6622 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 260, 261, 262, 263, 264,

265, 266, and 270

[EPA 530–Z–95–013; FRL–5686–4]

RIN 2050–AD90

Military Munitions Rule: Hazardous

Waste Identification and Management;

Explosives Emergencies; Manifest

Exemption for Transport of Hazardous

Waste on Right-of-Ways on

Contiguous Properties

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: In response to section 107 of

the Federal Facility Compliance Act

(FFCA) of 1992, EPA is today finalizing

a rule that identifies when conventional

and chemical military munitions

become a hazardous waste under the

Resource Conservation and Recovery

Act (RCRA), and that provides for the

safe storage and transport of such waste.

Today’s final rule also amends existing

regulations regarding emergency

responses involving both military and

non-military munitions and explosives.

This rule also exempts all generators

and transporters of hazardous waste, not

just the military, from the RCRA

manifest for the transportation of

hazardous waste on public or private

right-of-ways on or along the border of

contiguous properties, under the control

of the same person, regardless of

whether the contiguous properties are

divided by right-of-ways. This revision

is expected to reduce the paperwork

burden, for hazardous waste generators

whose property is divided by right-ofways without loss in protection of

public health.

EFFECTIVE DATE: This rule is effective on

August 12, 1997.

ADDRESSES: The public docket for this

rulemaking is available for public

inspection at EPA’s RCRA Docket,

located at Crystal Gateway, First Floor,

1235 Jefferson Davis Highway,

Arlington, Virginia. The regulatory

docket for this final rule contains a

number of background materials. To

obtain a list of these items, contact the

RCRA Docket at 703–603–9230 and

request the list of references in EPA

Docket #F–97–MMF–FFFFF.

FOR FURTHER INFORMATION CONTACT: The

RCRA Hotline between 9:00a.m.–6:00

p.m. EST, toll-free, at 800–424–9346;

703–412–9810 from Government phones

or if in the Washington, D.C. local

calling area; or 800–553–7672 for the

hearing impaired. For more detailed

information on specific aspects of the

rulemaking, contact Ken Shuster by

calling 703–308–8759 or by writing, to

U.S. Environmental Protection Agency,

Office of Solid Waste, Permits and State

Programs Division, 401 M St., S.W.

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

20460.

SUPPLEMENTARY INFORMATION: This rule

is available on the Internet. Please

follow these instructions to access the

rule electronically:

From the World Wide Web (WWW),

type http://www.epa.gov/epaoswer,

then select option for Rules and

Regulations.

This report can also be accessed from

the main EPA Gopher menu in the

directory: EPA Offices and Regions/

Office of Solid Waste and Emergency

Response (OSWER)/Office of Solid

Waste (RCRA)/Hazardous Waste

Gopher: gopher.epa.gov

Dial-up: 919–558–0335

FTP: ftp.epa.gov

Login: name

Password: Your Internet address

Files are located in /pub/gopher/

OSWRCRA/hazwaste

The official record for this action is

kept in a paper format. Accordingly,

EPA has transferred all comments

received into paper form and placed

them into the official record, with all

the comments received in writing. The

official record is maintained at the

address in the ‘‘ADDRESSES’’ section at

the beginning of this document.

EPA’s responses to comments have

been incorporated in a ‘‘Response to

Comments’’ document, which has been

placed into the official record for this

rulemaking. The major comments and

responses are discussed in the Response

to Comment sections of this preamble.

Preamble Outline

I. Legal Authority

II. Background

III. Summary of Significant Changes From

Proposed Rule

IV. Description of the Final Rule and

Responses to Comments

A. Description of Major Affected Parties

B. Scope, Applicability, and Definition of

Military Munitions

C. Separate CFR Part for Military

Munitions

D. Uniform National Standards

E. When Military Munitions Become a

Solid Waste

F. When Unused Military Munitions

Become a Solid Waste

1. Section 266.202(b)(1)—Munitions That

Have Been or are Abandoned by Being

Disposed of, Burned, or Otherwise

Treated Prior to Disposal

2. Section 266.202(b)(2)—Munitions

Removed From Storage for the Purposes

of Treatment or Disposal

3. Section 266.202(b)(3)—Leaking or

Deteriorated Munitions

4. Section 266.202(b)(4)—Munitions

Determined by an Authorized Military

Official to be a Solid Waste

G. When Military Munitions Are Not a

Solid Waste

1. Intended Use

a. Section 266.202(a)(1)(i)—Military

training exercises.

b. Section 266.202(a)(1)(ii)—Weapons

testing.

c. Section 266.202(a)(1)(iii)—Range

clearance operations.

2. Section 266.202(a)(2)— Disassembly

operations.

H. Military Munitions On Closed and

Transferred Ranges

I. When Used or Fired Military Munitions

Become Solid Waste, including Military

Munitions That Land Off-Range

J. Waste Materials Derived from Munitions

Manufacture

K. Chemical Munitions

L. Generator and Transporter Standards

M. Storage Standards

1. Conditional Exemption for Waste

Military Munitions in Storage

a. Conditional Exemption for Waste Nonchemical Munitions

(1) Legal Basis for Conditional Exemption

Approach

(2) Implementation and Enforcement Issues

(3) Amendments to DDESB Standards

b. Waste Chemical Munitions

(1) Applicability of RCRA Requirements to

Waste Chemical Munitions

(2) Inapplicability of Conditional

Exemption

(3) Inapplicability of RCRA Storage

Prohibition

2. Subpart EE

N. Permit Modifications to Receive Off-Site

Waste Munitions

O. Environmental Justice

P. Emergency Responses

Q. Manifest Exemption For Transport of

Hazardous Waste In Lieu of ‘‘On-Site’’

Redefinition

V. State Authority

VI. Administrative Requirements/

Compliance with Executive Order

A. Regulatory Impact Analysis Under

Executive Order 12866

1. Cost Analysis

2. Benefits Analysis

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates

VII. Submission to Congress and the General

Accounting Office

I. Legal Authority

These regulations are being finalized

under the authority of sections 2002,

3001–3007 (including 3004(y)), 3010,

7003, and 7004 of the Solid Waste

Disposal Act of 1965, as amended,

including amendments by RCRA and

the FFCA (42 U.S.C. 6912, 6921–7,

6930, and 6973–4).

II. Background

Section 107 of the Federal Facility

Compliance Act (FFCA) of 1992
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6623

amended the Resource Conservation

and Recovery Act (RCRA) by adding a

new section 3004(y) that requires the

U.S. Environmental Protection Agency

(EPA) to propose, after consulting with

the Department of Defense (DOD) and

appropriate State officials, and then to

finalize regulations that identify when

conventional and chemical military

munitions become hazardous waste

subject to Subtitle C of RCRA, and that

provide for the safe storage and

transportation of such waste. Such

regulations are to assure the protection

of human health and the environment.

This final rule responds to this

Congressional mandate. The Agency

consulted with DOD and appropriate

State representatives prior to the

promulgation of this rule, as the statute

requires. Records of these meetings and

information provided to EPA have been

included in the official docket of this

final action.

EPA proposed the rule on November

8, 1995 (60 FR 56468). The public

comment period ended on February 2,

1996. As mentioned in the proposal, the

Agency focused on several key issues

that have arisen in the application of

RCRA to military munitions, or that

have been raised by DOD, States, or

citizen groups. The six major issues

raised during the development of the

proposed rule and addressed in today’s

final rule are the following: (1) At what

point does an unused munition become

a RCRA ‘‘hazardous waste,’’ potentially

subject to RCRA permitting and

technical management standards?

Specifically, at what point in the

process do unused munitions slated for

destruction first become subject to

RCRA? (2) Should RCRA hazardous

waste management standards apply to

the use of munitions in weapons testing

or military training exercises? (3) How

do RCRA hazardous waste regulations

apply to emergencies involving military

munitions and explosives and nonmilitary explosives? (4) In what way (if

any) do RCRA requirements apply to

unexploded ordnance and

environmental contamination at

military ranges, especially ranges that

are closed or transferred? (5) Once it has

been determined that a munition is a

hazardous waste for regulatory

purposes, what management standards

are needed to ensure safe transportation

and storage, while protecting human

health and the environment? (6) Should

the definition of ‘‘on-site’’ be revised to

simplify compliance with RCRA

manifest standards at contiguous

facilities cut by right-of-ways?

In developing the final rule, EPA

reviewed the comments received from

124 organizations and individuals on

the proposed rule, including DOD, other

Federal agencies, States, universities,

associations, corporations, and citizen

groups. These comments can be found

in the official docket for this final rule.

Responses to significant comments can

be found in the preamble of today’s rule.

In addressing each of the above six

issues, EPA proposed (in the November

8, 1995 Federal Register) an option

followed in some cases by a discussion

of ‘‘alternative options’’ on which the

Agency requested comment. Because of

the length and complexity of the issues

and options proposed, the Agency is not

revisiting or summarizing these in this

final rule preamble to any great extent.

The reader may refer to the proposed

notice for a detailed account of the

original proposal. Instead, this final rule

preamble expands on the discussion of

the selected alternative, which appeared

in the proposal, in order to provide

additional discussion of the finally

selected option. Following that

discussion is a response to comments

section for each topic. Together, the

purpose of these discussions is to

explain and clarify the Agency’s final

direction.

III. Summary of Significant Changes

From Proposed Rule

Following is a summary of the

significant changes to the proposed rule

in today’s final rule. Where the Agency

proposed multiple options, this

summary identifies those alternatives

that EPA has incorporated into today’s

final rule.

The final rule consolidates the

requirements applicable solely to

military munitions in a new subpart M

under 40 CFR Part 266.

The applicability of proposed 40 CFR

264 and 265 subparts EE for storage of

waste munitions and explosives is being

expanded to be available to owners and

operators of all units storing such

wastes, not just the military. In addition,

EPA has decided to finalize the second

alternative discussed in the storage

section of the proposed preamble. This

is the conditional exemption alternative,

under which non-chemical waste

military munitions that otherwise meet

the definition of ‘‘hazardous waste’’ are

not regulated under RCRA as a

hazardous waste so long as they meet all

of the conditions set forth in § 266.205.

Today’s rule also finalizes the

conditional exemption approach for

transportation of waste munitions when

shipped between military installations

in accordance with DOD standards.

The Agency is today postponing final

action on the status of military

munitions left on closed or transferred

ranges. This will enable the Agency to

thoroughly evaluate the numerous

public comments as well as the DOD

Range Rule which is currently under

development.

Instead of modifying the definition of

‘‘on-site,’’ as proposed, the final rule

revises 40 CFR Part 262 to exempt from

the RCRA manifest requirements

shipments on right-of-ways on (or

bordering) contiguous properties under

the control of the same person, where

the property is cut by right-of-ways. The

title for today’s rule also reflects this

change.

IV. Description of the Final Rule and

Responses to Comments

This rule finalizes the proposed

‘‘Military Munitions Rule: Hazardous

Waste Identification and Management;

Explosive Emergencies; Redefinition of

On-Site’’ (60 FR 56468, November 8,

1995). This section explains the

Agency’s final action, based on the

rationale presented in the proposal and

the Agency’s review of the public

comments and further examination of

the proposed options.

To facilitate the reader’s review of this

final rule and to streamline the overall

structure, this section also contains the

Agency’s responses to the most

significant comments after each of the

topics discussed. If a particular section

does not contain a response to comment

section, then either the Agency did not

receive comment on this topic or it has

chosen to place its response in the

background document entitled Military

Munitions Rule Response to Comments

Background Document. This

background document contains a

complete discussion of the Agency’s

responses to comments and can be

found in the docket for this rulemaking.

This document provides a complete

record of the public comments followed

by the Agency’s responses. To obtain a

copy, please refer to the ‘‘ADDRESSES’’

section of this preamble.

A. Description of Major Affected Parties

Since the primary focus of this final

rule is military munitions, the major

regulated parties are the U.S.

Departments of Defense, Energy, and

Transportation (U.S. Coast Guard) and

the National Guard (the inclusion of

these is discussed below in section B).

Even so, various sections of the rule are

expected to impact a number of other

groups, as well. The emergency

response portions of this rule apply to

non-military munitions and explosives

and non-military personnel as well as

military. In addition, the 40 CFR 264

and 265 subpart EE standards for waste

munitions and explosives are also

available for use by non-military
6624 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

1 Improvised explosive devices, or IEDs, are nonstandard explosive devices made from either

military or non-military materials by non-military

personnel.

2Sanitization means the irreversible modification

or destruction of a component or part of a

component of a nuclear weapon, device, trainer, or

test assembly as necessary to prevent revealing

classified or otherwise controlled information (e.g.,

unclassified information that is restricted from the

standpoint of export control because of its

significance for nuclear explosive’s research,

development, fabrication, or proliferation purposes)

as required by the Atomic Energy Act of 1954, as

amended.

entities. The exemption from manifest

requirements for transportation along

public roads on contiguous properties

owned by the same person that are

divided by a public right-of-way,

applies to non-military as well as

military wastes and properties. The rest

of the proposed rule was developed

primarily for the military, based, in part,

on the EPA’s review of RCRA and

current military munitions management

standards and practices.

Response to Comments

In response to commenter inquiries

and suggestions regarding the

applicability of the proposed provisions

(primarily storage standards and range

standards), EPA is clarifying and

modifying certain provisions to

accommodate some non-military

situations. For example, one commenter

suggested that munitions or explosives

controlled by other government

agencies, e.g., NASA, should be

included within the scope of the

rulemaking if those agencies have

comparable storage standards. Other

commenters suggested that EPA clarify

that the final rule applies to military

contractors to the extent that they

comply with the appropriate DOD

requirements. Further, for military

contractors, where the distinction

between military munitions and

munitions produced for the private

sector or other public sector

organizations is unclear (e.g., the same

production lines and storage units are

used), the final rule should clarify that

it also applies to waste materials

associated with munitions produced for

the private or public sector to the extent

the management of these wastes also

complies with the appropriate DOD

requirements. Several commenters

suggested that subpart EE should be

made available for non-military and

private concerns.

In response to these comments, EPA

has retained the subpart EE standards in

40 CFR Parts 264 and 265, and has

expanded their availability to all

munitions and explosives, not just

military, in order to make subpart EE

available to facilities that store nonmilitary munitions or explosives and

facilities that are not subject to

Department of Defense Explosive Safety

Board (DDESB) jurisdiction. Thus,

commercial/private ventures that

operate in compliance with DDESB

storage requirements and that also

produce munitions for the private sector

that are stored in the same manner, as

well as all commercial and private

ventures that store non-military

munitions or explosives, regardless of

compliance with the DDESB standards,

may avail themselves of subpart EE for

all such munitions/explosives wastes.

Similarly, other Federal agencies (e.g.,

National Aeronautical and Space

Administration (NASA), Federal Bureau

of Investigations (FBI), and the Bureau

of Alcohol, Tobacco, and Firearms

(BATF)) that store waste munitions and

explosives may also apply for a storage

permit under subpart EE. In those cases

where the owner/operator’s practices

are comparable or identical to the

DDESB-prescribed practices, they could

expect to satisfy the subpart EE

standards.

B. Scope, Applicability, and Definition

of Military Munitions

The definition of ‘‘military

munitions,’’ finalized in 40 CFR 260.10,

establishes the scope for much of

today’s rule. In 40 CFR part 266, subpart

M, today’s rule establishes special

procedures and management standards

for waste military munitions. The term

‘‘military munitions’’ is defined to

include all types of both conventional

and chemical ammunition products and

their components, produced by or for

the military for national defense and

security (including munitions produced

by other parties under contract to or

acting as an agent for DOD—in the case

of Government Owned/Contractor

Operated [GOCO] operations). This

definition clarifies, as it did in the

proposal, that military munitions may

be under the control of the Department

of Energy (DOE), even though DOE is

not usually considered to be within the

‘‘military.’’ DOE maintains the nation’s

nuclear arsenal for the military, and

maintains munitions and personnel to

protect the arsenal. The definition

clarifies that military munitions may

also be under the control of the U.S.

Coast Guard (Department of

Transportation), and the National Guard

(which includes the State National

Guard), as well as the Department of

Defense and its various components.

The U.S. Coast Guard and National

Guard are generally considered to be

within the military. Chemical agents

and munitions are given the same

definition as in 50 U.S.C. section

1521(j)(1).

For purposes of today’s rule, the term

‘‘military’’ is also meant to include DOE

and the other organizations listed above,

as well as other parties under contract

or acting as an agent for DOD, as long

as they are managing ‘‘military

munitions.’’ Because the term

‘‘military’’ appears in the rule without

the term ‘‘munition,’’ the term

‘‘military’’ has been defined in section

266.201 to make it clear that these

parties are included with the other

organizations listed above in the scope

of the various provisions of today’s rule.

The definition of ‘‘military

munitions’’ lists a number of examples

of military munitions components,

including propellants, explosives,

pyrotechnics, bulk chemical warfare

and riot control agents, smokes,

incendiaries, warheads, cluster

munitions and dispensers, and depth

and demolition charges; and product

examples, including rockets, guided and

ballistic missiles, bombs, mines,

grenades, mortar rounds, artillery and

small arms ammunition, torpedoes, and

chemical munitions. The definition

excludes wholly inert items and

improvised explosive devices, for

example, home made bombs (which are

non-military) 1. The definition also

excludes nuclear weapons, nuclear

devices, and non-nuclear components

thereof (including subparts of

components) managed under DOE’s

nuclear weapons program, which still

must have necessary sanitization 2

operations completed thereon under the

requirements of the Atomic Energy Act

(AEA) of 1954. The phrase regarding

‘‘sanitization’’ has been added to the

definition of ‘‘military munitions’’ to

make it clear that any non-nuclear

components of nuclear weapons or

devices that do not require sanitization

under the AEA are ‘‘military munitions’’

under today’s rule. A phrase has also

been added to the end of the definition

of ‘‘military munitions’’ to clarify that

upon completion of the sanitization of

non-nuclear components (or component

subparts) of nuclear weapons or devices,

the remaining materials are considered

‘‘military munitions’’ that, thereafter,

are covered by subpart M of Part 266 of

today’s rule. Any component of a

nuclear weapon or device that is source,

special nuclear, or by product material

as defined by the Atomic Energy Act of

1954, as amended, would not be

included in this definition, nor would

they otherwise be subject to RCRA

requirements, since these materials are

excluded from the statutory definition

of solid waste under section 1004(27).

EPA considered including in this rule

all of the non-nuclear components of
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6625

nuclear weapons which are managed by

DOE under its responsibilities for the

Nation’s nuclear weapons program as

provided in the AEA of 1954 (U.S.C.

section 2011 et seq.). As the Agency

stated in its proposal, an analysis of the

legislative history associated with

section 107 resulted in the conclusion

that the FFCA does not contemplate the

inclusion of nuclear weapons within the

scope of this rule. The statutory

language and legislative history of

section 107 clearly demonstrate the

intent of Congress that EPA develop

regulations that address conventional

and chemical munitions with no

mention being made of nuclear weapons

or their components. Furthermore, EPA

recognizes that DOE’s practices and

procedures for the management of

nuclear weapons under the AEA, as

well as the potential impacts on DOE

operations, are significantly different

from those of DOD pertaining to

conventional and chemical munitions

that are addressed in this rule. As a

consequence, EPA has concluded that

non-nuclear components of nuclear

weapons are excluded from the

definition of ‘‘military munition’’ until

all necessary AEA required sanitization

has been completed. After sanitization,

EPA believes these materials are no

different from other munitions managed

for national defense, and, therefore, are

included within the scope of this rule.

Under today’s rule, however,

conventional or chemical munitions

that DOE produces or manages for the

military, or maintains and uses

(including for training purposes) to

protect the nuclear arsenal, are ‘‘military

munitions’’ under this final rule.

Response to Comments

The Agency received a number of

comments regarding the extent to which

this rule should or should not apply to

other government agencies and to the

private sector, as well as the military. In

addition to military munitions under

the control of DOD, DOE, the U.S. Coast

Guard, and the National Guard, the rule

also applies to other parties (e.g., a

private company) producing or

managing military munitions under

contract to, or as an agent for, DOD or

these other agencies. Since it is clear in

the definition of ‘‘military munitions’’

that the definition applies to all military

munitions regardless of who is

managing them, no change has been

made to the rule.

Comments were also received on

specific terms in the definition or the

need for further clarifications to the

proposed definition of ‘‘military

munitions.’’ Some of these comments

are reflected in the final definition of

‘‘military munitions’’ at 40 CFR part

260.10. For example, the final definition

reflects the comments that ‘‘mortar

rounds’’ and ‘‘artillery ammunition’’ are

more accurate than ‘‘mortar’’ and

‘‘artillery,’’ which are the weapons, not

the ammunition. On the other hand,

‘‘napalm’’ was not added to the

definition because it is covered by the

term ‘‘incendiaries.’’

C. Separate CFR Part for Military

Munitions

In the proposed preamble, EPA

solicited comment on DOD’s request

that EPA create a separate part or

subpart for military munitions in order

to consolidate and simplify the

regulations for the military, based on the

argument that this would increase

understanding and thereby enhance

compliance. In today’s rule, EPA has

consolidated all the requirements solely

applicable to military munitions in 40

CFR Part 266 subpart M, with

appropriate cross references.

Requirements applicable but not unique

to military munitions (e.g., treatment

and disposal standards) are retained

elsewhere and referenced in

§ 266.200(b) of subpart M. EPA

recognizes that some of the crossreferences in subpart M are redundant

with § 266.200(b), but has included

them for clarity.

Response to Comments

The creation of a separate part for

military munitions was supported by

several commenters, in addition to

DOD. EPA agrees with the commenters

that there is a benefit to placing all

requirements pertaining to military

munitions in the same CFR part, given

DOD’s nationwide presence, and

logistical and operational needs. The

Agency also agrees that consolidation of

the standards for waste military

munitions could simplify integration by

DOD of these rules with the DDESB and

the Service-specific requirements for the

management of all military munitions

(including waste munitions). This

consolidation should facilitate DOD’s

compliance as well as State

implementation and oversight activities.

In proposing this option, DOD

recommended that the standards be

placed in 40 CFR Part 269 (which has

already been taken by another

rulemaking proposal). In supporting this

option, EPA has decided to place it in

40 CFR Part 266, which is being used to

address special types of waste and waste

management facilities.

D. Uniform National Standards

In the proposed preamble, EPA asked

for comment on an alternative that

would have prohibited States from

enforcing broader or more stringent

requirements with respect to military

munitions. EPA has not adopted this

approach in today’s rule.

Response to Comments

The Agency received an

overwhelming response to this proposed

alternative. While EPA recognizes

DOD’s need for national consistency in

managing its munitions, including

waste munitions, given DOD’s national

defense mission, nation-wide presence,

and logistical and operational needs, the

Agency has decided not to depart from

the standard RCRA approach in today’s

rulemaking. Therefore, today’s rule

maintains the standard Federal-State

relationship embodied in other parts of

the RCRA program. While EPA strongly

encourages States to adopt the terms of

today’s rule, it acknowledges that States

may adopt requirements with respect to

military munitions that are more

stringent or broader in scope than the

Federal requirements. See RCRA section

3006 and 3009.

E. When Military Munitions Become a

Solid Waste

RCRA section 3004(y) requires EPA to

identify when military munitions

become hazardous waste for purposes of

Subtitle C of RCRA. Under the RCRA

regulations, materials are considered to

be ‘‘hazardous waste,’’ for regulatory

purposes, if the following criteria are

met: (1) the material is a ‘‘solid waste,’’

as defined in 40 CFR 261.2, and (2) the

material meets the definition of

‘‘hazardous waste’’ in 40 CFR 261.3.

Today’s final action, in keeping with the

original proposal, focuses on the first

point—clarifying when munitions

become a solid waste.

Under the existing provisions of 40

CFR 261.2 of the RCRA regulations,

‘‘solid waste’’ is defined as ‘‘discarded

material.’’ Section 261.2 (a) through (f)

provides a detailed regulatory definition

of this term. In particular, § 261.2(b)

defines ‘‘discarded material’’ as

materials that are abandoned by being

disposed of; burned or incinerated; or

accumulated, stored, or treated (but not

recycled) before or in lieu of being

disposed of, burned or incinerated.

Section 261.2(c) then describes under

which circumstances recycled materials

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

constituting disposal or accumulated

speculatively). Today’s final action adds

a new provision in § 261.2(a)(2) for

military munitions that refers to

§ 266.202, which specifies how the

regulatory term ‘‘discarded material’’

applies to unused and used military

munitions. The following sections of the
6626 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

3The term ‘‘military magazine or other storage

area’’ refers to all types of military munitions

storage units allowed under the DOD Explosives

Safety Board (DDESB) standards (DOD 6055.9–

STD), which are mandatory for use by all DOD

components, including outdoor or open storage

areas, sheds, bunkers, and earth-covered and aboveground magazines.

4EPA has taken a similar position in the case of

pharmaceuticals returned to the manufacturer. See

letter from Sylvia K. Lowrance, Director, EPA Office

of Solid Waste, to Mark J. Schulz, Pharmaceutical

preamble discuss the regulatory

definition of solid waste in the context

of three specific categories of military

munitions: (l) unused munitions, (2)

munitions being used for their intended

purpose, and (3) used or fired

munitions.

F. When Unused Military Munitions

Become a Solid Waste

This rule finalizes proposed 40 CFR

261.2(g)(1)(i)–(iv) in 40 CFR Part 266,

subpart M, § 266.202(b)(1)–(4). These

paragraphs identify the specific

circumstances under which an unused

munition is considered to be solid waste

for regulatory purposes. An unused

military munition becomes a solid waste

when: (1) the unused munition is

‘‘abandoned by being disposed of,

burned, or incinerated, or treated prior

to disposal’’; (2) the unused munition is

removed from storage for purposes of

disposal or treatment prior to disposal;

(3) the unused munition is deteriorated,

leaking, or damaged to the point that it

can no longer be returned to serviceable

condition, and cannot be reasonably

recycled or used for other purposes

(except, of course, recycling that is like

‘‘discard,’’ i.e., placement on the

ground, unless such placement is the

result of use as a munition, or burning

for energy recovery); or (4) the munition

has been determined by an authorized

military official to be a solid waste.

1. Section 266.202(b)(1)—Munitions

That Have Been or Are Abandoned by

Being Disposed of, Burned, or

Otherwise Treated Prior to Disposal

Section 266.202(b)(1), proposed as

§ 261.2(g)(1)(i), specifies that an unused

munition becomes discarded, and,

therefore, a solid waste for regulatory

purposes when it is or has been

abandoned by being disposed of (e.g.,

buried or landfilled), burned or

incinerated, or otherwise treated prior to

disposal. Thus, open burning/open

detonation or incineration of unused

munitions (except when done during an

emergency response or during training

in use of a product) is regulated under

the RCRA Subtitle C standards for

hazardous waste, including the 40 CFR

Part 270 permit requirements (assuming

the waste munitions meet the § 26l.3

definition of ‘‘hazardous waste’’).

Similarly, unused munitions that were

buried or landfilled in the past are

considered abandoned, and, therefore,

are solid waste, and, if hazardous, they

would become subject to applicable

Subtitle C regulation when unearthed

and further managed. EPA emphasizes,

as it did in the proposed rule, that this

provision will not bring use of military

munitions for their intended purposes—

e.g., the firing of military rounds—

within the regulatory scope of RCRA.

The use of a product for its intended

purpose (in this case a military

munition), in EPA’s view, is not a waste

management activity and does not

constitute abandonment or disposal for

the purposes of § 266.202(b)(1).

2. Section 266.202(b)(2)—Munitions

Removed From Storage for the Purposes

of Treatment or Disposal

Section 266.202(b)(2), proposed as

§ 261.2(g)(1)(ii), specifies that a military

munition becomes a solid waste for

regulatory purposes when it is removed

from storage in a military magazine or

other storage area 3 for the purposes of

disposal, burning, incineration, or other

treatment prior to disposal. Unused

military munitions, in EPA’s view, are

unused ‘‘products’’ comparable to

unused commercial products stored by

manufacturers or their customers. Under

RCRA, unused products do not become

‘‘waste’’ until they become ‘‘discarded

material.’’ EPA believes that an unused

product becomes ‘‘discarded’’ when an

intent to discard the material is

demonstrated. However, ‘‘intent,’’ in

many cases, is difficult to discern;

therefore, in this rule, EPA has

identified a clear test to determine the

military’s ‘‘intent’’ in the case of unused

munitions. Indeed, this issue is at the

heart of the purpose behind RCRA

section 3004(y). Congress instructed

EPA to develop a ‘‘fair and coherent

approach’’ to identify when military

munitions become a solid waste for

Subtitle C purposes, in order to avoid

creating a situation where the courts

must constantly interpret unclear rules.

[H.R. Conf. Rep. No. 886, 102d Cong., 2d

Sess. 29 (1992)]. The Agency believes it

has chosen a clear, simple, enforceable

test that is similar to the approach the

Agency has taken toward commercial

chemical products and fits the unique

context of military munitions.

DOD’s complex system of accounting

and management controls and the

numerous options available to DOD for

reconditioning, reuse, and sale, etc.,

make it difficult to determine at what

point there is an ‘‘intent to discard’’ a

particular unused munition. DOD’s

classification of a munition in one of the

various DOD ‘‘demilitarization’’

accounts does not, in EPA’s view,

constitute a decision to discard the

material because, pursuant to DOD’s

practices, such a classification does not

necessarily evidence an intent to

discard that munition. Ammunition

classified as ‘‘Condition Code H’’ or as

‘‘unserviceable,’’ or in a demilitarization

account (such as the Army’s Resource

Recovery and Disposition Account) for

example, may be either returned to

service after further review, or in some

cases after reprocessing; sold for nonmilitary purposes or to nations that

maintain weapons that utilize these

munitions; or otherwise reused,

reclaimed, or recycled. Even usable

munitions scheduled for disposal may

be called back into service, if needed,

and thus may still also serve a deterrent

purpose. Therefore, in EPA’s view,

inclusion of a munition in a

‘‘demilitarization’’ account or a military

determination that a munition is

‘‘unusable’’ for its intended purpose

does not, by itself, constitute an intent

to discard that munition.

For these reasons, today’s rule does

not define stored, unused military

munitions as ‘‘solid waste’’ subject to

Subtitle C, except as provided in

paragraphs 266.202(b) (3) and (4). In

EPA’s view, the appropriate point at

which to consider most unused military

munitions to be a solid waste is when

the material is finally removed from

storage for the purpose of disposal or

treatment prior to disposal. In practical

terms, this provision means that storage

of unused munitions is, for the most

part, not subject to RCRA regulation;

however, once a munition is removed

from a magazine for the purpose of

disposal or treatment prior to disposal,

it is a solid waste and is potentially

regulated under Subtitle C of RCRA.

EPA emphasizes that this provision

will trigger RCRA coverage only where

a decision to treat or dispose of the

munition has clearly been made. In

many cases, munitions classified as

‘‘unserviceable’’ are removed from

storage and sent to central arsenals for

evaluation to determine whether they

are, in fact, unusable; whether they can

be sold for use; whether they can be

reconditioned for use; whether they can

be recycled or processed for other uses;

or whether they should be disposed of.

In these cases, the munition is not being

shipped for the purposes of treatment or

disposal, but rather for evaluation. The

munition is to be handled as a waste

only if no further evaluation would take

place and the decision to destroy has

already been made.4 Similarly, a
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6627

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

l991.

munition may be removed from storage

for the purpose of reconditioning,

recycling or materials recovery without

triggering RCRA.

EPA’s approach, as supported by

many of the public comments, is also

based on the recognition that DOD has

in place extensive storage and

transportation standards that, in

providing for explosives safety and

security, are also protective of human

health and the environment; and that

the military Services’ safety record in

storing and transporting all munitions,

including waste munitions, has been

good. EPA further believes that there is

no compelling environmental or legal

reason to establish an earlier point at

which unused munitions are a solid

waste, except in the case of the

following: munitions that are

abandoned or disposed of in the past;

munitions that are leaking, deteriorated

or damaged to the point they cannot be

put into serviceable condition, recycled,

or put to other uses; or that have been

declared a waste by an authorized

military official. Also, it is clearer and,

therefore, easier to implement an intentbased test where a component of the

determinant of DOD’s intent is when the

munition is physically removed from

storage for treatment or disposal rather

than solely trying to figure out when a

decision by an appropriate authority has

been made. Even so, § 266.202(b)(4),

discussed in section 4 below, retains the

more intent-based test for situations

where a decision by an authorized DOD

official has clearly been made. More

importantly, however, to move away

from the proposed point (when a

munition leaves storage) would

significantly, and needlessly, increase

the regulatory burden not only on DOD,

but also on regulators (for enforcement

and for permitting), and it could

potentially disrupt DOD’s program for

the management of military munitions.

The Agency has selected this final

approach, in part, because it involves a

minimum of interference with the

military’s established and proven

system for managing unused munitions,

and it will not conflict with the

Services’ logistical needs or constraints.

Munitions in the active,

demilitarization, and waste accounts are

all managed under the same storage and

transportation standards, and they are

often stored together in the same

magazines. Thus, the hazards posed by

a stored munition do not change when

it is classified as ‘‘unserviceable’’ or

placed into a demilitarization account,

or when it is scheduled for treatment or

disposal.

EPA has determined that the

military’s storage standards and

practices for munitions provide a degree

of protection that is comparable to, or

better than, what RCRA regulation

would provide. The storage of military

munitions is regulated under standards

developed and overseen by the

Department of Defense Explosives

Safety Board (DDESB), as well as

Service-specific standards, which must

be at least as stringent as the DDESB

standards. As mentioned in the

proposal, EPA has reviewed the DDESB

standards in detail and concluded that

the technical design and operating

standards of the DDESB meet or exceed

RCRA standards in virtually all

significant respects. A more detailed

discussion on the differences between

the RCRA and DDESB standards may be

found in the preamble of the proposed

rule (60 FR 56474), and in the docket for

this rule (A Comparison of RCRA

Storage Requirements With DOD

Requirements for Storage of Military

Munitions, EPA, October 31, 1995).

Again, the DOD safety record for the

management of all military munitions,

including waste munitions, has been

good.

3. Section 266.202(b)(3)—Leaking or

Deteriorated Munitions

Section 266.202(b)(2), discussed

above, defines the most common

circumstances under which an unused

military munition becomes a solid

waste—that is, when a decision has

been made to dispose of or treat it and

it is removed from storage for

transportation to a disposal site, to a

treatment unit, or to a storage unit at

another facility prior to treatment or

disposal. EPA, however, recognizes (and

States and citizen’s groups have pointed

out) that under certain circumstances

military munitions in storage may

deteriorate to a point where they are no

longer ‘‘products’’ in any meaningful

sense and indeed may present a

potential safety hazard or environmental

threat. To address these circumstances,

§ 266.202(b)(3), which finalizes

proposed § 261.2(g)(1)(iii), defines an

unused military munition as a solid

waste if it is ‘‘deteriorated or damaged

(e.g., the integrity of the munition is

compromised by cracks, leaks, or other

damage) to the point that it cannot be

put into serviceable condition, and

cannot reasonably be recycled or used

for other purposes.’’ For example, if the

stabilizers in a propellant have

deteriorated to the point at which there

is such a significant hazard of autoignition that the only options available

to DOD are treatment or disposal, that

propellant would be a solid waste. If,

however, the propellant had not

deteriorated to this point and could

reasonably be reclaimed, it would not be

a solid waste.

Similarly, leaking chemical munitions

that cannot be put into serviceable

condition, and that cannot be

reasonably recycled or used for other

purposes would also be a solid waste. A

leaking chemical munition that has been

overpacked is so unlikely to ever be

used, repaired, or recycled, that EPA

views such a munition as a solid waste

unless DOD already has in place an

established repair or recycling plan.

Munitions in these situations are

defined in today’s rule as solid waste. A

leaking chemical munition or agent

container (e.g., a one ton chemical

container), however, may be repaired

and the material still considered to be

a product, not a solid waste, unless DOD

determines it is a solid waste under

§ 266.202(b)(4).

4. Section 266.202(b)(4)—Munitions

Determined by an Authorized Military

Official To Be a Solid Waste

Finally, proposed § 261.2(g)(1)(iv) is

finalized in § 266.202(b)(4) to make it

clear that an authorized military official

may identify an unused military

munition as a RCRA ‘‘solid waste.’’ In

this case, the designated waste munition

(if ‘‘hazardous’’ or if designated by the

generator as hazardous under § 262.11)

would be subject to the hazardous waste

regulations unless it is a non-chemical

munition that meets the terms of the

conditional exemptions in § 266.203 or

§ 266.205. For example, in 1984, the

Department of the Army determined

that M55 rockets are hazardous waste.

DOD made this decision because the

rockets’ delivery system no longer

existed, and because DOD decided, for

operational reasons, that the rockets

would not be used in military

operations, and that they would not be

sold or reclaimed. These rockets are

now being regulated as hazardous waste

under RCRA interim status or permit

requirements. This final action does not

affect the waste status of these materials

previously declared ‘‘solid waste,’’ and

provides for similar future classification

of military munitions as solid or

hazardous waste.

EPA emphasizes that § 266.202(b)(4)

requires a specific declaration by an

authorized military official that a

munition is a solid or hazardous waste.

EPA expects that the declaration would

be in writing. As explained earlier, a

decision under DOD’s classification

systems that a munition is

‘‘unserviceable,’’ or the transfer of a
6628 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

munition into a ‘‘demilitarization’’

account would not, by itself, constitute

a decision that a munition is a solid

waste.

Response to Comments

DOD commented that EPA should

designate unused military munitions as

solid wastes when certified for

treatment or disposal and received at

the treatment or disposal unit. This

would avoid the need for compliance

with RCRA storage and transportation

requirements, and permit modifications

for off-site wastes (discussed below in

section M). For the reasons stated in the

preamble for the proposed rule, EPA

continues to believe unused military

munitions slated for treatment or

disposal should be classified as solid

waste when they leave storage.

Some commenters suggested that

munitions identified as ‘‘unserviceable’’

or ‘‘Condition Code H’’ or placed in a

‘‘demilitarization account’’ should be

included as solid waste, because, in the

commenter’s view, the designations

express an intent to discard these

munitions. Other commenters took the

opposite view, that such designations

do not express an intent to discard.

Some commenters further stated that

EPA should develop a scheme,

including possibly a schedule, that

would force DOD to evaluate and make

determinations in a timely manner that

materials in the various

‘‘unserviceable,’’ ‘‘Condition Code H,’’

‘‘demilitarization,’’ or ‘‘resource

recovery and disposition’’ accounts are

or are not ‘‘solid waste,’’ arguing that

there are tremendous volumes of

materials in these accounts that DOD

should be compelled to act upon to

reduce the amount in storage and,

thereby, reduce storage risks.

For the reasons discussed above and

in the preamble to the proposed rule,

EPA does not agree that such materials

should be classified as solid waste

(except those that are leaking, damaged,

or deteriorated as addressed in

§ 266.202(b)(3)) nor that EPA should

develop a scheme to force DOD to make

such determinations, especially given

the DOD storage standards, practices

and record.

G. When Military Munitions Are Not a

Solid Waste

Military munitions, under today’s

final rule, are not a solid waste for

regulatory purposes: (1) when a

munition is used for its intended

purpose, which includes when a

munition is used for the training of

military personnel and of explosives

and emergency response specialists;

when a munition is used for research,

development, testing, and evaluation;

and when a munition is destroyed

during certain range clearance

operations; and (2) when an unused

munition, including components

thereof, is repaired, reused, recycled,

reclaimed, disassembled, reconfigured,

or otherwise subjected to materials

recovery activities.

1. Intended Use

Under RCRA, the use of products for

their intended purpose, even when the

use of the product results in deposit on

the land, does not necessarily constitute

‘‘discard,’’ is not waste management,

and is not subject to regulation. For

example, RCRA does not regulate the

use of pesticides by farmers, even

though pesticides are discharged to the

environment during use (see 40 CFR

262.10(d) and 262.70). By the same

logic, RCRA does not regulate the use of

dynamite or other explosives during

quarrying or construction activities.

Similarly, EPA has consistently held

that the use of munitions (military or

otherwise) for their intended purpose

does not constitute ‘‘discard,’’ and

therefore is not a waste management

activity. Section 266.202(a)(1)(i)–(iii), in

finalizing proposed § 261.2 (g)(3)(i)–(iii),

clarifies this point and provides specific

examples of military activities that are

excluded from RCRA regulation.

a. Section 266.202(a)(1)(i)—Military

training exercises. Section

266.202(a)(1)(i) clarifies that munitions

used in the training of military

personnel and explosive ordnance

disposal (EOD) personnel are not

regulated under RCRA. As discussed in

the proposal (60 FR 56475), EPA views

such training, which could include

training military personnel in the

destruction of unused propellant and

other munitions, to constitute the

normal use of a product, rather than

waste disposal. For example, to ensure

that military personnel can safely and

efficiently destroy propellant during

wartime, military training exercises

involving artillery and mortar rounds

typically include training in the safe

burning of unused propellant. In EPA’s

view, the training of military personnel

in the wartime use of munitions is a

legitimate use that lies outside the scope

of RCRA. Such training exercises

typically follow detailed protocols for

training military personnel in the

handling and burning of unused

propellants.

b. Section 266.202(a)(1)(ii)—Weapons

testing. Today’s final rule also clarifies

that munitions used in weapons

research, development, testing, and

evaluation programs are not regulated

under RCRA. Testing munitions, or

using munitions to test a weapon

system, to determine their performance

capabilities, clearly falls within the

definition of use of a material/product

for its intended purposes. EPA also

considers the removal of a used or fired

munition from a testing or training

firing range for further testing and

evaluation to be within the definition of

use of a material for its intended

purpose.

c. Section 266.202(a)(1)(iii)—Range

clearance operations. The military

Services often conduct range clearance

exercises as a result of weapons testing

or training at firing ranges. During these

exercises, military Explosive Ordnance

Disposal (EOD) specialists clear ranges

of debris and unexploded ordnance,

which are generally destroyed on-site

but may also be shipped off-range for

treatment or disposal. The frequency of

these range clearance activities differs

according to the nature of the area

within the range. For example, range

areas known as maneuver zones, where

tanks, other vehicles, and personnel are

present are generally cleared more

frequently than range impact areas. EPA

considers range management to be a

necessary part of the safe use of

munitions for their intended purpose;

thus, the range clearance activity is an

intrinsic part of training or testing. EPA

also considers this provision to be

consistent with Congress’ intent that

EPA take DOD safety requirements into

account in developing regulations under

RCRA section 3004(y). [H. R. Conf. Rep.

No. 886, 102d Cong., 2d Sess. 29

(1992)]. Furthermore, from an

environmental perspective, it makes no

difference whether ordnance explodes

on impact or is subsequently detonated

by an EOD specialist. Therefore, this

final rule excludes range clearance

exercises (i.e., the recovery, collection,

and on-range treatment or destruction of

unexploded ordnance) at active or

inactive ranges from RCRA Subtitle C

regulation.

Under today’s rule, any debris or

unexploded ordnance (UXO) shipped

off-range for treatment or disposal is a

solid waste, and if a hazardous waste, it

would potentially be subject to the

RCRA Subtitle C requirements.

However, it would not be a solid waste

if shipped off-range for further

evaluation, unless the evaluation is

related to treatment and disposal.

Finally, today’s rule clarifies that onrange disposal (e.g., the recovery,

collection, and subsequent burial or

placement in a landfill) of UXO is a

RCRA-regulated activity under Subtitle

C.
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6629

2. Section 266.202(a)(2)—Disassembly

Operations

Proposed § 261.2(g)(5) is being

finalized in § 266.202(a)(2). Unused

military munitions that are being

repaired, reused, recycled, reclaimed,

disassembled, reconfigured, or

otherwise subjected to materials

recovery activities are not solid waste.

Therefore these activities are not subject

to RCRA, ‘‘unless such activities involve

use constituting disposal, as defined in

§ 261.2(c)(1) or burning for energy

recovery as defined in § 261.2(c)(2)’’

[these exceptions have been added to

today’s rule for consistency with the

proposed preamble at 60 FR 56472 and

56477 and existing section 261.2(c)]. Of

course, the subtitle C regulations do

apply if the munition is already

classified as a waste and the

disassembly is carried out to prepare for

waste disposal. Materials recovery

operations constitute a large part of

DOD’s Resource Recovery and Recycling

Program, which EPA strongly supports

and encourages. As discussed in the

proposal preamble (60 FR 56472), this

section is analogous to §§ 261.2 (c) and

(e) and 261.33 for ‘‘commercial

chemical products.’’ Thus, the position

EPA is taking in today’s rule on military

munitions recycling or materials

recovery operations is similar to the

position the Agency has taken with

regard to the management of

commercial chemical products.

Examples of munitions recycling

activities performed by DOD that would

not be regulated under RCRA can be

found in the proposed notice to this

final action.

In the proposed rule, the Agency

requested comment on one particular

type of munitions recycling activity: the

processing of an unused propellant or

explosive for use as fertilizer. In the

preamble to the proposed rule, the

Agency noted that this form of recycling

involves application of propellant or

explosives to the land in lieu of its

originally intended use. This use as a

fertilizer is regulated as a waste

management activity unless it meets the

terms of an exemption. In reviewing this

issue, the Agency has determined the

recycling of propellants or explosives

into fertilizer may be a permissible

activity under RCRA.

Specifically, the Agency notes that in

this scenario, the unused propellant or

explosive would become a solid waste

because it is being recycled by being

used in a manner constituting disposal.

See 40 CFR 261.2(c)(1). Use constituting

disposal is defined as application or

placement on the land in a manner that

constitutes disposal, or use in

production of products that are applied

to or placed on the land or are otherwise

contained in products that are applied

to or placed on the land. In the specific

case in point, the propellant or

explosive is recycled by being used to

produce a product (i.e., fertilizer) that is

applied to the land.

Since explosives or propellants

exhibit the hazardous waste

characteristic of reactivity (see 40 CFR

261.23), those that become solid wastes

when recycled would also be a reactive

hazardous waste (hazardous waste code

D003). In some limited cases, a

propellant might also exhibit the

characteristic of toxicity (see 40 CFR

261.24), primarily due to the presence of

metals such as lead. In either case, since

the propellant or explosive is a

‘‘recyclable material,’’ the recycling

would be subject to 40 CFR 261.6—

Requirements for recyclable materials.

See 40 CFR 261.6(a)(1). Under 40 CFR

261.6(a)(2)(i), recyclable materials used

in a manner constituting disposal are

subject to the requirements of 40 CFR

Part 266, subpart C—Recyclable

Materials Used in a Manner Constituting

Disposal.

Under 40 CFR 266.20(b) commercial

fertilizers that are produced for the

general public’s use that contain

recyclable materials are not presently

subject to regulation provided they meet

the treatment standard under 40 CFR

Part 268, subpart D, for each recyclable

material that they contain. In the case of

propellants or explosives that exhibit

the characteristic of reactivity (i.e., D003

wastes), the treatment standard under

40 CFR 268.40(e), as set forth in the

table, ‘‘Treatment Standards for

Hazardous Wastes,’’ is deactivation (i.e.,

rendering the propellant no longer

reactive as defined under 40 CFR

261.23), plus treatment of all underlying

hazardous constituents (as defined in 40

CFR 268.2(i)) to meet the universal

treatment standards (UTS), found in 40

CFR 268.48. In the case of a propellant

or explosive that also exhibits the

toxicity characteristic (TC), in addition

to meeting the requirements for the

D003 waste code, the waste would also

have to meet the appropriate treatment

standard for the TC waste code as set

out in 40 CFR Part 268, subpart D.

Thus, the use of an unused explosive

or propellant as an ingredient to

produce commercial fertilizer would be

exempt from regulation under RCRA,

provided that the fertilizer: no longer

exhibits the characteristic of reactivity;

has had all underlying hazardous

constituents treated to meet the UTS;

and has met the treatment standards for

other applicable hazardous waste codes.

EPA notes that § 266.202(a)(2) codifies

EPA’s interpretation of how its current

recycling requirements apply to

disassembly and recycling of unused

military munitions. The same principles

apply to the recycling of commercial

ammunition.

It is important to note, however, that

once the materials recovery activities

are completed, any remaining residuals

requiring disposal or treatment prior to

disposal are solid wastes which, if

hazardous, would be subject to the

subtitle C regulations.

Response to Comments

The Agency received numerous

comments regarding the proposed rule

provisions identifying when unused

munitions are not a solid waste. The

major comments focused on the

following topics: munitions used for

their intended purpose, in particular,

munitions that remain on the ground at

firing ranges and munitions used for

training in the destruction of munitions;

the scope of military personnel training

regarding minimization of the quantity

of unused propellant resulting from

military training; potential health effects

of open burning; minimum open

burning standards; the potential for

‘‘sham’’ training exercises for purposes

of disposal; regulation of residue/ash

from open burning/open detonation

(OB/OD) activities; regulation of the

destruction and cleanup of munitions

during range clearance activities;

disassembly of rockets, missiles, or

torpedoes (which carry the munitions as

propellant or warhead) as it pertains to

treatment; applicability of scrap metal

exemptions to munitions; and reuse of

explosives as fertilizers (discussed

above).

Intended Use. With respect to the use

of munitions ‘‘for their intended

purpose,’’ the Agency received

comments that disagreed with various

aspects of the Agency’s interpretation;

in particular, that the use of munitions

at firing ranges and training in the

destruction of unused propellants are

‘‘intended use’’ activities. Commenters

stated that munitions that impact the

ground have ceased to be used for their

intended purpose, and that their use

cannot be compared to the use of

pesticides since these products continue

their intended purpose after they are

applied to the ground.

Commenters also suggested that,

because of the potential impact of

munitions on the environment, EPA

should consider designating munitions

on the ground as solid waste. But even

the proponents of this view felt the full

current RCRA regulatory scheme (i.e.,

normal RCRA permitting) is
6630 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

inappropriate for military ranges,

suggesting that EPA could use a

streamlined permit-by-rule approach

with limited provisions, especially at

active ranges. Commenters suggested

the following limited standards for

ranges (at least for active ranges) so as

not to interrupt range activities related

to the military mission: location

standards (i.e., for wetlands, surface

waters, and proximity to populations);

off-range monitoring (at least surface

and ground waters), remedial responses

to off-range migration, and range closure

plans.

Several commenters stated that field

sampling had indicated contamination

on ranges. The bulk of the reports that

EPA has reviewed, including those cited

by commenters, do not provide enough

information to conclude that ground or

surface water contamination does or

does not result from fired munitions on

ranges. This is partly because the

studies or reports do not adequately

document, for example, increases in

contaminant concentrations over

ambient concentrations (i.e.,

background); or that the source was,

indeed, fired munitions; or whether it

might be some other source on or off

range, such as spills or landfills. There

are two exceptions: lead and white

phosphorous from fired munitions on

ranges have been adequately

documented to conclude that these

materials may contaminate surface

water and affect fish and fowl. Although

the lead contamination cases involved

non-military ranges, the potential for

contamination at military ranges where

lead munitions are fired clearly exists.

The white phosphorous case was a

military range.

In response to these comments, EPA

continues to interpret the RCRA Subtitle

C regulations as not extending to

products whose use involves

application to the land, or where use

necessarily entails land application,

when those products are used in their

normal manner. In EPA’s opinion, the

use of munitions does not constitute a

waste management activity because the

munitions are not ‘‘discarded.’’ Rather,

the firing of munitions is within the

normal and expected use of the product.

This is the same position EPA took

regarding the discharge of ammunition

and expended cartridges in an

interpretive letter by Sylvia Lowrance,

Director of EPA’s Office of Solid Waste,

to Jane Magee, Assistant Commissioner

for Solid and Hazardous Waste

Management, Indiana Department of

Environmental Management, Sept. 6,

1988, addressing the issue of the

‘‘applicability of * * * RCRA * * *

regulations to shooting ranges.’’ This

position was also repeated in the

proposed rule for Corrective Action for

Solid Waste Management Units at

Hazardous Waste Management

Facilities, 55 Fed. Reg. 30798, 30809

(1990). At the request of the United

States Court of Appeals for the Second

Circuit, EPA filed a brief as Amicus

Curiae in Connecticut Coastal

Fishermen’s Assoc. v. Remington Arms

Co., et al, (August 28, 1992) discussing

the Agency’s views on whether lead

shot and clay target debris deposited on

land and in water in the normal course

of skeet and trap shooting is ‘‘solid

waste’’ under RCRA. In that brief, EPA

repeated its position that regulatory

jurisdiction does not apply to products

that are deposited onto the land in their

ordinary manner of use.

EPA sees no compelling reason to

alter this longstanding interpretation of

its regulatory definition of the term

‘‘solid waste.’’ Nothing in the language

or legislative history of RCRA section

3004(y) suggests that Congress intended

or desired that EPA adopt a different

interpretation of ‘‘solid waste’’ with

respect to military munitions.

Moreover, EPA disagrees with one

commenter’s proposition that munitions

are a ‘‘solid waste’’ when they hit the

ground because they have no further

function, unlike pesticides, which

continue to have a function on the

ground. EPA’s interpretation focuses on

whether a product was used as it was

intended to be used, not on whether the

purpose of the product is to perform

some function once on the ground. For

example, the use of explosives (e.g.,

dynamite) for road clearing,

construction, or mining does not trigger

RCRA regulation, even though any

residuals on the ground serve no further

function.

Therefore, the Agency is maintaining

its position that munitions that are fired

are products used for their intended

purpose, even when they hit the ground

since hitting the ground is a normal

expectation for their use. However,

today’s rule specifies that fired military

munitions that land off-range become a

statutory solid waste at a certain point,

potentially subject to RCRA remedial

authorities. This point is discussed

further in section H which addresses

military munitions at ranges.

Training. The Agency received a

number of comments regarding EPA’s

view that military munitions used in the

training of military personnel are not a

solid waste. A number of commenters

raised concerns regarding the training of

military personnel in the burning of

unused propellant increments resulting

from artillery and mortar training.

Commenters pointed out that the

amount of unused propellant destroyed

may equal or exceed the propellant

actually used in firing the weapons, and

that this is contrary to the Agency’s and

RCRA’s waste minimization goals. EPA

agrees that the quantities of unused

propellant that is burned may equal or

be more than that used in firing

weapons since such propellants are

generally packaged in either five or

seven bags per canister, and often the

size of a training ranges prohibits the

use of all the bags. EPA has concluded,

however, that there is merit to DOD’s

argument that to minimize the chances

for confusion and error, military

training should duplicate to the

maximum extent possible the

conditions encountered by military

personnel in combat. Using the actual

canisters and bags (which are of

different sizes) that would be used in

time of war, and training the personnel

in the safe management and expedient

destruction of unused propellant is a

legitimate part of training in the use of

munitions.

Commenters also raised concerns

regarding the RCRA status of sites used

for training in the burning of unused

propellant bags. Specifically, the

commenters cited elevated incidences of

lung and other cancers that they argued

were possibly due, in part, to military

burning practices. The Agency has

included in the docket for this rule a

number of studies and reports on the

potential impacts from open burning

emissions. A number of commenters

expressed concern that open burning of

unused propellant, as it pertains to

military personnel training,

contaminates the environment.

Concerns of the public particularly

focused on air emissions, although they

also mentioned the burning of

propellant directly on the ground could

lead to soil (and possibly groundwater)

contamination. On the other hand,

studies and reports provided to the

Agency offer contradictory conclusions.

These reports are included in the

Docket.

In any case, as a precaution, and in

response to these concerns, the Services

often conduct the burning in lined

trenches. Also, in some cases, this

precaution has been required by State

regulators. In other cases, local

opposition to burning of unused

propellant has led individual

installations to abandon the practice

(and in at least one case to abandon

training altogether), or to reduce the

number of increments taken into the

field. Commenters suggested that EPA

require such lined units and perhaps

monitoring and closure plans for these

training units to ensure environmental
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6631

protection, perhaps through a permitby-rule. Because EPA has determined

that these are product use activities,

EPA does not believe that RCRA should

be used to restrict unit locations or

compel unit designs.

Some States and citizens groups

argued that such burning could lead to

‘‘sham’’ training, when the primary

purpose is really waste disposal.

Commenters suggested that EPA

establish criteria for training in the

destruction of unused propellant bags to

assure against ‘‘sham’’ training

exercises, including documentation of

the training exercises and a minimum

three year record retention time for all

such training documentation. The

Agency has retained the proposed

approach regarding the training of

military personnel in the safe burning of

unused propellants because, as

mentioned above, EPA has determined

that (given the unique military activities

and the need for training) this is an

aspect of product usage and, therefore,

should not be regulated under RCRA.

On the other hand, the Agency reaffirms

here what was said in the preamble of

the proposed rule and earlier in today’s

rule, that, to assure against sham

training, regulators may look for the

existence and use of training manuals,

the presence of military trainees, and

documentation of training activities as

evidence of legitimate training. Records

showing evidence of training could

include, for example, the number of

personnel trained, the date and time of

training, military personnel attendance

lists, and the amount of propellant used

in training. EPA believes that, should

activities in a specific training exercise

be suspect, such procedures and

documentation would provide evidence

that the activity is for training purposes

rather than waste disposal.

One commenter requested that the

Agency provide a definition of ‘‘troop’’

to include DOE security personnel, and

DOE and DOD contractors. The Agency

has decided not to add a definition of

‘‘troop,’’ but to clarify that the terms

‘‘troop’’ and ‘‘personnel’’ as used in

today’s rule refer not only to DOD

personnel, but also to DOE, Coast

Guard, National Guard, and contractor

personnel who are being trained in the

use of munitions or explosives. In

response, the Agency has deleted

reference to ‘‘troops’’ in preference to

the term ‘‘military personnel,’’ and has

added a definition for ‘‘military’’ to the

§ 266.201 definitions.

Other comments received regarding

unused propellant bag training

expressed concern over the lack of a

regulatory regime over the ash or

residue left behind after the training,

and that this ash could present an

environmental hazard. These

commenters asserted that this ash

would not be listed as hazardous waste,

but might exhibit a characteristic or

contain hazardous constituents,

although no data were submitted. As

mentioned previously, the military often

conducts these propellant burning

exercises within a structure that would

contain residual ash, which is then

disposed of according to RCRA

requirements, if hazardous. The Agency

emphasizes that RCRA 7003 authority

could be applied to this ash when the

OB/OD training site or area is closed or

at any time that it might present an

imminent and substantial

endangerment.

A commenter suggested that these

OB/OD training areas be regulated

under the same guidelines as fire

fighting training pits that require

permits to operate. The Agency wants to

make clear that the use of fuel in fire

training does not require a RCRA

permit, unless the fire training were to

use waste fuel. Then the burning would

be considered RCRA disposal rather

than the use of a product for its

intended purpose. The training of

military personnel in the use of military

munitions, such as training in the

proper techniques to burn propellant,

uses standard, unused propellant. The

Agency believes it is a reasonable

interpretation in the context of military

training to view training in how to burn

unused propellant safely as not training

in waste disposal, but rather as part of

necessary training in product usage.

Range Clearance. With respect to onrange clearance exercises, the Agency

received a broad range of comments.

Some commenters requested a

clarification of certain range

management activities. In response, the

Agency has reviewed a host of activities.

In particular, the collection of fired

bullets, including those that contain

lead, at indoor firing ranges, is

considered by EPA to be range

maintenance and not hazardous waste

management activities within the scope

of today’s rule. EPA cautions, however,

that although on-range collection may

not be a waste management activity, the

removal of such materials from the

range may result in the generation of a

solid waste, and the off-range storage

and subsequent treatment or disposal of

such waste may be subject to RCRA

regulation. EPA notes, however, that

lead may be recycled under the scrap

metal exemption of 40 CFR

261.6(a)(3)(ii).

Commenters asked if range clearance

activities at transferring, closed, or

transferred ranges were also considered

within the scope of proposed

§ 261.2(g)(3)(iii) since only active,

inactive, and closing ranges were listed.

EPA did not generally intend to include

these range clearance activities within

the scope of this proposed section.

Under the proposal, such range

clearance activities would not be

considered within the scope of

‘‘intended use.’’ EPA has modified the

proposal slightly in the final rule, at the

request of one State, by dropping the

term ‘‘closing.’’ EPA made this change

because, in its view, ranges fall into one

of three categories: active, inactive, and

closed. A closing range is merely an

‘‘inactive’’ range in the process of

becoming a ‘‘closed’’ range. Similarly,

the rule does not include references to

‘‘transferring’’ or ‘‘transferred’’ range

since these are all either ‘‘active,’’

‘‘inactive,’’ or ‘‘closed.’’ To help clarify

this provision, EPA has defined, in

§ 266.201, the terms ‘‘military range,’’

‘‘active range,’’ and ‘‘inactive range.’

A commenter raised the concern that

the inclusion of the word

‘‘contaminants’’ with UXO in the

context of ‘‘intended use’’ in range

clearance operations in the proposed

rule could lead to a broadening of scope

to cover many remediation activities not

directly associated with unexploded

ordnance and munitions debris. The

commenter requested that the Agency

clarify whether range clearance

activities may encompass a variety of

range remediation activities related to

munitions contamination and media

cleanup (not limited to UXO and

debris). It was not, and is not, the

Agency’s intention to broaden the

interpretation of the term ‘‘intended

use’’ as it applies to range clearance or

management activities by the inclusion

of the term ‘‘contaminants’’ in the

regulatory language. In fact, the

proposed preamble clarified the original

intent by using the terms ‘‘UXO’’ and

‘‘debris’’ when discussing the range

clearance activity. However, in today’s

rule, the Agency has used the term

‘‘munitions fragments’’ instead of either

‘‘contaminants’’ or ‘‘debris’’ to more

closely reflect the Agency’s intent to

limit this provision to the recovery of

munitions fragments (in addition to the

recovery and treatment of UXO). This

provision does not apply to the

remediation of other contaminants

(besides munitions fragments or debris),

including non-munitions related

contaminants, or media (e.g., soil,

surface water, or ground water). Also,

the rule clarifies that this range

clearance provision does not apply to

the management of UXO or munitions

that were buried on a range when the
6632 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

burial was not a result of product use,

nor to the burial (i.e., landfill) of

recovered UXO or debris/fragments on a

range.

Disassembly. A few commenters

requested the Agency clarify the

distinction between the terms

‘‘destruction’’ and ‘‘disassembly,’’

especially in the context of RCRA

permitting and ‘‘rendering a munition

safe.’’ The term destruction in the

military munitions context generally

means thermal treatment processes such

as incineration, open burning, and open

detonation, but could also include

chemical treatment processes. Such

destructive processes usually require a

RCRA permit, unless exempted under

the emergency response, range

clearance, or intended use provisions in

today’s rule. The term ‘‘disassembly,’’ in

the context of military munitions,

generally refers to a mechanical or

physical process associated with

dismantling unused munitions (i.e.,

products). The Agency generally does

not consider disassembly to be a waste

treatment process requiring a RCRA

permit, especially when the disassembly

is used in materials recovery activities,

which is often the case. EPA views both

‘‘destruction’’ and ‘‘disassembly’’ as

ways to ‘‘render a munition safe,’’

making both eligible for exemption from

RCRA permitting in the emergency

response context.

A commenter questioned whether the

Department of Energy disassembly

procedures are covered by

§ 266.202(b)(5). Since this section

applies to military munitions, it also

applies to DOE when DOE manages

military munitions.

H. Military Munitions on Closed and

Transferred Ranges

EPA has decided to postpone final

action on proposed 40 CFR

261.2(g)(4)(i). This proposed provision

would have identified a military

munition left on a closed range or a

range transferred from military control

as meeting the statutory definition of

solid waste in RCRA section 1004(27),

potentially subject to RCRA corrective

action or section 7003 authorities, until

DOD regulations were promulgated

governing the cleanup of munitions on

closed or transferred ranges.

EPA’s decision to postpone action on

this section of the proposal is based in

part on comments the Agency received

on this issue and in part on the fact that

DOD has not yet issued the range

cleanup rule currently under

development (the ‘‘DOD Range Rule’’).

Many commenters questioned EPA’s

legal authority to defer RCRA coverage

in favor of DOD regulations governing

the cleanup of closed and transferred

ranges. EPA will conduct further

analyses of the comments and of the

final DOD regulation governing the

cleanup of munitions on closed and

transferred ranges (including an

assessment of whether the DOD Range

Rule is adequately protective); based on

these analyses, the Agency will reach a

final decision on this issue. If either

DOD fails to proceed with the range rule

or EPA finds that the range rule does not

adequately protect human health and

the environment, EPA will be prepared

to address this issue under Federal

environmental laws.

EPA believes that this interpretative

provision identifying when a discharged

munition on a range becomes a solid

waste under RCRA section 1004(27) is

not a required part of the rulemaking

mandated in RCRA section 3004(y) and,

therefore, is not subject to that section’s

statutory deadlines. EPA interprets

RCRA 3004(y) as only requiring the

Agency to identify the circumstances

under which military munitions become

subject to the regulatory scheme for

identified or listed hazardous waste

promulgated under Subtitle C. The

language of RCRA section 3004(y) fully

supports EPA’s interpretation. Section

3004(y) specifically requires EPA to

identify ‘‘when military munitions

become hazardous waste for purposes of

this Subtitle.’’ Proposed § 261.2(g)(4)(i)

would have identified when a

discharged munition becomes a

statutory solid waste, but would not

identify when that discharged munition

becomes subject to Subtitle C regulation.

Response to Comments

EPA received numerous comments on

the proposed regulations for closed and

transferred ranges. Since this part of the

rule is not being finalized in today’s

rule, these comments will be addressed

at the time EPA takes final action.

I. When Used or Fired Military

Munitions Become Solid Waste,

Including Military Munitions That Land

Off-Range

Proposed § 261.2(g)(2) has been

revised and finalized in § 266.202(c).

This section clarifies that used or fired

munitions are solid wastes when they

are removed from their landing spot and

then either (1) managed off-range—i.e.,

when transported off-range and stored,

reclaimed, treated, or disposed of, or (2)

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

on-range. In both cases, once the used

or fired munition is a solid waste, it is

potentially subject to regulation as a

hazardous waste. For example, former

defense installations no longer under

military control (i.e., Formerly Used

Defense Sites or FUDS) sometimes

contain unexploded ordnance or

munitions fragments. Used or fired

munitions removed from their landing

spot and transported off-range would

have to be handled under RCRA Subtitle

C (if they are ‘‘hazardous’’), except in

emergency situations. Similarly, used or

fired munitions resulting from military

research or training exercises at

locations other than ranges (e.g., in

testing laboratories) would be

considered solid waste when removed

from the site of use and sent to

treatment or disposal. Section

266.202(c) does not finalize one aspect

contained in proposed § 261.2(g)(2): that

used or fired munitions that are

recovered and then treated on range at

a closed or transferred range (unless the

transferred range is still in active use as

a range) would be a solid waste

potentially subject to RCRA subtitle C

regulations. This aspect of the rule is

being postponed along with the closed

and transferred range aspect discussed

in section H of this preamble, because

these aspects are so inter-related and

they are both being addressed under

DOD’s range rule.

Today’s rule finalizes proposed

§ 261.2(g)(4)(ii) in § 266.202(d), which

provides that munitions that land off

range that are not promptly rendered

safe (if necessary) and/or retrieved, are

statutory solid wastes under RCRA

section 1004(27), potentially subject to

RCRA corrective action or section 7003

authorities. Today’s final action is based

on the view that a failure to render safe

and retrieve a munition that lands off

range would be evidence of an intent to

discard the munition, just as the failure

to respond to a spill of a hazardous

material could be evidence of an intent

to discard. ‘‘Rendering safe’’ might

include disarming action to prevent an

explosion as well as destruction of the

ordnance. If remedial action were

infeasible—for example, the off-range

munition wastes could not be removed

because the munition was deeply

buried, located in inaccessible terrain or

could not be located—the operator of

the range would be required to maintain

a record of the event, including the type

of munition that was fired off range and

its location (if known), for as long as any

threat remains.

Response to Comments

Munitions Landing Off-Range. Several

commenters expressed concern over the

relative merits of not addressing

munitions on an active range while

addressing munitions that land off a

range. The Agency views these as

distinctly different situations. As

discussed previously, the Agency views
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6633

the firing of munitions that land on

active ranges as product use. On the

other hand, munitions that land off

range that are not promptly rendered

safe and/or retrieved, are more like a

spill that is not promptly remediated.

EPA would consider these munitions to

be discarded or abandoned, or disposed

of (i.e., statutory solid waste potentially

subject to RCRA corrective action or

section 7003 authorities, and if removed

for subsequent management, potentially

subject to the Subtitle C regulatory

requirements). A munition on an active

range is where it is intended and

expected to be, and it is in a controlled

environment. As such, it is more

effectively controlled or managed than a

munition that has landed off-range

where it normally wouldn’t be expected

to be.

J. Waste Materials Derived From

Munitions Manufacture

As stated in the proposed preamble,

EPA does not believe that military

munitions manufacture raises any new

special regulatory issues that need to be

addressed by this final rule. One issue

was raised in the public comments

pertaining to recycling of secondary

materials, but this issue is not unique to

the military. As a result, the Agency has

decided that any rule changes to

facilitate recycling of secondary

materials will be considered in the

context of a broader, separate

rulemaking. Therefore, this final rule

makes no changes to the existing rules

regarding waste materials derived from

munitions manufacture.

K. Chemical Munitions

In the proposal, EPA solicited

comment on whether munitions

scheduled for destruction by

international treaty or Congressional

action should be classified as solid

waste. The Agency continues to believe,

for reasons discussed in the proposal

(60 CFR 56485), that these actions

should not, as a general matter, be

interpreted as a decision to discard a

munition. Among other considerations,

the proposed disarmament conventions

and Congressional directives do not

declare these items to be waste, nor do

they totally prohibit their use or require

their total destruction.

Response to Comments

Regarding chemical agents and

munitions, some commenters supported

the proposal stating that any action that

would delay the destruction of chemical

agents and munitions is contrary to the

protection of human health and the

environment, and that in their view the

proposal would not cause such a delay.

These commenters stated they would

oppose alternatives that would cause

delays. Other commenters, however,

suggested that EPA should complete a

thorough review of alternative

treatment/destruction technologies

before allowing DOD to proceed with

the current incineration approach. EPA

notes that Congress has addressed the

issue of developing alternative

treatment or destruction technologies

through legislation. For a more detailed

discussion of this issue, see section

M.2.b below. A few commenters

supported the proposed position that

chemical agents and munitions do not

become solid waste solely by being

slated for destruction by an Act of

Congress or treaty. Some commenters

took the opposite view.

In developing today’s rule, EPA

continues to believe the position

discussed in the proposed rule.

Disarmament conventions and

Congressional directives to demilitarize

a weapons system should not be

interpreted as a decision to discard a

munition. In many cases, the provisions

in the treaties or conventions do not

equate to a decision to discard a specific

munition in that they allow, for

example, for implementation schedules,

retaliatory use, and very specific

verification procedures that do not

equate to the process established under

RCRA.

In the context of chemical agents and

munitions, some commenters objected

to any alternative that would prohibit

States from being more stringent. As

discussed elsewhere in this preamble,

EPA agrees and has not adopted this

State pre-emption approach.

A few commenters identified the need

for listing chemical agents as hazardous

waste, stating that these are some of the

most lethal materials in existence, yet

they are not listed nor (in the

commenter’s view) are they

characteristic hazardous wastes under

EPA’s RCRA regulations. One

commenter stated that the Army has

taken the position that the explosives

(e.g., the explosive component of the

M55 rockets) are a hazardous waste, but

the agent itself is not. This becomes a

potential regulatory problem (1) when

in the demilitarization process the agent

is separated from the explosives, or (2)

for any bulk agents.

In response, EPA notes that five of the

eight chemical stockpile States have

listed the various chemical agents as

hazardous, and a sixth has done so

through a consent order with DOD

regarding the stockpile facility in that

State. Moreover, based on EPA’s

technical review associated with this

rule, the Agency believes that the

chemical agents and munitions in the

military stockpile subject to the

requirement for destruction contained

in 50 U.S.C. 1521 exhibit at least one of

the characteristics identified in 40 CFR

Part 261, subpart C. In addition, DOD

has publicly committed to the

destruction of these chemical munitions

and their agents at RCRA permitted

facilities, and is seeking RCRA permits

for all their chemical demilitarization

facilities. Based on these facts, it is not

the Agency’s current intent to list, as

hazardous waste, these chemical agents

when they become a solid waste.

A few commenters felt that emergency

responses involving chemical

munitions, especially those involving

non-stockpiled chemical munitions,

should not be exempted from the RCRA

emergency permit requirements. The

Agency agrees that chemical munitions

should receive close oversight. EPA has

evaluated DOD’s statutory requirements

and standard operating procedures

(SOPs) and has determined that the

emergency response procedures spelled

out in today’s final rule, in conjunction

with the DOD statutory requirements

and SOPs, are sufficiently protective for

chemical munitions responses. For

example, the transport and destruction

of a lethal chemical agent are regulated

by 50 U.S.C. 1512 and 1512a, requiring

special approvals by the Secretary of

Defense and the Secretary of Health and

Human Services prior to either transport

or destruction. Further, Congress and

affected State governors must be

notified prior to any such destruction or

transportation. Thus, the standards for

emergency responses in today’s rule—

including the exemption for immediate

responses and the requirements for

emergency permits—would apply in the

same way to conventional and chemical

munitions. (See discussion in section P,

emergency responses.)

Regarding comments received on the

storage of chemical munitions, see the

Response to Comments portion of

section M of this preamble.

L. Generator and Transporter Standards

This final action makes two changes

to the RCRA generator and

transportation requirements as they

pertain to emergency responses to

munitions or explosives emergencies

and to waste military munitions.

First, §§ 262.10(i) and 263.10(e)

clarify that persons responding to

emergencies (immediate threats from

explosives and munitions) are not

subject to RCRA generator and

transportation requirements. This

provision codifies a long standing EPA

policy that applies to all explosives and

munitions emergency responses
6634 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

(military and non-military) as well as to

all conventional and chemical military

munitions emergency responses. This is

discussed further in section P entitled

‘‘Emergency Responses.’’

Second, proposed §§ 262.10(i) and

263.10(d) are being finalized in

§ 266.203 to conditionally exempt from

RCRA hazardous waste generator and

transporter requirements (including

RCRA manifest requirements and the

container marking requirements of

§ 262.32(b)) waste non-chemical

military munitions that are shipped

from a military-owned or -operated

facility to a military-owned or operated

TSDF in accordance with the DOD

shipping controls for military munitions

(i.e., tracking procedures). This

provision applies to waste munitions

that are not chemical munitions or

chemical agents and that are transported

by commercial carriers who are under

contract with the military and have

signed a contractual compliance

agreement with the Military Traffic

Management Command, and who

operate under the DOD system of

shipping controls for military

munitions. EPA is not extending the

conditional exemption in § 266.203 to

persons transporting ‘‘military

munitions’’ who are not required to

comply with the DOD military

munitions shipping controls (e.g., DOE

or other non-DOD Federal agencies or

their contractors). This provision also

does not apply to the transport of waste

military munitions to a commercial

treatment, storage, or disposal facility.

Finally, this provision would not apply

to waste munitions shipped by the

military but not under DOD’s shipping

controls designed for its munitions

inventory.

This aspect of the conditional

exemption does not apply to treatment,

storage or disposal regulation, and is

available only so long as all conditions

in § 266.203(a)(1) are met. EPA’s

decision to adopt the conditional

exemption approach for identifying

when waste military munitions that are

transported become subject to RCRA’s

transportation requirements for

hazardous waste is based on EPA’s

conclusion that it is not necessary to

regulate a waste as hazardous where the

wastes are already adequately regulated,

and reasonable mismanagement

scenarios have thereby been controlled.

The conditional exemption approach

and the legal basis supporting it is

explained in greater detail below in

section M.1, entitled Conditional

Exemption For Waste Military

Munitions In Storage.

In deciding to finalize the conditional

exemption approach for the

transportation of waste military

munitions, EPA primarily considered

the existing DOD shipping controls as

well as DOD’s munitions transportation

safety record. The DOD shipping

standards and controls provide a

‘‘closed-loop’’ system similar to the

RCRA manifest. These controls include

the following forms: Government Bill of

Lading (GBL) (GSA Standard Form

1109); requisition tracking form DD

Form 1348; the Signature and Talley

Record (DD Form 1907); Special

Instructions for Motor Vehicle Drivers

(DD Form 836); and the Motor Vehicle

Inspection Report (DD Form 626). The

DOD Standards, giving instructions on

the use of these forms are DOD

Regulation 4500.9–R—Defense

Transportation Regulation, Part II, Cargo

Movement and DOD Directive

6055.13—Transportation Accident

Prevention and Emergency Response

Involving Conventional DOD Munitions

and Explosives. ‘‘A Report to Congress

On the Adequacy of Department of

Defense Safety Standards for

Transportation of Hazardous Materials’’

(1989) provides a summary of these

controls. These documents are available

in the public docket for today’s rule.

Features of the DOD transportation

system include pre-trip routing plans,

safe havens and secure holding areas for

vehicles experiencing difficulties or for

overnight storage, safe haven hotline,

satellite motor surveillance and

tracking, shipper seals, dual driver

protective and escort services,

firefighting instructions, and electronic

notifications/communications between

shipper, carrier, and receiver.

DOD munitions shipments also

comply with the DOT hazardous

materials transportation standards,

which address packaging, labeling,

marking, placarding, emergency

response, training, and shipping

documentation [49 CFR 100–179, 350–

399]. DOD has made the DOT standards

mandatory for the transportation of

military munitions (e.g., DOD 4500.9-R

Defense Transportation Regulation Part

II, Cargo Movement, April 1996). EPA

has reviewed these DOD documents and

concludes that the resulting procedures,

in conjunction with the applicable DOT

standards, provide an equivalent level

of protection of human health and the

environment as the requirements of the

RCRA manifest system.

As a result of these and other controls,

DOD’s munitions transportation safety

record is good. DOD makes

approximately 45,000 shipments of

military munitions and explosives

annually, including shipments for

demilitarization (of these shipments,

only a very small percentage would

involve waste munitions, as defined in

today’s rule). According to the U.S.

Army Technical Center for Explosives

Safety’s Explosives Safety Information

Database and the DDESB’s Historical

Accident Database, in the past 20 years,

there have been 18 mishaps involving

commercial carriers of military

munitions in the continental U.S. Of

these, only six accidents resulted in

fires or detonations that affected all or

part of the munitions cargo itself. In

each case, the accident was attributed to

a vehicular malfunction or accident, and

not to the munitions cargo.

The DOD shipping controls that make

up the § 266.203 conditions are those

adopted by DOD as of November 8,

1995. EPA understands that DOD may

change its shipping controls from time

to time based on new information.

However, in light of the fact that DOD

has a statutory obligation to ensure

proper transportation of munitions, and

to prevent hazardous conditions from

arising that would endanger life and

property (see 10 U.S.C. § 172), EPA does

not believe that DOD would pursue any

amendments that would lessen

protection of human health and the

environment. In fact, DOD continues to

develop stricter shipping controls to

assure their weapons and components

thereof do not come under the control

of unauthorized individuals. For

example, DOD is developing a new

satellite tracking system due to be fully

operational, worldwide, in the next

several years. Moreover, DOD also has

long had experience regulating

explosive safety hazards, which directly

affect DOD’s own personnel. Further,

today’s rule provides that DOD will

publish notice of any amendments to

the DOD shipping controls in the

Federal Register. DOD will also provide

EPA with DOD’s determination of

whether the amended shipping controls

are less protective than the current

standards. If EPA in its discretion

determines that revisions to the

conditional exemption in today’s rule

are necessary to protect human health

and the environment, the Agency will

propose such revisions. Citizens may

also petition for rulemaking under

RCRA section 7004, 42 U.S.C. section

6974, using the procedures set forth in

40 CFR Part 260, subpart C, to request

EPA to revise the RCRA conditional

exemption in light of any amendments

to the DOD shipping controls. Under

today’s final rule, DOD amendments to

its shipping controls rules become

effective for purposes of the conditional

exemption only when DOD publishes a

notice in the Federal Register that its

shipping controls have been amended.
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6635

In summary, given the protective

nature of the DOD shipping controls,

and the Services’ record in providing for

the safe transportation of military

munitions, the Agency concludes that

RCRA hazardous waste regulation is

unnecessary when waste military

munitions are transported in

compliance with DOD shipping

controls. The regulatory oversight

created by today’s rule provides further

assurance that the DOD shipping

controls are followed and protectiveness

is maintained.

In enacting RCRA section 3004(y),

Congress instructed EPA to identify

when military munitions become

hazardous waste subject to Subtitle C

regulation. Congress also instructed

EPA, after consultation with the

Department of Defense and the States, to

develop storage and transportation

requirements for such waste military

munitions that are both protective of

human health and the environment and

ensure that they are safely managed.

Following EPA’s consultation with DOD

and the States, EPA concludes that the

most reasonable manner of

accomplishing Congress’ goal is to allow

DOD to continue to transport waste

military munitions under DOD shipping

controls, which—when followed—

provide adequate protection, rather than

impose a second regulatory scheme that

adds little in the way of protectiveness.

Thus, RCRA section 3004(y) further

supports the approach taken in this

rulemaking.

EPA also concludes that specifically

identifying the conditions under which

waste military munitions become

subject to RCRA Subtitle C and

providing for independent regulatory

oversight of those conditions adds

significantly to the reliability and

protectiveness of the system of DOD

shipping controls.

EPA emphasizes, however, that if a

transporter of waste military munitions

claims the exemption, but fails to

transport waste military munitions in

compliance with the provisions of the

conditional exemption, the noncompliant waste would no longer be

exempt, so the transporter would be

subject to additional regulatory

requirements and could be subject to

enforcement action (or citizen suit) for

violations of hazardous waste

requirements. For example, where waste

military munitions lose their

conditional exemption due to a

violation of a condition, the transporter

of the waste could face penalties for

transportation of hazardous waste

without a manifest. As a mechanism to

assist in the determination of whether

the transportation of waste military

munitions is compliant with the terms

of the exemption, the Agency is

imposing (in § 266.203(a)(iv)) a selfreporting requirement. Under this selfreporting requirement, the transporter

must provide oral notice to EPA within

24 hours, when becoming aware of: (a)

any theft or loss of the waste military

munitions, or (b) any failure to meet a

condition of § 266.203(a)(1) that may

endanger human health or the

environment. The transporter must also

provide a written report describing the

conditions of the violation or theft

within 5 days of learning of it. In

addition, if any waste military

munitions shipped under subsection

(a)(1) are not received by the receiving

facility within 45 days of the day the

waste was shipped, the owner or

operator of the receiving facility must

report this non-receipt to the EPA

within 5 days.

Under § 266.203(c), where the

conditional exemption has been lost, the

transporter may apply to EPA to

reestablish the conditional exemption.

Once the waste returns to compliance

with all conditions of the exemption, an

application for reinstatement of the

conditional exemption with respect to

such waste may be filed with EPA. If

EPA finds that reinstating the

conditional exemption for that waste is

appropriate, based on factors like those

described in § 266.203(c), EPA may

reinstate the exemption. Reinstatement

is not automatic, but if EPA does not

respond to an application within 60

days, the conditional exemption would

be deemed reinstated. However EPA

may terminate the reinstatement at any

time—even after the 60 period—if it

finds that the reinstatement is

inappropriate based on factors like those

described in § 266.203(c).

EPA emphasizes, however, that the

generator of waste military munitions or

explosives must still make the

determinations identified in 40 CFR

262.11 in order to comply with the

provisions of §§ 266.203 and 266.205

(discussed below), notably in order to

know which materials are subject to

exception reporting and notification

requirements.

Response to Comments

The Agency received numerous

comments on the proposed exemptions

from transporter standards for

shipments between military facilities

under the DOD materials transportation

standards. Some commenters objected

to the Agency’s reliance on the current

DOD standards for the transport of

unused military munitions as

environmentally protective. The Agency

is convinced that exempting DOD from

the manifesting requirements is

protective based primarily on the

existing and comprehensive internal

controls that exist and are used within

the Services to track shipments of waste

munitions. In addition, DOD’s safety

record provides evidence of the

effectiveness of the DOD shipping

requirements and DOD’s commitment to

safe transportation and management.

Thus, the Agency feels confident that

reliance on these DOD safeguards and

practices is protective. Given this, the

Agency feels the additional burden of

RCRA manifesting is duplicative and

unnecessary. Some commenters

expressed concern that the usual RCRA

protections implied in the ‘‘cradle to

grave’’ tracking of hazardous waste

would not be applicable under this

approach since manifests (which

provide this link from cradle to grave)

are not required. Again, EPA is

confident that the DOD tracking and

security system is at least as effective as

the RCRA manifest in assuring that

waste munitions are tracked from

‘‘cradle to grave.’’

Some commenters requested

clarification as to the applicability of

these exemptions to DOE, Coast Guard,

and to commercial transportation of

military munitions. As discussed above,

the Agency has decided to provide the

manifest exemption, as proposed, to

DOD, DOE, the Coast Guard, the

National Guard, commercial

transporters and other parties under

contract to or acting as an agent for

DOD, who are obligated to operate

under the DOD shipping requirements.

The Agency has not provided a similar

exemption to commercial or other

Federal transporters who are not subject

to the DOD transportation standards,

even if they voluntarily follow the DOD

standards.

M. Storage Standards

1. Conditional Exemption for Waste

Military Munitions in Storage

a. Conditional Exemption for Waste

Non-chemical Munitions. In addition to

promulgating RCRA storage standards

for munitions that become regulated

hazardous waste, EPA is also finalizing

a ‘‘conditional exemption’’ approach to

identify when waste non-chemical

military munitions become subject to

RCRA subtitle C storage regulation.

Through today’s rulemaking, EPA is

endeavoring to ensure the safe storage of

waste munitions while at the same time,

not unnecessarily duplicating or

impeding existing regulation and

handling of such wastes. While the

Agency believes that the subpart EE

controls, discussed below, are necessary
6636 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

for the storage of waste munitions that

are not already regulated and for waste

military munitions that are not managed

in compliance with existing controls,

EPA does not believe that subpart EE

regulations are needed where waste

military munitions are being properly

handled in compliance with the

extensive DDESB standards (and other

conditions set out in today’s rule).

Accordingly, today’s rule provides

that waste non-chemical military

munitions that exhibit a hazardous

characteristic or are listed as a

hazardous waste are subject to

hazardous waste storage regulation at

the point they become solid waste under

266.202, except when they meet all of

the conditions set forth in 40 C.F.R.

266.205(a)(1).

The conditional exemption in

§ 266.205 applies only to waste military

non-chemical munitions that are subject

to the jurisdiction of DDESB (which

could include military-owned

munitions at contractor-operated

facilities), including products that DoD

determines are solid wastes under

today’s § 266.202(b)(4) and unexploded

ordnance recovered from ranges and

moved into storage prior to treatment or

disposal. EPA is not extending the

conditional exemption option in today’s

rule to owners or operators of storage

facilities storing non-military waste

munitions and explosives, nor to

persons storing ‘‘military munitions’’

who are not subject to the jurisdiction

of the DDESB (e.g., DOE or other nonDOD Federal agencies or contractor

facilities not directly or by contract

subject to DDESB controls). EPA has

provided an exemption for ‘‘military’’

waste munitions based largely upon the

fact that DDESB standards apply to and

are binding on the military, and there is

an institutional oversight process within

the military. A similar structure of

management controls is not present for

non-military munitions.

The conditional exemption from

RCRA storage requirements does not

apply to transportation, treatment, and

disposal regulation, and is available

only so long as all conditions in

§ 266.205(a)(1) are met.

1. Legal Basis for Conditional

Exemption Approach. EPA’s approach

is based on its view that RCRA § 3001(a)

provides the Agency with flexibility, in

deciding whether to list or identify a

waste as hazardous, to consider the

need for regulation. Specifically, RCRA

§ 3001 requires that EPA, in determining

whether to list a waste as hazardous

waste, or to otherwise identify a waste

as hazardous waste, decide whether a

waste ‘‘should be subject to the

requirements of Subtitle C.’’ Hence,

RCRA § 3001 authorizes EPA to

determine when Subtitle C regulation is

appropriate. The statute directs EPA to

regulate hazardous waste generators

(section 3002(a)), hazardous waste

transporters (section 3003(a)), and

hazardous waste treatment, storage and

disposal facilities (section 3004(a)) ‘‘as

necessary to protect human health and

the environment.’’ By extension, the

decision of when a waste should be

subject to the regulatory requirements of

Subtitle C is essentially a question of

whether regulatory controls

promulgated under sections 3002–3004

are necessary to protect human health

and the environment.

EPA has consistently interpreted

section 3001 to give it broad flexibility

in fashioning criteria for hazardous

wastes to enter or exit the Subtitle C

regulatory system. EPA’s longstanding

regulatory criteria for determining

whether wastes pose hazards that

require regulatory control incorporate

the idea that a waste that is otherwise

hazardous may not present a hazard if

already subject to adequate regulation.

(See, e.g., 40 CFR 261.11(a)(3)(x), which

requires EPA to consider action taken by

other governmental agencies or

regulatory programs based on the health

or environmental hazard posed by the

waste.) Thus, where a waste might pose

a hazard only under limited

management scenarios, and other

regulatory programs already address

such scenarios, EPA is not required to

classify a waste as hazardous waste

subject to regulation under Subtitle C.

At least two decisions by the U.S.

Court of Appeals for the D.C. Circuit

provide support for this approach to

regulating wastes as hazardous waste

only where necessary to protect human

health and the environment. In Edison

Electric Institute v. EPA, 2 F.3d 438

(D.C. Cir. 1993), the court upheld a

temporary exemption from Subtitle C

for petroleum-contaminated media

based on the fact that the potential

hazards of such materials are already

controlled under the underground

storage tank regulations under RCRA

Subtitle I. In reaching its decision, the

court considered the fact that the

Subtitle I standards could prevent

threats to human health and the

environment to be an important factor

supporting the exemption. Id. at 466.

Similarly, in NRDC v. EPA, 25 F.3d

1063 (D.C. Cir. 1994), the court upheld

EPA’s finding that alternative

management standards for used oil

promulgated under RCRA section 3014

reduced the risks of mismanagement

and eliminated the need to list as a

hazardous waste used oil destined for

recycling.

This approach is fully consistent with

RCRA section 3004(y), which directs

EPA to identify when military

munitions become hazardous waste

subject to Subtitle C regulation. The

section specifically calls upon EPA—in

consultation with the Department of

Defense and the States—to develop

storage and transportation requirements

for waste military munitions that are

both protective of human health and the

environment and ensure that they are

safely managed. Following EPA’s

consultation with DOD and the States,

EPA concludes today that the most

reasonable manner of accomplishing

Congress’’ goal is to allow DOD to

continue to store waste military

munitions under DDESB standards,

which—when followed—provide

adequate protection, rather than impose

a second regulatory scheme.

Thus, RCRA section 3004(y) further

supports the approach taken in this

rulemaking.

EPA’s belief that RCRA section

3001(a) provides the Agency with the

flexibility to consider good management

practice in determining the need to

regulate waste as hazardous, is also

informed by the statutory definition of

hazardous waste (section 1004(5)(B), see

also 40 CFR 261.10(a)). EPA has

interpreted the statutory definition as

incorporating the idea that a waste that

is otherwise hazardous does not require

regulation (if properly managed). For

example, EPA’s regulatory standards for

listing hazardous wastes allow

consideration of a waste’s potential for

mismanagement (see 40 CFR

261.11(a)(3), which incorporates the

language of RCRA section 1004(5)(B),

and 40 CFR 261.11(c)(3)(vii), which

requires EPA to consider plausible types

of mismanagement).

The legislative history of RCRA

Subtitle C supports this interpretation,

stating that ‘‘the basic thrust of this

hazardous waste title is to identify what

wastes are hazardous in what quantities,

qualities, and concentrations, and the

methods of disposal which may make

such wastes hazardous.’’ H. Rep. No.

94–1491, 94th Cong., 2d Sess.6 (1976),

reprinted in A Legislative History of the

Solid Waste Disposal Act, as Amended,

Congressional Research Service, Vol.1,

567 (1991)(emphasis added). This

approach also finds support in the D.C.

Circuit’s decision in Edison Electric

Institute v. EPA, 2 F.3d 438 (D.C. Cir.

1993). In that case, the court remanded

EPA’s RCRA Toxicity Characteristic

(‘‘TC’’) as applied to certain mineral

processing wastes because the TC was

based on modeling the mismanagement

scenario of disposal in a municipal solid

waste landfill, yet EPA provided
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6637

inadequate evidence that such wastes

were ever placed in municipal landfills

or similar units. Accordingly, if EPA

were to find that the mismanagement

scenarios of concern for a particular

waste were implausible, the Agency

may find that it is not necessary to

subject that waste to Subtitle C

regulation.

EPA recognizes that in the early

1980’s its interpretation of RCRA’s

definition of hazardous waste focused

on the inherent chemical composition of

the waste, and assumed that

mismanagement of such waste would

occur and would result in threats to

human health or the environment (see

45 FR 33113, May 19, 1980). However,

after more than 15 years of experience

with the management of hazardous

wastes, EPA believes that it is no longer

required—nor is it accurate and fair—to

assume that all inherently hazardous

wastes will be mismanaged, thus

creating the necessity to regulate them

under subtitle C.

Indeed, in several recent hazardous

waste listing decisions, EPA identified

potential ‘‘mismanagement’’ scenarios

for both wastewater and non-wastewater

sources, and then looked at available

data to determine if these

mismanagement scenarios were

plausible given available information

about current waste management

practices.

In deciding to finalize the conditional

exemption from RCRA regulation for the

storage of waste military munitions,

EPA considered several factors. First,

and primarily, EPA relies on the fact

that the storage of all military munitions

(including waste munitions) by the

military services is subject to the

specific requirements of existing DDESB

standards for the management of

military munitions. While these

standards have safety as the primary

concern, EPA and one interested party,

representing certain members of the

waste treatment industry, have reviewed

the DDESB standards in detail. Both

concluded that the technical design and

operating standards of the DDESB meet

or exceed RCRA standards in virtually

all respects, though there were gaps in

certain procedural requirements and in

areas unrelated to risks from explosive

materials (e.g., in requirements to

coordinate with local authorities or in

unit closure requirements). Based on its

review (which has been placed in the

docket), EPA does not believe these gaps

undermine protection of human health

and the environment in any significant

way, or that the superimposition of

RCRA specific standards would

significantly increase protection. The

DDESB standards (‘‘DOD Ammunition

and Explosives Safety Standards,’’ DOD

6055.9-STD) are in the docket for

today’s rulemaking, and may also be

obtained by contacting the DOD

Explosives Safety Board, 2461

Eisenhower Ave, Room 856-C,

Alexandria, VA 22331–0600. These

DDESB standards provide design and

operating standards that, in part,

minimize the potential for explosions

and minimize the impact should an

explosion occur, based on four factors

that relate to the physical and chemical

characteristics of these materials: (1)

compatibility groupings, (2) hazardous

class, (3) net explosive weight (NEW),

and (4) quantity distance formulae. The

EPA analysis ‘‘A Comparison of RCRA

Storage Requirements with DOD

Requirements for Storage of Military

Munitions,’’ EPA, October 31, 1995, is

in the docket for this rulemaking (and

was available for public comment

during the comment period for this

rule).

The applicability of these standards to

waste military munitions in storage is

the major reason for EPA’s belief that—

in specified circumstances—it is not

necessary to subject these wastes to

RCRA storage regulation.

Second, EPA believes that specifically

identifying the conditions under which

waste military munitions become

subject to RCRA Subtitle C, and

providing for independent regulatory

oversight of those conditions, adds

significantly to the reliability and

protectiveness of the system of DDESB

standards.

Third, EPA believes that the fact that

the DDESB standards generally apply to

military munitions and, if violated, can

have significant consequences, provides

further assurance that the conditions for

exemption will be met. For instance, if

a member of the military is found to

have violated the DDESB standards, that

person is subject to military disciplinary

actions. Safety Standards for Storage of

Explosives and Ammunition, 41 Op.

Att’y Gen. 38 (1949).

Finally, EPA has reviewed

documentation concerning incidents

involving the handling of DOD

munitions, and continues to believe that

DOD has a good safety record in storing

all military munitions (including

‘‘waste’’ munitions, which constitute a

tiny fraction of the overall quantity of

munitions managed by DOD). Certainly,

there have been incidents over the years

that involved munitions detonation, in

some cases leading to injury or property

damage. However, few if any of these

incidents involved waste munitions.

Moreover, given the vast quantity of

munitions managed by DOD and the

dangerous nature of the material, EPA

concludes that the safety record has

been good, and furthermore, that

regulation under RCRA subtitle C is

unlikely to significantly improve that

record.

In summary, given the protective

nature of the DDESB standards, and the

Services’ record in providing for the safe

storage of military munitions, the

Agency believes that RCRA subtitle C

regulation is not necessary for waste

military munitions managed in

compliance with these standards. The

regulatory oversight created by today’s

rule provides further assurance that the

standards are followed and

protectiveness is maintained.

2. Implementation and Enforcement

Issues. It is important to emphasize that

if a military facility claims the

conditional exemption in

§ 266.205(a)(1), but fails to store waste

military munitions in compliance with

the provisions of that exemption, that

facility’s mismanaged waste, and any

unit in which that waste was

mismanaged, would no longer be

exempt. Accordingly, the facility would

be subject to additional regulatory

requirements (e.g., a RCRA storage

permit) and could be subject to

enforcement action (or citizen suit) for

violations of hazardous waste

requirements.

As a mechanism to determine if the

units used to store waste munitions are

in compliance with the terms of the

exemption, the Agency is imposing (in

§ 266.205(c)) as a condition for the

exemption a self-reporting requirement.

Under this self-reporting requirement,

the owner or operator must provide oral

notice to EPA within 24 hours, when

the owner or operator becomes aware of:

(a) any loss or theft of the waste military

munitions, or (b) any failure to meet a

condition of § 266.205(a)(1) that may

endanger human health or the

environment. The owner/operator must

also provide a written report describing

any failure to comply with any

condition for the exemption, or a loss or

theft, within 5 days of learning of it.

When a violation of 266.205(a) occurs,

the waste in question automatically

loses its exemption. Under 266.205(c),

the owner or operator may apply to EPA

to reestablish the conditional exemption

once the waste returns to compliance

with all conditions of the exemption.

Depending on the circumstances, EPA

may, in its discretion and considering

factors such as those described in

§ 266.205(c), reinstate the exemption.

Reinstatement is not automatic, but if

EPA does not act on an application

within 60 days, the conditional

exemption would be deemed to be

granted. However, EPA may, after
6638 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

considering appropriate factors such as

those provided in § 266.205(c), revoke

an exemption reinstated by default at

any time, even after the 60 period.

Reinstatement decisions will be made

by the Director (as defined in 40 CFR

270.2). Any owner or operator who

claims that EPA reinstated the owner/

operator’s conditional exemption must

be able to demonstrate that the

reinstatement has been approved by the

Director.

Further, as a mechanism to enable the

regulatory agency to know which wastes

and which storage units are subject to

oversight under this approach, EPA has

established a requirement for a

notification within 90 days of when a

storage unit is first used to store waste

military munitions for which the

conditional exemption is claimed.

In order for the regulatory agency to

know when a storage unit will no longer

be used to store waste military

munitions subject to § 266.205(a),

§ 266.205(b) requires DoD to notify the

appropriate regulatory authority of that

fact.

3. Amendments to DDESB Standards.

The DDESB storage standards that make

up the § 266.205(a)(1) conditions are

those adopted by the DDESB as of

November 8, 1995. EPA understands

that the DDESB may change its storage

standards from time to time. However,

in light of the fact that DDESB has a

statutory obligation to ensure proper

storage of munitions, and to prevent

hazardous conditions arising from

storage of munitions that would

endanger life and property (see 10

U.S.C. § 172), EPA does not consider it

likely that DDESB would pursue any

amendments that would lessen

protection of human health and the

environment. DDESB also has a long

experience regulating explosive safety

hazards, which directly affect DOD’s

own personnel. Further, today’s rule

provides that DOD will publish notice

of any amendments to the DDESB

storage standards in the Federal

Register. DOD will also provide EPA a

preliminary determination of whether

the amended standards are less

protective than the current standards. If

EPA in its discretion determines that

revisions to the conditional exemption

in today’s rule are necessary to protect

human health and the environment, the

Agency will propose such revisions.

Citizens may also petition for

rulemaking to request EPA to revise the

RCRA conditional exemption in light of

any amendments to the DDESB

standards (see RCRA section 7004(a),

and 40 CFR 260.20).

EPA understands that DOD officials

have authority, in some circumstances,

to grant waivers or exemptions from

DDESB standards for military

munitions, where necessitated by

strategic or other compelling reasons.

However, EPA believes that a waiver for

waste military munitions could be

inconsistent with the basis for the

conditional exemption established by

today’s rule. Therefore, a waiver from

otherwise applicable DDESB storage

standards will terminate the eligibility

of affected waste munitions for the

conditional exemption, subject to

reinstatement by EPA pursuant to

§ 266.205(c). The existence of a waiver

will not preclude the owner or operator

from storing waste military munitions in

compliance with the requirements of 40

CFR Parts 264 or 265, subpart EE.

b. Waste Chemical Munitions 1.

Applicability of RCRA Requirements to

Waste Chemical Munitions. ‘‘Chemical

agents and munitions’’ are defined as in

the Department of Defense

Authorization Act of 1986, 50 U.S.C.

1521(j)(1); this statute is the

comprehensive congressional scheme

for the management and ultimate

destruction of chemical agents and

munitions.

Under the original 1980 RCRA

regulations, and under today’s federal

RCRA regulations, a waste is hazardous

if it is specifically listed as a hazardous

waste, or if it exhibits a hazardous

characteristic such as reactivity. See 40

CFR Part 261, subparts B and C.

Chemical agents and munitions become

hazardous wastes if (a) they become a

solid waste under 40 CFR 266.202, and

(b) they are listed as a hazardous waste

or exhibit a hazardous waste

characteristic; chemical agents and

munitions that are hazardous wastes

must be managed in accordance with all

applicable requirements of RCRA.

Based on EPA’s technical review

associated with this rule, the Agency

believes that the waste chemical agents

and munitions in the military stockpile

exhibit at least one of the characteristics

identified in 40 CFR 261 subpart C.

These chemical waste agents and

munitions would be hazardous wastes,

required to comply with RCRA

requirements. (Note that even though

the characteristic nature of waste

chemical agents and munitions may not

have been well understood in the past,

the Department of Defense has, as a

matter of policy and/or State law, been

managing these waste chemical agents

and munitions in compliance with

RCRA requirements, and subject to

RCRA permits.)

2. Inapplicability of Conditional

Exemption. EPA is not extending the

conditional exemption in § 266.205(a)(1)

to waste chemical agents and munitions.

This decision should not be construed

as a negative assessment of DOD’s

standards or management of chemical

agents and munitions. Indeed, DOD has

a sound record for the safe storage of

chemical munitions and agents. This

decision is based on the Agency’s belief

that chemical agents and munitions are

more akin to other types of chemical

waste that RCRA typically regulates

than are waste conventional weapons.

In addition, as noted above, waste

chemical agents and munitions are,

either because of State law or DOD

policy, already stored in RCRA

regulated units and the public has come

to expect that. EPA sees no reason to

disrupt the current situation.

3. Inapplicability of RCRA Storage

Prohibition. EPA is today codifying its

interpretation that RCRA section 3004(j)

does not apply to waste chemical agents

and munitions. (See § 266.205(d)(2) of

today’s rule.)

By way of background, RCRA section

3004(j) prohibits the storage of

hazardous waste for which one or more

methods of land disposal are prohibited,

unless such storage is for the sole

purpose of accumulating quantities

needed for proper recovery, treatment,

or disposal. Edison Electric Institute v.

EPA, 996 F.2d 326 (D.C. Cir. 1993).

Land disposal restrictions have been set

for waste exhibiting any of the

hazardous waste characteristics, and

thus the storage prohibition would, on

its face, appear to apply to waste

chemical agents and munitions that

exhibit a characteristic. Congress

enacted section 3004(j) in 1984 because

it ‘‘believed that permitting storage of

large quantities of waste as a means of

forestalling required treatment would

involve health threats equally serious to

those posed by land disposal, and

therefore, opted in large part for a ‘treat

as you go’ regulatory regime.’’ Id. at 329

(quoting Hazardous Waste Treatment

Council v. EPA, 886 F.2d. 355, 357 (D.C.

Cir. 1989). The fact that treatment or

disposal capacity for a waste does not

exist or is inadequate is not enough, by

itself, to overcome the storage

prohibition. Id. at 336.

However, in the case of chemical

agents and munitions, Congress has—

subsequent to enactment of section

3004(j)—statutorily limited DOD’s

ability to move waste chemical agents

and munitions from storage to treatment

and disposal; EPA believes that this

demonstrates Congress’ intention that

the storage prohibition should not apply

to waste chemical agents and munitions.

Specifically, in 1985, one year after

enacting RCRA section 3004(j), Congress

established a comprehensive scheme for

the management and ultimate
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6639

destruction of waste chemical agents

and munitions. See 50 U.S.C. section

1521. That scheme, which Congress has

updated and amended repeatedly in

intervening years, requires detailed

study of destruction options for the

chemical agents and munitions, and

provides for destruction of the chemical

agents and munitions to be completed

by a set date. See, e.g., 50 U.S.C. section

1521 (a), (b), and (d). As originally

enacted, Congress required destruction

of the chemical agents and munitions by

September 30, 1994, but Congress has

extended that deadline recently to

December 31, 2004. 50 U.S.C. section

1521(b)(5). Congress has further

required that certain studies be

completed prior to destruction (see, e.g.,

50 U.S.C. section 1521(d)); Pub. L. No.

180, 100th Cong., 1st Sess., section

125(b), (c), (d) (Dec. 4, 1987), 101 Stat.

1019, 1043, 1044). During this mandated

study phase, during construction of the

destruction facilities (see 50 U.S.C.

section 1521(c)(1)(B),(2)), and while

destruction is ongoing, Congress

necessarily envisioned that these waste

chemical agents and munitions would

be stored. Indeed, Congress specifically

required DOD annually to assess and

report ‘‘how much longer the stockpile

can continue to be stored safely.’’ 50

U.S.C. section 1521(g)(3)(C)(1).

Highlighting that Congress did not

intend these agents and munitions to be

destroyed until completion of a process

to ensure environmentally safe

destruction, Congress last year

specifically prohibited construction of

chemical weapons incinerators at two of

eight storage sites, pending study of

other destruction alternatives. See

Omnibus Consolidated Appropriations

for 1997, Pub. L. 208, 104th Cong., 2d

Sess., section 8065, reprinted in 9A

U.S.C.C.A.N. 396, 397 (Nov. 1996).

Congress also has restricted

transportation of chemical agents and

munitions, so that chemical agents and

munitions cannot be transported from a

storage facility that lacks disposal

capacity to a storage facility that might

have such capacity. See id. at 397–98;

see also 50 U.S.C. section 1512, 1521a.

In light of the detailed Congressional

plan for destruction of the chemical

agents and munitions, and their

necessary storage pending destruction,

EPA believes that Congress could not

intend the prohibition on storage in

RCRA section 3004(j) to apply to

chemical agents and munitions. EPA

believes that the issuance of this

interpretation is necessary to reconcile

the otherwise conflicting provisions of

two federal statutes, and is within EPA’s

mandate under RCRA section 3004(y) to

issue regulations that provide for safe

storage of waste chemical agents and

munitions.

This interpretation is an interpretative

rule that reconciles specific, existing

statutory provisions; under 5 U.S.C.

section 553(b)(3)(A), it is not subject to

formal public notice and comment

rulemaking procedures.

2. Subpart EE. As noted above, EPA

believes that RCRA regulatory controls

are necessary for waste munitions not

already regulated, and for waste military

munitions that are not being managed in

compliance with the comprehensive

DDESB standards. At the same time,

however (and as discussed in the

proposed rule on waste munitions),

EPA’s view is that the specific RCRA

regulations currently applicable to

hazardous waste storage units (e.g., the

container and tank standards) are not

the best fit for waste munitions and

explosives. Rather, the Agency has

developed a tailored version of the

RCRA storage standards to better reflect

the nature of waste munitions and

explosives, and to ensure that the

regulatory requirements do not interfere

with the safe handling of these

materials. See 60 FR 56479 (November

8, 1995).

The Agency has clear authority under

section 3004(a) to establish storage

standards ‘‘as necessary to protect

human health and the environment’’;

the storage standards presently in 40

CFR Part 264 were designed to cover

conventional waste management units

such as tanks and containers; today’s

subpart EE standards are focused on the

storage of hazardous waste munitions

and explosives in magazines designed

for explosive materials. Accordingly,

EPA is finalizing proposed subpart EE

in 40 CFR Parts 264 and 265 for waste

military munitions and commercial

munitions and explosives that have

become hazardous waste subject to

subtitle C.

EPA has modified proposed subpart

EE in one substantive respect. In

response to suggestions by some

commenters, the Agency is extending

subpart EE applicability to hazardous

waste non-military munitions and

explosives, as well as to hazardous

waste military munitions and

explosives. EPA believes this change is

reasonable because the subpart EE

performance standards are equally

appropriate for non-military munitions

and explosives, which closely resemble

certain military munitions (e.g., small

arms ammunition). As noted in the

proposed rule, this subpart combines

the environmental features of the

existing RCRA storage unit standards

with performance standards based on

the DOD Explosives Safety Board

(DDESB) munitions storage standards

(which are contained in DOD 6055.9–

STD—DOD Ammunition and Explosives

Safety Standards) to minimize potential

inconsistencies or conflicts between

RCRA regulatory requirements and

DOD’s explosives safety standards. (This

is consistent with the mandate in RCRA

section 3004(y) to address both

protectiveness and safety.) It is equally

important to ensure that owners and

operators of storage facilities for nonmilitary waste munitions and explosives

have a unit standard that considers both

the traditional RCRA concerns and the

need to assure explosives safety.

Subpart EE is not the exclusive

manner for storing hazardous waste

munitions or explosives, but rather,

provides an alternative for the storage of

hazardous waste munitions and

explosives under RCRA. Depending on

the explosive hazards, a facility owner

or operator may still seek a storage

permit for waste munitions and

explosives under the already existing 40

CFR parts 264 and 265 standards for

other types of storage units, including

containers (subpart I), tanks (subpart J),

and containment buildings (subpart

DD). An owner or operator would apply

for a permit under the most appropriate

of these standards.

In developing the subpart EE

standards, the Agency carefully

examined the DDESB standards, which

have been developed to protect against

explosions and to minimize the impact

if one should occur, and in doing so

EPA concluded that the DDESB

standards are generally protective of

human health and the environment. The

subpart EE standards include the three

basic designs of magazines that are

found in the DDESB storage standards:

(1) earth-covered magazines (ECMs)

(which are frequently used for shock

sensitive and other munitions), (2)

above ground magazines (AGMs) (which

might be used for munitions that do not

pose a mass detonation or fragment

producing hazards), and (3) outdoor or

open storage areas (typically for

munitions that do not pose a significant

potential for explosion).

Today’s rule also establishes design,

operation, monitoring, inspection,

closure, and post-closure care standards

consistent with the standards for other

RCRA storage units. These standards set

containment and control performance

standards to prevent contamination of

soil, ground-water, surface waters, and

the air. The standards require a primary

barrier or containment system, which

may be a bomb shell, a protective

casing, a storage container, or a tank.

For non-liquid wastes stored outdoors

or in open storage areas, the unit design
6640 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

and operation must provide that the

waste will not be in standing

precipitation. This may be

accomplished by a number of design

and operating features, including a

sloped impervious base, a pervious

base, and/or waste elevation.

For those few waste munitions that

are liquids, in addition to the primary

barrier or container, the subpart EE rules

require units to be equipped with a

secondary containment or vapor

detection system. The secondary

containment or vapor detection system

design, operation, controls, and

monitoring features may include a

combination of sumps, pumps, drains,

slope, double-walled containers or

tanks, overpacks, and/or elevated waste

or other features that provide that any

released liquids are contained or

promptly detected so that an

appropriate response may be taken (e.g.,

additional containment, such as a

container overpack, or removal from the

waste area). For liquid and liquid-filled

waste munitions (e.g., the stored waste

chemical munitions), the Agency

considers the storage of the munition

inside a sealed storage casing as a means

of achieving secondary containment.

Monitoring and inspections are

required to assure that the containment

systems and controls are working as

designed, that the wastes are stable, and

that no contaminants that might

adversely affect human health or the

environment are being released from the

magazine. In addition, all hazardous

waste munitions under subpart EE

would have to be inventoried at least

annually, which is consistent with

current DOD requirements.

The closure standards mirror the

other RCRA storage unit closure

standards, requiring waste and

contaminant removal and containment

system decontamination (where

practicable). When ‘‘clean closure’’

cannot be accomplished, the landfill

closure and post-closure standards

apply.

Response to Comments

EPA received numerous comments on

proposed subpart EE and the three

alternatives that EPA proposed in the

preamble to the proposed rule.

Regarding subpart EE, some commenters

said it is too general to be effective,

whereas others supported it, some

saying it should be expanded to be

available for all munitions and

explosives storage, not just military and

not just munitions since the other

existing storage standards under RCRA

are not as tailored or specific to

explosives. Regarding the former

comments, EPA believes the advantage

of general performance standards is that

they allow flexibility in establishing site

specific design and operating standards.

40 CFR part 264, subpart X, is an

example of a RCRA Subtitle C

performance standard. The disadvantage

of performance standards as pointed out

by the commenters is the lack of

specificity. In the case of subpart EE,

however, EPA has included some

specificity (e.g., secondary

containment). Also, the DDESB

standards or other applicable standards

(e.g., DOE, Coast Guard, NASA, BATF)

and Standard Operating Procedures

(SOPs) may be incorporated as

appropriate to add specificity in the

development of permit standards. Since

there are so many standards and SOPs

for munitions and explosives, both in

the private and public sectors, this

approach provides the flexibility to

incorporate these without having

restrictive or conflicting RCRA

standards. Commenters asked if military

or other SOPs would be subject to

regulator review. To the extent that they

are used in the subpart EE permit, they

would be subject to regulator and public

review during the permitting process,

and when incorporated into a RCRA

permit, they become regulatory

requirements. Regarding the comments

supporting expanding the coverage of

the proposed subpart EE, EPA concurs

and has expanded the applicability of

subpart EE in the final rule to make it

an available option for the storage of all

waste munitions and explosives. For

this reason, subpart EE has been

retained in parts 264 and 265 rather

than in the new part 266, subpart M.

Several commenters felt that EPA

should require storage permits for all

chemical munitions, not only because

they felt these should be classified as

wastes (this comment was discussed in

section K of this preamble), but because

extra precautions are needed for these

particularly hazardous chemicals. In

response, EPA has decided not to allow

the storage of waste chemical agents and

munitions to be eligible for the

conditional exemption from storage

permits under today’s rule. Instead, a

subpart EE or other waste management

permit is required for these wastes. EPA

notes, however, that DOD has in place

strict procedures for the storage of all

chemical munitions, including waste

chemical munitions. For example, all

chemical munitions and bulk agent

storage is currently maintained within a

special high security area at each

installation. Extensive precautions are

used to control entry to these storage

areas. Munitions containing explosives

are stored in earth-covered magazines

(ECMs) designed to protect their

contents from blast and shrapnel effects

of the potential detonation of a

neighboring magazine. Most munitions

without explosive components, and

bulk containers containing isopropyl

methylphosphonoflouridate (referred to

as GB) and phosphonothioic acid,

methyl-S-(2-(bis(1-methylethyl))-

amino)ethyl-O-ethyl ester (referred to as

VX), are also stored in ECMs. The

exceptions include VX ton containers

and spray tanks, both of which are

stored in above ground magazines

(AGMs). One ton containers of mustard

agent are stored in either ECMs, AGMs,

or outdoor storage areas. Chemical

munitions other than 1-ton containers

are stored in configurations generally

suitable for transport during wartime.

These configurations include boxes,

protective tubes, or metal overpacks,

and all are on pallets. The stacking

arrangements and aisles inside the

storage facilities are generally designed

and maintained so that units in each

stack can be inspected, inventoried, and

removed for shipment or maintenance,

as necessary. Periodic surveillance

monitoring, safety inspections, indoor

air monitoring, maintenance of

munitions for safety-in-storage, and

inventory activities are routinely carried

out on these stored munitions.

Also, there have been no catastrophic

accidents associated with the storage of

chemical munitions, and the risk of

release to the public has been reduced

due to the 1969 cessation of live firing

and the implementation of close

restrictions on the disposal and

movement of chemical munitions. There

are, however, cases where deterioration

of the containers has resulted in leaking

of agent from a munition. When this

occurs, the munitions are over packed

in hermetically sealed containers and

placed in specially designated and

monitored magazines. Even with such

incidents, in the past 40 years there

have been no known cases of exposure

to personnel not directly engaged in

agent operations.

Some commenters suggested that

subpart EE be expanded for waste

gaseous chemical warfare agents to

require secondary containment and to

prohibit outdoor storage. EPA notes that

chemical warfare agents are stored as

liquids, not gases, and therefore the

secondary containment or vapor

detection system requirements in

today’s rule apply.

EPA does not see the need to prohibit

outdoor storage of any waste munitions

in subpart EE so long as those waste

munitions will not be left in standing

precipitation, and, if liquid, have

secondary containment or vapor
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6641

detection system, as is required by

subpart EE.

DOD commented that EPA should

allow a vapor detection and response

system as an alternative to secondary

containment for liquid waste chemical

munitions and agents since these

materials leak as vapors before they leak

as liquids and such early detection and

response provides for protection that is

comparable to secondary containment.

EPA agrees, and as discussed in the

section on subpart EE above, EPA has

provided for the use of a vapor detection

and response system in finalizing

subpart EE. In addition to the subpart

EE standards, chemical waste military

munitions are also subject to additional

procedures and requirements regarding

monitoring or secondary containment.

At facilities that manage chemical

weapons, DOD has both a monitoring

and a visual inspection protocol that is

designed to allow early detection of any

leakage from a chemical munition. The

monitoring includes both regularly

scheduled sampling of the air in all

units storing chemical munitions, as

well as monitoring of the air within the

storage unit whenever personnel are to

enter the unit. Should there be a release

of agent, these monitoring protocols will

detect minute amounts of vapor release

(which typically occurs before any

liquids are released). Should a release

be detected, the munitions within the

storage units are inspected to locate the

leak and the release is contained. If the

source cannot be located immediately,

the ammunition storage unit is sealed

and the air filtered and monitored until

the source is located. Once a leaking

chemical munition is isolated, it is

overpacked in a specially designed

container that re-establishes an intact

barrier between the agent and the

environment. If a container with liquids

(e.g., an M55 rocket) leaks inside its

sealed shipping tube, and if the primary

barrier (e.g., the rocket casing) has been

permanently compromised, but the

shipping tube is intact, DOD typically

overpacks the rocket in order to place

two intact barriers between the liquid

and the environment, an action

consistent with the secondary

containment requirements found in

other unit standards under RCRA. Upon

completion of the overpacking activities

and associated decontamination

procedures, the storage area is

monitored to assure complete

decontamination.

Commenters sought further

clarification of the status of shipping

containers and overpacks as secondary

containment for liquid-filled waste

munitions. It is EPA’s view that the

secondary containment requirement for

waste munitions may be met by a

shipping or storage container or

overpack around a non-leaking

munition or container since it places a

second barrier between the liquid and

the environment. Multiple overpacks (a

current DOD practice) are permissible to

meet this requirement.

Some commenters (mostly the

regulated community) favored the first

proposed alternative or the ‘‘deferral’’

option under which munitions would

not under any circumstances be

considered a RCRA hazardous waste

based on the current storage practices of

DOD, which are protective of human

health and the environment. Other

commenters questioned this

alternative’s legal basis and opposed

this approach because it would remove

all non-DOD oversight. EPA agrees with

the latter commenters on both counts

and has not adopted this approach.

The Agency received comments

raising concerns about a contingent

management approach. The Agency’s

thinking on this issue is set out in

today’s preamble and a detailed

response can be found in the docket.

N. Permit Modifications to Receive OffSite Waste Munitions

Some RCRA permits at military

installations have conditions

prohibiting the receipt of ‘‘off-site’’

waste. Under these permit restrictions,

if the point of generation of a waste

munition is any place other than the

permitted installation, then the waste

munition could not be accepted at the

facility for treatment, storage, or

disposal without the installation first

having received a RCRA permit

modification.

Under today’s rule, a number of

formerly unregulated munitions might

now be deemed to be wastes, and thus

potentially subject to these off-site

permit restrictions (see discussion in the

preamble to proposed rule). Under the

existing regulations (40 CFR

270.42(d)(1)), this modification would

arguably have to follow the procedures

for a Class 3 modification, requiring

approval before implementation.

Alternatively, the permittee might

request that the modification be

reviewed by the regulatory agency as a

Class 1 or Class 2 modification. DOD

maintains that this situation would

cause a serious disruption of its

munitions management program.

To address this concern, this final

rule allows permitted facilities with offsite prohibitions to continue to receive

from off-site sources munitions that

have been newly defined as solid waste,

provided there is timely notification to

the permitting authority (in the form of

a Class 1 permit modification request),

followed by a Class 2 permit

modification request. Under this

procedure, the facility may continue to

accept waste munitions from off-site

sources until the permitting authority

makes a final decision on the Class 2

permit modification request. This

approach is consistent with the permit

modification rules for newly regulated

wastes(40 CFR 270.42(g)).

There are three specific requirements

that are attached to this provision and

are codified today at 40 CFR 270.42(h).

First, to be covered under this

provision, the facility must be in

existence on the date today’s rule goes

into effect and must already have a

permit to handle the waste munitions.

Second, the facility must submit a

request for a Class 1 permit modification

that seeks an amendment or removal of

the permit restriction on off-site waste.

The Class 1 permit modification request

must be submitted on or before the date

when the waste munitions become

subject to hazardous waste regulatory

requirements. (Today’s rule becomes

effective in unauthorized States six

months from the date of publication; in

authorized States, State law would

determine the effective date.) This

timely Class 1 submittal would allow

the facility to continue to receive off-site

waste munitions after the effective date

without the need for prior approval by

the permitting authority. Third,

following submission of a Class 1 permit

modification request, the facility would

have an additional six months following

the effective date of this rule to submit

a Class 2 permit modification request for

the removal of the off-site waste

prohibition. Following submission of

the Class 2 modification, the facility

would be allowed to continue to accept

waste munitions from off-site sources

until such time as a final decision to

grant or deny the modification is made.

EPA’s two-step approach recognizes

that military munitions that were

previously handled at certain stages as

non-waste might, under today’s rule, be

considered waste. This two-step process

allows DOD to continue managing its

munitions with a minimum of

disruption, while recognizing the need

for the modification of those permits

that restrict the acceptance of waste

munitions from off-site sources.

The proposed rule provided an

opportunity for DOD, before the 180-day

deadline to submit a Class 2 permit

modification application, to request the

permitting agency to allow an extension

for a specified period. In today’s final

rule, EPA has decided not to provide for

such an opportunity for two reasons.

First, this is inconsistent with
6642 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

§ 270.42(g) which addresses permit

modifications for all newly regulated

wastes and units to which this situation

is analogous. Second, this Class 2

permit modification request is, perhaps,

the simplest and most straightforward of

all types of requests likely to be

submitted under this section, so to

provide an opportunity for extension is

unnecessary.

Today’s final action does not affect

activities at interim status facilities. In

some cases, however, the facility’s part

B permit application might include an

off-site waste prohibition. In this case,

the facility owner should amend the

permit application.

Response To Comments

A number of commenters said it

would be inappropriate for EPA to

adopt DOD’s alternative approach as

described in the proposed notice

(whereby a material is not deemed to be

a waste until received at the treatment/

destruction unit) because this approach

would undo by national rule provisions

that currently exist in a number of

permits that prohibit the receipt of offsite waste, and because this would

ignore or circumvent the right and duty

of State regulatory agencies to issue sitespecific permits based on public

participation. Furthermore, a number of

commenters maintained that the

modification of a permit restriction

regarding off-site wastes should be

processed as a Class 3 modification

requiring full public participation rather

than as a Class 1 or 2 permit

modification. These commenters argued

that permit modifications to remove offsite waste restrictions could create the

need for additional modifications

regarding changes in waste streams or

quantity limitations. Commenters

specifically expressed concern that no

waste should be allowed to be received

from off-site unless the receiving facility

is ‘‘prepared and equipped’’ to comply

with the standards for off-site facilities.

In adopting the approach in today’s

rule, the Agency’s main concern is that

any modification of existing permit

conditions restricting off-site waste be

done in a way that provides for public

participation. Thus, the Agency concurs

with the comments opposing the

‘‘alternative proposal’’ of declaring the

transported material as a waste when it

reaches the ‘‘front door’’ of the

treatment or disposal unit.

In response to commenters

recommending the Class 3 permit

modification procedures, expressing

concern that other permit conditions

might change, or that facilities might not

be prepared to receive the ‘‘new’’ waste

munitions, EPA is clarifying the

applicability of the off-site permit

modification provisions in today’s rule.

The procedures of new § 270.42(h),

allowing a Class 1 modification

submittal followed by a Class 2

modification request, apply only to

changing a permit condition that

prohibits receipt of off-site wastes.

Section 270.42(h) of today’s rule does

not allow facilities to receive munitions

that they were not already receiving at

the time of the rule’s effective date. It

only allows facilities to continue to

receive munitions newly classified as

hazardous waste. Today’s rule also does

not affect the classification of, or

process for, other types of permit

modifications (such as acceptance of

different wastes or changes in permitted

quantity limits) that might occur at a

facility. Those other types of

modifications will continue to be

evaluated in accordance with 40 CFR

§ 270.42 and Appendix I to 40 CFR

§ 270.42.—i.e., the facility must follow

the appropriate procedures for

whichever class of modification—Class

1, 2, or 3—applies.

In conclusion, given the very narrow

scope of the changes allowed under

§ 270.42(h), EPA believes that it is not

necessary to require Class 3 permit

modifications in this rule. In situations

of high public concern, Class 2

procedures already allow the regulating

agency to elevate the process to a Class

3.

O. Environmental Justice

Today’s rule addresses environmental

justice concerns by providing standards,

while not specific to environmental

justice, that are protective of human

health and the environment regardless

of the population potentially impacted.

In addition, DOD as well as all Federal

agencies, is subject to the President’s

Executive Order No. 12898 on

Environmental Justice.

Response To Comments

Several commenters raised

environmental justice concerns. The

comments focused primarily on military

contamination caused by ordnance

landing on ranges formerly owned by

Native Americans or Hawaiians, or

landing off-range on Native American or

Hawaiian lands. The commenters stated

that these lands should be cleaned up

and, as appropriate, returned, citing

cultural, economic, safety, justice, and

social reasons, observing that

indigenous peoples have a special

relationship to their land and that

relocation is not an option. Seven

environmental justice examples were

mentioned in the public comments.

These examples are located in Alaska,

California (2), Hawaii, Nevada, Oregon,

and South Dakota. A brief description of

each of these was provided in the

comments.

In response, EPA has prepared a

report summarizing these comments

and cases, and referred it to DOD. A

copy of this report is available in the

Docket for this rule-making. DOD has

created an environmental justice

program to evaluate and respond to

these concerns and has appropriated $8

million in each of the past three fiscal

years to support this effort.

In addition, in developing this final

rule and in helping DOD develop its

range cleanup rule, EPA feels the

environmental justice concerns raised

by the commenters for munitions and

contaminants landing or migrating offrange, and on closed and transferred

ranges, will now be addressed, resulting

in an increased protection of human

health and the environment. For

example, some commenters referred

specifically to munitions that land off

range. Today’s rule retains, in

§ 266.202(c)(3), the ‘‘off-range’’ response

provision of the proposed rule. This is

expected to help communities,

including Native American

communities, which are located

adjacent to ranges. In addition, EPA is

working with DOD in the development

of DOD’s Range Rule, which will

establish a process for taking inventory,

accessing, and cleaning up closed,

transferring, and transferred ranges.

P. Emergency Responses

Today’s final rule also clarifies that

RCRA generator, transporter, and permit

requirements do not apply to immediate

responses to threats involving

munitions or other explosives. EPA is

now codifying a long standing Agency

policy to address concerns of DOD and

other emergency response officials that

RCRA requirements may impede

emergency responses, especially by

causing delays or confusion. As stated

in the preamble to the proposed rule,

the current RCRA rules exempt

emergency responses from full permit

requirements in two ways. First, permits

(including emergency permits) are not

required for immediate responses to a

discharge of hazardous waste or to an

imminent and substantial threat of a

discharge (§§ 264.1(g)(8), 265.1(c)(11),

and 270.1(c)(3)). After the emergency is

determined to be over, however, any

additional waste management may be

subject to RCRA regulation. Second, in

cases of imminent and substantial

endangerment to human health or the

environment, a temporary emergency

permit may be issued to a facility to

treat, store, or dispose of hazardous
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6643

5 Interpretive letter from EPA (Director, Office of

Solid Waste) to the Bureau of Alcohol, Tobacco,

and Firearms, August 11, 1988, p.4.

waste. This permit may be issued orally,

if followed by a written emergency

permit within five days, and may not

exceed 90 days in duration. See 40 CFR

270.61.

Today’s rule clarifies that EPA

considers immediate or time-critical

responses to explosives or munitions

emergency responses to be an

immediate response to a discharge or

imminent and substantial threat of a

discharge of a hazardous waste under 40

CFR 264.1(g)(8), 265.1(c)(11), and

270.1(c)(3). Such responses are,

therefore, exempt from RCRA

permitting, and other substantive

requirements, including emergency

permits, conducting risk assessments for

OB/OD permits under 40 CFR part 264,

subpart X, and interim status

requirements under 40 CFR part 265,

subpart P. If an immediate response,

however, is clearly not necessary to

address the situation, and a response

can be delayed without compromising

safety or increasing the risks posed to

life, property, health, or the

environment, the responding personnel,

if time permits, should consult with the

regulatory agency regarding the

appropriate course of action (e.g.,

whether or not to seek a RCRA

emergency permit under § 270.6l, or

regular facility permit under 40 CFR

Part 270). Situations where an

immediate response is needed would

include instances where the public or

property is potentially threatened by an

explosion. Situations where an

immediate response is clearly not

necessary would include instances

where the public or property are not

threatened by a potential explosion (e.g.,

in remote areas such as some former

ranges or where immediate action is not

necessary to prevent explosion or

exposure). In these cases, there is time

to consult with the EPA or State

regulatory agency on how to proceed.

Sections 264.1(g)(8)(i)(D),

265.1(c)(11)(i)(D), 266.204, and

270.1(c)(3)(i)(D) make it clear that

explosives or munitions emergencies,

including those involving military

munitions, are exempt from RCRA

permitting (including emergency

permitting). This final action also

clarifies, in §§ 262.10(i) and 263.l0(e),

that, if an emergency response specialist

at the site determines it to be

appropriate, the explosive material may

be removed and transported to a safer

location to be defused, detonated, or

otherwise rendered safe without a RCRA

manifest, and the transporter is not

required to have a RCRA identification

number. Such transport could be to an

open space or an EOD range at a

military installation. Transportation

onto a military base is, however, subject

to the requirements of 10 USC section

2692. Transporters shall consult with

appropriate military authorities

regarding 10 USC section 2692

requirements. This final action, which

EPA believes is necessary to allow

prompt response to explosives

emergencies, is consistent with current

EPA policy.5

Today’s rule also finalizes three new

definitions in § 260.10 to help clarify

the scope of this exemption. The

definition of ‘‘explosives or munitions

emergency’’ describes in detail what

constitutes an emergency, and clarifies

that an emergency situation includes

suspect situations with significant

uncertainties, including improvised

explosive devices (IEDs, e.g., home

made bombs). The definition of

explosives or munitions emergency also

states that the ‘‘explosives or munitions

emergency response specialist’’ is

responsible for determining whether an

emergency exists.

An ‘‘explosives or munitions

emergency response specialist’’ is

defined to include all military and nonmilitary personnel trained in the

identification, handling, treatment,

transport, and destruction of explosives

or conventional and chemical military

munitions. Explosives and munitions

emergency response specialists include

DOD Explosives Ordnance Disposal

(EOD) personnel, who are trained to

respond to emergency situations

involving military munitions and

explosives, DOD Technical Escort Unit

(TEU) personnel, who are trained to

respond to chemical munitions

emergencies, and DOE, National Guard,

and Coast Guard specialists who are

trained to respond to emergency

situations involving chemical

munitions. EOD and TEU personnel

respond to on-installation and offinstallation incidents involving military

munitions. They also respond to

requests by other Federal agencies or

local civil authorities for assistance with

incidents involving non-military

explosives. Non-military explosives or

munitions emergency response

specialists include trained personnel in

the Bureau of Alcohol, Tobacco, and

Firearms (BATF), Federal Bureau of

Investigation (FBI), Central Intelligence

Agency (CIA), Drug Enforcement

Administration (DEA), U.S. Postal

Service (USPS), Federal Aviation

Administration (FAA), other parts of the

Department of Transportation (DOT),

and the Department of Interior (DOI).

State and local enforcement and

emergency response personnel and

private sector explosive specialists also

qualify.

Finally, an ‘‘explosives or munitions

emergency response’’ is defined as all

immediate response activities identified

and carried out by the emergency

response specialist to eliminate the

threat, including all handling, rendersafe (e.g., methods to defuse or separate

the initiator from the explosive),

transportation, treatment (e.g., by

placing the explosive in water), and

destruction activities. These emergency

actions might involve defusing,

detonation, or other treatment of

ordnance ‘‘in-place,’’ or transportation

to a safer location, including to an EOD

range, to defuse, detonate, or otherwise

to abate the immediate threat.

Response to Comments

DOD requested that EPA exempt the

object of an explosive or munitions

emergency response from the regulatory

definition of solid waste. EPA disagrees

since such material is often clearly a

RCRA solid waste (e.g., a buried

munition). DOD questioned whether

temporary storage for extenuating

circumstances (e.g., adverse weather,

nightfall, or safety considerations)

would be allowed under the emergency

response. EPA concurs that temporary

storage for such extenuating

circumstances are within the emergency

response exemption from a RCRA

permit.

A number of commenters questioned

the status of any residuals in the soil

from emergency responses. EPA

believes the responsibility for any

hazardous residuals is a factual

determination dependent upon the

circumstances surrounding the

emergency event. Responsibility could

rest with the person who left or

abandoned the munition or explosive,

the landowner, or, possibly, the local

authorities. For purposes of this

regulation, EPA does not consider

emergency response personnel to be

generators of residuals resulting from

immediate responses, and, therefore,

emergency response personnel are not

subject to the regulations governing

such generators, unless they are also the

owner of the object. In the case of an

EOD unit responding to an incident

involving a military munition, the EOD

units are not typically the ‘‘owner’’ of

the munition nor are they typically the

responsible organization for a military

installation. Thus, in those cases that

involve military munitions, the EOD

unit would not be responsible for

addressing any residual contamination;

however, DOD, the military Service, or
6644 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

other organization (e.g., DOE) would be

potentially liable for any remediation of

residual contamination. In EPA’s view,

it would be counterproductive to the

public safety and the compelling need

for immediate action to require that

emergency response personnel

contemplate the environmental liability

that might result from their response to

an explosives or munitions emergency.

However, after the emergency response

is concluded, any residuals are subject

to 40 CFR 262.11 (hazardous waste

determination), and if hazardous, to the

rest of 40 CFR parts 260 through 270.

The owner of the object of an emergency

response; the owner of the property on

which the object of an emergency

response rests or where the emergency

response initiates; or the requestor for

an emergency response is responsible

for addressing any residual

contamination that results from an

emergency response. For example, if the

residuals are hazardous and resulted

from an emergency response involving a

military munition, then the military

would be responsible for such residuals.

Also, it is not the intent of today’s

regulation to impose liability on

response personnel to clean up

residuals associated with donor

explosives used to destroy the object in

an emergency response.

On a broader scale, DOD raised three

concerns regarding the regulation of

emergency responses involving

munitions or explosives under RCRA:

(1) the effect of the RCRA land disposal

restrictions on response actions; (2)

possible RCRA corrective action

liabilities; and (3) the possibility that

treatment permits would be required for

areas ‘‘routinely’’ used to handle

emergencies. To the extent that any of

these issues would delay or complicate

responses to emergencies involving

explosive material, EPA shares DOD’s

concerns. EPA’s objective in issuing

today’s rule, and in clarifying the

applicability of RCRA to emergency

responses, is to remove regulatory

impediments to emergency responses

and to promote the safe and prompt

management of explosives and

munitions emergencies. EPA agrees

with DOD that any regulatory

impediments to prompt responses

should be removed. DOD’s three

concerns are specifically discussed

below.

Concerning the first issue—the

application of the RCRA land disposal

restrictions (LDRs) to explosives

emergencies—EPA has limited the

applicability of LDR treatment standards

for reactive wastes with respect to

unexploded ordnance and other

explosive devices that are the object of

an emergency response. While the

reactive waste must be deactivated,

treatment of underlying constituents is

not required. (See the table, Treatment

Standards for Hazardous Wastes, 40

CFR part 268, subpart D, which

identifies deactivation as the sole

treatment requirement for ‘‘unexploded

ordnance and other explosive devices

which have been the subject of an

emergency response.’’) Thus, an

emergency response specialist does not

need to be concerned with the LDR

requirements requiring treatment of

underlying hazardous constituents

when determining the course of action

in an emergency response. EPA notes,

however, that emergency responses

present issues that are different from

routine management of reactive wastes,

where there is no competing

consideration of need for immediate

action to prevent an imminent threat.

Thus, in non-emergency response

situations, the LDRs do apply. See 61 FR

15568–15569, April 8, 1996. EPA also

notes, however, that DOD is still

responsible for any residues that remain

after an emergency response that

involves military munitions.

EPA continues to regard open

burning/open detonation as treatment,

not constituting land disposal. See 51

FR 40580 (November 7, 1986) and 52 FR

21011 (June 4, 1987). With regard to

emergency responses to explosives

involving deactivation or destruction

methods other than open burn/open

detonation, EPA notes that the treatment

standard for reactive wastes is

deactivation (i.e., removal of the

hazardous waste characteristic of

reactivity). See 40 CFR 268.42, Table 1.

These standards are consistent with

typical responses of an EOD team to an

explosives emergency, and therefore the

RCRA treatment requirements would

not present a problem.

The responding agencies’ primary

concern on the second issue—the

applicability of RCRA corrective action

requirements—is the possibility that

they might incur an obligation to clean

up unrelated contamination elsewhere

within the facility boundaries when

they conduct an emergency response. In

response to this concern, EPA

emphasizes that emergency response

actions are exempt from RCRA

permitting regulations, and, therefore,

do not trigger RCRA corrective action

requirements. The RCRA corrective

action authorities in sections 3004(u),

3004(v), and 3008(h) apply only to

RCRA permitted or interim status

facilities. Thus, these requirements

would apply only if the emergency

response took place at a RCRA

permitted or interim status treatment,

storage, or disposal facility, and in this

case, any responsibilities for corrective

action would fall on the facility owner,

rather than on the responding authority.

Furthermore, RCRA corrective action

requirements do not apply to actions

taken under the immediate response

provisions of 40 CFR 264.1(g)(8),

265.1(c)(11), and 270.1(c)(3). Finally, in

the case of a response conducted under

a RCRA emergency permit (40 CFR

270.61), RCRA corrective action

requirements would be excluded under

40 CFR 270.61(b)(6). This provision

requires that emergency permits exclude

conditions that would be inconsistent

with the emergency situation that the

permit was addressing. EPA discussed

this point in its RCRA corrective action

proposal of July 27, 1990, 55 FR 30806.

Finally, if a response action is taken

under CERCLA authority, CERCLA

section 107(d)(1) provides that no

person ‘‘shall be liable under this title

for costs or damages as a result of

actions taken or omitted in the course of

rendering care, assistance, or advice in

accordance with the National

Contingency Plan (‘NCP’) or at the

direction of an onscene coordinator

appointed under such plan, with respect

to an incident creating a danger to

public health or welfare or the

environment as a result of any releases

of a hazardous substance or the threat

thereof.’’

DOD’s concern on the third issue is

that, if the responding agency

repetitively transported explosive

devices to a particular off-site treatment

area, a regulator might decide that such

a routinely used area should be subject

to RCRA permitting requirements. In

emergency situations, DOD EOD teams

and other responding agencies often

find it safer to move explosive material

away from the site where it was found—

where it may threaten people or

property—and transport it to an EOD

range. In such cases, the fact that the

material can be transported to another

location does not necessarily mean that

the dangerous situation is under control

or that the emergency is over. Rather, it

indicates a need to find an area where

site access is controlled and the site

conditions are known (e.g., the distance

to nearby structures is adequate and

there are no subsurface utilities), so that

the material can be disarmed, defused,

deactivated, or destroyed with

confidence that an explosion will not

cause injury or collateral damage. In

previous guidance, EPA has stated that

off-site treatment of explosives during

emergency responses is not subject to

permit requirements, as long as the
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6645

6The current definition is: ‘‘On-site’’ means the

same or geographically contiguous property which

may be divided by public or private right-of-way,

provided the entrance and exit between the

properties is at a cross-roads intersection, and

access is by crossing as opposed to going along, the

right-of-way. Non-contiguous properties owned by

the same person but connected by a right-of-way

which he controls and to which the public does not

have access, is also considered on-site property.’’

treatment is legitimately part of the

emergency response.

Because of this need for safe treatment

sites, some EOD ranges may be regularly

used to destroy explosives during

emergency responses. The issue has

been raised (and previous EPA guidance

suggests) that some level of ‘‘routine’’

use of a particular range should trigger

RCRA permit requirements. In EPA’s

view, however, the question of whether

a permit is necessary hinges on the

nature of each individual response (i.e.,

whether or not it involves an

emergency), rather than on the number

of times a given area is used for

emergency responses. As long as the

response to each individual incident

was an emergency response, a RCRA

permit would not be required.

Q. Manifest Exemption for Transport of

Hazardous Waste in Lieu of ‘‘On-Site’’

Redefinition

In the November 8, 1995 proposal,

EPA proposed to reduce the burden on

generators and TSDFs situated on

contiguous properties that are split by

public or private right-of-ways (e.g.,

roads) by proposing that the definition

of ‘‘on-site’’ found at 40 CFR 260.10 be

modified.6 Based on the comments

received and the complex issues raised

related to the definition of ‘‘on-site,’’ the

Agency has determined that an

alternative approach is warranted to

reduce the burden associated with

shipments of hazardous waste to

contiguous properties under the same

ownership.

Under the current RCRA Subtitle C

regulations, if a waste movement

remains ‘‘on-site,’’ the waste is not

required to be accompanied by a

manifest during transportation, and the

40 CFR part 263 transporter

requirements do not apply to the waste.

See 40 CFR 262.20(a), and 263.10 (a)

and (b). However, under the current

regulations, waste generated at one

location and transported along a

publicly accessible road for temporary

consolidated storage or treatment on a

contiguous property also owned by the

same person is not considered ‘‘on-site’’

transport and would require a Uniform

Hazardous Waste Manifest (form 8700–

22A) and must be transported by a

transporter with an EPA Identification

number. These requirements for

manifesting and transporting hazardous

waste do not apply if the wastes are

transported directly across, rather than

along, the public road. The proposed

modifications would have expanded the

definition of ‘‘on-site’’ to include

contiguous properties divided by public

or private right-of-ways even if access to

the properties is by traveling along (as

opposed to across) the right-of-way to

gain entry.

The proposed change to the definition

of ‘‘on-site’’ arose in the context of

military munitions because many

military installations are on properties

that are, under the DOD ‘‘open’’ base

policy, split by ‘‘public’’ roads. Because

many other facilities (e.g., universities

or industrial complexes) are also located

on large parcels of land divided by

public or private right-of-ways, the

proposed change was extended to

hazardous waste generators and TSDFs

in general.

EPA received extensive comment on

the proposed modification to the

definition of ‘‘on-site.’’ These comments

are discussed in more detail in the

response to comments section below.

While almost all commenters were

supportive of the concept of allowing

transportation without a manifest

between contiguous properties

controlled by the same person, a

number of commenters raised questions

related to the effect changing the

definition of ‘‘on-site’’ would have on

other issues such as the assigning of

EPA Identification Numbers to

generators, generator status, and other

RCRA regulations and definitions. As

stated in the proposal, the Agency did

not intend to affect requirements other

than those directly related to the

manifest and transportation. See 60 FR

56483–56484 (November 8, 1995). In

considering the original purpose of the

proposed change to the definition of

‘‘on-site’’ and the complexity of the

questions that were raised by

commenters, the Agency has identified

an alternative method of finalizing the

requirements for transportation without

a manifest between contiguous

properties controlled by the same

person, that avoids the concerns raised

by commenters.

Therefore, the Agency is not finalizing

the proposed modification of the

definition of ‘‘on-site.’’ Instead, the

Agency is adding new § 262.20(f) to 40

CFR Part 262, subpart B to exempt from

the manifest requirements shipments of

hazardous waste on right-of-ways on or

between contiguous properties and

along the perimeter of contiguous

properties controlled by the same

person. This manifest exemption is

applicable to all generators, both

military and non-military. Section

262.20(f) also restates the exemption

found in the current definition of ‘‘onsite,’’ i.e., manifests are also not

required for transport between noncontiguous property when the

properties are owned and controlled by

the same person, and connected by a

right-of-way to which the public does

not have access. The Agency is not

changing regulations regarding transport

on public roads between noncontiguous properties.

40 CFR Part 262, subpart B lays out

the general manifesting requirements

that apply to generators who transport,

or offer for transportation, hazardous

waste for off-site treatment, storage, or

disposal. (Subpart B also contains an

exemption for generators of 100–1000

kilograms of hazardous waste per month

from all of the requirements of subpart

B of Part 262 with respect to the

Uniform Hazardous Waste Manifest,

provided the waste is reclaimed under

certain conditions. See 40 CFR

262.20(e).

New 40 CFR § 262.20(f) adds another

exemption from the manifesting

requirements, for the movement of

hazardous waste on public roads within

or along the border of contiguous

property that is divided by a public or

private right-of-way. Additionally,

under 40 CFR 263.10(a), use of a

transporter with a Hazardous Waste

Identification number is not required for

the movement of hazardous waste

because of this manifest exemption. At

the same time, the Agency recognizes

that generators and TSDFs taking

advantage of this exemption must be

able to respond to an emergency should

one occur during the movement of

hazardous waste on public roads within,

between, or bordering contiguous

properties. As a result, under

§ 262.20(f), the Agency is specifying that

the transporter requirements found at

§ 263.30 and § 263.31 concerning

responding to discharges of hazardous

waste on a public right-of-way will

continue to apply to any discharge of

hazardous waste on a public right-ofway.

Further, the Agency has established

contingency and emergency response

protocols that require facilities to be

prepared for emergencies that occur onsite. 40 CFR 262.34(a)(4) requires large

quantity generators to comply with the

requirements for owners or operators

found at 40 CFR part 265 subparts C

(Preparedness and Prevention) and D

(Contingency Plan and Emergency

Procedures), with the requirements at

§ 265.16 for personnel training, and

with the waste analysis plan

requirements at 40 CFR 268.7(a)(4).
6646 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

Similarly, small quantity generators are

subject to reduced emergency

preparedness, response, and reporting

requirements that are laid out in

§ 262.34(d)(5) and are also subject to the

preparedness and prevention

requirements found at 40 CFR part 265,

subpart C.

These contingency and emergency

response protocols include measures

that are designed to ensure that

emergencies that take place are handled

efficiently and effectively. They include

the designation of an emergency

coordinator who is accessible and who

is knowledgeable about the operations

and activities at the location and who

can coordinate emergency response

measures. These provisions also require

that all employees at a site are familiar

with the proper waste handling and

emergency response procedures relevant

to their responsibilities during normal

facility operations and emergencies.

Large quantity generators are

responsible for developing a

contingency plan that, among other

things, must contain a description of

emergency arrangements agreed to by

local police departments, fire

departments, hospitals, contractors, and

State and local emergency response

teams to coordinate emergency services.

This plan must be reviewed and

immediately amended under certain

circumstances as specified in 40 CFR

265.54, including when the applicable

regulations are revised and when the

facility changes in a way that materially

increases the potential for fires,

explosions, or releases of hazardous

waste or changes the response necessary

in an emergency. Additionally, should

an emergency occur, the emergency

coordinator must be able to assess any

hazards from the release, and help

appropriate officials decide whether

local areas should be evacuated.

Generators taking advantage of the

manifest exemption being finalized

today must, therefore, consider how the

emergency coordinator is to be kept

informed of waste movement activities

under the new circumstances involving

shipments on public roads without a

manifest, and how an emergency on a

public road within, between, or on the

perimeter of contiguous properties is to

be managed so that it minimizes

exposure to local areas surrounding the

property.

Whether waste no longer subject to

the manifest and transportation

requirements described above is subject

to Department of Transportation (DOT)

hazardous material shipping

requirements will depend on whether

that material is regulated under any

DOT hazard class other than materials

classified by DOT as ‘‘hazardous waste.’’

As mentioned in the proposed rule, the

Hazardous Materials Regulations (HMR,

49 CFR parts 171–180) define a

hazardous waste as any material that is

subject to the Uniform Hazardous Waste

Manifest Requirements of the EPA

specified in 40 CFR part 262 [49 CFR

171.8]. If a material is not subject to

EPA’s RCRA manifest requirements, it is

not considered a ‘‘hazardous waste’’ by

DOT. However, such material is still

regulated as a ‘‘hazardous material’’ and

is subject to the HMR if it meets the

defining criteria for one or more of the

DOT hazard classes. Therefore, for these

shipments on public right-of-ways,

generators and/or TSDFs must decide if

the waste falls under any of the other

DOT hazard classes in order to

determine if compliance with the DOT

requirements under CFR parts 171–180

is required.

EPA believes that this exemption from

the Uniform Hazardous Waste Manifest

will result, on balance, in an increase in

protection of human health and the

environment. EPA believes that the

current requirement that a manifest be

completed and that a hazardous waste

transporter be used to transport

shipments between contiguous

properties may be discouraging

consolidation within a generator’s or

TSDF’s site, resulting in more locations

where potential exposure to hazardous

waste exists and more expense by the

generator or TSDF. Removing barriers to

consolidation of waste in one central

area should reduce the possibility that

the public and the environment could

come into contact with hazardous waste

because one area is easier to control and

can be better located than numerous

smaller areas.

EPA also believes that facilitating

central consolidation will allow

generators and TSDFs to locate such

consolidation sites in more remotely

located areas or in areas allowing faster

emergency response than they would if

confined to the boundaries within rightof-ways, thereby increasing public

safety should an accident occur. The

new exemption at 40 CFR 262.20(f)

gives generators and TSDFs such as

military bases and universities more

flexibility to determine where

consolidation areas are situated. In

addition, EPA believes, along with

numerous commenters, that this

exemption will have the added benefit

of facilitating the building of safer

accumulation areas because generators

and TSDFs may be more likely with

limited resources to exceed regulatory

requirements for consolidation areas if

they are responsible for fewer

consolidation sites overall.

Since 40 CFR part 263, under

§ 263.10(a), only applies to transporters

subject to a manifest under part 262, the

persons transporting wastes under

today’s § 262.20(f) are exempt from part

263 (most notably from the § 263.11

requirement for a transporter

identification number), except as

discussed above, § 262.20(f) requires

compliance with §§ 263.30 and 263.31

for immediate action in response to a

discharge.

Today’s rule also exempts the

generator from § 262.32(b) for certain

container marking requirements, but not

from the DOT packaging, labeling,

marking, or placarding requirements of

§§ 262.30, 262.31, 262.32, and 262.33

because these public roads are still

considered by EPA to be ‘‘off-site’’; nor

from the § 262.34(a)(2) and (3), (c)(1)(ii)

and (2), (d)(4), and (e) container and

tank labeling requirements. Section

262.34 regarding accumulation time is

not affected by today’s rule because the

definition of ‘‘on-site’’ is not being

changed. Section 262.40 regarding

requirements to keep copies of

manifests is not included in the rule

because it is not applicable since the

manifest is not required. The biennial

report requirements in § 262.41 are

likewise unchanged by today’s rule.

EPA believes the totality of these

changes regarding the applicability of

the ‘‘manifest system’’ (when

considered with the existing emergency

prevention and response, etc.

requirements, the continued

applicability of §§ 263.30 and 263.31,

the facilitated storage consolidations,

the marking requirements in § 262.34,

the continued applicability of the DOT

hazardous materials standards, in most

cases, and the fact that this

transportation is on or along contiguous

property controlled by the same person,

as discussed above), are consistent with

the directives in RCRA sections 3002(a)

and 3003(a) that EPA establish

regulations ‘‘as may be necessary’’ to

protect human health and the

environment.

Response to Comments

The Agency received numerous

comments on the proposed redefinition

of ‘‘on-site’’ in two main areas: (1) The

proposed change to the basic definition

of ‘‘on-site’’ and its impact on current

hazardous waste management practices

and (2) issues associated with

Department of Transportation (DOT)

and CERCLA protectiveness on public

access roads separating a larger facility.

EPA also requested comments on

whether other requirements of the

RCRA program would be affected by a

redefinition of ‘‘on-site.’’
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6647

With respect to the proposed changes

to the definition of ‘‘on-site,’’ almost all

the commenters supported the concept

behind the proposed redefinition—the

manifest exemption. (Many of these,

however, suggested simplified language

for redefining ‘‘on-site.’’) Only one

commenter (associated with the

transporters) opposed the proposal,

although three commenters suggested

postponing the final rule until a more

thorough analysis could be done. Even

so, the Agency received many

comments raising issues about other

requirements unrelated to the manifest

that might be affected by changing the

definition of ‘‘on-site.’’ For example,

many of the commenters who supported

the idea of changing the definition of

‘‘on-site’’ raised questions about how

the change would affect EPA

Identification Numbers, Land Disposal

Restrictions paper work requirements,

corrective action, and generator status.

One of the most common questions was

whether the proposed change to the

definition of ‘‘on-site’’ would cause a

change in generator status due to the

merging of several individual locations

into one larger location under the new

definition.

One commenter who questioned the

proposed change to the definition of

‘‘on-site’’ expressed concerns about the

redesignation of sites based on the new

definition and specifically asked

whether adjacent military facilities (e.g.,

Army and Air Force) would be

considered ‘‘on-site’’ under the new

definition. The commenter also

expressed concern over the effect such

a redefinition would have on sites

currently on the National Priorities List

(NPL) that are contiguous to properties

not on the NPL. Another commenter

who questioned the proposed change

argued that some universities wanting a

permit to store hazardous waste for

more than 90 days may find that the

entire campus is subject to corrective

action because of a change in the

definition of ‘‘on-site.’’ Several

commenters argued for a more thorough

evaluation of the impacts on the related

terms ‘‘site’’ and ‘‘off-site,’’ the effects of

the proposed definitional change on

definitions such as ‘‘facility,’’ the

relationship to the term ‘‘designated

facility’’ found at § 260.10, the impact

on accumulation provisions found at

§ 262.34 and the impact on the current

definition of ‘‘transfer facility’’ found at

§ 260.10.

The Agency agrees with these

commenters that a change to the

definition of ‘‘on-site’’ could cause a

great deal of confusion in many areas of

RCRA and CERCLA that are based on

the concept of ‘‘site’’ and ‘‘facility.’’ In

addition to causing confusion, such a

change might also inadvertently make

substantive changes to a number of parts

of the RCRA program other than

manifesting and transportation. As

stated in the proposal, EPA did not

intend to affect requirements other than

the requirement that a manifest

accompany hazardous waste shipments

and whether part 263 transportation

requirements apply. Therefore, after

reviewing the comments received on

this issue, EPA has decided to avoid the

potential for unforeseen, adverse

consequences and is not changing the

definition of ‘‘on-site.’’

The Agency does, however, continue

to believe that it is appropriate to revise

the regulations to allow transport along

public and private right-of-ways that

divide contiguous properties without

manifests and the need to use hazardous

waste transporters. Thus, the Agency

has identified an alternative way to

make this change to the regulations

without causing potentially unintended

consequences of changing the definition

of ‘‘on-site.’’ This alternative modifies

40 CFR Part 262, subpart B, to exempt

shipments of hazardous waste on and

along the perimeter of contiguous

properties controlled by the same

person from the manifest requirements.

This change avoids any revision to the

definition of ‘‘on-site.’’ The Agency

reiterates that this revision is a change

only to the applicability of manifesting

and 40 CFR 263 requirements and does

not make any changes to the existing

concepts of ‘‘on-site,’’ ‘‘site,’’ ‘‘facility’’

or related terms for any other purpose

in the RCRA or CERCLA programs.

Also, it does not affect the definition of

‘‘contiguous’’ or EPA’s interpretations as

to whether ‘‘contiguous properties’’ are

owned or under the control of the same

person. For example, EPA considers

different agencies within the Federal

government and different services to be

different ‘‘persons.’’ Therefore, in the

example cited by one commenter,

wastes could not be transported

between adjacent Army and Air Force

bases without a manifest.

EPA received numerous comments

requesting clarification on how

generator identification numbers would

be affected and the related effect on

generator status a change in the

definition of on-site would create. The

Agency understands that the policy

regarding issuing generator

identification numbers is not explicit in

Federal regulations, and thus flexibility

exercised by authorized States may

result in differing interpretations of this

policy by State implementers. However,

the Agency only intended to address the

applicability of the manifest and related

transportation requirements and did not

intend to address the issue of generator

identification numbers as part of this

rulemaking. Eliminating State flexibility

could have significant impacts on

particular facilities, and those impacts

could be viewed as either positive or

negative. Examples of all kinds were

cited by commenters. Though EPA

acknowledges the potential for

confusion and different application of

identification number assignments, the

Agency has not analyzed the potential

impacts fully and is not changing either

Federal regulation or policy on this

issue.

The definition of ‘‘on-site’’

historically has been used in many

States to determine when a manifest

should accompany a shipment of

hazardous waste and when part 263

transporter requirements apply. While

the Agency establishes this relationship

in several preamble discussions (see 45

FR 12723, February, 26, 1980 and 45 FR

33069, May 19, 1980), no similar

preamble discussion exists on the

nature of the relationship of the term

‘‘on-site’’ to generator identification

numbers.

EPA’s past policy interpretations have

tended to associate generator

identification numbers with sites for

which an effective connecting right-ofway exists. In many cases the Agency

has used the definition of ‘‘on-site’’ as

the delimiting tool for determining

when an identification number is

needed. However, exceptions exist

where there may be, for example, more

than one independent business

operating on a contiguous property and

where a cogenerator relationship exists.

EPA has relied on each State

implementing agency to establish its

own method of issuing generator

identification numbers and to make site

specific determinations where

appropriate. The Agency understands

that variations may exist in the method

used to issue generator identification

numbers and therefore recommends that

a generator contact the state in which

the site is located when obtaining an

identification number and with any

questions regarding an individual

location.

Some commenters requested more

detailed information on travel distances.

For example, a commenter questioned

what was meant by a ‘‘short’’ stretch of

road (public right-of-way) in the

proposed preamble discussion,

contrasting the benefits of consolidation

to the transportation without a manifest

along a short stretch of road to which

the public has access. Another argued

that a limit should be placed on how far

a shipment could travel along a road,
6648 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

7Under section 3006(g) of RCRA, enacted as part

of the Hazardous and Solid Waste Amendments

(HSWA) of 1984, new requirements imposed by

HSWA take effect in authorized States at the same

time as they do in unauthorized States—as long as

the new requirements are more stringent than the

previous requirements. EPA implements these new

requirements until the State is authorized for them.

Since today’s proposal is not issued under HSWA

authority, however, section 3006(g) does not come

into play.

and suggested that waste be allowed to

be moved only two miles. The Agency

sees no reason to limit the length of

movement along roads on (or on the

boundary of) property owned by the

same person since many generators

taking advantage of the new exemptions

are located on very large properties that

routinely require them to travel for more

than two miles. One purpose of the

manifest requirement is to assure receipt

of the waste, an object that is

independent of shipping distance, but

enhanced in this case because the

shipper and the receiver are the same,

and the material remains within, or on

the border of, the properties owned or

operated by the shipper/receiver.

Commenters asked for clarification

about the transportation routes allowed

under the proposed rule. Five

commenters suggested that EPA clarify

that waste can be transported along the

perimeter of the property. The Agency

is finalizing this exemption for

movement on roads along the perimeter

as well as within the contiguous

properties because, as discussed above,

it is persuaded that there are adequate

safeguards related to emergency

response and cleanup provided by

today’s final rule. Further, if a discharge

of hazardous waste should occur on a

perimeter public road, the generator

and/or TSDF property still borders the

right-of-way, which would lead to better

control of the remediation process. Also,

the purpose of the manifest is to assure

that waste gets to the receiving unit, an

object that is independent of whether

the road is on the perimeter or within

the property, and that is enhanced when

the contiguous property is controlled by

the same person.

Three commenters suggested EPA

specifically include contiguous

properties ‘‘touching corners’’ or

‘‘diagonally across’’ from each other.

EPA considers such examples to be

contiguous properties separated by a

right-of-way and, therefore, included in

today’s rule. Also, access would

generally be gained by travel along the

perimeter of the properties so the

inclusion of the ‘‘along the border’’

language enables the diagonal corners

situation to benefit by today’s rule.

Four commenters expressed a desire

for the Agency to expand the scope of

‘‘on-site’’ to include nearby noncontiguous areas owned or under the

control of the same person, suggesting

that EPA limit the distance to two miles,

several miles, or some other distance.

The Agency did not intend to change

the regulations regarding the

transportation of hazardous waste along

public roads to non-contiguous

properties. The current definition of

‘‘on-site’’ already allows for the

movement of waste to non-contiguous

areas without a manifest as long as the

public does not have access to the rightof-way that joins the two properties.

Beyond this, the Agency does not agree

that movement of wastes between noncontiguous properties along right-ofways to which the public has access is

warranted given the increased

possibility that the public could come in

contact with the waste should a

discharge occur under this scenario and

the generator would no longer have

control over bordering property.

The proposal also requested comment

on whether or not the authorities under

CERCLA and/or DOT are sufficient to

protect human health and the

environment as they relate to the

management of potential spills of waste

that, as a result of this new exemption,

would not be manifested under RCRA as

previously required and would not be

subject to the requirements of Part 263.

The Agency requested comments on

whether or not the RCRA requirements

in 40 CFR 263.30 and 263.31 should

continue to apply to any discharge of

hazardous waste during transportation

of hazardous waste on a public right-ofway when the waste is transported

within a contiguous property without a

manifest. Sections 263.30 and 263.31

require that immediate action be taken

in the event of a discharge including

notifying local authorities and the

National Response Center and cleaning

up the discharge. Most of the

commenters believed that the alternate

authorities of CERCLA and DOT are

protective enough and that the pressure

of public awareness and corporate

liability concerning spills would help

ensure that spills are prevented, and if

they occur are contained and cleaned up

quickly. However, the Agency also

received comments supporting the

suggested alternative approach of

requiring the ‘‘on-site’’ hauler using a

public right-of-way to follow 40 CFR

263.30 and 263.31. One commenter

cited that response times for cleanup

actions under CERCLA do not promote

an expeditious cleanup and that DOT

regulations are inadequate. DOT and

CERCLA reporting requirements would

apply to such releases, but those

authorities do not necessarily require an

actual cleanup of the release.

In reviewing the options and the

comments received, the Agency has

decided that the requirements found at

§§ 263.30 and 263.31 will continue to

apply to any discharge of hazardous

waste on a public right-of-way even if it

is not accompanied by a manifest and is

not subject to the other transport

requirements found at 40 CFR part 262,

subparts B and C and 40 CFR part 263.

The Agency is concerned here not with

overall RCRA requirements to clean up

a spill, since RCRA does apply when

hazardous waste is disposed of or

discharged onto the ground, but with

the timeliness of response action needed

to contain and remediate a spill which

will be enhanced by the clarity of

responsibility such references afford.

V. State Authority

Under RCRA section 3006, EPA may

authorize a State to administer and

enforce the RCRA hazardous waste

program. See 40 CFR part 271. After

receiving authorization, the State

administers the program in lieu of the

Federal government, although EPA

retains enforcement authority under

RCRA sections 3008, 3013, and 7003.

Because the new Federal requirements

in today’s final rule are non-HSWA,

they are not Federally enforceable in an

authorized State until the necessary

changes to a States’ authorization have

been approved by EPA.7 See RCRA

section 3006, 42 U.S.C. 6926.

Under RCRA, authorized States are

required to review and, if necessary, to

modify their programs when EPA

promulgates Federal standards that are

more stringent or broader in scope than

existing Federal standards. This is

because under RCRA section 3009,

States are barred from implementing

requirements that are less stringent than

the Federal program. See also 40 CFR

271.21.

In two respects, EPA considers

today’s final rule to be more stringent

than current Federal requirements: (1)

the requirement that military

installations retrieve munitions fired

off-range or keep a record of the event

(§ 266.202(d)), and (2) the requirement

that military personnel responding to

immediate threats involving military

munitions maintain records of the

response (§§ 264.1(g)(8)(iv),

265.1(c)(11)(iv), and 270.1(c)(3)(iii)).

Authorized States must adopt these

requirements as part of their State

programs and apply to EPA for approval

of their program revisions. Section

271.21 sets forth the procedures and

deadlines for State program revisions.

RCRA section 3009, however, allows

States to impose standards that are more
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6649

stringent or more extensive (i.e.,

broader) in scope than those in the

Federal program (see also 40 CFR

271.1(i)(1)). Thus, for those Federal

changes that are less stringent, or reduce

the scope of the Federal program, States

are not required to modify their

programs. The less stringent portions of

today’s rule are the following: (1) the

manifest exemption for transport on

right-of-ways on contiguous properties

(§ 262.20(f)), (2) the RCRA manifest

exemption for the off-site shipment of

unused waste munitions from one

military installation to another

(§ 266.203), and (3) the conditional

exemption for waste munitions storage

(§ 266.205).

The rest of the requirements in

today’s rule, in EPA’s view, are neither

more nor less stringent than current

regulatory requirements; they are either

reiterations or clarifications of the

existing EPA regulations or policies.

Although States are only required to

adopt requirements that are more

stringent, in recognition of Congress’

intent in passing RCRA section 3004(y),

DOD’s mission to provide for National

defense, and the Department’s nationwide presence, EPA strongly urges

States to adopt all aspects of today’s

final rule (including the clarifying as

well as less stringent sections) so as to

ensure clear, consistent guidelines for

handlers of waste military munitions,

State regulators, and the public. EPA

believes that the standards promulgated

today properly implement the goals of

RCRA section 3004(y) to ensure the safe

and proper management of military

munitions, and add clarity regarding the

identification and management of

military munitions as hazardous wastes.

Therefore, EPA encourages States to

adopt these regulations as quickly as

their legislative and regulatory

processes will allow.

VI. Administrative Requirements/

Compliance With Executive Order

A. Regulatory Impact Analysis Under

Executive Order 12866

Under Executive Order No. 12866 [58

FR 51735 (October 4, 1993)], the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to review by the Office of

Management and Budget (OMB) and to

the requirements of the Executive Order,

which include assessing the costs and

benefits anticipated as a result of the

proposed regulatory action. The Order

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

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 the Executive Order.

EPA has determined that today’s final

rule is a significant rule under Executive

Order 12866 due to the nature of the

policy issues raised. EPA estimates that

today’s rule results in national annual

costs of $100,000 per year, and national

annual savings of approximately

$1,200,000 to $2,200,000 per year, for a

net savings of $1,100,000 to 2,100,000

per year. For more information on the

cost impacts of today’s final rule, see the

Economic Impact Analysis of the Final

Munitions Rule which is part of the

docket for this rule.

1. Cost Analysis

Today’s rule focuses on several

significant issues: (1) identification of

munitions as waste; (2) transportation of

munitions identified as wastes; (3)

emergency response actions; and (4)

storage standards for waste munitions.

In many instances, EPA has concluded

that current Department of Defense

standards meet RCRA standards and

imposition of RCRA standards would

result in regulations that are redundant.

Over the next ten years, EPA

estimates that the proposed regulation

will result in annual costs of

approximately $100,000 per year to the

Department of Defense. The most

significant costs are related to the need

for permit modifications for treatment

and disposal facilities receiving off-site

wastes. However, today’s final notice

results in avoided costs on the order of

$1,200,000 to $2,200,000 per year over

baseline. Baseline is based on an

analysis of current RCRA/CERCLA and

DOD’s current operations.

The principal sources of annual

savings include avoided costs for new

permits, contingency plans, manifests,

and retrofitted storage units.

EPA did not develop specific costs for

range closure and clean up (e.g., prior to

property transfer) under RCRA sections

7003, 3004(u) or (v), 3008(h), CERCLA,

the Defense Environmental Restoration

Program, or Base Realignment and

Closure. Such costs are site-specific, and

in general, the Agency assumed that

these costs would be similar under each

authority or program. Furthermore,

these costs would not be relevant to

today’s rule, since EPA is postponing

action on defining how RCRA applies to

closed ranges.

EPA also did not develop specific

costs for other Federal agencies that may

be affected by this rulemaking: Coast

Guard, National Guard, DOE, NASA,

FBI, and BTAF. This rule would apply

in the same manner as it does for the

Department of Defense and the relative

savings that would be realized by the

Military is similar to the savings that

would be realized by these other

affected agencies.

2. Benefits Analysis

EPA is finalizing the concept that

unused munitions generally do not

become hazardous waste subject to

regulation until they are removed from

storage for transportation to a disposal

unit. This approach recognizes that

current DOD storage regulations have

been successful in protecting human

health and the environment, and that

additional requirements would be

redundant and disruptive. (See section

IV.B.1.f of the proposed rule preamble).

EPA is also exempting waste military

munitions from RCRA manifest and

other requirements when transported

because DOD standards provide

comparable protection. The benefit of

today’s rule is an annual cost savings of

approximately $1,200,000 to $2,200,000,

due to avoided retrofits, permits,

contingency plans, and manifest costs.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

of 1980 requires Federal agencies to

consider ‘‘small entities’’ throughout the

regulatory process. Section 603 of the

RFA 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 Act are only

those ‘‘businesses, organizations and

governmental jurisdictions subject to

regulation.’’

EPA has determined that today’s rule

will primarily affect Federal agencies,

such as the Department of Defense, and

therefore few, if any, small entities will

be adversely affected. Furthermore,

since today’s final notice generally

provides savings over current

requirements, EPA believes that any

small entities engaged in activity

covered by the rule will not be

adversely affected. Therefore, EPA

provides the following certification

under the Regulatory Flexibility Act, as
6650 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

amended by the Small Business

Regulatory Enforcement Fairness Act.

Pursuant to the provision at 5 U.S.C.

605(b), I hereby certify that this rule will

not have a significant economic impact

on a substantial number of small

entities.

C. Paperwork Reduction Act

The Paperwork Reduction Act of

1980, 44 USC 3501 et seq., authorizes

the Director of OMB to review certain

information collection requests by

Federal agencies. EPA has determined

that the record keeping and reporting

requirements of this proposed rule do

not constitute a ‘‘collection of

information’’ as defined in 44 USC

3502(4) because they apply to Federal

entities (i.e., DOD, DOE, Coast Guard,

and National Guard), or for those

sections that apply to non-Federal

entities (e.g., emergency responses) they

do not impose new record keeping or

reporting requirements.

D. Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act of 1995 (UMBRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of their

regulatory actions on State, Tribal, and

local governments and the private

sector. Under section 202 of the UMRA,

EPA 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.

When a written statement is needed for

an EPA rule, section 205 of the UMRA

generally requires EPA to identify and

consider a reasonable number of

regulatory alternatives and adopt the

least costly, most cost-effective, or least

burdensome alternative that achieves

the objectives of the rule. The

provisions of section 205 do not apply

when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including Tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, giving them

meaningful and timely input in the

development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising them

on compliance with the regulatory

requirements.

EPA 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. EPA

has estimated that the total potential

cost to State, local, and Tribal

governments would not exceed

approximately $200,000 per year over

ten years. Thus, today’s rule is not

subject to the requirements of sections

202 and 205 of the UMRA.

VII. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2), therefore, the effective

date of the rule is not affected.

List of Subjects

40 CFR Part 260

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous waste, Reporting and

recordkeeping requirements.

40 CFR Part 261

Hazardous waste, Recycling,

Reporting and recordkeeping

requirements.

40 CFR Part 262

Emergency responses, Exports,

Hazardous materials transportation,

Hazardous waste, Imports, Labeling,

Packaging and containers, Reporting

and recordkeeping requirements.

40 CFR Part 263

Emergency responses, Hazardous

materials transportation, Hazardous

waste, Reporting and recordkeeping

requirements.

40 CFR Part 264

Air pollution control, Emergency

responses, Hazardous waste, Insurance,

Storage containers, Reporting and

recordkeeping requirements, Security

measures, Surety bonds, Treatment and

disposal.

40 CFR Part 265

Environmental Protection, Air

pollution control, Emergency responses,

Hazardous waste, Insurance, Storage

containers, Reporting and recordkeeping

requirements, Security measures, Surety

bonds, Treatment and disposal.

40 CFR Part 266

Energy, Hazardous waste, Recycling,

Reporting and recordkeeping

requirements.

40 CFR Part 270

Administrative practice and

procedure, Confidential business

information, Emergency responses,

Hazardous materials transportation,

Hazardous waste, Permit application

requirements, Permit modifications,

Reporting and recordkeeping

requirements.

Dated: February 3, 1997.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, 40 CFR Parts 260, 261, 262,

263, 264, 265, 266, and 270 are

amended as follows:

PART 260—HAZARDOUS WASTE

MANAGEMENT SYSTEM: GENERAL

1. The authority citation for Part 260

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921–

6927, 6930, 6934, 6935, 6937–6939, and

6974.

2. Section 260.10 is amended by

adding the following definitions, in

alphabetical order, to read as follows:

§ 260.10 Definitions.

* * * * *

Explosives or munitions emergency

means a situation involving the

suspected or detected presence of

unexploded ordnance (UXO), damaged

or deteriorated explosives or munitions,

an improvised explosive device (IED),

other potentially explosive material or

device, or other potentially harmful

military chemical munitions or device,

that creates an actual or potential

imminent threat to human health,

including safety, or the environment,

including property, as determined by an

explosives or munitions emergency

response specialist. Such situations may

require immediate and expeditious

action by an explosives or munitions

emergency response specialist to

control, mitigate, or eliminate the threat.

Explosives or munitions emergency

response means all immediate response

activities by an explosives and

munitions emergency response

specialist to control, mitigate, or
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6651

eliminate the actual or potential threat

encountered during an explosives or

munitions emergency. An explosives or

munitions emergency response may

include in-place render-safe procedures,

treatment or destruction of the

explosives or munitions and/or

transporting those items to another

location to be rendered safe, treated, or

destroyed. Any reasonable delay in the

completion of an explosives or

munitions emergency response caused

by a necessary, unforeseen, or

uncontrollable circumstance will not

terminate the explosives or munitions

emergency. Explosives and munitions

emergency responses can occur on

either public or private lands and are

not limited to responses at RCRA

facilities.

Explosives or munitions emergency

response specialist means an individual

trained in chemical or conventional

munitions or explosives handling,

transportation, render-safe procedures,

or destruction techniques. Explosives or

munitions emergency response

specialists include Department of

Defense (DOD) emergency explosive

ordnance disposal (EOD), technical

escort unit (TEU), and DOD-certified

civilian or contractor personnel; and

other Federal, State, or local

government, or civilian personnel

similarly trained in explosives or

munitions emergency responses.

* * * * *

Military munitions means 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 non-nuclear 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.

* * * * *

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261

is revised to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

6922, 6924(y), and 6938.

2. Section 261.2 is amended by

removing the period at the end of

paragraph (a)(2)(iii) and adding a

semicolon followed by ‘‘or’’; and by

adding new paragraph (a)(2)(iv) to read

as follows:

§ 261.2 Definition of solid waste.

(a) * * *

(2) * * *

(iii) * * *; or

(iv) A military munition identified as

a solid waste in 40 CFR 266.202.

* * * * *

PART 262—STANDARDS APPLICABLE

TO GENERATORS OF HAZARDOUS

WASTE

1. The authority citation for part 262

is revised to read as follows:

Authority: 42 U.S.C. 6906, 6912, 6922–

6925, 6937, and 6938.

2. Section 262.10 is amended by

adding, before the notes, new paragraph

(i) to read as follows:

§ 262.10 Purpose, scope, and applicability.

* * * * *

(i) Persons responding to an

explosives or munitions emergency in

accordance with 40 CFR

264.1(g)(8)(i)(D) or (iv) or

265.1(c)(11)(i)(D) or (iv), and

270.1(c)(3)(i)(D) or (iii) are not required

to comply with the standards of this

part.

* * * * *

3. Section 262.20 is amended by

adding new paragraph (f) to read as

follows:

§ 262.20 General requirements.

* * * * *

(f) The requirements of this subpart

and § 262.32(b) do not apply to the

transport of hazardous wastes on a

public or private right-of-way within or

along the border of contiguous property

under the control of the same person,

even if such contiguous property is

divided by a public or private right-ofway. Notwithstanding 40 CFR 263.10(a),

the generator or transporter must

comply with the requirements for

transporters set forth in 40 CFR 263.30

and 263.31 in the event of a discharge

of hazardous waste on a public or

private right-of-way.

PART 263—STANDARDS APPLICABLE

TO TRANSPORTERS OF HAZARDOUS

WASTE

1. The authority citation for part 263

is revised to read as follows:

Authority: 42 U.S.C. 6906, 6912, 6922–

6925, 6937 and 6938.

2. Section 263.10 is amended by

adding new paragraphs (e) and (f) to

read as follows:

§ 263.10 Scope.

* * * * *

(e) The regulations in this part do not

apply to transportation during an

explosives or munitions emergency

response, conducted in accordance with

40 CFR 264.1(g)(8)(i)(D) or (iv) or

265.1(c)(11)(i)(D) or (iv), and

270.1(c)(3)(i)(D) or (iii).

(f) Section 266.203 of this chapter

identifies how the requirements of this

part apply to military munitions

classified as solid waste under 40 CFR

266.202.

PART 264—STANDARDS FOR

OWNERS AND OPERATORS OF

HAZARDOUS WASTE TREATMENT,

STORAGE, AND DISPOSAL

FACILITIES

1. The authority citation for part 264

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924,

and 6925.

2. Section 264.1 is amended by

adding new paragraphs (g)(8)(i)(D),

(g)(8)(iv), and (i) to read as follows:

§ 264.1 Purpose, scope and applicability.

* * * * *

(g) * * *

(8) * * *

(i) * * *

(D) An immediate threat to human

health, public safety, property, or the

environment, from the known or

suspected presence of military

munitions, other explosive material, or

an explosive device, as determined by

an explosive or munitions emergency

response specialist as defined in 40 CFR

260.10.

* * * * *

(iv) In the case of an explosives or

munitions emergency response, if a

Federal, State, Tribal or local official

acting within the scope of his or her

official responsibilities, or an explosives

or munitions emergency response

specialist, determines that immediate

removal of the material or waste is

necessary to protect human health or
6652 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

the environment, that official or

specialist may authorize the removal of

the material or waste by transporters

who do not have EPA identification

numbers and without the preparation of

a manifest. In the case of emergencies

involving military munitions, the

responding military emergency response

specialist’s organizational unit must

retain records for three years identifying

the dates of the response, the

responsible persons responding, the

type and description of material

addressed, and its disposition.

* * * * *

(i) Section 266.205 of this chapter

identifies when the requirements of this

part apply to the storage of military

munitions classified as solid waste

under § 266.202 of this chapter. The

treatment and disposal of hazardous

waste military munitions are subject to

the applicable permitting, procedural,

and technical standards in 40 CFR parts

260 through 270.

3. Section 264.70 is revised to read as

follows:

§ 264.70 Applicability.

The regulations in this subpart apply

to owners and operators of both on-site

and off-site facilities, except as § 264.1

provides otherwise. Sections 264.71,

264.72, and 264.76 do not apply to

owners and operators of on-site facilities

that do not receive any hazardous waste

from off-site sources, and to owners and

operators of off-site facilities with

respect to waste military munitions

exempted from manifest requirements

under 40 CFR 266.203(a). Section

264.73(b) only applies to permittees

who treat, store, or dispose of hazardous

wastes on-site where such wastes were

generated.

4. Part 264 is amended by adding new

subpart EE, consisting of §§ 264.1200

through 264.1202, to read as follows:

Subpart EE—Hazardous Waste

Munitions and Explosives Storage

Sec.

264.1200 Applicability.

264.1201 Design and operating standards.

264.1202 Closure and post-closure care.

§ 264.1200 Applicability.

The requirements of this subpart

apply to owners or operators who store

munitions and explosive hazardous

wastes, except as § 264.1 provides

otherwise. (NOTE: Depending on

explosive hazards, hazardous waste

munitions and explosives may also be

managed in other types of storage units,

including containment buildings (40

CFR part 264, subpart DD), tanks (40

CFR part 264, subpart J), or containers

(40 CFR part 264, subpart I); See 40 CFR

266.205 for storage of waste military

munitions).

§ 264.1201 Design and operating

standards.

(a) Hazardous waste munitions and

explosives storage units must be

designed and operated with

containment systems, controls, and

monitoring, that:

(1) Minimize the potential for

detonation or other means of release of

hazardous waste, hazardous

constituents, hazardous decomposition

products, or contaminated run-off, to

the soil, ground water, surface water,

and atmosphere;

(2) Provide a primary barrier, which

may be a container (including a shell) or

tank, designed to contain the hazardous

waste;

(3) For wastes stored outdoors,

provide that the waste and containers

will not be in standing precipitation;

(4) For liquid wastes, provide a

secondary containment system that

assures that any released liquids are

contained and promptly detected and

removed from the waste area, or vapor

detection system that assures that any

released liquids or vapors are promptly

detected and an appropriate response

taken (e.g., additional containment,

such as overpacking, or removal from

the waste area); and

(5) Provide monitoring and inspection

procedures that assure the controls and

containment systems are working as

designed and that releases that may

adversely impact human health or the

environment are not escaping from the

unit.

(b) Hazardous waste munitions and

explosives stored under this subpart

may be stored in one of the following:

(1) Earth-covered magazines. Earthcovered magazines must be:

(i) Constructed of waterproofed,

reinforced concrete or structural steel

arches, with steel doors that are kept

closed when not being accessed;

(ii) Designed and constructed:

(A) To be of sufficient strength and

thickness to support the weight of any

explosives or munitions stored and any

equipment used in the unit;

(B) To provide working space for

personnel and equipment in the unit;

and

(C) To withstand movement activities

that occur in the unit; and

(iii) Located and designed, with walls

and earthen covers that direct an

explosion in the unit in a safe direction,

so as to minimize the propagation of an

explosion to adjacent units and to

minimize other effects of any explosion.

(2) Above-ground magazines. Aboveground magazines must be located and

designed so as to minimize the

propagation of an explosion to adjacent

units and to minimize other effects of

any explosion.

(3) Outdoor or open storage areas.

Outdoor or open storage areas must be

located and designed so as to minimize

the propagation of an explosion to

adjacent units and to minimize other

effects of any explosion.

(c) Hazardous waste munitions and

explosives must be stored in accordance

with a Standard Operating Procedure

specifying procedures to ensure safety,

security, and environmental protection.

If these procedures serve the same

purpose as the security and inspection

requirements of 40 CFR 264.14, the

preparedness and prevention

procedures of 40 CFR part 264, subpart

C, and the contingency plan and

emergency procedures requirements of

40 CFR part 264, subpart D, then these

procedures will be used to fulfill those

requirements.

(d) Hazardous waste munitions and

explosives must be packaged to ensure

safety in handling and storage.

(e) Hazardous waste munitions and

explosives must be inventoried at least

annually.

(f) Hazardous waste munitions and

explosives and their storage units must

be inspected and monitored as

necessary to ensure explosives safety

and to ensure that there is no migration

of contaminants out of the unit.

§ 264.1202 Closure and post-closure care.

(a) At closure of a magazine or unit

which stored hazardous waste under

this subpart, the owner or operator must

remove or decontaminate all waste

residues, contaminated containment

system components, contaminated

subsoils, and structures and equipment

contaminated with waste, and manage

them as hazardous waste unless

§ 261.3(d) of this chapter applies. The

closure plan, closure activities, cost

estimates for closure, and financial

responsibility for magazines or units

must meet all of the requirements

specified in subparts G and H of this

part, except that the owner or operator

may defer closure of the unit as long as

it remains in service as a munitions or

explosives magazine or storage unit.

(b) If, after removing or

decontaminating all residues and

making all reasonable efforts to effect

removal or decontamination of

contaminated components, subsoils,

structures, and equipment as required in

paragraph (a) of this section, the owner

or operator finds that not all

contaminated subsoils can be

practicably removed or decontaminated,

he or she must close the facility and
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6653

perform post-closure care in accordance

with the closure and post-closure

requirements that apply to landfills

(§ 264.310).

PART 265—INTERIM STATUS

STANDARDS FOR OWNERS AND

OPERATORS OF HAZARDOUS WASTE

TREATMENT, STORAGE, AND

DISPOSAL FACILITIES

1. The authority citation for Part 265

continues to read as follows:

Authority: 42 U.S.C. 6905, 6906, 6912,

6922, 6923, 6924, 6925, 6935, 6936 and 6937,

unless otherwise noted.

2. Section 265.1 is amended by

adding new paragraphs (c)(11)(i)(D),

(c)(11)(iv), and (f) to read as follows:

§ 265.1 Purpose, scope, and applicability.

* * * * *

(c) * * *

(11) * * *

(i) * * *

(D) An immediate threat to human

health, public safety, property, or the

environment, from the known or

suspected presence of military

munitions, other explosive material, or

an explosive device, as determined by

an explosive or munitions emergency

response specialist as defined in 40 CFR

260.10.

* * * * *

(iv) In the case of an explosives or

munitions emergency response, if a

Federal, State, Tribal or local official

acting within the scope of his or her

official responsibilities, or an explosives

or munitions emergency response

specialist, determines that immediate

removal of the material or waste is

necessary to protect human health or

the environment, that official or

specialist may authorize the removal of

the material or waste by transporters

who do not have EPA identification

numbers and without the preparation of

a manifest. In the case of emergencies

involving military munitions, the

responding military emergency response

specialist’s organizational unit must

retain records for three years identifying

the dates of the response, the

responsible persons responding, the

type and description of material

addressed, and its disposition.

* * * * *

(f) Section 266.205 of this chapter

identifies when the requirements of this

part apply to the storage of military

munitions classified as solid waste

under § 266.202 of this chapter. The

treatment and disposal of hazardous

waste military munitions are subject to

the applicable permitting, procedural,

and technical standards in 40 CFR parts

260 through 270.

3. Section 265.70 is revised to read as

follows:

§ 265.70 Applicability.

The regulations in this subpart apply

to owners and operators of both on-site

and off-site facilities, except as § 265.1

provides otherwise. Sections 265.71,

265.72, and 265.76 do not apply to

owners and operators of on-site facilities

that do not receive any hazardous waste

from off-site sources, and to owners and

operators of off-site facilities with

respect to waste military munitions

exempted from manifest requirements

under § 266.203(a) of this chapter.

4. Part 265 is amended by adding new

subpart EE, consisting of §§ 265.1200

through 265.1202, to read as follows:

Subpart EE—Hazardous Waste

Munitions and Explosives Storage

Sec.

265.1200 Applicability.

265.1201 Design and operating standards.

265.1202 Closure and post-closure care.

§ 265.1200 Applicability.

The requirements of this subpart

apply to owners or operators who store

munitions and explosive hazardous

wastes, except as § 265.1 provides

otherwise. (NOTE: Depending on

explosive hazards, hazardous waste

munitions and explosives may also be

managed in other types of storage units,

including containment buildings (40

CFR part 265, subpart DD), tanks (40

CFR part 265, subpart J), or containers

(40 CFR part 265, subpart I); See 40 CFR

266.205 for storage of waste military

munitions).

§ 265.1201 Design and operating

standards.

(a) Hazardous waste munitions and

explosives storage units must be

designed and operated with

containment systems, controls, and

monitoring, that:

(1) Minimize the potential for

detonation or other means of release of

hazardous waste, hazardous

constituents, hazardous decomposition

products, or contaminated run-off, to

the soil, ground water, surface water,

and atmosphere;

(2) Provide a primary barrier, which

may be a container (including a shell) or

tank, designed to contain the hazardous

waste;

(3) For wastes stored outdoors,

provide that the waste and containers

will not be in standing precipitation;

(4) For liquid wastes, provide a

secondary containment system that

assures that any released liquids are

contained and promptly detected and

removed from the waste area, or vapor

detection system that assures that any

released liquids or vapors are promptly

detected and an appropriate response

taken (e.g., additional containment,

such as overpacking, or removal from

the waste area); and

(5) Provide monitoring and inspection

procedures that assure the controls and

containment systems are working as

designed and that releases that may

adversely impact human health or the

environment are not escaping from the

unit.

(b) Hazardous waste munitions and

explosives stored under this subpart

may be stored in one of the following:

(1) Earth-covered magazines. Earthcovered magazines must be:

(i) Constructed of waterproofed,

reinforced concrete or structural steel

arches, with steel doors that are kept

closed when not being accessed;

(ii) Designed and constructed:

(A) To be of sufficient strength and

thickness to support the weight of any

explosives or munitions stored and any

equipment used in the unit;

(B) To provide working space for

personnel and equipment in the unit;

and

(C) To withstand movement activities

that occur in the unit; and

(iii) Located and designed, with walls

and earthen covers that direct an

explosion in the unit in a safe direction,

so as to minimize the propagation of an

explosion to adjacent units and to

minimize other effects of any explosion.

(2) Above-ground magazines. Aboveground magazines must be located and

designed so as to minimize the

propagation of an explosion to adjacent

units and to minimize other effects of

any explosion.

(3) Outdoor or open storage areas.

Outdoor or open storage areas must be

located and designed so as to minimize

the propagation of an explosion to

adjacent units and to minimize other

effects of any explosion.

(c) Hazardous waste munitions and

explosives must be stored in accordance

with a Standard Operating Procedure

specifying procedures to ensure safety,

security, and environmental protection.

If these procedures serve the same

purpose as the security and inspection

requirements of 40 CFR 265.14, the

preparedness and prevention

procedures of 40 CFR part 265, subpart

C, and the contingency plan and

emergency procedures requirements of

40 CFR part 265, subpart D, then these

procedures will be used to fulfill those

requirements.

(d) Hazardous waste munitions and

explosives must be packaged to ensure

safety in handling and storage.
6654 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

(e) Hazardous waste munitions and

explosives must be inventoried at least

annually.

(f) Hazardous waste munitions and

explosives and their storage units must

be inspected and monitored as

necessary to ensure explosives safety

and to ensure that there is no migration

of contaminants out of the unit.

§ 265.1202 Closure and post-closure care.

(a) At closure of a magazine or unit

which stored hazardous waste under

this subpart, the owner or operator must

remove or decontaminate all waste

residues, contaminated containment

system components, contaminated

subsoils, and structures and equipment

contaminated with waste, and manage

them as hazardous waste unless

§ 261.3(d) of this chapter applies. The

closure plan, closure activities, cost

estimates for closure, and financial

responsibility for magazines or units

must meet all of the requirements

specified in subparts G and H of this

part, except that the owner or operator

may defer closure of the unit as long as

it remains in service as a munitions or

explosives magazine or storage unit.

(b) If, after removing or

decontaminating all residues and

making all reasonable efforts to effect

removal or decontamination of

contaminated components, subsoils,

structures, and equipment as required in

paragraph (a) of this section, the owner

or operator finds that not all

contaminated subsoils can be

practicably removed or decontaminated,

he or she must close the facility and

perform post-closure care in accordance

with the closure and post-closure

requirements that apply to landfills (40

CFR 264.310).

PART 266—STANDARDS FOR THE

MANAGEMENT OF SPECIFIC

HAZARDOUS WASTES AND SPECIFIC

TYPES OF HAZARDOUS WASTE

MANAGEMENT FACILITIES

1. The authority citation for Part 266

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924,

and 6934.

2. Part 266 is amended by reserving

subparts I through L and adding new

subpart M to read as follows:

Subparts I–L (Reserved)

Subpart M—Military Munitions

Sec.

266.200 Applicability.

266.201 Definitions.

266.202 Definition of solid waste.

266.203 Standards applicable to the

transportation of solid waste military

munitions.

266.204 Standards applicable to emergency

responses.

266.205 Standards applicable to the storage

of solid waste military munitions.

266.206 Standards applicable to the

treatment and disposal of waste military

munitions.

Subpart M—Military Munitions

§ 266.200 Applicability.

(a) The regulations in this subpart

identify when military munitions

become a solid waste, and, if these

wastes are also hazardous under this

subpart or 40 CFR part 261, the

management standards that apply to

these wastes.

(b) Unless otherwise specified in this

subpart, all applicable requirements in

40 CFR parts 260 through 270 apply to

waste military munitions.

§ 266.201 Definitions.

In addition to the definitions in 40

CFR 260.10, the following definitions

apply to this subpart:

Active range means a military range

that is currently in service and is being

regularly used for range activities.

Chemical agents and munitions are

defined as in 50 U.S.C. section

1521(j)(1).

Director is as defined in 40 CFR 270.2.

Explosives or munitions emergency

response specialist is as defined in 40

CFR 260.10.

Explosives or munitions emergency is

as defined in 40 CFR 260.10.

Explosives or munitions emergency

response is as defined in 40 CFR 260.10.

Inactive range means a military range

that is not currently being used, but that

is still under military control and

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.

Military means the Department of

Defense (DOD), the Armed Services,

Coast Guard, National Guard,

Department of Energy (DOE), or other

parties under contract or acting as an

agent for the foregoing, who handle

military munitions.

Military munitions is as defined in 40

CFR 260.10.

Military range means designated land

and water areas 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.

Unexploded ordnance (UXO) means

military munitions that have been

primed, fused, 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.

§ 266.202 Definition of solid waste.

(a) A military munition is not a solid

waste when:

(1) Used for its intended purpose,

including:

(i) Use in training military personnel

or explosives and munitions emergency

response specialists (including training

in proper destruction of unused

propellant or other munitions); or

(ii) Use in research, development,

testing, and evaluation of military

munitions, weapons, or weapon

systems; or

(iii) Recovery, collection, and onrange destruction of unexploded

ordnance and munitions fragments

during range clearance activities at

active or inactive ranges. However, ‘‘use

for intended purpose’’ does not include

the on-range disposal or burial of

unexploded ordnance and contaminants

when the burial is not a result of

product use.

(2) An unused munition, or

component thereof, is being repaired,

reused, recycled, reclaimed,

disassembled, reconfigured, or

otherwise subjected to materials

recovery activities, unless such

activities involve use constituting

disposal as defined in 40 CFR

261.2(c)(1), or burning for energy

recovery as defined in 40 CFR

261.2(c)(2).

(b) An unused military munition is a

solid waste when any of the following

occurs:

(1) The munition is abandoned by

being disposed of, burned, detonated

(except during intended use as specified

in paragraph (a) of this section),

incinerated, or treated prior to disposal;

or

(2) The munition is removed from

storage in a military magazine or other

storage area for the purpose of being

disposed of, burned, or incinerated, or

treated prior to disposal, or

(3) The munition is deteriorated or

damaged (e.g., the integrity of the

munition is compromised by cracks,

leaks, or other damage) to the point that

it cannot be put into serviceable

condition, and cannot reasonably be

recycled or used for other purposes; or
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6655

(4) The munition has been declared a

solid waste by an authorized military

official.

(c) A used or fired military munition

is a solid waste:

(1) When transported off range or

from the site of use, where the site of

use is not a range, for the purposes of

storage, reclamation, treatment,

disposal, or treatment prior to disposal;

or

(2) If recovered, collected, and then

disposed of by burial, or landfilling

either on or off a range.

(d) For purposes of RCRA section

1004(27), a used or fired military

munition is a solid waste, and,

therefore, is potentially subject to RCRA

corrective action authorities under

sections 3004(u) and (v), and 3008(h), or

imminent and substantial endangerment

authorities under section 7003, if the

munition lands off-range and is not

promptly rendered safe and/or

retrieved. Any imminent and substantial

threats associated with any remaining

material must be addressed. If remedial

action is infeasible, the operator of the

range must maintain a record of the

event for as long as any threat remains.

The record must include the type of

munition and its location (to the extent

the location is known).

§ 266.203 Standards applicable to the

transportation of solid waste military

munitions.

(a) Criteria for hazardous waste

regulation of waste non-chemical

military munitions in transportation. (1)

Waste military munitions that are being

transported and that exhibit a hazardous

waste characteristic or are listed as

hazardous waste under 40 CFR part 261,

are listed or identified as a hazardous

waste (and thus are subject to regulation

under 40 CFR parts 260 through 270),

unless all the following conditions are

met:

(i) The waste military munitions are

not chemical agents or chemical

munitions;

(ii) The waste military munitions

must be transported in accordance with

the Department of Defense shipping

controls applicable to the transport of

military munitions;

(iii) The waste military munitions

must be transported from a military

owned or operated installation to a

military owned or operated treatment,

storage, or disposal facility; and

(iv) The transporter of the waste must

provide oral notice to the Director

within 24 hours from the time the

transporter becomes aware of any loss or

theft of the waste military munitions, or

any failure to meet a condition of

paragraph (a)(1) of this section that may

endanger health or the environment. In

addition, a written submission

describing the circumstances shall be

provided within 5 days from the time

the transporter becomes aware of any

loss or theft of the waste military

munitions or any failure to meet a

condition of paragraph (a)(1) of this

section.

(2) If any waste military munitions

shipped under paragraph (a)(1) of this

section are not received by the receiving

facility within 45 days of the day the

waste was shipped, the owner or

operator of the receiving facility must

report this non-receipt to the Director

within 5 days.

(3) The exemption in paragraph (a)(1)

of this section from regulation as

hazardous waste shall apply only to the

transportation of non-chemical waste

military munitions. It does not affect the

regulatory status of waste military

munitions as hazardous wastes with

regard to storage, treatment or disposal.

(4) The conditional exemption in

paragraph (a)(1) of this section applies

only so long as all of the conditions in

paragraph (a)(1) of this section are met.

(b) Reinstatement of exemption. If any

waste military munition loses its

exemption under paragraph (a)(1) of this

section, an application may be filed

with the Director for reinstatement of

the exemption from hazardous waste

transportation regulation with respect to

such munition as soon as the munition

is returned to compliance with the

conditions of paragraph (a)(1) of this

section. If the Director finds that

reinstatement of the exemption is

appropriate based on factors such as the

transporter’s provision of a satisfactory

explanation of the circumstances of the

violation, or a demonstration that the

violations are not likely to recur, the

Director may reinstate the exemption

under paragraph (a)(1) of this section. If

the Director does not take action on the

reinstatement application within 60

days after receipt of the application,

then reinstatement shall be deemed

granted, retroactive to the date of the

application. However, the Director may

terminate a conditional exemption

reinstated by default in the preceding

sentence if the Director finds that

reinstatement is inappropriate based on

factors such as the transporter’s failure

to provide a satisfactory explanation of

the circumstances of the violation, or

failure to demonstrate that the

violations are not likely to recur. In

reinstating the exemption under

paragraph (a)(1) of this section, the

Director may specify additional

conditions as are necessary to ensure

and document proper transportation to

protect human health and the

environment.

(c) Amendments to DOD shipping

controls. The Department of Defense

shipping controls applicable to the

transport of military munitions

referenced in paragraph (a)(1)(ii) of this

section are Government Bill of Lading

(GBL) (GSA Standard Form 1109),

requisition tracking form DD Form 1348,

the Signature and Talley Record (DD

Form 1907), Special Instructions for

Motor Vehicle Drivers (DD Form 836),

and the Motor Vehicle Inspection

Report (DD Form 626) in effect on

November 8, 1995, except as provided

in the following sentence. Any

amendments to the Department of

Defense shipping controls shall become

effective for purposes of paragraph (a)(1)

of this section on the date the

Department of Defense publishes notice

in the Federal Register that the shipping

controls referenced in paragraph

(a)(1)(ii) of this section have been

amended.

§ 266.204 Standards applicable to

emergency responses.

Explosives and munitions

emergencies involving military

munitions or explosives are subject to

40 CFR 262.10(i), 263.10(e), 264.1(g)(8),

265.1(c)(11), and 270.1(c)(3), or

alternatively to 40 CFR 270.61.

§ 266.205 Standards applicable to the

storage of solid waste military munitions.

(a) Criteria for hazardous waste

regulation of waste non-chemical

military munitions in storage. (1) Waste

military munitions in storage that

exhibit a hazardous waste characteristic

or are listed as hazardous waste under

40 CFR Part 261, are listed or identified

as a hazardous waste (and thus are

subject to regulation under 40 CFR Parts

260 through 279), unless all the

following conditions are met:

(i) The waste military munitions are

not chemical agents or chemical

munitions.

(ii) The waste military munitions

must be subject to the jurisdiction of the

Department of Defense Explosives

Safety Board (DDESB).

(iii) The waste military munitions

must be stored in accordance with the

DDESB storage standards applicable to

waste military munitions.

(iv) Within 90 days of August 12,

1997 or within 90 days of when a

storage unit is first used to store waste

military munitions, whichever is later,

the owner or operator must notify the

Director of the location of any waste

storage unit used to store waste military

munitions for which the conditional
6656 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations

exemption in paragraph (a)(1) is

claimed.

(v) The owner or operator must

provide oral notice to the Director

within 24 hours from the time the

owner or operator becomes aware of any

loss or theft of the waste military

munitions, or any failure to meet a

condition of paragraph (a)(1) that may

endanger health or the environment. In

addition, a written submission

describing the circumstances shall be

provided within 5 days from the time

the owner or operator becomes aware of

any loss or theft of the waste military

munitions or any failure to meet a

condition of paragraph (a)(1) of this

section.

(vi) The owner or operator must

inventory the waste military munitions

at least annually, must inspect the waste

military munitions at least quarterly for

compliance with the conditions of

paragraph (a)(1) of this section, and

must maintain records of the findings of

these inventories and inspections for at

least three years.

(vii) Access to the stored waste

military munitions must be limited to

appropriately trained and authorized

personnel.

(2) The conditional exemption in

paragraph (a)(1) of this section from

regulation as hazardous waste shall

apply only to the storage of nonchemical waste military munitions. It

does not affect the regulatory status of

waste military munitions as hazardous

wastes with regard to transportation,

treatment or disposal.

(3) The conditional exemption in

paragraph (a)(1) of this section applies

only so long as all of the conditions in

paragraph (a)(1) of this section are met.

(b) Notice of termination of waste

storage. The owner or operator must

notify the Director when a storage unit

identified in paragraph (a)(1)(iv) of this

section will no longer be used to store

waste military munitions.

(c) Reinstatement of conditional

exemption. If any waste military

munition loses its conditional

exemption under paragraph (a)(1) of this

section, an application may be filed

with the Director for reinstatement of

the conditional exemption from

hazardous waste storage regulation with

respect to such munition as soon as the

munition is returned to compliance

with the conditions of paragraph (a)(1)

of this section. If the Director finds that

reinstatement of the conditional

exemption is appropriate based on

factors such as the owner’s or operator’s

provision of a satisfactory explanation

of the circumstances of the violation, or

a demonstration that the violations are

not likely to recur, the Director may

reinstate the conditional exemption

under paragraph (a)(1) of this section. If

the Director does not take action on the

reinstatement application within 60

days after receipt of the application,

then reinstatement shall be deemed

granted, retroactive to the date of the

application. However, the Director may

terminate a conditional exemption

reinstated by default in the preceding

sentence if he/she finds that

reinstatement is inappropriate based on

factors such as the owner’s or operator’s

failure to provide a satisfactory

explanation of the circumstances of the

violation, or failure to demonstrate that

the violations are not likely to recur. In

reinstating the conditional exemption

under paragraph (a)(1) of this section,

the Director may specify additional

conditions as are necessary to ensure

and document proper storage to protect

human health and the environment.

(d) Waste chemical munitions. (1)

Waste military munitions that are

chemical agents or chemical munitions

and that exhibit a hazardous waste

characteristic or are listed as hazardous

waste under 40 CFR Part 261, are listed

or identified as a hazardous waste and

shall be subject to the applicable

regulatory requirements of RCRA

subtitle C.

(2) Waste military munitions that are

chemical agents or chemical munitions

and that exhibit a hazardous waste

characteristic or are listed as hazardous

waste under 40 CFR Part 261, are not

subject to the storage prohibition in

RCRA section 3004(j), codified at 40

CFR 268.50.

(e) Amendments to DDESB storage

standards. The DDESB storage standards

applicable to waste military munitions,

referenced in paragraph (a)(1)(iii) of this

section, are DOD 6055.9–STD (‘‘DOD

Ammunition and Explosive Safety

Standards’’), in effect on November 8,

1995, except as provided in the

following sentence. Any amendments to

the DDESB storage standards shall

become effective for purposes of

paragraph (a)(1) of this section on the

date the Department of Defense

publishes notice in the Federal Register

that the DDESB standards referenced in

paragraph (a)(1) of this section have

been amended.

§ 266.206 Standards applicable to the

treatment and disposal of waste military

munitions.

The treatment and disposal of

hazardous waste military munitions are

subject to the applicable permitting,

procedural, and technical standards in

40 CFR Parts 260 through 270.

PART 270—EPA ADMINISTERED

PERMIT PROGRAMS: THE

HAZARDOUS WASTE PERMIT

PROGRAM

1. The authority citation for Part 270

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912, 6924,

6925, 6927, 6939, and 6974.

2. Section 270.1 is amended by

adding new paragraphs (c)(3)(i)(D) and

(c)(3)(iii) to read as follows:

§ 270.1 Purpose and scope of these

regulations.

* * * * *

(c) * * *

(3) * * *

(i) * * *

(D) An immediate threat to human

health, public safety, property, or the

environment from the known or

suspected presence of military

munitions, other explosive material, or

an explosive device, as determined by

an explosive or munitions emergency

response specialist as defined in 40 CFR

260.10.

* * * * *

(iii) In the case of emergency

responses involving military munitions,

the responding military emergency

response specialist’s organizational unit

must retain records for three years

identifying the dates of the response, the

responsible persons responding, the

type and description of material

addressed, and its disposition.

* * * * *

3. Section 270.42 is amended by

redesignating paragraph (h) as (i) and

adding a new paragraph (h) to read as

follows:

§ 270.42 Permit modification at the request

of the permittee.

* * * * *

(h) Military hazardous waste

munitions treatment and disposal. The

permittee is authorized to continue to

accept waste military munitions

notwithstanding any permit conditions

barring the permittee from accepting offsite wastes, if:

(1) The facility was in existence as a

hazardous waste facility, and the facility

was already permitted to handle the

waste military munitions, on the date

when the waste military munitions

became subject to hazardous waste

regulatory requirements;

(2) On or before the date when the

waste military munitions become

subject to hazardous waste regulatory

requirements, the permittee submits a

Class 1 modification request to remove

or amend the permit provision

restricting the receipt of off-site waste

munitions; and
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Rules and Regulations 6657

(3) The permittee submits a complete

Class 2 modification request within 180

days of the date when the waste military

munitions became subject to hazardous

waste regulatory requirements.

* * * * *

[FR Doc. 97–3218 Filed 2–11–97; 8:45 am]

BILLING CODE 6560–50–P