of all

known closed, transferred, and

transferring ranges subject to this part

and controlled at any time by that DoD

component, and shall submit that list to

a DoD component designated by the

Secretary of Defense for use in

developing the central inventory

database.

(1) The information for each military

range in the inventory database shall

include, at a minimum:

(i) A unique identifier for the range.

(ii) The current status of the range

(i.e., closed, transferred, transferring).

(iii) The name, address, and telephone

number of a point of contact at the

responsible DoD component.

(iv) An appropriate record showing

the location, boundaries, and areal

extent of the range including all

counties, independent cities and towns

in which the range is located, as well as

all states in which that range is located.

(v) Known entities, other than a DoD

component, with current ownership

interest or control of the land or its

resources.

(vi) Any deed restrictions currently in

place that might affect the potential for

exposure to military munitions, UXO, or

other constituents present at the range.

(2) The inventory database shall be

updated on a periodic basis (at least

annually) to reflect new information

that has become available.

(b) Each military range included in

the inventory database will be assigned

a relative priority for range assessment/

accelerated response (RA/AR) activities

based on the overall conditions at the

range. When assigned, this priority will

be included in the record for each

military range in the inventory database.

The Department of Defense will

consider factors relating to safety and

environmental hazard potential, such

as:

(1) Whether access to a site can be

controlled, and the population is

potentially at risk.

(2) The potential for direct human

contact and evidence of people entering

into the range area.

(3) Whether a response action has

been or is being taken at that range

under the Formerly Used Defense Sites

(FUDS) program or other environmental

restoration programs.

(4) Planned or mandated dates for

transfer of the range from DoD control.

(5) Documented incidents involving

UXO or off-range releases of other

constituents from the range.

(6) The potential for drinking water

contamination.

(7) The potential for destruction of

sensitive ecosystems.

(8) The potential for damages to

natural resources.

(9) The potential for releases to the

air.

(10) The degree of public interest in

the range.

(11) The degree of Federal land

manager interest in the range.

(12) The degree of State or Federal

regulator or American Indian tribal

interest in the range.

(c) This paragraph describes Federal,

State, and local government; American

Indian tribe; and public involvement

with the inventory database.

(1) Upon the designation of the

responsible DoD component, that DoD

component shall work with the

community to provide information

concerning conditions at the range,

response activities, and shall respond to

inquiries. The responsible DoD

component shall notify, at a minimum,

immediately affected individuals; State,

local, and tribal officials; and, when

appropriate, civil defense or emergency

management agencies.

(2) Federal, State, and local officials;

members of Native American tribes and

Native Alaskan villages; and the public

possessing detailed information on areas

believed to be military ranges are

encouraged to submit that information

in writing to the Office of the Deputy

Under Secretary of Defense

(Environmental Security, 3000 Defense

Pentagon, Washington, DC 20301–3000).

If, based on the Department of Defense’s

evaluation of that information, the area

is identified as a military range subject

to this part, it will be included in the

inventory database.

§ 178.7 Range assessment/accelerated

response.

(a) Purpose. The purpose of the RA/

AR is to promptly identify and respond
50836 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

to risks posed by military munitions,

UXO, and other constituents at military

ranges subject to this part and to

distinguish between military ranges

posing little or no explosives safety,

human health, or environmental risk

and military ranges that pose a greater

risk. The RA/AR shall use readily

available information or limited data

collection efforts to determine if

additional investigation is required, or if

implementation of an AR is warranted.

(b) Range assessment. As used in this

part, the range assessment:

(1) Is a limited-scope investigation

designed to assess the risk posed by any

military munitions, UXO, or other

constituents found at the range.

(2) Shall, to the extent feasible, rely

on available information gathered

through a combination of file searches

and desktop information collection and

analysis. If warranted, additional data

may be collected by such methods as

visual inspection of the range or focused

sampling of environmental media in an

effort to develop an improved

understanding of the conditions at the

range. Such on-range activities require

development of a work plan describing

the objectives and plan for conducting

any such activities.

(i) Prior to any activities that require

entry onto the range, an explosives

safety plan must be approved by the

DoD Explosives Safety Board (DDESB)

or other explosives safety organization

designated by DDESB. The work plan

implemented by the responsible DoD

component must provide for an

appropriate balance between the risks to

the safety of the investigators and the

risk to the community and environment.

The draft work plan will be coordinated

with and comment sought from the

appropriate Federal, State, and local

governments and American Indian tribe.

The final work plan will be subject to

regulatory concurrence.

(ii) Proposed decisions that

recommend limiting the entry into

specific areas of the range based on

munitions safety hazards will be

provided to stakeholders, together with

a description of the criteria and

rationale used to develop such

recommendations. In response to such a

proposed decision, the responsible DoD

component must:

(A) Seek reversal or modifications of

the proposed decision, or

(B) Develop an alternative explosives

safety plan that meets the conditions of

the proposed or modified decision.

(iii) Prior to entry onto a transferred

range, written permission must be

obtained from the current Federal land

manager or property owner.

(3) Shall initiate range delineation

procedures that will adequately define

discrete areas within a range that pose

varying explosives safety hazards and

environmental risks.

(4) Should include collection of the

following information:

(i) Information about the types,

quantities, constituents, and other

factors related to the military munitions

employed on the range.

(ii) Information on previous range

clearance operations or reported

incidents involving military munitions

or UXO on the range.

(iii) Safety issues related to use of

military munitions on the range.

(iv) The identity, concentration, and

human health or environmental effects

of other constituents known or believed

to be present on the range.

(v) The type(s) of any targets that may

have been used on the range.

(vi) Other past and present uses of the

range.

(vii) Any prior agreements identifying

reasonably anticipated future land uses

or imposing land use restrictions, and,

in the absence of these, current and

reasonably anticipated future land uses.

(viii) The environmental setting of the

range, including:

(A) The location and identity of

receptors (e.g., human, threatened and

endangered species) potentially

impacted by the range.

(B) Specific exposure routes of

concern.

(C) Local hydrologic and

hydrogeologic conditions (which

include groundwater).

(D) Soils and geology.

(E) Terrain.

(F) Climate.

(G) Biological resources.

(H) Cultural resources.

(c) Accelerated response. (1)

Examples of ARs include, but are not

limited to:

(i) Conducting source removals or

surface sweeps for UXO.

(ii) Posting signs warning of the

dangers associated with the range.

(iii) Erecting fences or other similar

physical means to control access.

(iv) Implementing erosion controls

(e.g., silt fences).

(v) Suspending incompatible land

uses (where DoD has the ability to do

so).

(vi) Implementing community

education and awareness programs.

(vii) Implementing a monitoring

program.

(viii) Other appropriate engineering,

institutional, or exposure controls.

(2) Selection of an AR. AR alternatives

shall be evaluated using qualitative (or

if available, quantitative) information to

assess how the AR would address the

following nine criteria, which shall have

the same meanings as set forth in the

National Contingency Plan (NCP):

(i) Overall protection of human health

and the environment (including

explosives safety and natural resources).

(A) All AR alternatives must

minimize explosives safety risks.

(B) If the AR requires entry onto the

range, an explosives safety plan must be

approved by DDESB or other explosives

safety organization designated by

DDESB.

(ii) Compliance with applicable or

relevant and appropriate requirements

(ARARs) established under Federal and

State law, to the extent practicable given

the exigencies of the situation.

(iii) Long-term effectiveness and

permanence.

(iv) Reduction in the toxicity,

mobility, quantity, or volume of other

constituents present at the range.

(v) Short-term effectiveness.

(vi) Implementability.

(vii) Cost.

(viii) Acceptability to Federal and

State regulatory agencies, or agencies

with jurisdiction over affected

resources.

(ix) Community (including current

property owner) acceptance.

(d) Evaluation of RA/AR process

results. (1) The RA/AR process

continues until:

(i) Enough information has been

gathered to make an informed risk

management decision, or it is

determined that the effort necessary to

collect that information is beyond the

scope of the RA.

(ii) Identified risks have been

addressed through implementation of an

AR, or it is determined that ARs are

unable to address the identified risk.

(2) An RA/AR report shall be

prepared to document the findings of all

assessment activities and the reasons for

and effectiveness of each AR

implemented.

(3) The RA/AR report shall make a

recommendation as to appropriate

action, including one or a combination

of the following recommendations:

(i) Issue a determination of no further

action (residual munitions risk is below

the threshold of concern and no

continued protective measures or

institutional controls are needed).

(ii) Conduct recurring reviews of the

ARs implemented.

(iii) Conduct a range evaluation (RE).

(iv) Issue a technical impracticability

(TI) determination.

(v) Other recommendations, as

appropriate.

(e) Public and government agency

involvement. This section describes
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50837

Federal, State, and local government,

American Indian tribal, and public

involvement with the RA/AR process.

(1) Before beginning the RA/AR, the

responsible DoD component shall send

a written notice to the appropriate

Federal, State, and local governments

and American Indian tribe, informing

them that these activities will be

starting. This notice will also request

that these governments designate a

point of contact within their

organization and identify that point of

contact to the responsible project team.

The responsible DoD component shall

also send a copy of this notice to the

current property owner.

(2) All validated information about

conditions at the military range, the

documented risks posed by the site, and

any ARs to address those risks shall be

included in the administrative record

and be made available to Federal, State,

and local governments; American

Indian tribes; and the public through the

information repository.

(3) For all ARs where implementation

of an on-site action is expected to take

more than one hundred twenty (120)

days to complete, within that period the

responsible DoD component shall

conduct interviews with local officials,

community residents, public interest

groups, or other interested or affected

parties, as appropriate, to solicit their

concerns, information needs, and how

or when they would like to be involved

in the range response process. The

responsible DoD component shall also

prepare a formal public involvement

plan (PIP) based on the community

interviews or other relevant

information, specifying the public

involvement activities that are needed

during the response.

(4) The RA report shall be subject to

a forty-five (45)-day review and

comment period prior to

implementation of the AR. However, if

the physical construction associated

with an interim AR, including

implementation of site access control

measures, is reasonably expected to be

completed within 120 days of the

commencement of the AR (i.e.,

completion of the RA), the opportunity

for review and comment may be

provided during or when the AR has

been implemented.

(5) As part of involving Federal, State,

and local governments; American

Indian tribes; and the public in the

range response, the responsible DoD

component shall make use of existing

Restoration Advisory Boards (RABs) to

involve these parties throughout the

process, or other forums, such as an

Extended Project Team (EPT), as the

specifics of the site or interest of the

community indicate.

(6) Range responses conducted under

this part shall include a technology

education program which provides an

opportunity for members of the public,

American Indian tribes, and regulators

to receive a general explanation of

available UXO detection and

remediation technologies, their

capabilities, and their limitations. This

program will be provided by the

responsible DoD component beginning

in the RA/AR phase. The program shall

consist of a presentation to the RAB or

EPT which generally explains the UXO

detection and removal technologies

available to respond to former military

ranges. Additional presentations may be

made as a follow-up to the initial

presentation if significant technology

advancements have been made.

(7) Except as provided in paragraph

(e)(4) of this section, once the RA/AR

report is complete, the responsible DoD

component shall:

(i) Send a copy of the draft RA/AR

report to the appropriate Federal and

State regulators and American Indian

tribe, seeking their review and

comment.

(ii) Publish a notice of availability and

brief description of the RA/AR report in

a major local newspaper of general

circulation announcing a forty-five (45)-

day period for submission of written

comments.

(iii) Hold a public meeting or

availability session, if requested.

(iv) Develop written responses to

significant comments received during

the comment period and prepare a final

RA/AR report.

(8) Except as provided in paragraph

(e)(4) of this section, the responsible

DoD component shall then prepare a

formal decision document specifying

the action(s) to be taken.

(i) This decision document and all

supporting information are part of the

administrative record.

(ii) Copies of the decision document

will be sent to the appropriate Federal,

State, and local governments; American

Indian tribe; and current property

owner.

(iii) The responsible DoD component

shall seek concurrence on the decision

document in accordance with

§ 178.14(e).

§ 178.8 Range evaluation.

(a) Purpose. The purpose of the RE is

to conduct a detailed investigation

designed to fully characterize the risks

posed by any military munitions, UXO,

or other constituents known or believed

to be present at the military range. The

purpose of this investigation is to

determine if the AR measures are

adequate or whether a site-specific

response is necessary. The RE will

typically require the collection and

analysis of quantitative information not

otherwise available, in addition to the

data assembled for the RA/AR.

(b) The RE plan. An RE plan shall be

prepared providing information as to

the objectives established for the RE, the

rationale for those objectives, and how

those objectives will be achieved. As

necessary, the RE plan shall include any

sampling and analysis protocols,

explosives safety requirements, data

analysis procedures, or studies required

to complete the RE.

(1) Prior to any activities that require

entry onto the range, a site safety plan

must be approved by the DDESB or

other explosives safety organization

designated by DDESB.

(2) Prior to entry onto a transferred

range, written permission must be

obtained from the current Federal land

manager or property owner.

(c) Information collected during the

RE should include:

(1) Information about the types,

quantities, constituents, and other

factors related to the military munitions

employed on the range.

(2) Information on previous range

clearance operations or reported

incidents involving military munitions

or UXO on the range.

(3) Safety issues related to use of

military munitions on the range.

(4) The identity, concentration, and

human health or environmental effects

of other constituents known or believed

to be present on the range.

(5) Any prior agreements identifying

reasonably anticipated future land uses

or imposing land use restrictions, and,

in the absence of these, current and

reasonably anticipated future land uses.

(6) The environmental setting of the

range, including:

(i) The location and identity of

receptors (e.g., human, threatened and

endangered species) potentially

impacted by the range.

(ii) Specific exposure routes of

concern.

(iii) Local hydrologic and

hydrogeologic conditions (including

groundwater).

(iv) Soils and geology.

(v) Terrain.

(vi) Climate.

(vii) Biological resources.

(viii) Cultural resources.

(d) Range risk assessment. (1)

Information obtained from the RE will

be used to conduct a detailed,

quantitative assessment of the risks

posed by any military munitions, UXO,

or other constituents identified at the
50838 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

military range to provide an estimate of

the overall risk posed by the range, and

to serve as a tool for assessing the

effectiveness of a given response at

addressing those risks. The range risk

assessment will evaluate explosives

safety, human health, and

environmental risks.

(2) The range risk assessment shall

consider:

(i) Identification of the source of the

risk (e.g., identification of the specific

munitions or constituents).

(ii) The likelihood of exposure.

(iii) The effects of exposure.

(e) RE report. (1) The findings and

conclusions of the RE will be presented

in a formal RE report. The RE report

shall make a recommendation as to

appropriate action, including one or a

combination of the following

recommendations:

(i) The AR was adequate to address

the identified risks.

(ii) Conduct recurring reviews.

(iii) Issue a TI determination.

(iv) Conduct a site-specific response.

(v) Issue a determination of no further

action.

(vi) Other recommendations, as

appropriate.

(2) If the recommendation is to

initiate a site-specific response, a letter

report may be used to summarize the

findings of the RE, identify the risks

requiring a site-specific response, and

the anticipated scope and start of the

site-specific response evaluation (SSRE).

No formal RE report would be prepared,

and instead the SSRE report would

incorporate the findings and

conclusions of the RE.

(f) Public and government agency

involvement. This paragraph describes

Federal, State, and local government;

American Indian tribe; and public

involvement with the RE process.

(1) Before beginning the RE, the

responsible DoD component shall send

a written notice to the appropriate

Federal, State, and local governments

and American Indian tribe informing

them that these activities will be

starting. This notice will also request

that these governments designate a

point of contact within their

organization and identify that point of

contact to the responsible DoD

component. The responsible DoD

component shall also send a copy of this

written notice to the current property

owner.

(2) The RE plan, all validated

information about conditions at the

military range, and any documented

risks posed by the site shall be included

in the administrative record and be

made available to Federal, State, and

local governments; American Indian

tribes; and the public through the

information repository.

(3) As appropriate, the responsible

DoD component shall hold a public

availability session to provide

information on the status of the RE

when appropriate.

(4) If a letter report in accordance

with paragraph (e)(2) of this section is

prepared, then the responsible DoD

component shall:

(i) Prepare a formal decision

document that summarizes findings of

the RE, identifies the risks requiring a

site-specific response, and describes the

anticipated scope and start date of the

SSRE.

(ii) Make the decision document

available to the public.

(iii) Send a copy of the decision

document to the appropriate Federal,

State, and local governments and

American Indian tribe. A copy shall also

be sent to the current property owner.

(iv) Seek concurrence on the decision

document in accordance with

§ 178.14(e).

(5) If a formal RE report is prepared,

then, upon completion of the draft RE

report, the responsible DoD component

shall:

(i) Send a copy of the draft RE report

to the appropriate Federal and State

regulators and American Indian tribe,

seeking their review and comment.

(ii) Publish a Notice of Availability

and a brief description of the RE report

in a major local newspaper of general

circulation and announce a forty-five

(45)-day period for submission of

written comments.

(iii) Hold a public meeting or

availability session, if requested.

(iv) Develop written responses to

significant comments received during

the comment period and prepare a final

RE report.

(6) After an RE report is finalized, the

responsible DoD component shall

prepare a formal decision document

recommending the action(s) to be taken.

(i) This decision document and all its

supporting information are part of the

administrative record.

(ii) Copies of the decision document

and final report will be sent to the

appropriate Federal, State, and local

governments; American Indian tribe;

and current property owners.

(iii) The responsible DoD component

shall seek concurrence on the decision

document in accordance with

§ 178.14(e).

§ 178.9 Site-specific response evaluation.

(a) Purpose. An SSRE examines

response alternatives that address the

remaining risks identified by the RE that

have not been, or cannot be, effectively

addressed by ARs. SSREs are highly

focused investigations of response

alternatives that address risks based

upon reasonably anticipated future land

use.

(b) SSRE plan. An SSRE plan that

provides the following information shall

be prepared: the objectives established

for the SSRE, the rationale for those

objectives, and how those objectives

will be achieved. As necessary, the

SSRE plan shall include any sampling

and analysis protocols, explosives safety

requirements, data analysis procedures,

or studies required to complete the

SSRE.

(1) Prior to any activities that require

entry onto the range, an explosives

safety plan must be approved by the

DDESB or other explosives safety

organization designated by DDESB.

(2) Prior to entry onto a transferred

range, written permission must be

obtained from the current Federal land

manager or property owner.

(c) Development of site-specific

response alternatives. Site-specific

response alternatives shall be initially

developed and screened in the

following manner:

(1) Identify a preliminary list of

objectives for the response.

(2) Identify general categories of

response actions that will meet or

exceed the preliminary objectives.

(3) Determine the scope of the

response.

(4) Identify and screen specific

technologies and, within a class of

technologies, identify options for the

actual treatment process.

(5) Identify the alternatives or

combinations of alternatives for a more

detailed evaluation.

(6) Conduct bench or pilot-scale

studies as necessary.

(d) Analysis of site-specific response

alternatives. The following evaluation

criteria shall be interpreted and have the

same meanings as set forth in the NCP

and shall be interpreted in the same

manner as in the preamble to the NCP

and any relevant policy or guidance

issued by EPA. The response

alternatives developed in paragraph (c)

of this section shall be further analyzed

with respect to the following nine

evaluation criteria:

(1) Protection of human health and

the environment (including explosives

safety and natural resources).

(2) Compliance with Federal and State

ARARs, or appropriate use of waivers

from those requirements.

(3) Long-term effectiveness. Assess

the residual risk posed by military

munitions (including UXO) or other

constituents that will remain at the

range following the completion of the
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50839

response action, and consider the

reliability and adequacy of the action in

providing a long-term or permanent

solution to the hazards posed at the

range. The long-term effectiveness

evaluation shall also include an

assessment of any potential long-term

liabilities associated with the response

action.

(4) Reduction in toxicity, mobility,

quantity, or volume of other

constituents present at the range.

(5) Short-term effectiveness. Address

the risks or impacts of the alternative

from the start of the action through to

the time when the response objectives

are achieved.

(6) Implementability. Assess both the

technical and administrative feasibility

of implementing each alternative.

Included in this assessment are:

(i) Consideration of the availability of

the necessary resources to implement

the alternative.

(ii) Assessment of the reliability of the

alternative.

(iii) Assessment of whether the action

will impede other responses at the

range.

(iv) Requirements for interaction with

other Federal, State, or local

governments or American Indian tribes.

(v) Availability of on- and off-range

treatment and disposal capacity.

(7) Cost. Assess direct and indirect

capital costs; operating and

maintenance costs; and long-term

liability costs associated with the

alternative.

(8) Acceptability of each alternative to

Federal and State regulatory agencies or

agencies with jurisdiction over affected

resources.

(9) Community acceptance

(community and/or property owner

acceptance).

(e) Site-specific response evaluation

report. (1) The findings and conclusions

of the SSRE shall be presented in an

SSRE report. If only a letter report is

prepared for an RE, the findings and

conclusions of the RE shall be

documented in the SSRE report. The

SSRE report shall make a

recommendation of appropriate action,

including one or a combination of the

following recommendations:

(i) Implement the recommended

response alternative(s).

(ii) Conduct recurring reviews.

(iii) Issue a TI determination.

(2) [Reserved]

(f) The SSRE report shall document

the selection of alternative(s) by:

(1) Identifying the alternative(s) to be

implemented.

(2) Discussing the goals of the

response (e.g., the risk to be addressed).

(3) Explaining how the response is

expected to achieve the goals.

(4) Providing information as to how

the alternative(s):

(i) Provides for explosives safety.

(ii) Protects human health and the

environment.

(iii) Addresses the concerns of the

public and government agencies that

were received in the written comments.

(iv) Eliminates, reduces, or controls

the risks posed by military munitions,

UXO, or other constituents present at

the range.

(v) Meets ARARs, or identifies those

requirements that will not be met, and

provides the justification for the

waivers, and any conditions imposed.

(vi) Discusses whether military

munitions, UXO, or other constituents

will remain at the range following the

completion of the response, and if so,

describes the specific mechanisms used

to ensure that land use remains

compatible with any residual hazard,

and designates the frequency of

recurring reviews.

(g) Public and government agency

involvement. This paragraph describes

Federal, State, and local government;

American Indian tribal; and public

involvement in the RE/SSRE process.

(1) The RE and SSRE Plans, all

validated information about conditions

at the military range, any documented

risks posed by the site, and any

validated information generated during

the SSRE shall be included in the

administrative record and be made

available to the appropriate Federal,

State, and local governments; American

Indian tribe; and the public through the

information repository.

(2) As appropriate, the responsible

DoD component will hold public

availability sessions to provide

information on the status of the RE and

SSRE.

(3) Once the draft SSRE report is

complete, the responsible DoD

component shall:

(i) Send a copy of the draft SSRE

report to the appropriate Federal and

State regulators and American Indian

tribe, seeking their review and

comment.

(ii) Publish a notice of availability and

brief description of the SSRE report in

a major local newspaper of general

circulation announcing a forty-five (45)-

day period for submission of written

comments.

(iii) If requested, hold a public

meeting or availability session.

(iv) Develop written responses to

significant comments received during

the comment period and prepare a final

SSRE report.

(4) The responsible DoD component

shall then prepare a formal decision

document specifying the action(s) to be

taken.

(i) This decision document and all

supporting information are part of the

administrative record.

(ii) Copies of the final SSRE report

and decision document will be provided

to the appropriate Federal, State, and

local governments and American Indian

tribe. In the case of a military range on

privately owned lands, a copy of these

documents shall also be sent to the

current property owner.

(iii) The responsible DoD component

shall seek concurrence on the decision

document in accordance with

§ 178.14(e).

§ 178.10 Site-specific response

implementation.

(a) Implementation plan. A response

implementation plan shall be prepared

describing the objectives established for

the response, the rationale for those

objectives, and how those objectives

will be achieved. As necessary, the

document shall also detail the design,

construction, operation, maintenance,

monitoring, and decommissioning of the

response alternative, and any

operational guidance and training of

personnel involved in implementing the

response.

(1) Prior to any activities that require

entry onto a range, an explosives safety

plan must be approved by the DDESB.

(2) Prior to entry onto a transferred

range, written permission must be

obtained from the current Federal land

manager or property owner.

(b) Response implementation.

Implementation of the response requires

the following:

(1) Actual construction and initial

operation of the response, including

conducting necessary quality assurance

inspections and preparing any necessary

periodic reports on progress in

executing the response.

(2) Once the response is fully

operational, monitoring the response to

determine its effectiveness.

(3) Operation until all response

objectives are achieved.

(c) Public and government agency

involvement. This paragraph describes

Federal, State, and local government;

American Indian tribal; and public

involvement in the process of

implementing the site-specific response.

(1) All validated information about

conditions at the military range, the

documented risks posed by the site, and

the site-specific response to address

those risks shall be included in the

administrative record and be made

available to Federal, State, and local

governments; American Indian tribes;

and the public through the information

repository.
50840 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

(2) As appropriate, the responsible

DoD component will hold public

availability sessions to provide

information on the status of the

response.

(3) If requested, the responsible DoD

component shall provide periodic

updates on the status of the response to

the appropriate Federal, State, and local

governments and American Indian tribe.

(4) A periodic update on the status of

the response shall be sent to the current

property owner.

§ 178.11 Recurring reviews.

(a) Purpose. The purpose of recurring

reviews is to determine if the responses

taken continue to minimize explosives

safety risks and protect human health

and the environment, and to provide an

opportunity for assessing new

technology. The scope of the review will

depend upon the response objectives

and the specific responses

implemented. The review will evaluate

the changes in physical conditions at

the range, changes in public

accessibility, applicability of new UXO

technology or other new technology that

will overcome a previous TI

determination, and continued

effectiveness of the response.

(b) Conduct of recurring reviews.

Recurring reviews shall be conducted

for ARs, any conditions imposed as part

of a TI determination, and site-specific

responses. Sites with a determination of

no further action are not subject to

recurring reviews.

(c) Frequency of recurring reviews. (1)

Recurring Reviews shall be conducted

starting in the third year following the

completion of the response.

(2) Subsequent reviews may, as

needed, be repeated in the seventh year

and at five-year intervals thereafter, for

as long as needed.

(3) The review cycle may be set on a

different or more frequent schedule

(e.g., years 2, 5, 9, 14), as necessary.

(d) Documenting recurring review

findings. (1) At each recurring review,

the review procedures and the

evaluation criteria used to assess the

effectiveness of the response will be

documented in a recurring review

report.

(2) The recurring review report will

provide a discussion of the findings,

stating whether or not the response

continues to effectively address the risk

at the range, and if any new problems

have been discovered in the period

since the last review, such as changes in

public accessibility (due, for example, to

changes in adjacent land uses).

(3) If the response failed to remain

effective, or a new problem is

discovered, then the responsible DoD

component will document the action(s)

which will be taken to address that

problem and the schedule for the action.

If the response was inadequate, then the

response process starts again at the RA/

AR phase.

(e) Public and government agency

involvement. This paragraph describes

Federal, State, and local government;

American Indian tribal; and public

involvement in the recurring review

process.

(1) The responsible DoD component

shall:

(i) Send a copy of the draft recurring

review report to the appropriate Federal

and State regulators and American

Indian tribe, seeking their review and

comment.

(ii) Publish a notice of whether the

response remains effective or not in a

major local newspaper of general

circulation.

(iii) Hold a public availability session

or meeting, if requested.

(2) The responsible DoD component

shall then prepare a formal decision

document specifying the actions(s) to be

taken.

(i) This decision document and all

supporting information are part of the

administrative record.

(ii) Copies of the decision document

will be provided to the appropriate

Federal, State, and local governments

and American Indian tribe. In the case

of a military range on privately owned

land, a copy of this document shall also

be sent to the current property owner.

(iii) The responsible DoD component

shall seek concurrence on the decision

document in accordance with

§ 178.14(e).

§ 178.12 Ending the range response

process.

(a) Following completion of an

appropriate number of recurring reviews

to demonstrate that the range poses no

significant risk to public health or the

environment, and commensurate with

the originally agreed upon use of the

property, the responsible DoD

component may administratively close

out and end the range response process

subject to the following requirements:

(1) Demonstration that any military

munitions (including UXO) or other

constituents at the military range pose

minimal risks.

(2) The specific response objectives

have been achieved and all related

monitoring activities demonstrate that

achievement.

(3) The response is fully operational

and performing to design specifications.

(4) The only remaining activities at

the site involve operations and

maintenance.

(b) Range close-out report. A range

close-out report shall be prepared

supporting completion of the response.

This report will include:

(1) A summary of the range’s history

and past and current conditions.

(2) Demonstration that all response

objectives have been met.

(3) A determination that sufficient

monitoring results have been collected

to demonstrate that the response

objectives have been achieved.

(4) Demonstration that any long-term

maintenance requirements for the

response are capable of being

successfully carried out.

(5) Documentation that the range

response has effectively addressed the

risks posed by military munitions, UXO,

or other constituents at the range.

Approval must be obtained from

DDESB.

(c) Public and government agency

involvement. This paragraph describes

Federal, State, and local government;

American Indian tribal; and public

involvement in the process of ending

the range response.

(1) Once the draft range close-out

report is complete, the responsible DoD

component shall:

(i) Send a copy of the draft range

close-out report to the appropriate

Federal and state regulators and

American Indian Tribe, seeking their

review and comment.

(ii) Publish a notice of intent to end

response activities in a major local

newspaper of general circulation

announcing a forty-five (45)-day period

for submission of written comments.

(iii) Hold a public meeting or

availability session, if requested.

(iv) Develop written responses to

significant comments received during

the comment period and prepare a final

range close-out report.

(2) The responsible DoD component

shall then prepare a formal decision

document specifying the action(s) to be

taken.

(i) This decision document and all

supporting information are part of the

administrative record.

(ii) Copies of the decision document

and final report will be sent to the

appropriate Federal, State, and local

governments; American Indian tribe;

and the current property owner.

(iii) The responsible DoD component

shall seek concurrence on the decision

document in accordance with

§ 178.14(e).

(d) The Department of Defense’s

continuing obligation. If at some future

date a problem is discovered at a

military range that has been

administratively closed out, the

Department of Defense will conduct an
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50841

appropriate response to address the

problem. This response typically will be

handled as an explosives or munitions

emergency response; however, if the

circumstances indicate a need for a

more detailed response, the Department

of Defense will reopen the range

response process and conduct any

appropriate actions.

§ 178.13 Information repository and the

administrative record.

(a) Purpose. The Department of

Defense seeks to ensure full and active

participation by any public or private

entity interested in the range response

process. Accomplishing this requires

making information about the response

activities taken at each military range

available to the public. This section

establishes the minimum requirements

for making this information available.

(b) Information repository. The

responsible DoD component shall

establish an information repository.

(1) This information repository will be

located where it is easily accessible to

the local population, such as the

community library. The information

repository will be established when the

RA/AR is initiated.

(2) Upon completion of each relevant

study document, report, or decision

document, the responsible DoD

component will place a copy of that

document in the information repository.

(c) Administrative record. The

responsible DoD component shall

establish an administrative record that

contains the documents that form the

basis for the selection of response

actions.

(1) The administrative record shall be

maintained at a location near the site

being addressed, as established by the

responsible DoD component.

(2) A copy of the administrative

record shall be made publicly available

at the information repository.

(3) Documents to be placed in the

administrative record include, but are

not limited to, the following:

(i) Notice that the RA/AR is being

initiated.

(ii) The RA/AR report.

(iii) The RE plan.

(iv) All explosives safety plans.

(v) The RE report.

(vi) The SSRE plan.

(vii) The site-specific evaluation

report.

(viii) The site-specific response

implementation plan.

(ix) Recurring review reports.

(x) The range close-out report.

(xi) All decision documents.

(xii) All public comments.

§ 178.14 Participation of and concurrence

role for Federal and State regulatory

agencies, American Indian tribes, and

Federal land managers.

(a) General. This part provides the

appropriate Federal and State

environmental remediation regulatory

agencies and American Indian tribes

with the opportunity to concur and

participate in the development of the

various decision documents under this

part. This part also provides Federal

land managers having jurisdiction,

custody, or control over property on

which a range response will occur the

opportunity to concur and otherwise

participate. The provisions of this

section are in addition to the provisions

elsewhere in this part which provide for

participation of Federal, state, and local

governments; American Indian tribes;

the public; and current property owners.

(b) A Federal land manager for a

transferred or transferring range will be

given the opportunity to participate on

the range response project team during

all phases of the range response as an

equal member of the team, with access

to project documents and information.

The Federal land manager will be

provided a concurrence role during the

evaluation and response at the range,

including at the RA/AR, RE/SSRE,

recurring review, and administrative

close-out phases. In the absence of

concurrence on significant issues or a

document, a Federal land manager

member of the project team may invoke

the formal dispute resolution

mechanism provided in § 178.15(b).

(c) Review. As required under this

part, the responsible DoD component

will seek review and comments from the

appropriate Federal, State, and local

governments; American Indian tribe;

Federal land manager; the public; and

other parties on the following: the RA/

AR report under § 178.7; the RE report

under § 178.8, if prepared; the SSRE

report under § 178.9; the recurring

review report under § 178.11; and the

range close-out report under § 178.12.

The parties identified in paragraph (e) of

this section shall have forty-five (45)

days for review of these documents. The

responsible DoD component will then

respond to significant comments, after

which the responsible DoD component

will issue a draft decision document for

concurrence from the parties identified

in paragraph (e).

(d) Decision documents. For purposes

of this paragraph, ‘‘decision documents’’

shall mean the following: the decision

document prepared under § 178.7(e)(8)

for the RA/AR phase; the decision

document prepared under § 178.8(f)(4)

or (6) for the RE; the decision document

prepared under § 178.9(g)(4) for the

SSRE; the decision document prepared

under § 178.11(e)(2) for the recurring

review phase; the decision document

prepared under § 178.12(c)(2) for the

administrative close-out phase; and any

final work plan for on-range activities

under § 178.7(b)(2)(i). These decision

documents shall include any TI or no

further action determinations, as well as

ARAR waivers.

(e) Concurrence. When the

responsible DoD component provides a

draft decision document, the

appropriate Federal or State regulatory

agency or affected American Indian

tribe, as well as to any Federal land

manager having jurisdiction, custody, or

control over property on which a range

response will occur, will have forty-five

(45) calendar days from the date of

dispatch to provide its written

concurrence or nonconcurrence with

the draft decision document. An

extension of up to thirty (30) additional

days may be granted by the responsible

DoD component, upon request. If no

written response is received by the

responsible DoD component within that

forty-five (45)-day period, or seventyfive (75)-day period if an extension was

granted, then the responsible DoD

component may proceed with a range

response action or invoke the dispute

resolution process as set forth in

§ 178.15(b), or both. If a regulatory

agency, American Indian tribe, or

Federal land manager provides a timely

nonconcurrence to the responsible DoD

component, then the regulatory agency,

American Indian tribe, or Federal land

manager and the responsible DoD

component will attempt to informally

resolve the dispute. If they are unable to

informally resolve the dispute to the

satisfaction of the regulatory agency,

American Indian tribe, or Federal land

manager, then the regulatory agency,

American Indian tribe, or Federal land

manager, as the case may be, may utilize

the formal dispute resolution

mechanism provided in § 178.15(b).

(f) Alternative timelines and dispute

resolution. The responsible DoD

components and regulatory agencies,

American Indian tribes, or Federal land

managers may enter into agreements,

either site-specific or area-wide, that

provide for different timelines and

dispute resolution procedures. These

agreements may combine the review

and dispute resolution procedures

under this part with environmental

remediation actions taken under other

authorities or agreements in order to

achieve efficiency and uniformity. Any

such agreement will not make the

review and dispute resolution processes

or decision documents under this part
50842 Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules

subject to the assessment of fines or

penalties of any kind.

§ 178.15 Dispute resolution.

(a) If a dispute arises under this part,

interested entities who may feel

aggrieved by the responsible DoD

component’s response activities are

encouraged to pursue alternative

dispute resolution mechanisms with the

responsible DoD component to resolve

any differences over the response

alternatives selected.

(b) If a dispute on a significant issue

or document arises under § 178.14 that

is not resolved informally between the

Federal or State regulatory agency,

American Indian tribe, or Federal land

manager and the responsible DoD

component at the project officer level,

then the regulatory agency, American

Indian tribe, Federal land manager, or

responsible DoD component, as the case

may be, may pursue the following

formal dispute resolution procedure:

(1) The regulatory agency, American

Indian tribe, or Federal land manager

will provide a written statement of its

dispute, along with any rationale or

supporting documents, to the military

commander representing the

responsible DoD component. The

military commander will engage in

discussions with the regulatory agency,

American Indian tribe, or Federal land

manager in an attempt to arrive at a

consensus and resolve the dispute.

(2) If no resolution is reached within

thirty (30) calendar days of receipt of

the statement of dispute, then the

dispute may be elevated to the

responsible DoD component’s

headquarters-level official, or his/her

designee. The headquarters-level official

for the responsible DoD component will

engage in discussions with the

regulatory agency, American Indian

tribe, or Federal land manager to

attempt to arrive at a consensus. If

consensus is not achieved, the

headquarters-level official for the

responsible DoD component will

announce his or her resolution of the

dispute, along with a written statement

of the supporting rationale.

(3) Within thirty (30) calendar days

from announcement of a resolution

under § 178.15(b)(2), the dispute may be

elevated to the principal environmental

policymaker for the responsible DoD

component, or his or her designee. The

principal environmental policymaker

for the DoD component will engage in

discussions with the regulatory agency,

American Indian tribe, or Federal land

manager to attempt to arrive at a

consensus. If consensus is not achieved,

the headquarters-level official for the

DoD component will announce his or

her resolution of the dispute, along with

a written statement of the supporting

rationale.

(4) In the case of a dispute involving

Federal agencies with respect to the

application and/or interpretation of this

part, a Federal agency dissatisfied with

the results of the dispute resolution

process in paragraphs (b)(1) through

(b)(3) of this section may raise its

dispute within thirty (30) calendar days

from announcement of a resolution

under paragraph (b)(3) to the Secretary

of the Military Department, or his or her

designee who must be a political

appointee whose appointment requires

the advice and consent of the Senate,

and to its Department Secretary/Agency

Administrator, or his or her designee

who also must be a political appointee

whose appointment requires the advice

and consent of the Senate. For disputes

arising at a closed, transferred, or

transferring range that is a facility listed

on the NPL, the Secretary of the Military

Department (or his or her designee)

shall resolve issues related to explosives

safety, and the EPA Administrator (or

his or her designee) shall resolve issues

related to the release or substantial

threat of release of other constituents

that are subject to CERCLA jurisdiction.

If consensus is not achieved, then the

Secretary of the Military Department (or

his or her designee) and/or, as

applicable, the EPA Administrator (or

his or her designee) will announce his

or her resolution of the dispute, along

with a written statement of the

supporting rationale. Nothing in this

paragraph shall restrict or enlarge the

authority of the EPA Administrator with

respect to a facility on the NPL. If any

party is dissatisfied with the resolution

of the dispute, the dispute may be

elevated to the Office of Management

and Budget (OMB).

(5) In the case of a dispute involving

a State regulatory agency or American

Indian tribe with respect to the

application and/or interpretation of this

part, a State or tribe dissatisfied with the

results of the dispute resolution process

in paragraphs (b)(1) through (b)(3) of

this section may raise its dispute within

thirty (30) calendar days from

announcement of a resolution under

paragraph (b)(3) to the Secretary of the

Military Department, or his or her

designee who must be a political

appointee whose appointment requires

the advice and consent of the Senate,

and to the Governor of the State or the

American Indian tribal leader as

appropriate, or their designee. If

consensus is not achieved, the

Department Secretary or his or her

designee will announce his or her

resolution of the dispute, along with a

written statement of the supporting

rationale, with respect to the application

and interpretation of this part, and the

State or tribe may pursue its authority

under any applicable laws.

(6) The dispute resolution process set

forth in this section may also be utilized

by a DoD component as provided for

elsewhere in this part (for example,

when significant unresolved issues

exist). The same levels for dispute

resolution will be utilized in such cases;

however, in such cases, the DoD

component would provide a written

statement of its dispute, along with

supporting rationale, to the regulatory

agency, American Indian tribe, or

Federal land manager, as applicable.

(7) Range response activities will not

be suspended during the dispute

resolution process absent extraordinary

circumstances. If the Secretary of a

Federal land manager, or his or her

designee whose appointment requires

the advice and consent of the Senate,

provides a written declaration with

supporting rationale to the Department

Secretary for the DoD component,

stating that an immediate suspension of

response activities during the full

dispute resolution process is needed to

prevent substantial environmental harm

that would result from the performance

of the activity itself, the responsible

DoD component shall immediately

suspend such activity, to the extent

consistent with the protection of human

health from any imminent and

substantial danger. The suspension

issue (i.e., whether to suspend response

actions during the full dispute

resolution process) will be raised

directly to the Military Service

Department Secretary, or his or her

designee whose appointment requires

the advice and consent of the Senate,

consistent with paragraph (b)(4) of this

section. The Secretary of the Federal

land manager and the Military Service’s

Department Secretary will have 5

calendar days to arrive at a consensus

on the suspension issue. If no consensus

is reached, then the Federal land

manager will have 5 calendar days to

raise the suspension issue to OMB and

request OMB to decide whether to

continue the suspension of the response

action. Five days following the

submission of the suspension issue to

OMB, the Military Service can resume

activity unless OMB makes or has made

a determination that the response

actions should not resume pending

resolution of the underlying dispute, or

that an additional time period is needed

to consider the merits of the arguments

over whether the response action should

be allowed to resume.
Federal Register / Vol. 62, No. 187 / Friday, September 26, 1997 / Proposed Rules 50843

(8) These time limits may be extended

on the mutual agreement of the parties

to the dispute.

§ 178.16 Future land use for transfers

within the Federal government.

(a) This section discusses how future

land use issues are incorporated where

a Federal land manager has jurisdiction,

custody, or control over property on

which a range response will or has

occurred.

(b) For transferring ranges, the

Department of Defense will conduct and

fund response activities consistent with

all reasonably anticipated future land

uses that are identified and agreed to

between the parties to the land transfer

prior to the transfer. Where the transfer

of the military range is mandated by

statute, Executive Order, a previously

concluded agreement between the

Department of Defense and the Federal

land manager, or under the terms of a

withdrawal, special-use permit or

authorization, right-of-way, public land

order, or other instrument issued by the

Federal land manager under which the

Department of Defense used the

property, and where future land uses are

not identified or response activities are

not specified in such statute, order,

agreement, or instrument, any dispute

will be resolved through utilization of

the dispute resolution procedure

identified in this part. Where the

transfer is not legally mandated,

disagreement over what the reasonably

anticipated future land uses are may

result in the transfer of the property to

some other party, or no transfer.

Technology limitations may restrict

current uses or cleanup of the property.

Reasonably anticipated future land uses

for the property will not necessarily be

limited by current technological

limitations on the cleanup of UXO on

ranges.

(c) For transferred ranges, in the

absence of a prior agreement identifying

reasonably anticipated future land uses

or imposing land use restrictions, the

Department of Defense will conduct and

fund response activities consistent with

all reasonably anticipated future land

uses at the time of the range response.

Reasonably anticipated future land uses

will be decided by the Federal land

manager with the concurrence of the

Department of Defense. If there is

disagreement, the dispute resolution

procedure identified in this part will be

utilized. Technology limitations may

restrict current uses or cleanup of the

property. Reasonably anticipated future

land uses for the property will not

necessarily be limited by current

technological limitations on the cleanup

of UXO on ranges.

(d) If there is disagreement over the

reasonably anticipated future land uses,

the dispute resolution provisions in

§ 178.15 will be utilized. Technology

limitations may restrict current uses or

cleanup of the property. Reasonably

anticipated future land uses for the

property will not necessarily be limited

by current technological limitations on

the cleanup of unexploded ordnance on

ranges.

(e) The Department of Defense will

conduct and fund additional response

actions where:

(1) The remedy fails (e.g., the remedy

fails to meet previously identified

remediation goals or response

objectives; restrictions on access or

other institutional controls fail not due

to the acts or omissions of the Federal

land manager but due to changes in the

use of or access to surrounding parcels

of property, such as those relating to

population growth and migration; or

through other developments out of the

control of the Federal land manager); or

(2) Contamination (i.e., other

constituents) caused by the Department

of Defense of a previously unknown

nature, location, magnitude, or extent

creates conditions inconsistent with the

reasonably anticipated land use that had

been agreed upon or otherwise

established; or

(3) Additional UXO is found that

creates conditions inconsistent with the

established reasonably anticipated land

use; or

(4) Changes in applicable laws or

regulations concerning cleanup

standards necessitate reassessment of a

previous response; or

(5) UXO technology limited the range

response, with the result that the use of

the land is more restricted than the

established reasonably anticipated

future land use, but later improvements

in technology that are cost effective

allow for removal of such a restriction

and there is a current need for the

removal of such restriction; or

(6) A statute, a final and binding court

order, or a final and binding

administrative order necessitates

additional response actions to address

UXO attributable to Department of

Defense activities on the property,

provided that the order is not

occasioned by Federal land manager

activities that are inconsistent with the

reasonably anticipated future land use;

or

(7) The remedy fails to protect

previously unidentified significant

environmental or cultural resources that

would have been protected consistent

with the established reasonably

anticipated future land use and this

part, had their existence been known at

the time of the previous range response.

Dated: September 18, 1997.

Patricia L. Toppings,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 97–25269 Filed 9–25–97; 8:45 am]

BILLING CODE 5000–04–P