[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56468-56495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27434]




[[Page 56467]]

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Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 260, et al.



Military Munitions Rule: Hazardous Waste Identification and Management; 
Explosives Emergencies; Redefinition of On-Site; Proposed Rule

  Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / 
Proposed Rules   

[[Page 56468]]


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 through 265, and 270

[EPA 530-Z-95-013; FRL-5325-5]
RIN 2050-AD90


Military Munitions Rule: Hazardous Waste Identification and 
Management; Explosives Emergencies; Redefinition of On-Site

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In response to Section 107 of the Federal Facility Compliance 
Act (FFCA) of 1992 which added a new subsection 3004(y) to the Resource 
Conservation and Recovery Act (RCRA) (42 U.S.C. section 6924(y)), EPA 
is today proposing a rule that identifies when conventional and 
chemical military munitions become a hazardous waste under RCRA, and 
that provides for the safe storage and transport of such waste. Today's 
proposal also amends existing regulations regarding emergency responses 
involving military munitions and other explosives. This amendment would 
apply to responses by non-military or private personnel, as well as by 
the military. The proposal also revises the definition of ``on-site,'' 
which applies to all generators of hazardous waste.

DATES: Written comments on these proposed rules will be accepted until 
January 8, 1996.

ADDRESSES: Written comments (one original and two copies) should be 
addressed to: EPA RCRA Docket #F-95-MMP-FFFFF, Mail Code 5305W, 401 M 
Street SW, Washington, DC 20460. Comments also may be submitted 
electronically by sending electronic mail (e-mail) through the Internet 
system to: RCRA-D[email protected]. All electronic comments must be 
submitted as an ascii file avoiding the use of special characters and 
any form of encryption. The comments should be identified with the 
above docket number.
    The official action for this record will be kept in paper form. 
Accordingly, EPA will convert all documents received electronically 
into printed paper form as they are received and will place the paper 
copies in the official record, which will also include all comments 
submitted directly in writing. The official record is the paper record 
kept in the RCRA Docket (see address above). (Comments submitted on 
paper will not be transferred to electronic format. These comments may 
be viewed only in the RCRA Docket as described here.)
    Public comments and the supporting information used for this rule 
are available for public inspection and copying in the RCRA Information 
Center (RIC) located in room M2616 at the EPA address above. The RIC is 
open from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding 
federal holidays. To review docket materials, the public must make an 
appointment by calling (202) 260-9327.
    The RIC will be closed November 14-24, 1995 because it is 
relocating to Arlington, Virginia. Between November 14 and 24, 1995, 
special appointments can be made for viewing material in this docket by 
calling the above number. Beginning November 27, 1995, call 703-603-
9230. After that date, the Docket will be physically located at: 
Crystal Gateway, First Floor, 1235 Jefferson Davis Highway, Arlington, 
Virginia. The mailing address remains the same as given above.

FOR FURTHER INFORMATION CONTACT: The RCRA Hotline between 9 am and 6 pm 
EST, toll-free, at 800-424-9346; 703-412-9810 from Government phones or 
if in the Washington, DC local calling area; or 800-553-7672 for the 
hearing impaired; or Ken Shuster, U.S. EPA (5303W), 401 M St. SW., 
Washington, DC 20460, (703) 308-8759.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Legal Authority
II. Background
    A. Statutory Mandate
    B. Issues Addressed in Proposal
    C. Solid Waste for Regulatory Purposes vs. Solid Waste for 
Statutory Purposes
III. Summary of Proposed Rule
IV. Section-by-Section Analysis
    A. Definition of Military Munitions
    B. Definition of ``Solid Waste'' as It Applies to Military 
Munitions
    1. Unused or Stockpiled Munitions
    a. Status of Military Stockpile
    b. Proposed Sec. 261.2(g)(1)(i)--Unused munitions that have 
previously been disposed of
    c. Proposed Sec. 261.2(g)(1)(ii)--Munitions removed from the 
stockpile for the purposes of destruction
    d. Proposed Sec. 261.2(g)(1)(iii)--Leaking or deteriorated 
munitions
    e. Proposed Sec. 261.2(g)(1)(iv)--Munitions determined by DOD to 
be a solid waste
    f. Rationale for EPA's Proposed Approach
    2. Used or Fired Munitions
    3. Munitions Used for Their Intended Purposes
    a. Proposed Sec. 261.2(g)(3)(i)--Military training exercises
    b. Proposed Sec. 261.2(g)(3)(ii)--Weapons testing
    c. Proposed Sec. 261.2(g)(3)(iii)--Range clearance during 
training or weapons testing
    4. Discharged Military Munitions at Firing Ranges
    5. Waste Materials Derived from Munitions Manufacture
    C. Standards Applicable to Generators and Transporters
    D. Storage of Military Munitions
    E. Emergency Responses
    F. Definition of ``On-Site''
    G. Permit Modifications to Receive Off-Site Waste Munitions
V. Discussion of Major Alternatives
    A. Stockpiled Munitions
    1. Approach Based on Army Regulation 200-1
    2. DOD Interim Guidance
    3. Munitions Scheduled for Destruction by International Treaty
    4. Alternatives Based on Condition of Munition
    5. Regulation of the Demilitarization Process
    B. Range Management
    1. Active Ranges
    2. Applicability of Range Cleanup Authorities
    C. Alternative Organization (Separate CFR Part)
VI. State Authority
VII. 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
VIII. References/Docket

I. Legal Authority

    These regulations are proposed under 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

A. Statutory Mandate

    Section 107 of the Federal Facility Compliance Act (FFCA) of 1992 
amended the Resource Conservation and Recovery Act (RCRA) by adding a 
new section 3004(y) that requires EPA to propose regulations, after 
consulting with the Department of Defense (DOD) and appropriate State 
officials, that identify when conventional and chemical military 
munitions become hazardous waste under RCRA, and that provide for the 
safe storage and transportation of such waste.
    Over the years, the applicability of RCRA to military munitions has 
been the subject of considerable controversy. The Department of Defense 
has expressed concern that differing regulations or interpretations 
from State to State substantially undermine its 

[[Page 56469]]
ability to carry out its mission. DOD has particularly sought clarity 
in defining RCRA's application to military munitions storage and 
transport, the recycling or destruction of obsolete munitions, and 
immediate responses to emergencies involving explosives.1 At the 
same time, citizens groups have expressed concern that many military 
activities involving munitions are insufficiently regulated. Congress 
amended RCRA to include section 3004(y) in response to these concerns.

    \1\ EPA and DOD have developed a considerable body of 
interpretive guidance and memoranda addressing these issues. EPA's 
most recent general discussion of these issues is in a June 23, 1994 
letter from Michael Shapiro, Director of the EPA Office of Solid 
Waste, to Patrick J. Meehan, Acting Assistant Deputy Under Secretary 
of Defense for Compliance. This letter and other relevant guidance 
are included in the docket to today's rulemaking.
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    Today's proposal responds to Congress's mandate in section 3004(y). 
In developing the proposal, EPA has consulted extensively with DOD and 
the States, as the statute requires. EPA has also met with and received 
comments from a consortium of citizens groups with particular interest 
in the environmental and human health impacts of military installations 
around the United States. In addition, representatives of the waste 
treatment industry have provided comments to EPA. Records of these 
meetings and information provided to EPA are included in the docket to 
today's rulemaking.

B. Issues Addressed in the Proposal

    In developing today's proposal, EPA focused primarily on several 
key issues that have arisen in the implementation of the RCRA program 
at military installations, or that have been raised by DOD, States, or 
citizens groups. These issues are:
    1. When does an unused munition become a RCRA ``hazardous waste,'' 
potentially subject to RCRA permitting and technical management 
standards? All parties agree that the destruction of unused munitions 
is regulated under RCRA (if the munitions meet the definition of 
``hazardous''). But at what point in the process do stockpiled 
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? 
Although EPA in the past has not regulated these activities under RCRA, 
it has been argued that military munitions are ``discarded'' during 
field exercises, and therefore should be subject to RCRA hazardous 
waste management standards. It has also been argued that certain 
activities associated with munitions training or testing--for example, 
the detonation of unexploded ordnance at a firing range--properly fall 
under RCRA jurisdiction.
    3. How do RCRA hazardous waste regulations apply to emergencies 
involving explosive materials, including military munitions? DOD has 
expressed concern that current RCRA hazardous waste regulations may 
complicate responses by emergency personnel to unexploded ordnance and 
other emergencies.
    4. In what way (if any) do RCRA requirements apply to unexploded 
ordnance and environmental contamination at military ranges and impact 
zones, especially ones that are closed?
    5. Once it has been determined that a munition is a hazardous waste 
for regulatory purposes, what storage and transportation standards are 
needed to ensure protection of human health and the environment? DOD, 
in particular, expressed concern that certain RCRA standards are 
inconsistent with its internal regulations on munitions storage, and 
that the RCRA transportation requirements (including the manifest) are 
redundant with DOD controls.
    Today's notice provides EPA's proposed resolution of these issues. 
The notice also proposes a new definition of ``on-site,'' to reduce 
unnecessary paperwork requirements for hazardous wastes transported 
within large facilities, including military installations.

C. Solid Waste for Regulatory Purposes vs. Solid Waste for Statutory 
Purposes

    In addressing the issues above, EPA carefully reviewed the RCRA 
statutory and regulatory definitions of ``solid'' and ``hazardous'' 
waste. To avoid confusion in today's proposal, EPA notes at the outset 
that the terms ``solid waste'' and ``hazardous waste'' have different 
meanings depending upon the context in which the terms appear. These 
terms are defined in both the statute and in the regulations 
implementing RCRA Subtitle C.
    RCRA statutorily defines ``solid waste'' in section 1004, 42 U.S.C. 
6903(27), in pertinent part, as follows:

    The term ``solid waste'' means any garbage, refuse, sludge from 
a waste treatment plant, water supply treatment plant, or air 
pollution control facility and other discarded material, including 
solid, liquid, semisolid, or contained gaseous material resulting 
from industrial, commercial, mining and agricultural operations, and 
from community activities . . .

42 U.S.C. 6903(27). The term ``hazardous waste'' is defined in the 
statute as those solid wastes that may ``(A) cause, or significantly 
contribute to an increase in mortality or an increase in serious 
irreversible, or incapacitating reversible, illness; or (B) pose 
substantial present or potential hazard to human health or the 
environment when improperly treated, stored, transported, or disposed 
of, or otherwise managed.'' 42 U.S.C. 6903(5).
    The terms ``solid waste'' and ``hazardous waste'' are defined for 
purposes of the regulatory program under Subtitle C of RCRA at 40 CFR 
261.2 (solid waste) and 40 CFR 261.3 (hazardous waste). Materials 
meeting these definitions are a subset of the materials meeting the 
statutory definitions. EPA regulations at 40 CFR 261.1(b)(1) make clear 
that the regulatory definition of ``solid waste'' applies only to 
wastes that are also hazardous for purposes of the regulations 
implementing subtitle C of RCRA. Accordingly, the statutory definition 
of solid waste is broader in scope than the regulatory definitions of 
the term. See also 40 CFR 261.1(b)(2).
    In parts IV.A thru B.3 and B.5 of the preamble, EPA discusses the 
circumstances under which unused munitions in the military stockpile 
are considered to meet the definition of ``solid waste'' as defined in 
the regulations implementing Subtitle C of RCRA. Therefore, in this 
context the relevant definition of ``solid waste'' is the definition 
contained in the Subtitle C regulations. Unused military munitions 
meeting the regulatory definitions of ``solid waste'' could be 
regulated as hazardous waste and thus subject to full Subtitle C 
requirements.
    In part IV. B.4. of the proposal EPA discusses the circumstances 
under which discharged or fired munitions meet the statutory definition 
of ``solid waste''. As explained below, these materials would not meet 
the regulatory definition of ``solid waste'' and thus would not be 
regulated as ``hazardous waste''. Nevertheless, these materials could 
be ``solid waste'' as defined by the statute. Therefore, in this 
context the relevant definition of ``solid waste'' is the statutory 
definition. Discharged or fired munitions that meet the statutory 
definition of ``solid waste'' are subject to RCRA's remedial statutory 
authority.

III. Summary of Proposed Rule

    Today's proposal addresses: (1) when military munitions become a 
solid, and therefore potentially a hazardous waste, (2) what 
transportation and storage requirements apply to military munitions 
that become a hazardous 

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waste, (3) how RCRA hazardous waste regulations apply to immediate 
responses to emergencies involving military munitions and other 
explosives, (4) what RCRA requirements apply to fired munitions, and 
(5) an amendment to the definition of ``on-site,'' as it applies to 
hazardous waste generators.
    On the issue of when a munition becomes a regulatory solid waste, 
today's proposal provides that unused military munitions in the 
military stockpile become solid waste when they are removed from 
storage in the stockpile for the purpose of disposal, or for treatment 
prior to disposal; when they are leaking or deteriorated to a point 
where they cannot be used or recycled; or when DOD or authorized 
Military Service personnel declare them to be a solid waste, whichever 
comes first. The proposal would make clear that munitions disposed of 
in the past, for example by burial at former military installations, 
are solid waste. At the same time, the proposal explicitly provides 
that use of munitions for their intended purpose (for example, in 
training exercises, or in activities associated with training, such as 
range clearance) does not constitute waste management regulated under 
RCRA.
    The proposal also discusses alternate approaches to the regulation 
of unexploded ordnance and other munitions remaining at ranges after 
the range has been closed. Under the approach proposed in today's 
notice, these munitions would be considered statutory ``solid waste,'' 
potentially subject to RCRA cleanup authorities, until DOD develops 
range cleanup standards, in consultation with EPA and with full 
opportunity for public participation. Under today's proposal, DOD's 
standards, once issued, would take precedence over RCRA.
    The proposal would also codify EPA policy on immediate responses to 
emergencies involving munitions and other explosives. Under the 
proposal, immediate responses taken by trained personnel (whether 
military, other governmental, or private) would not be subject to RCRA 
permitting or other requirements. In addition, if emergency 
transportation of the explosive were necessary, this could occur 
without a RCRA manifest.
    The proposal also includes new standards for military magazines or 
bunkers used to store hazardous waste munitions. These standards are 
designed to provide consistency between RCRA technical standards and 
DOD standards for munitions storage. In addition, today's proposal 
would exempt military munitions from RCRA manifest and other RCRA 
transportation requirements, if they are being shipped to other DOD 
facilities under DOD's munitions tracking system.
    Finally, the proposal revises the definition of ``on-site,'' so 
that hazardous waste generators may define on-site property to include 
all contiguous property (regardless of whether or not it is split by a 
road or right-of-way). This change will provide military installations 
and other large facilities (such as universities or large industrial 
complexes) greater flexibility in handling waste on site and will 
eliminate redundant paperwork requirements (e.g., by eliminating the 
manifest requirement).

IV. Section-by-Section Analysis

A. Definition of Military Munitions

    Today's proposal includes a definition of ``military munitions'' 
(in Sec. 260.10). This definition, which establishes the scope of 
today's rule, includes all types of ammunition products and their 
components, including conventional and chemical munitions, produced by 
or for the military for national defense and security. The definition 
lists a number of component examples, including propellants, 
explosives, pyrotechnics, and chemical and riot control agents; and 
product examples, including rockets, bombs, mines, grenades, artillery, 
and torpedoes. The definition excludes improvised explosive devices, 
for example, home-made bombs (which are non-military) \2\ and nuclear 
weapons, devices, and components thereof managed under the Department 
of Energy's nuclear weapons program.

    \2\ Improvised explosive devices, or IEDs, are defined as non-
standard explosive devices made from either military or non-military 
materials by non-military personnel.
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    The proposed definition also clarifies that such military munitions 
may be under the control of the Department of Energy (DOE), the U.S. 
Coast Guard, the National Guard, or a private company producing the 
munitions under contract to or as an agent for DOD, as well as the 
Department of Defense.
    EPA considered including in this rule non-nuclear components of 
munitions managed by DOE under its nuclear weapons program. Upon 
review, however, EPA has determined that section 107 of the FFCA does 
not contemplate the inclusion of nuclear weapons or their components 
within the scope of this rule. The statutory language and legislative 
history of Sec. 107 demonstrates the intent of Congress that EPA 
develop regulations that address conventional and chemical munitions. 
No mention was made of nuclear weapons or their components. 
Furthermore, EPA recognizes that DOE's practices and procedures for the 
management of nuclear munitions under the Atomic Energy Act of 1954, 42 
U.S.C. 2011 et seq., as well as the potential impacts on DOE 
operations, are significantly different from those of DOD pertaining to 
conventional and chemical munitions.
    For these reasons, EPA has decided not to include nuclear weapons 
components in today's proposal. Instead, the proposal addresses 
conventional and chemical weapons, as contemplated by Sec. 107, and 
specifically does not apply to nuclear weapons or the components 
thereof managed under DOE's nuclear weapons program. Conventional or 
chemical munitions that DOE produces or manages for the military, 
however, would be subject to this proposed rule.

B. Definition of ``Solid Waste'' as It Applies to Military Munitions

    RCRA section 3004(y) requires EPA to identify ``when military 
munitions become hazardous waste for purposes'' of Subtitle C of RCRA. 
In general, materials are considered to be ``hazardous waste,'' for 
regulatory purposes, if: (l) 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. In today's proposal, EPA has 
focused on the first point--when munitions become a solid waste--and 
has not proposed to amend the definition of ``hazardous waste'' as it 
applies to munitions.
    EPA has taken this approach because the controversy over when 
military munitions become regulated under RCRA Subtitle C hazardous 
waste standards has centered on the question of when munitions become 
``solid waste'' under Sec. 261.2, rather than on whether they are 
``hazardous waste'' under Sec. 261.3. Many military munitions meet the 
RCRA ``ignitability'' or ``reactivity'' characteristics, for example, 
because they are explosive (see 40 CFR 261.21 and 261.23 
respectively).3 In addition, other munitions are hazardous under 
the ``toxicity'' characteristic, because they contain high levels of 
lead or other toxic metals (see 40 CFR 261.24). EPA believes that the 
current definition of ``hazardous waste'' in 40 CFR 261.3 is adequate 
as it applies to 

[[Page 56471]]
waste munitions, and therefore proposes no change to 40 CFR 261.3.

    \3\ Some munitions are not ``reactive.'' For example, in a 
memorandum of June 2, l988, EPA stated that small arms ball 
ammunition of up to and including 0.50 calibers are not reactive 
within the meaning of RCRA. The Department of the Army has codified 
this position in Army Regulation 200-l, section 6-7(k).
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    Under 40 CFR 261.2 of the RCRA regulations, ``solid waste'' is 
defined as ``discarded material.'' Section 261.2 (a) through (f) 
provides a detailed regulatory definition of this term. In particular, 
Sec. 261.2(b) defines ``discarded material'' as materials that are 
abandoned by being disposed of; burned or incinerated; or accumulated, 
stored, or treated (but not recycled) before or in lieu of being 
abandoned. In today's notice, EPA proposes to add a new Sec. 261.2(g) 
specifying how the regulatory term ``discarded material'' applies to 
unused military munitions. This proposed provision would address the 
regulatory definition of solid waste in the context of three specific 
categories of munitions: (1) unused munitions in the military 
stockpile, (2) used or fired munitions, and (3) munitions being used 
for their intended purpose.
    Additionally, EPA proposes in new Sec. 261.2(g)(4) to characterize 
munitions at closed or transferred ranges as statutory solid waste 
under RCRA section 1004(27). However, once DOD promulgated range 
cleanup regulations under its own standards, this section would be 
superseded.
1. Unused or Stockpiled Munitions
    a. Status of Military Stockpile. According to DOD, the military 
services currently have 5.6 million tons of conventional munitions 
stored in magazines at installations within the United States. Of these 
munitions, more than 5.1 million tons (or more than 90%) are in an 
``active use'' inventory, and therefore are available for use in 
training or war. At the same time, however, the Services have a 
significant volume of munitions in ``demilitarization'' accounts (for 
example, the Army's Resource Recovery and Disposition Account); 
munitions in these accounts are generally considered to be excess and 
unneeded, ``unserviceable'' (and needing further assessment or repair), 
or obsolete.4

    \4\ The Services also assign ``condition codes'' to ammunition. 
For example, the Army's Ammunition Surveillance Procedures (November 
l990) provides designations for ammunition such as Condition Code H 
(``Material that has been determined to be unserviceable and does 
not meet repair criteria'').
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    According to DOD, approximately 440,000 tons of munitions are 
stored in demilitarization accounts; under DOD procedures, these 
materials first undergo evaluation to determine whether they can be 
returned to service, repaired, sold, or recycled. If these options are 
unavailable, the munition is then scheduled for destruction. DOD 
currently considers that its stockpile includes 48,000 tons of 
munitions scheduled for destruction.
    EPA and DOD generally agree that munitions stored in the active use 
military stockpile do not meet the definition of ``discarded material'' 
or ``solid waste'' in 40 CFR 261.2, and therefore are not regulated 
under RCRA subtitle C. There is also general agreement that obsolete or 
excess munitions meet the regulatory definition of solid waste at the 
point when they are received for destruction or disposal--for example, 
at open burning/open detonation units or incinerators. Despite 
agreement on these points, however, there has been considerable 
discussion over whether and how RCRA standards apply to munitions 
slated for destruction before they are received at a treatment or 
disposal site.
    This discussion has centered primarily on defining what event or 
munition status indicates a DOD ``intent to destroy.'' EPA has had 
comparable discussions with industry over when commercial products 
become a solid waste. The Part 261 regulations regarding commercial 
products in storage rely largely on the ``intent'' of the owner to 
discard; over the years, EPA has sought to establish simple, 
consistent, and enforceable principles regarding the point at which 
commercial products are intended to be ``discarded''--notably these are 
(1) when the products are removed from storage for disposal, or 
treatment prior to disposal, (2) when the owner declares them to be 
hazardous waste, and (3) when they are deteriorated or damaged (e.g., 
leaking) to the point they cannot be used, or reprocessed for 
beneficial use. In today's proposal EPA has sought to apply these 
general principles to military munitions.
    In proposed Sec. 261.2(g)(1)(i) through (iv), EPA clarifies this 
issue by identifying the specific circumstances under which an unused 
or stockpiled munition would be considered to be solid waste for 
regulatory purposes.
    b. Proposed Sec. 261.2(g)(1)(i)--Munitions that have previously 
been disposed of. Under proposed Sec. 261.2(g)(1)(i), a munition 
becomes discarded, and therefore a solid waste when it is ``abandoned 
by being disposed of, burned, or incinerated, or treated prior to 
disposal.'' Thus, open burning/ open detonation or incineration of 
unused munitions (except when done during an emergency response or 
during training in use of a product) is regulated under the RCRA 
subtitle C standards for hazardous waste, including the 40 CFR Part 270 
permit requirements (assuming the waste munitions meet the Sec. 261.3 
definition of ``hazardous waste''). Similarly, unused munitions that 
were buried or landfilled in the past are solid waste, and, if 
hazardous, they would become subject to applicable subtitle C 
regulation when unearthed and further managed. EPA emphasizes that this 
proposed section would not bring use of military munitions for their 
intended purposes--e.g., the firing of military rounds--within the 
scope of subtitle C. The use of a product (in this case a military 
munition), in EPA's view, is not a waste management activity and does 
not constitute abandonment for the purposes of proposed 
Sec. 261.2(g)(1). (``Discarded material'' in the context of munitions 
used at military firing ranges is addressed in proposed 
Sec. 261.2(g)(4), which is discussed below.)
    c. Proposed Sec. 261.2(g)(1)(ii)--Munitions removed from the 
stockpile for the purposes of disposal/destruction. Proposed 
Sec. 261.2(g)(1)(ii) would specify 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 \5\ for the purposes of 
destruction, disposal, or treatment prior to disposal.

    \5\ The term ``military magazine or other storage area'' refers 
to all types of military munitions storage units, including outdoor 
or open storage areas, sheds, bunkers, and earth-covered and above-
ground magazines allowed under the DOD Explosives Safety Board 
(DDESB) standards (DOD 6055.9-STD), which are mandatory for use by 
all DOD components.
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    Stockpiled 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,'' that is, until an intent to 
discard the material can be demonstrated. Even if a commercial 
product's shelf life has expired, or it can no longer be used for its 
intended purpose (for example, because of physical deterioration), it 
may be reprocessed or used for other purposes. Thus, it would not 
necessarily be considered ``discarded material'' or solid waste.
    Stockpiled military munitions are in a comparable situation, and 
the 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. Ammunition classified as ``unserviceable,'' for example, may 
be returned to service, after further review, or in some cases after 
reprocessing. 

[[Page 56472]]
Munitions in the demilitarization accounts (such as the Army's Resource 
Recovery and Disposition Account) may also be sold for non-military 
purposes, or to nations that still maintain older weapons systems. Even 
munitions scheduled for disposal may still have a deterrent purpose and 
may be called back into service in cases of emergency. 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 constitute a decision to dispose of it.
    For these reasons, today's proposal makes it clear that unused 
munitions stored in military stockpiles are not considered ``solid 
waste'' subject to subtitle C (except as provided in Sec. 261.2(g)(1) 
(iii) and (iv) discussed below). Instead, EPA has sought to establish a 
simple, consistent, and enforceable point where a munition would be 
considered ``discarded.'' In EPA's view, the most appropriate point for 
military munitions (and the point that is most consistent with the 
regulation of commercial/industrial products) is when the material is 
finally removed from storage for the purpose of disposal or treatment 
prior to disposal. In practical terms, this provision would mean that 
storage of stockpiled munitions would, for the most part, not be 
subject to RCRA regulation (with exceptions described below); however, 
once a munition was removed from a magazine for the purpose of 
destruction or disposal it would become solid waste potentially 
regulated under subtitle C of RCRA.
    EPA emphasizes that this provision would trigger RCRA coverage only 
where a decision to destroy the munition had 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 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 destruction or disposal, but rather for 
evaluation. The munition would be handled as a waste only if no further 
evaluation would take place and the decision to destroy had already 
been made.\6\ Similarly, a munition may be removed from storage for the 
purpose of recycling or materials recovery without triggering RCRA.

    \6\ EPA has taken a similar position in the case of 
pharmaceuticals returned to the manufacturer. See letter from Sylvia 
K. Lowrance, Director, EPA Office of Solid Waste, to Mark J. Schulz, 
Pharmaceutical Services, Inc., Browning-Ferris Industries, May 16, 
1991.
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    EPA recognizes that it may not always be easy to determine whether 
a decision to destroy the material has been made; however, it believes 
that the status of a munition removed from storage will generally be 
clear. In some cases, a decision to destroy might be evidenced by a 
specific order or document. In other cases, the intent to destroy the 
munition would be obvious even in the absence of such an order. For 
example, a munition sent to a commercial, non-military hazardous waste 
facility is presumably a waste (unless the facility is also a 
commercial dismantling/reclamation facility). Similarly, if a rocket 
undergoing demilitarization is disassembled, and the propellant shipped 
off-site to an incinerator at another installation, the intent to 
destroy the propellant would be clear. In both cases, the point of 
generation of the waste would be when it was removed from storage. EPA 
emphasizes, however, that the rocket disassembly process itself is not 
a form of RCRA ``treatment,'' and only the propellant that is 
incinerated would be a solid waste. More generally, when a munition is 
disassembled, the removal of a component from the munition does not 
demonstrate or suggest an intent to discard that component. These 
activities are therefore not considered waste management under RCRA 
(unless the material is already classified as a waste, and the 
disassembly is carried out to prepare for waste disposal.)
    To summarize, the disassembly of a munition and recovery of 
explosives or propellants and other components for reuse does not 
constitute a waste management activity. In fact, these operations 
constitute a large part of DOD's Resource Recovery and Recycling 
Program, and EPA strongly supports and encourages this program. EPA 
views recycling of unused military munitions as being directly 
analogous to the reclamation of commercial chemical products (see 40 
CFR 261.2(c) and (e) and 261.33). Thus, the position EPA is taking in 
today's rule on military munitions recycling or materials recovery 
operations is consistent with the position it 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 include the following:
    (1) Recovery of explosive filler, together with scrap metal sale. 
Explosive filler material may be removed from munitions by using a 
heated medium, such as steam, hot water, or air. Further processing may 
be necessary if the explosive material is contaminated or the end use 
requires a specific form of explosive. The filler material is then used 
or reformulated for military or commercial explosives, and the inert 
metal parts may be reused as is or sold for scrap value.
    (2) Reuse of Hazard Class (HC) 1.3 large rocket motor propellent, 
together with casing reuse or scrap metal sale. The HC 1.3 propellant 
may be removed from the rocket motor case with a high pressure water 
jet. The washed-out material and liquor is then processed to remove 
ammonium perchlorate. The ammonium perchlorate is then crystallized and 
reused as an ingredient in a large rocket motor propellant formulation, 
and the motor casing is either used or sold for scrap value.
    (3) Reuse of HC 1.1 large rocket motor propellant, together with 
casing reuse or scrap metal sale. The HC 1.1 propellant is removed from 
the rocket motor as propellant chips through a dry machining process. 
These chips are then mixed with other ingredients to produce commercial 
sector blasting charges for mining or quarrying. The motor casing is, 
again, either reused or sold for scrap metal.
    (4) Reuse of red phosphorus composition. The red phosphorus 
composition is removed from unserviceable L8A1 smoke grenades for 
reloading into the new L8A3 grenades.
    (5) White phosphorus to phosphoric acid conversion. This process 
converts white phosphorus to saleable phosphoric acid by integrating an 
industrial phosphoric acid conversion process to a modified furnace.
    The examples of ways in which military munitions may be reused for 
military and commercial applications, while specific, apply not only to 
the identified munitions but illustrate how RCRA requirements apply to 
munitions of similar types. The examples, however, do not specifically 
address one type of recycling identified by DOD: that is, the 
processing of an unused explosive to allow its use as fertilizer. In 
this case, the explosive, arguably, is being applied to the land in 
lieu of its original intended use and therefore--by analogy to 
commercial chemical products--its use as a fertilizer would potentially 
be regulated as waste management (see 40 CFR 261.33). EPA solicits 
comment on whether this type of recycling is appropriate for military 
explosives and therefore whether it should be allowed under today's 
rule.
    Of course, treatment or disposal of residual materials generated 
during the disassembly or processing of unused munitions is potentially 
subject to 

[[Page 56473]]
RCRA regulation. In example number 2 above, ingredients remaining after 
the crystallization of ammonium perchlorate might be incinerated. EPA 
would consider this incineration to constitute waste management and the 
materials incinerated to be a solid waste.
    Proposed Sec. 261.2(g)(5) in today's rule clarifies these points.
    d. Proposed Sec. 261.2(g)(1)(iii)--Leaking or deteriorated 
munitions.
    Proposed Sec. 261.2(g)(1)(ii), discussed above, would define the 
most common circumstances under which a stockpiled military munition 
would become a solid waste--that is, when a decision has been made to 
dispose of it and it is removed from storage for transportation to a 
disposal site. EPA, however, recognizes (and States and citizens 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 an 
environmental threat. To address these circumstances, proposed 
Sec. 261.2(g)(1)(iii) would define a munition as a solid waste if it is 
``deteriorated or damaged (e.g., as a result of leaks or broken seals) 
to the point that it cannot be put into serviceable condition, and 
cannot reasonably be recycled or used for other purposes.'' For 
example, leaking chemical munitions are typically overpacked and placed 
in separate storage. Further, the stabilizers and chemicals involved 
have often deteriorated, and these chemicals have no reclamation 
potential. In EPA's view, these munitions have lost any reasonably 
possible future uses. Therefore, they should be defined as solid waste, 
and if hazardous, managed accordingly.
    EPA recognizes that there is no specific analogous provision for 
deteriorated or damaged stockpiled commercial products. EPA believes, 
however, that commercial products in similar situations without any 
reasonable future uses or recycling potential would qualify as solid 
waste under existing regulations. Furthermore, EPA shares commenters' 
concerns that, when a munition presents a threat because of leakage or 
physical deterioration and when there is no reasonable possibility of 
productive use of the material, it should be treated or destroyed as 
soon as feasible.
    e. Proposed Sec. 261.2(g)(1)(iv)--Munitions determined by DOD to be 
a solid waste. Finally, proposed Sec. 261.2(g)(1)(iv) would make it 
clear that the military Services or the Department of Defense may 
identify a stockpiled military munition as a RCRA ``solid waste.'' In 
this case, the munition (if ``hazardous'') would be subject to 
hazardous waste regulations. For example, the Department of Defense has 
previously determined that M55 rockets containing chemical agents are 
hazardous waste. DOD made this decision because the rockets' delivery 
system no longer exists, 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. Today's proposal would not affect the waste status of 
these materials, or of materials DOD in the future classifies as solid 
waste.
    EPA emphasizes that proposed Sec. 261.2(g)(1)(iv) requires a 
specific declaration by an authorized military official that a munition 
is a solid waste. As explained earlier, a decision under DOD's 
classification system that a munition is ``unserviceable,'' or the 
transfer of a munition into a ``demilitarization'' account would not 
constitute a decision that a munition is a solid waste.
    f. Rationale for EPA's Proposed Approach. EPA's proposed approach 
is based primarily on the recognition that stockpiled munitions are 
``products,'' generally outside the scope of RCRA; that Congress 
intended for EPA to develop a ``fair and coherent'' approach regarding 
RCRA's application to munitions; that DOD has in place extensive 
storage standards that, in providing for safety, are also protective of 
human health and the environment; and that the military Services' 
safety record in storing munitions has been good. EPA further believes 
that there is no compelling environmental or legal reason to develop an 
intent-based test for defining when munitions become hazardous waste. 
Indeed, to do so would significantly increase the regulatory burden not 
only on DOD, but also on regulators, and it would certainly complicate 
DOD's management of the military stockpile. These reasons are discussed 
in more detail below.
    In the first place, the proposed approach would be simple, 
straightforward, and enforceable. Munitions while stored in the 
stockpile would generally be excluded from RCRA regulation. Alternative 
approaches that would divide munitions in the military stockpile into 
``waste'' and ``non-waste'' munitions (based on one or another set of 
intent-based criteria) would be likely to provide little certainty, and 
would be difficult to implement in the field. EPA is particularly 
concerned about approaches that would lend themselves to site-specific 
disagreements over whether a particular stockpile munition is or is not 
a hazardous waste. Congress charged EPA with developing a ``fair and 
coherent approach to identifying when military munitions become a 
hazardous waste,'' and expressed the opinion that, without such 
regulation, RCRA jurisdiction over munitions ``will likely be left to 
the courts.'' (See H.R. Conference Report No. 886, 102d Cong., 2d Sess. 
29 (1992). See also Cong. Rec. H9137 (daily ed. September 23, 1992), 
Floor statement of Rep. Ritter). In light of this directive, EPA has 
sought to draw as clear and universal a line as possible in this 
proposal, and to avoid definitions that are likely to lead to debate in 
their application, or to require specialized military expertise to 
interpret. EPA's goal has been to define a consistent national 
standard, which would eliminate the need for complicated site-specific 
judgments that may have little if any relevance to protection of human 
health and the environment.
    Today's proposal on military munitions is also consistent with 
EPA's approach under RCRA to other products. To be sure, the proposal 
does not precisely parallel EPA's approach to commercial products, but 
the basic approach is the same; in both cases, unused products are 
generally excluded from RCRA jurisdiction. The only substantive 
differences between the proposal and the current definition of solid 
waste, as it applies to ``commercial'' products, are that: (1) RCRA 
jurisdiction for military munitions would generally be triggered by the 
actual removal of a munition from storage for disposal or treatment, 
rather than by evidence of an ``intent'' to discard the material before 
its removal from storage, and (2) leaking munitions that could not be 
returned to use would be explicitly defined as solid waste. EPA 
acknowledges these minor differences, but believes they are appropriate 
in the case of military munitions, given Congress's mandate that EPA 
develop specific regulations for military munitions that reflect the 
special circumstances surrounding these materials.
    Moreover, EPA has chosen the proposed approach because it involves 
minimum interference with the military's established system for 
managing stockpiled munitions, and it would not conflict with the 
Services' logistical needs or constraints. Munitions in both the active 
and demilitarization accounts are managed 

[[Page 56474]]
under the same storage and transportation standards, and they are often 
stored together in the same magazines. The threat from a specific 
munition does not change when it is determined to be ``unserviceable''; 
when it is reclassified into a demilitarization account; or when it is 
scheduled for treatment or disposal. Today's proposal recognizes the 
efficiency of managing the military stockpile within the current 
system. Under the proposal, the demilitarization process would remain 
governed by logistical, safety, and strategic considerations; munitions 
slated for destruction or treatment could be removed from magazines and 
shipped to waste treatment or disposal facilities according to an 
orderly process, rather than by regulatory schedules.
    Finally, EPA's proposal reflects the Agency's preliminary judgment 
that RCRA regulation of stockpiles of largely military ``products'' 
(only a very small portion of the stockpile would be ``waste'') would 
not significantly increase protection of human health and the 
environment. The military's storage standards and practices for 
munitions generally provide protection that is comparable to or better 
than RCRA regulation would provide. The storage of military munitions 
is regulated under standards overseen by the Department of Defense 
Explosives Safety Board (DDESB), an organization independent of the 
Services within DOD that was established by Congress and reports to the 
Secretary of Defense. 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. 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 closure requirements. At this point, however, EPA is not 
convinced that RCRA standards would substantially increase 
protection.7 (Both EPA's and the commenter's review is available 
in the docket of today's rulemaking.)

    \7\ Strategic Environmental Services, Inc., in comments to EPA, 
cited three particular areas where it concluded that DDESB standards 
were less stringent than RCRA's: preparedness requirement with the 
local community, closure requirements, and inspection frequency. EPA 
believes that the differences in approach between the standards in 
these areas is of limited significance. First, under RCRA 
preparedness requirements, a facility must attempt to make 
arrangements with local police, fire departments, emergency response 
teams, and hospitals to allow them better to respond to emergencies. 
If these local institutions do not respond to overtures from the 
facility, however, the facility has satisfied its obligation. 
Military installations already have extensive contingency plans for 
munitions emergencies, and responsibility for responding to these 
emergencies generally falls on military rather than local personnel. 
Therefore, coordination with local response authorities is less 
important than it is with civilian facilities. Furthermore, it is 
unclear what value would be added by preparedness plans that applied 
only to that part of an installation's munition stockpile that was 
classified as waste, and not to other munitions on the 
installation--especially given that the active stockpile would 
typically dwarf ``waste'' munitions in quantity. The situation is 
different for stockpiled chemical munitions--partly because of the 
greater possibility that an emergency would have off-site effect, 
and partly because of heightened public concern. However, Congress 
has already required the Secretary of Defense to establish a 
chemical weapons stockpile safety contingency plan (National Defense 
Authorization Act for Fiscal Year (FY) 92) and the Secretary of the 
Army to establish citizens' commissions for states with stockpile 
sites (National Defense Authorization Act for FY93). Second, as to 
closure requirements, it is unclear how typical munitions bunkers 
would lead to contamination problems. In any case, however, storage 
magazines are subject to the decontamination and remediation 
requirements of CERCLA 120(h)(3) when the property is transferred, 
and DOD is required to clean up environmental contamination under 
the Defense Environmental Restoration Act. Residual contamination is 
also subject to other cleanup authorities, including RCRA section 
7003. Finally, EPA sees no reason why Service inspection procedures 
for the active stockpile are not adequate for munitions slated for 
disposal.
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    In addition, the military's safety record for the entire stockpile 
has been good. According to DOD, there have been 27 ``incidents'' 
involving stockpiled munitions over the last twenty years, with only l3 
of these involving structural damage to a bunker or storage unit. This 
represents a very low accident rate, considering the enormous quantity 
of munitions stored and handled (currently 5.7 million tons of 
conventional munitions in 28,122 storage units) and the high inherent 
hazard of the material. EPA questions whether RCRA regulation would 
improve this safety record. (Indeed, RCRA regulation of ``waste'' 
portions of the stockpile might increase risk, by leading to increased 
movement of munitions.)
2. Munitions That Have Been Used/Fired That Are Subsequently Discarded
    Proposed Sec. 261.2(g)(2) addresses munitions that have been used 
or fired and then are subsequently recycled or disposed of. This 
section clarifies that RCRA management standards apply to the recycling 
or subsequent disposal (assuming the material is hazardous).
    Specifically, Sec. 261.2(g)(2) states that munitions that have been 
used or fired are solid waste when they meet the definition of 
discarded material in Sec. 261.2(a)(2), except as provided in 
Sec. 261.2(g)(3). In other words, a used or fired munition is 
considered a solid waste if it is abandoned or recycled, or if it is 
inherently waste-like (i.e., it meets the definition of ``discarded'' 
in Sec. 261.2(a)(2)). But the proposed language explicitly states that 
this definition does not include munitions used for their intended 
purpose (i.e., munitions covered under Sec. 261.2(g)(3)). As explained 
below, munitions used for their intended purpose are products not 
subject to RCRA regulation. Under this approach, munitions that have 
been fired and can no longer be reused would be potentially subject to 
Subtitle C regulation if removed from their landing spot and then 
transported off-range and stored, reclaimed, treated, or disposed of 
(assuming they are ``hazardous''). For example, former installations no 
longer under military control (i.e., Formerly Used Defense Sites or 
FUDS) often contain unexploded ordnance or other hazardous material. 
Used or fired munitions removed from their landing spot and transported 
off-site would have to be handled under RCRA subtitle C (assuming they 
are ``hazardous''). Similarly, used or fired munitions resulting from 
military research or training exercises, when removed from firing 
ranges and sent off-range for destruction would be considered solid 
waste. (As discussed below, use of a product for its intended purpose 
is not considered abandonment; Sec. 261.2(g)(3) specifies certain 
activities that fall within the intended use of military munitions.)
3. Munitions Used for Their Intended Purposes
    Under RCRA, the use of products for their intended purpose does not 
constitute 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 construction. Similarly, 
EPA has consistently held that the use of munitions (military or 
otherwise) for their intended purpose does not constitute waste 
disposal, and does not require RCRA permits. Proposed Sec. 261.2(g)(3) 
(i) through (iii) clarifies this point and provides specific examples 
of military activities that are excluded from RCRA regulation.
    a. Proposed Sec. 261.2(g)(3)(i)--Military training exercises. 
Proposed Sec. 261.2(g)(3)(i) clarifies that the use of munitions in the 
training of troops and explosive ordnance disposal (EOD) personnel is 
not regulated under RCRA. 

[[Page 56475]]
This is because such training constitutes the normal use of a product, 
rather than waste disposal.
    The proposed language also makes it clear that training includes 
training troops in the destruction of excess propellant and other 
munitions, when that destruction is integral to the product's use. 
Propellant used for artillery and mortar rounds comes in packaged 
allotments that vary by the type of weapon, round, and propellant. Each 
allotment is made up of individual increments to allow troops to vary 
the distance a shell is fired--the more increments used, the farther 
the shell is fired. The Services generally package the allotments for 
wartime use, that allow maximum firing capability. During firing 
exercises (whether for training or during wartime), the full allotment 
is often not needed. In these circumstances, military procedures for 
safety reasons require that unused increments of propellant be burned. 
(In wartime, procedures specify that the excess propellant be burned at 
the closest safe point.) To ensure that troops can safely destroy 
propellant during wartime, according to DOD, military training 
exercises involving artillery and mortar rounds typically include the 
burning of excess propellant.
    In EPA's view, the training of troops in the wartime use of 
munitions is a legitimate use that lies outside the scope of RCRA; the 
Agency has no reason to question DOD's position that training troops in 
the safe destruction of excess propellant constitutes legitimate 
training. Indeed, such training exercises typically follow detailed 
protocols for training troops in handling and burning of excess 
propellants. EPA in the past has concluded that training in the 
destruction of excess propellant is not subject to RCRA regulations, 
and is proposing in today's rule to codify this interpretation.
    Critics of DOD have expressed concern over the burning of excess 
propellant, pointing out that the amount of excess propellant destroyed 
may equal or exceed the propellant actually used in firing the weapons. 
Concerns of the public have particularly focused on air emissions, 
although the burning of propellant directly on the ground can lead to 
soil (and possibly groundwater) contamination. For this reason, the 
Services often conduct the burning in lined trenches. (In some cases, 
this precaution has been required by state regulators.) In other cases, 
local opposition to burning of excess propellant has led individual 
installations to abandon the practice (and in at least one case to 
abandon training altogether), or reduce the number of increments used.
    Some states and citizens groups have also argued that such burning 
could lead to sham training, when the primary purpose is really waste 
disposal. In enforcing today's proposal, EPA might look at whether 
propellant burning during a specific exercise was part of legitimate 
training--for example, that troops were in fact being trained and that 
the training was done in accordance with a specific training manual or 
training procedures. However, if these tests were met, EPA would 
consider the destruction of excess propellant to be normal use of 
munitions in a training exercise and not regulated under RCRA. In 
response to the concerns over sham training, DOD has suggested the 
existence and use of training manuals, and appropriate documentation of 
training activities should be accepted as evidence of training. EPA 
agrees that, should activities in a specific training exercise be 
challenged, such procedures and documentation would provide evidence 
that the activity did not involve waste disposal.
    More generally, EPA appreciates the concerns of critics of DOD on 
this issue, but it tentatively accepts DOD's argument that the practice 
is necessary for effective training. At the same time, however, EPA 
solicits comments on this issue, in particular whether it is 
appropriate or necessary, under RCRA, to impose specific restrictions 
on burning of excess propellant, and if so what those restrictions 
should be.
    b. Proposed Sec. 261.2(g)(3)(ii)--Weapons testing. Today's proposal 
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 
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. Proposed Sec. 261.2(g)(3)(iii)--Range clearance operations as a 
result of training or weapons testing. The military services often 
conduct range clearance exercises as a result of weapons testing or 
training at firing ranges. During these exercises, military specialists 
sweep ranges for debris and unexploded ordnance, which may be destroyed 
on-site or shipped off-range for treatment. 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 the training or testing exercise. Furthermore, from 
an environmental perspective, it makes no difference whether ordnance 
explodes on impact or is subsequently detonated by an EOD specialist. 
Therefore, today's proposal would exclude range clearance exercises 
from RCRA subtitle C regulation. As mentioned earlier, however, when 
shipped off-range for destruction (but not for further evaluation) the 
debris or UXO is a solid waste, and if a hazardous waste, potentially 
subject to the RCRA subtitle C requirements.
4. Discharged Military Munitions at Firing Ranges
    In today's proposal, as well as in previous statements, EPA has 
taken the position that the discharge of a weapon does not constitute 
``waste management'' for the purposes of RCRA. This position is 
reflected in proposed Sec. 261.2(g)(3), discussed above, which excludes 
munitions used for their intended purposes from the definition of solid 
waste. At the same time, however, this proposal provides that spent 
munitions left in the environment may at some point become 
``discarded,'' in a RCRA statutory sense, and therefore may be 
potentially subject to various RCRA remedial statutory authorities. The 
most important of these authorities are: (1) RCRA section 7003, which 
authorizes EPA to require remedial action in cases in which solid 
wastes may present an imminent and substantial endangerment; (2) RCRA 
sections 3004(u) and (v), which require corrective action for releases 
of hazardous waste or constituents from any solid waste management unit 
at treatment, storage, or disposal facilities seeking a RCRA hazardous 
waste permit, and (3) RCRA section 3008(h), which allows EPA to require 
corrective action at interim status facilities.
    Proposed Sec. 261.2(g)(4) would specify how these authorities would 
apply to discharged munitions found at military firing ranges and 
impact areas. Proposed Sec. 261.2(g)(4)(i) states that munitions left 
at closed ranges, or at ranges transferred out of military control, are 
discarded material. ``Closed'' ranges are ranges taken out of service 
by the military as ranges and put to new uses incompatible with range 
activities--e.g., as storage or warehouse areas. However, an 
``inactive'' range--i.e., a range that is not currently being used, but 
that is still considered by the military to be a potential range area 
or that simply has not been put to any new use 

[[Page 56476]]
incompatible with range activities--would not be considered ``closed.''
    In the case of a closed range, the site is no longer being used as 
a range and it has been put to a new use incompatible with range 
activities. Under the proposal, any remaining munitions and debris that 
are left in place would be considered discarded and therefore such 
munitions and debris would be a ``solid waste'' according to the RCRA 
section 1004(27) definition. In the case of transferred ranges, the 
military no longer has control over the site and therefore the view 
taken by EPA in the proposal is that any remaining munitions and debris 
would have in effect been ``discarded.'' This is not to say that the 
transfer of the property would constitute the act of discarding. Under 
this approach, the property transfer would simply affirm that the 
remaining materials on the range could be considered to have been 
discarded.
    This approach to closed and transferred ranges would not be 
unprecedented. There are a number of scenarios under which hazardous 
wastes may be found in the environment, but were not put there through 
an act or circumstance that was a violation of RCRA or that otherwise 
subjects those wastes in place to subtitle C permitting or other 
requirements. A similar example of materials that may be classified as 
statutory ``solid waste'' under RCRA, but which are not automatically 
subject to RCRA subtitle C permitting or in-place waste management 
requirements, are wastes that had been disposed of before the effective 
date of RCRA. These materials would also potentially be subject to RCRA 
remedial authorities such as sections 7003, 3004(u) and (v), and 
3008(h), or to CERCLA remedial authorities.
    Today's proposal, however, contemplates that RCRA regulation of 
cleanups at closed and transferred ranges would be temporary. The 
proposal would further provide that, if DOD promulgates, pursuant to 
DOD's own statutory authorities, rules that allow for public 
involvement in cleanups of these ranges and that are fully protective 
of human health and the environment, then these DOD regulations would 
supersede RCRA regulations. The DOD regulations, rather than RCRA, 
would then govern range cleanups. EPA would issue a notice at the time 
DOD's regulations were issued, announcing that DOD cleanup regulations 
took precedence and that munitions at closed or transferred ranges are 
not to be considered RCRA statutory solid waste.
    This ``sunset'' provision reflects EPA's conclusion that the legal 
arguments supporting the characterization of munitions on closed or 
transferred ranges as ``solid waste,'' and the legal arguments opposing 
such a characterization are finely balanced, with the result that EPA 
has the discretion to select either interpretation pursuant to section 
3004(y). The choice of whether to define such munitions as ``solid 
waste,'' then, rests with EPA, and the proposal reflects EPA's views of 
how human health and the environment can best be protected, given the 
special hazards posed by military munitions.
    In fact, the applicability of RCRA corrective action authorities to 
ranges has long been subject to dispute. The Department of the Army's 
Regulation 200-1, Environmental Protection and Enhancement, explicitly 
states that RCRA sections 3004(u) and (v) do not apply to military 
ranges (AR-200-1, section 6-7(j), April 23, 1990). In its proposed 
subpart S corrective action regulations, EPA agreed, suggesting that 
military firing ranges and impact areas ``should not be considered 
solid waste management units,'' and therefore sections 3004(u) and (v) 
would not apply (55 FR 30809, July 27, 1990). On the other hand, 
several EPA regions and States have asserted that these authorities 
apply to military ranges.
    Today's proposal would resolve this question. If adopted, proposed 
Sec. 261.2(g)(4) would have the effect of bringing munitions at closed 
ranges and at ranges being transferred from military control under RCRA 
corrective action standards, if the installation were otherwise subject 
to RCRA permitting requirements. Under this proposed section, munitions 
at a closed range would be defined as solid waste, and the range (if it 
contained munitions or other contaminants) would constitute a solid 
waste management unit. Releases of hazardous wastes or constituents at 
or from the range would therefore potentially be subject to corrective 
action under sections 3004(u) and (v), or 3008(h). On the other hand, 
active and inactive ranges would not be considered solid waste 
management units. In addition, proposed Sec. 261.2(g)(4) would provide 
that, once DOD issued regulations for range cleanup, these DOD 
regulations would supersede RCRA cleanup authorities.
    In practice, RCRA corrective action would generally require an 
assessment of possible risks and releases at closed ranges. In some 
cases, sampling of environmental media (for example, soil, ground 
water, or surface water) might be required. The level of assessment 
needed would be consistent with the potential risk of exposure. It is 
important to emphasize, however, that the RCRA corrective action 
authorities do not automatically require cleanup to specific levels. 
For example, risks from unexploded munitions might be controlled, where 
appropriate, through access restrictions. In fact, DOD is already 
required to address range cleanup as part of its own restoration 
program. Thus, today's proposal, if adopted, would simply provide EPA 
or a delegated State with independent oversight of cleanups at RCRA 
sites, but would not affect the substantive cleanup standards that 
apply.
    Proposed Sec. 261.2(g)(4)(i) specifies that munitions remaining at 
closed ranges would be solid waste, for statutory purposes. Some may 
argue that EPA should propose to define munitions on active ranges as 
solid wastes as well. EPA, however, focused on closed rather than 
active ranges because it is technically difficult to address munitions 
on active ranges, and because periodic cleanups (other than range 
clearance exercises) at these ranges are likely to be of limited 
environmental value, particularly since the ranges are under direct 
control of the military and public access is restricted. Also, it could 
involve risk to cleanup personnel. EPA emphasizes, however, that non-
munition releases are unaffected by today's rule. Also, environmental 
releases from range activities that migrate off-range in ground-water 
or runoff, including from active ranges, would be statutory ``solid 
waste,'' and could be addressed under RCRA section 7003 . They could 
also be addressed under the Clean Water Act or CERCLA.
    EPA also considered including munitions on ``inactive'' as well as 
``closed'' ranges in proposed Sec. 261.2(g)(4)(i). This approach would 
have the effect of pushing RCRA sections 3004(u) and (v), and 3008(h), 
corrective action requirements earlier in the process. EPA, however, 
has not proposed this approach. The Agency recognizes that inactive 
ranges may frequently be reused, and questions the value of a formal 
corrective action process when the area will likely be subject to range 
use again. Furthermore, such an approach might only encourage 
installations to continue use of ranges, rather than discontinue their 
active use, for fear of triggering EPA or State oversight. In any case, 
any necessary remedial action would be required at the time of change 
in land use or transfer of the range from military control, since at 
that point the range would clearly be closed.
    There are very substantial legal arguments and, assuming DOD issues 


[[Page 56477]]
protective standards for range cleanup, compelling policy reasons for 
EPA to exercise its authority pursuant to Sec. 3004(y) in a way that 
will not lead to RCRA jurisdiction over range clean up at any stage. In 
Barcelo v. Brown, 478 F. Supp. 646, 668-669 (D. Puerto Rico 1979), the 
District Court held that materials resulting from activities that do 
not resemble industrial, commercial, mining, or agricultural 
operations, or community activities fall outside the definition of 
``solid waste'' in RCRA. Because ``uniquely military'' activities such 
as target practice at bombing ranges do not fall into any of these 
categories, the Court held that such activities were not regulated 
under RCRA. This conclusion also would be consistent with the approach 
EPA took in its Subpart S proposal (55 F.R. 30809, July 27, 1990). 
Thus, the Barcelo decision provides a rationale for excluding munitions 
remaining at firing ranges from the RCRA definition of solid waste. 
EPA, however, recognizes that the lines between ``uniquely military'' 
range activities and other activities (for example, target practice at 
small arms ranges) are not always clear. Therefore, EPA seeks comment 
on what sorts of range activities are properly considered uniquely 
military.
    Additional legal arguments in favor of this alternative approach 
have been advanced, including the argument that unexploded military 
munitions cannot become a ``discarded material'' because DOD is 
statutorily obligated by 10 U.S.C. 172 and 10 U.S.C. 2701 to address 
the human health and environmental hazards posed by its munitions and 
unexploded munitions whenever and wherever encountered. These statutory 
obligations, according to this argument, make it legally impossible for 
DOD to ``abandon'' such materials.
    DOD has an existing responsibility to address environmental 
restoration under the ``Defense Environmental Restoration Program'' 
(DERP) (10 U.S.C. 2701 et seq.), and CERCLA response authorities, and 
is generally responsible for preventing hazardous conditions related to 
munitions under 10 U.S.C. 172. EPA understands that DOD intends to 
propose clean up standards and a clean up process under these 
authorities in a rulemaking to commence by January 31, 1996, and to be 
completed by October 31, 1996. DOD intends that the rulemaking will be 
an open process, with ample opportunity for the active participation of 
the States and of the public. Further, the remedy selection and 
implementation process in the rule will include a significant role for 
the affected states and the interested public. The proposed rule will 
specifically address the role of State regulatory agencies and the 
interested public. DOD's proposed rule will address the nature of the 
role of the States and will request comment on this important issue. 
DOD will conduct this rulemaking in consultation with EPA. The 
rulemaking is to fully involve the public and the States and adequately 
address the safety, health, and environmental concerns posed by 
munitions on closed and transferred ranges.
    With the promulgation of such a rule, EPA believes that the 
proposed designation of munitions on closed or transferred ranges as a 
solid waste would be unnecessary. In this case, cleanups would be 
governed by clear regulations that are issued through a public process 
and that reflect the unique explosive safety considerations associated 
with munitions and the need for environmental protection. Therefore, 
regulation under a separate statute would be unnecessary. Further, if 
DOD promulgates such rules after EPA's proposed rule becomes final, 
then EPA believes that the DOD rules should supersede the EPA rule 
identifying munitions on closed or transferred ranges as solid waste.
    Citizens groups have expressed concern that, because CERCLA 
authorities are limited to ``hazardous substances'' which include 
``hazardous waste,'' unexploded munitions might escape CERCLA control 
if it were not defined as being a solid (or hazardous) waste. EPA 
believes this concern is unfounded, because it is the Agency's 
expectation that most unexploded munitions fit within the CERCLA 
definition of ``hazardous substance,'' independent of whether it is 
considered a solid waste.
    Finally, proposed Sec. 261.2(g)(4)(ii) would define military 
munitions fired off-range and not promptly rendered safe (if necessary) 
and retrieved to be solid waste, for the purposes of section 1004(27) 
of RCRA. Firing munitions that land outside of a range at a military 
installation would not be considered the intended use of the product 
(i.e., the munition.) However, today's proposal would be 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. 
Rendering safe might include treatment to prevent explosion as well as 
destruction of the ordnance. If remedial action were infeasible--for 
example because the munition was deeply buried or could not be 
located--the operator of the installation would be required to maintain 
a record of the event as long as any threat remained.
5. Waste Materials Derived From Munitions Manufacture
    DOD and explosives manufacturers have often raised questions about 
the applicability of RCRA requirements to residues from munitions 
manufacture or manufacturing rejects. EPA, however, does not believe 
that munitions manufacture raises special regulatory issues, and it is 
not proposing to amend the current rules in this area. Instead, EPA's 
long-standing regulations defining when manufacturing products and 
secondary materials become solid wastes would continue to apply to 
residues and other byproducts of munitions manufacture and processing.
    These regulations are found in 40 CFR 261.2 and 261.6, and part 
266. Under these regulations, ``secondary materials'' from munitions 
manufacture or processing--including spent materials, sludges, by-
products, certain commercial chemical products, and scrap metals 
8--are considered to be solid waste depending on how they are 
managed (for example, see section 261.2(c)). And, if these materials 
are also ``hazardous,'' they are regulated under Subtitle C. On the 
other hand, off-specification ordnance or line rejects are considered 
products, and not wastes subject to regulation under RCRA. If these 
off-specification materials or rejects continue to meet the definition 
of military munitions, today's rule would define when they became 
hazardous waste.

    \8\ These terms are defined in 40 CFR 261.1(c) and 261.33.
---------------------------------------------------------------------------

    EPA believes that it would be inappropriate to change these long-
standing rules on the definition of solid waste in the context of 
today's rulemaking. At the same time, however, EPA is considering 
substantial amendments to its current rules to facilitate the recycling 
of secondary materials. These amendments would likely apply to 
secondary materials resulting from munitions manufacturing as well as 
secondary materials from other industrial and manufacturing operations.

C. Standards Applicable to Generators and Transporters

    Today's proposal would make two changes to the RCRA generator and 
transportation requirements. First, proposed Secs. 262.10(h) and 
263.10(c) would clarify that persons responding to immediate threats 
from explosives and military munitions are not subject to RCRA 
generator and transportation 

[[Page 56478]]
requirements. This proposal would apply to all explosives emergency 
responses (military and non-military) as well as to all conventional 
and chemical military munitions emergency responses. This proposal is 
discussed in more detail in Section IV.E of this preamble.
    Second, proposed Secs. 262.10(i), 263.10(d), 264.70(b)(2), and 
265.70(b)(2) would exempt stockpiled munitions (that are hazardous 
wastes under sections 261.2(g)(ii-iv)) shipped off-site to DOD-owned or 
controlled TSDF under DOD tracking procedures from RCRA manifest 
requirements. This exemption would apply not only to military 
personnel, but also to commercial carriers who have signed a compliance 
agreement with the Military Traffic Management Command, and who operate 
under the DOD system. This exemption would not apply to the off-site 
transport of non-stockpile munitions (e.g., excavated hazardous wastes 
under proposed Sec. 261.2(g)(1)(i) or range clearance munitions), since 
these materials are not subject to the same stringent DOD off-site 
shipping controls as are stockpiled munitions. Thus, the off-site 
shipment of buried or landfilled munitions, UXO, or munition debris 
would require the RCRA manifest and container markings (if the material 
were hazardous). The exemption would also not apply to the transport to 
a commercial (off-site) treatment, storage, or disposal facility.
    This proposal to exempt stockpiled military munitions from the RCRA 
manifest is based on EPA's conclusion that the DOD transportation and 
inventory controls are at least equivalent to the RCRA manifest 
controls, and on the safe transportation record of DOD.
    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) and associated Special Instructions and Notes (SIN) and Routing 
Instructions and Notes (RIN)--a series of files within an automated 
information base used in preparing the GBL continuation sheets; 
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, include: Army 
Regulation (AR) 55-355--Transportation of Ammunition, Explosives, and 
Other Hazardous Materials; AR 725-50--Requisitioning, Receipt, and 
Issue System, Army Material Command (AMC)-R 385-100--Safety Manual; 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 proposal.
    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). Although the DOT standards are not mandatory 
for Federal agencies, DOD's standards have made them mandatory (e.g., 
DOD 4500.9-Transportation and Traffic Management, January 26, 1989). 
EPA has reviewed these DOD documents and concludes that the resulting 
procedures, in conjunction with the applicable DOT standards, provide 
for consistency with the requirements of RCRA section 3003.
    As a result of these and other controls, DOD's transportation 
safety record is excellent. DOD makes approximately 50,000 shipments of 
military munitions and explosives annually, including shipments for 
demilitarization. According to the U.S. Army Technical Center for 
Explosives Safety's Explosives Safety Information Database and the 
DDESB's Historical Accident Database, there are about 20 minor non-
explosive incidents per year (e.g., minor traffic accidents). In the 
past 20 years, there have been only three accidents involving the 
munitions cargo itself, and of these three, only one resulted in an 
explosive detonation.
    Regarding the RCRA manifest and marking requirements, DOD is 
concerned about training its personnel in two separate systems, and 
maintaining both of these systems simultaneously--one for its own 
management of the military stockpile, and one (covering a small portion 
of the stockpile) for regulatory oversight. In addition, DOD is 
concerned about certain specific aspects of RCRA transport 
requirements--for example, the prohibition in Sec. 263.12 against 
storage of wastes in transport in unpermitted ``transfer facilities'' 
for longer than ten days. According to DOD, this restriction may 
conflict with its need to sequester shipments of munitions in 
designated safe havens in case of emergencies or unanticipated 
transportation difficulties. At the same time, critics of DOD are 
concerned about any system that is self-regulating, and question the 
burden that compliance with RCRA would impose.
    In light of the concerns of DOD and members of the public, EPA 
solicits comment on: (1) whether RCRA transportation requirements are 
needed for military munitions, given DOD's current practices, and 
whether other alternatives would be appropriate (e.g., the approach EPA 
adopted for ``universal wastes'' (60 FR 25492, May 11, 1995), which 
requires recordkeeping and a streamlined tracking system for certain 
recycled wastes), (2) whether transport of unused munitions (i.e., 
munitions in the stockpile) going for disposal should be handled 
differently from used or previously disposed of munitions, (3) whether 
other modifications (besides the manifest and marking exemptions) 
should be made to RCRA transportation requirements to address DOD 
concerns, and (4) whether shipment of munitions from FUDs sites or 
shipment to commercial waste management facilities should also be 
exempted from transportation requirements.
    EPA has not proposed other amendments to generator or transporter 
standards for waste munitions. DOD has raised concern that, under 
today's proposal, compliance with generator standards could be 
complicated and expensive, particularly because of 40 CFR 262.34 
requirements for contingency plans, inspections, personnel training 
plans, and tank or container storage. EPA emphasizes that facilities 
with military magazines used to store stockpiled munitions would not be 
subject to these requirements. These requirements apply to generator 
facilities that accumulate hazardous waste. Since in most cases a 
stockpiled munition in storage would not be regulated as waste until it 
was removed from the magazine, the facility (and the magazine) would 
not be subject to accumulation standards. Instead, installations 
removing stockpile munitions from storage for the purposes of disposal 
would be subject to the following standards: (1) Determining if the 
waste were hazardous and determining treatment requirements; (2) 

[[Page 56479]]
obtaining a RCRA identification number; (3) preparation of a RCRA 
biennial report and RCRA section 3016 biennial report; and (4) waste 
minimization program certification under RCRA section 3002(b). EPA 
solicits comment on the appropriateness of these requirements and 
whether they are necessary.

D. Storage of Military Munitions

    In enacting RCRA Sec. 3004(y), Congress sought to ensure that 
management standards for waste military munitions under RCRA would not 
be inconsistent with safety standards established under 10 USC 
Sec. 172. In the development of the FFCA, EPA and DOD jointly took 
forward a legislative proposal to provide for better integration of the 
DDESB explosives safety regulations and the specific requirements of 
the RCRA regulations. Although the specific statutory language of RCRA 
Sec. 3004(y) does not address integration of the RCRA standards with 
the DDESB explosives safety standards, this point was spoken to during 
the legislative development process and appears throughout the 
legislative history for RCRA Sec. 3004(y).
    Today's proposal includes a new subpart EE in 40 CFR Parts 264 and 
265 for military magazines storing hazardous waste munitions. This 
subpart combines the environmental features of the current RCRA storage 
unit standards with the DOD Explosives Safety Board (DDESB) munitions 
storage magazines standards to eliminate potential inconsistencies or 
conflicts between the RCRA and DDESB standards. The proposal does not 
require that all munitions be stored in magazines meeting these 
standards, but rather, provides an alternative for permitting the 
storage of military munitions waste under RCRA. Depending on the 
explosive hazards, military installations may still seek a permit and 
store waste munitions under the already existing 40 CFR parts 264 and 
265 standards for other types of storage units, including containers 
(subpart I), tanks (subpart J), containment buildings (subpart DD), and 
perhaps waste piles (subpart L). DOD would apply for a permit under the 
most appropriate of these sets of standards. The new subpart EE 
standards would be more appropriate for most military explosive and 
chemical munitions wastes, including products that DOD determines are a 
hazardous waste under today's Sec. 261.2(g)(1)(iv) and unexploded 
ordnance recovered from ranges and moved into storage prior to 
treatment or disposal.
    Consistent with the RCRA standards, today's proposal covers design, 
operation, monitoring, inspection, closure, and post-closure care, and 
it addresses the same concerns as do the other RCRA storage unit 
standards. The design and operating standards set containment and 
control performance standards to prevent contamination of soil, ground 
water, surface waters, and the air; they also address the DOD safety 
concerns to protect against explosions and to minimize the impact if 
one should occur. The proposal includes 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 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 or a pervious base, and/or waste elevation.
    For those few military munitions wastes that are liquids, in 
addition to the primary barrier or container, the unit would have to 
provide a secondary containment system. The secondary containment 
system design, operation, controls, and monitoring features may include 
a combination of sumps, pumps, drains, slope, double-walled containers 
or tanks, and/or elevated waste or other features that provide that any 
released liquids or precipitation are contained and promptly detected 
and removed from the waste area.
    The proposal covers the three basic designs of the DDESB storage 
standards: (1) earth-covered magazines (which are frequently used for 
shock sensitive and other munitions), (2) above-ground magazines (which 
might be used for munitions that do not pose a mass detonation or 
fragment producing hazard), and (3) outdoor or open storage areas 
(typically for munitions that do not pose a significant potential for 
explosion).
    Monitoring and inspections would be 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 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.
    In addition to the subpart EE approach, EPA is considering and 
solicits comment on three alternative approaches.
    Under the first alternative, EPA would defer regulating the storage 
of waste military munitions under RCRA and subject them only to the 
explosives safety standards developed by DDESB and Services. DOD 
believes that this is statutorily permissible under the definition of 
hazardous waste found in RCRA Sec. 1004(5). This definition states that 
a ``hazardous waste'' is a ``solid waste, or combination of solid 
waste, which because of its quantity, concentration, or physical, 
chemical, or infectious characteristics may: (A) cause, or 
significantly contribute to, an increase in mortality or an increase in 
serious, irreversible, or incapacitating reversible illness; or (B) 
pose a substantial present or potential hazard to human health or the 
environment when improperly treated, stored, transported, or disposed 
of, or otherwise managed.'' With respect to the first criterion, DOD 
maintains there is no evidence that waste military munitions in storage 
cause or contribute to an increase in mortality or illness (save for 
the case of an accidental detonation of those munitions, which the 
DOD's excellent safety record shows is unlikely). Regarding the second 
criterion, DOD believes that the existing DOD controls over the storage 
and transportation of all munitions, including waste munitions, are 
adequate to prevent waste military munitions from posing a substantial 
or present threat to human health or the environment.9

    \9\ This logic does not extend to the treatment or disposal of 
waste munitions where EPA believes that full RCRA compliance is 
appropriate to protect human health and the environment.
---------------------------------------------------------------------------

    DOD's underlying rationale for this approach is as follows. The 
regulatory program developed by EPA in response to the RCRA mandate 
establishes standards for the storage of wastes both by those who 
generate the waste and those who provide permanent long-term storage, 
treatment, or disposal. These regulations were designed from the outset 
to address problems stemming from waste management at, for example, 
industrial operations that, prior to RCRA, were largely unregulated. 
Hence, EPA has historically examined the consequences of ``plausible 
mismanagement'' scenarios since there were no other controls over the 
management of these wastes. DOD believes that the case of military 
munitions is fundamentally different in that there are existing 
statutory 

[[Page 56480]]
authorities and regulatory programs addressing the storage of military 
munitions, including waste military munitions. The design and operation 
of all DOD ammunition storage units are conducted in compliance with 
standards set by DDESB and Service-specific regulations and 
implementing procedures. While these standards have safety as the 
primary concern, as explained earlier in this preamble, EPA and one 
interested party have 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 respects. 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 closure requirements). At this point, 
neither EPA nor DOD is convinced that application of the RCRA standards 
in addition to DDESB and Service-specific standards would substantially 
increase protection of human health or the environment.
    For example, all military munitions-related operations, including 
those involving waste military munitions, are conducted in accordance 
with an approved Standing Operating Procedure (SOP) that provides 
detailed guidance on how personnel are to complete a specific activity. 
These SOPs address a wide variety of issues including, but not limited 
to: safety, security, environmental protection, and quality assurance. 
Each SOP must be approved by different functional areas at the 
installation, including: operations, safety, industrial hygiene, 
environmental compliance, security, quality assurance, and command 
representatives. Personnel implementing these SOPs are required to be 
trained and certified as qualified to perform the task to which they 
are assigned.
    Munitions storage units are also required to be inventoried on at 
least a yearly basis; however, some munitions (i.e., security class I 
or II) require inventory more frequently.10 During these 
inventories, in addition to counting the munitions present, the 
organization conducting the inventory updates other data elements in 
the record. Discrepancies are addressed through a research, 
investigation, and reconciliation process. All inventory-related 
activities are overseen by an independent quality control and quality 
assurance organization. Accounting procedures for these munitions are 
managed through two separate and distinct data systems, one at the 
installation and one at a central repository. The records kept at the 
installation include: quantity, location, ownership (i.e., specific 
organizational element within DOD), physical condition, and current 
inventory status.

    \10\ These are items with a high intrinsic value and items for 
which additional security procedures are required to prevent their 
theft.
---------------------------------------------------------------------------

    The actual storage procedures for military munitions are based on 
four factors that relate to the physical and chemical characteristics 
of these materials: (1) compatibility grouping; (2) hazard class; (3) 
net explosive weight (NEW); and (4) quantity distance formulae. These 
are contained in the DDESB standards ``DOD Ammunition and Explosives 
Safety Standards'' DOD 6055.9-STD, which may be obtained by contacting 
Ms. Lydia Sanchez, DOD Explosives Safety Board, 2461 Eisenhower Ave., 
Rm. 856-C, Alexandria, VA 22331-0600, or by
E-mail at [email protected], or from the EPA docket for 
today's rule.
    DOD also argues that the proposed approach in this first 
alternative is consistent with other aspects of RCRA, other findings in 
law, and the approach taken in other regulatory matters addressed by 
the Federal government.
    DOD points out that the DDESB standards for the storage of 
munitions were subjected to judicial review in Pratt v. Hercules, Inc., 
570 F. Supp. 773, Cir. 1982. In this decision the court held: For 
reasons cited in the court's earlier analysis * * * this court finds 
that the standards promulgated by the DDESB * * * were sufficient to 
comply with the mandate (10 U.S.C. 172) of eliminating undue risk of 
harm to those (inside and) outside the (facility). Further, the 
Occupational Safety and Health Administration has recognized the 
statutory authority of DDESB and their expertise in establishing 
requirements for the safe storage of military munitions. In a November 
8, 1990, rule OSHA stated: The DDESB has the final review and approval 
authority for any engineering changes at government owned facilities to 
assure that they are consistent with explosives safety standards and do 
not increase explosive risk (55 FR 46948, November 8, 1990).
    The most important piece of evidence in support of DOD's position 
is the Services' excellent record in providing for the safe storage and 
transportation of military munitions, as discussed elsewhere in this 
preamble.
    In addition, DOD believes that such an approach is wholly 
consistent with the President's initiative to reform Federal 
regulations to eliminate unneeded, duplicative, or superfluous 
requirements and is also entirely consistent with the President's 
requirements for promulgation of new regulations, as set forth in 
Executive Order 12866. Executive Order 12866 requires that any 
Executive Branch agency consider, as part of developing new 
regulations, whether existing regulations (or other laws) have created 
or contributed to the problem that a new regulation is intended to 
correct, and whether those regulations (or other laws) could be 
modified to achieve the intended goal of regulation more effectively.
    For these reasons, DOD asserts that waste military munitions do not 
have to be managed in accordance with RCRA standards for the storage of 
hazardous waste so long as they are stored in accordance with the 
regulations established by DDESB and the Service-specific implementing 
procedures and requirements. As a separate matter, however, to meet the 
obligations imposed by Executive Order 12866, DOD is working with EPA 
to address those limited areas in the DDESB standards where EPA has 
noted differences between the DDESB standards and RCRA standards. 
Therefore, EPA solicits comments as to what specific requirements are 
needed to make the DDESB standards consistent with RCRA.
    The second alternative approach would specify that waste munitions 
transported and managed in accordance with DDESB standards would not be 
an RCRA hazardous waste, and therefore would not be subject to Subtitle 
C standards. RCRA section 1004(5)(B) defines as ``hazardous'' those 
wastes that may present a hazard ``when improperly * * * managed.'' In 
addition, section 3001 of RCRA authorizes EPA to determine whether to 
designate a waste as ``hazardous.'' In determining whether a specific 
waste should be designated as ``hazardous,'' EPA traditionally 
considers plausible ``mismanagement scenarios.'' If significant risk 
were likely to occur under these scenarios, EPA would designate the 
waste as hazardous. The Agency, however, believes that it is not 
required to consider implausible mismanagement scenarios in determining 
whether a waste is hazardous. Thus, if mismanagement of a particular 
waste is implausible even without regulation under Subtitle C, EPA 
believes it has authority to refrain from regulating the waste under 
that subtitle. Under this approach, EPA would take into account DOD's 
record in storing waste munitions and DOD's existing storage standards 
in 

[[Page 56481]]
determining whether it was necessary to regulate waste military 
munitions as hazardous. Once these controls are taken into account, it 
would be argued that mismanagement of waste munitions is unlikely and 
regulation of these materials under Subtitle C is redundant.
    EPA is considering this approach in several other rulemakings and 
will be discussing the legal rationale in detail in those rulemakings. 
A more detailed legal discussion will be provided in EPA's forthcoming 
Hazardous Waste Identification Rule proposal, scheduled for publication 
in November 1995. Where it is relying on this approach, EPA typically 
intends to prescribe specific conditions or procedures to ensure that a 
waste would not be mismanaged. In the case of military munitions, EPA 
is considering a comparable approach. Under this approach, EPA would 
specify that waste munitions were not ``hazardous'' as long as they 
were stored in compliance with DDESB standards. Failure to store waste 
munitions in compliance with these standards would, in effect, render 
the material ``hazardous'' and constitute illegal management of 
hazardous waste.
    Under the third alternative, EPA would not establish special 
performance standards for waste military munitions under 40 CFR Parts 
264 and 265 Subpart EE; instead, EPA would simply specify in Parts 264 
and 265 that storage of waste munitions must meet DDESB standards. 
Waste storage units at interim status facilities would automatically be 
required to comply with these standards. For permitted units, EPA or 
the State would not specify particular standards in the permit, but 
would simply cite DDESB standards. This approach would allow EPA or 
State regulators directly to enforce DDESB standards, but would 
eliminate any possible inconsistency or redundancy between military and 
EPA standards.
    EPA took essentially the same approach in its regulations of 
underground storage tanks in 40 CFR Part 280. In this regulation, the 
Agency stated that compliance with the specific industry codes 
constituted compliance with EPA technical standards. One traditional 
concern with this general approach is that industry standards change 
from time to time, complicating regulatory referencing. In the third 
alternative approach under consideration in today's proposal, EPA would 
not expect to revise its RCRA standards every time the DDESB changed 
its standards. To do so would not only require constant EPA rulemaking, 
unnecessarily consuming limited resources; more important, perhaps, it 
would foster enormous confusion, because there would always be a time 
lag between DDESB's adoption of new standards and EPA's revision of the 
RCRA regulations. When DDESB came out with new standards, facilities 
would be required to meet them, and the standards would be enforceable 
through DDESB's regular compliance mechanisms. But (until EPA changed 
its standards), facilities would also remain subject to the older 
standards incorporated into the RCRA regulations. The state 
authorization process under RCRA would complicate the process even 
more, since it would lead to further delay in regulatory adoption of 
new DDESB standards. As a result, under this option, EPA would refer to 
the most recent DDESB standards. Given DOD and the Services' long 
record of safety in the storage of military munitions and the DDESB's 
independent status within the Department of Defense, EPA believes that 
this approach would be both enforceable and fully protective of human 
health and the environment.
    As mentioned above, EPA recognizes that certain RCRA requirements 
(e.g., those related to closure) are not in the DDESB standards. 
Therefore, EPA solicits comments on what specific requirements should 
be added to supplement the existing DDESB standards under any of the 
four alternatives and whether these should be added to the RCRA or the 
DDESB standards.
    All three of the alternative options discussed above rely on the 
DDESB standards. Military facilities would be assured that their basic 
obligation, in storing waste munitions, would be to comply with DDESB 
standards. If they were doing so, then under the first alternative, 
they would be excluded from RCRA coverage entirely; under the second 
alternative, the stored ``waste'' munitions would be RCRA solid waste, 
but would not be regulated as hazardous waste (e.g., permits would not 
be required); under the third option, ``waste'' munitions would be RCRA 
hazardous waste, but compliance with DDESB standards would constitute 
compliance with RCRA technical standards.
    The first alternative differs from the other two options in one 
important respect: under this alternative, EPA and authorized States 
would have no enforcement or regulatory role in the storage of waste 
munitions. Under the other alternatives, EPA and the States would have 
an oversight role, and regulatory agencies could enforce against 
facilities storing waste munitions out of compliance with DDESB 
standards. At the same time, however, the second alternative would 
provide significantly more relief to DOD and the Services than the 
third, and in many respects is similar to the ``deferral'' alternative. 
In particular, the approach (like the ``deferral'' approach) would 
eliminate permit requirements for storage of waste munitions (e.g., the 
procedures of Part 270, including public notice would not apply to 
storage of waste munitions, because waste munitions stored in 
compliance with DDESB standards would not be considered ``hazardous 
waste''); facilities generating waste munitions would not have to 
comply with generator standards (e.g., filing biennial reports); the 
land disposal prohibitions against extended storage would not apply; 
and permitted facilities receiving munitions for disposal would not be 
prevented from receiving that material, even if they had ``off-site'' 
prohibitions in their permits--since the material would only become a 
hazardous waste when it arrived at the treatment or disposal unit.
    EPA solicits comments on all three of these alternatives, as well 
as the subpart EE approach in today's rule.

E. Emergency Responses

    Today's proposal clarifies that RCRA generator, transporter, and 
permit requirements do not apply to immediate responses to threats 
involving military munitions or other explosives. EPA is proposing this 
language to address concerns of DOD and other emergency response 
officials that RCRA requirements may impede emergency responses, 
especially by causing delays or confusion.
    The current RCRA rules exempt emergency responses from full permit 
requirements in two ways: (1) permits are not required for immediate 
responses to a discharge of hazardous waste or an imminent and 
substantial threat of a discharge (Secs. 264.1(g)(8), 265.1(c)(11), and 
270.1(c)(3)); and (2) 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 waste--
this permit may be issued orally, if followed by a written emergency 
permit within 5 days, and may not exceed 90 days in duration 
(Sec. 270.61). (In clarification, EPA emphasizes that the exemption 
from permit requirements in the case of immediate responses is an 
exemption from the requirement for an emergency permit under 
Sec. 270.61, as well as from full RCRA permitting. Thus, an immediate 
response, under Federal regulations, 

[[Page 56482]]
would require neither a full RCRA permit nor an emergency permit.)
    EPA has received a number of inquiries, from both military and non-
military sources, seeking clarification of how these provisions apply 
to emergency situations involving explosives. In response, EPA has 
stated that it considers immediate responses to situations involving 
explosives to be exempt from RCRA permitting (including emergency 
permitting), and substantive requirements (e.g., the risk assessment 
requirements for OB/OD treatment) under the exemptions listed in 
Secs. 264.1(g)(8), 265.1(c)(11), and 270.1(c)(3). In EPA's view, time-
critical responses to explosives emergencies constitute immediate 
responses to a discharge, or imminent and substantial threat of a 
discharge, of hazardous waste. On the other hand, if an immediate 
response is not necessary to address the threat, and the response can 
be deferred, the responding personnel should seek a RCRA emergency 
permit under Sec. 270.61.
    The intent of today's proposal is to codify, with some 
clarifications, the existing EPA policy. Proposed 
Secs. 264.1(g)(8)(i)(D), 265.1(c)(11)(i)(D), and 270.1(c)(3)(i)(D) make 
it clear that explosive and chemical munition emergencies can be 
addressed without a RCRA permit (including an emergency permit). The 
proposal also clarifies, in Secs. 262.10(h) and 263.10(c), that, if an 
emergency response expert at the site determines it to be appropriate, 
the explosive material may be removed and transported for safe 
treatment 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. This proposal, which EPA believes is 
necessary to allow prompt response to explosives emergencies, is 
consistent with current EPA policy.
    Today's proposal includes three new definitions in Sec. 260.10 to 
help clarify the scope of this exemption. The definition of 
``explosives and munitions emergency'' describes in detail what would 
constitute an emergency, and clarifies that an emergency situation 
includes suspect or unknown situations with significant uncertainties, 
including improvised explosive devices (IEDs, e.g., home-made bombs). 
The definition also states that the ``emergency response expert'' is 
responsible for determining whether an emergency exists.
    An ``explosives and munitions emergency response expert'' is 
defined to include all military and non-military personnel trained in 
the identification, handling, treatment, transport, and destruction of 
explosives or conventional or chemical military munitions. Military 
emergency response experts include DOD Explosives Ordnance Disposal 
(EOD) personnel, who are trained in responding to emergency situations 
involving military munitions and explosives, and DOD Technical Escort 
Unit (TEU) personnel, who are trained to respond to emergency 
situations involving chemical munitions. EOD and TEU personnel respond 
to on-installation and off-installation 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 emergency response experts include 
the Bureau of Alcohol, Tobacco, and Firearms (BATF), Federal Bureau of 
Investigation (FBI), Central Intelligence Agency (CIA), Drug 
Enforcement Administration (DEA), US Postal Service, Federal Aviation 
Administration (FAA), other Department of Transportation (DOT), 
Department of Interior Bureau of Mines, State and local enforcement and 
emergency response personnel, and private sector explosives experts or 
specialists.
    Finally, an ``explosives and munitions emergency response'' is 
defined as all immediate response activities identified and carried out 
by the emergency response expert to eliminate the threat, including all 
handling, render-safe (e.g., methods to defuse or separate initiator 
from the explosive), transportation, treatment, 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.
    DOD has 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 proposing 
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 
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 to explosives emergencies--EPA continues to 
regard open burning/open detonation as not constituting land disposal. 
Therefore, the land disposal restrictions do not apply. See 51 FR 40580 
(November 7, 1986) and 52 FR 21011 (June 4, 1987). With regard to 
emergency responses to explosives involving deactivation 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 2. 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 liability for site remediation or 
investigation when they conducted an emergency response. In response to 
this concern, EPA emphasizes that RCRA corrective action requirements 
would not fall on the responding agency and that today's proposal would 
not in any way change or increase the responding agency's liability.
    In the first place, the standard RCRA corrective action authorities 
in sections 3004(u), 3004(v), and 3008(h) would not be at issue, 
because they apply only to RCRA permitted or interim status facilities. 
Thus, these requirements would apply only if the emergency response 
took place at a RCRA 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(b), 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 

[[Page 56483]]
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 threat thereof.''
    DOD's concern on the third issue is that, if the responding agency 
transported an explosive device to an off-site treatment area, that 
area might become 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 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 consistently stated that off-site 
treatment of explosives derived from emergency responses does not 
trigger permit requirements, as long as it 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 managed 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.

F. Definition of ``On-Site''

    Today's proposal would modify the definition of ``on-site'' in 40 
CFR Sec. 260.10 by adding contiguous property under the control of one 
person that is divided by a public or private right-of-way, even if 
access is by travelling along (as opposed to across) the right-of-way 
to gain entry.11 The definition of on-site determines whether 
waste must be accompanied by a manifest during transportation and 
whether part 263 transporter requirements apply. (See, e.g., 40 CFR 
262.20(a) and 263.10(b).

    \11\ The current regulatory 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.''
---------------------------------------------------------------------------

    Many facilities generating hazardous wastes (including most 
military installations) are found on large properties split by public 
roads. Under current regulations, a generator or TSDF who produced or 
managed waste at one location and moved the waste across the road for 
temporary storage would be moving the waste ``off-site,'' if the waste 
were transported along rather than directly across the road. The waste 
transported along the route currently requires a RCRA manifest. This 
requirement does not currently apply, however, if the wastes are 
transported directly across the road.
    Today's proposal would expand the definition of ``on-site'' to 
allow transportation without a manifest between contiguous properties 
controlled by the same person regardless of how access is gained from 
one parcel to another when such contiguous property is cut by a public 
or private right-of-way. All other aspects of the definition would 
remain the same.
    The question of how ``on-site'' is defined arose in the context of 
military munitions because many military installations are crossed by 
public roads. Today's proposal, however, would apply to hazardous waste 
generators and TSDFs in general, because the same situation exists for 
non-military entities. For example, a number of universities, with 
laboratories and other sources of small amounts of hazardous waste 
dispersed throughout campuses, have found that the manifesting and 
transportation requirements make it difficult to consolidate wastes at 
a single location for off-site shipment under the current requirements. 
Similarly, large industrial facilities may face the same administrative 
or logistical difficulties.
    Whether waste no longer subject to the manifest would continue to 
be subject to Department of Transportation (DOT) requirements will 
depend on whether that material is regulated under any other DOT hazard 
class. The Hazardous Materials Regulations (HMR, 49 CFR parts 171 
through 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 manifest requirements, it is not considered a 
``hazardous waste'' by DOT. However, such material may still be 
regulated as a hazardous material and subject to the HMR if it meets 
the defining criteria for one or more of the DOT hazard classes. 
Therefore, for these shipments, 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 
through 180 is required.
    EPA believes that change in the definition of ``on-site'' will 
result on balance in an increase in protection of human health and the 
environment. EPA believes that the current definition of on-site may be 
discouraging consolidation within a generator's or TSDF's site, 
resulting in less control of the waste by the generator or TSDF. 
Removing barriers to consolidation of waste in one main area, rather 
than several small areas, will reduce the possibility that the public 
and the environment will come into contact with hazardous waste.
    EPA also believes that facilitating more central consolidation will 
allow generators and TSDFs to place such consolidation sites in more 
remotely located areas than they would if confined to the boundaries 
within rights-of-way, thereby increasing the safety of the public 
should an accident occur. The new definition gives generators and TSDFs 
such as military bases and universities more flexibility to determine 
where consolidation areas are situated. In addition, EPA believes this 
change in definition will have the added benefit of facilitating the 
building of safer accumulation areas because generators and TSDFs may 
be more likely to exceed regulatory requirements for consolidation 
areas if they are responsible for fewer consolidation sites overall. 
EPA expects the benefit of consolidation on balance outweighs the risk 
of allowing transportation without a manifest along a short stretch of 
road to which the public has access. EPA requests comments on these 
views of the net benefits regarding human health and the environment.
    In modifying the definition of on-site, EPA intends not to affect 
requirements 

[[Page 56484]]
other than the requirement that a manifest accompany hazardous waste 
shipments and whether part 263 transportation requirements apply. EPA 
requests comments on whether other requirements of the RCRA program are 
affected by this change.
    Even though hazardous waste traversing contiguous property may be 
``on-site'' for RCRA purposes, discharges on public rights-of-way could 
expose the public to a health risk. DOT and CERCLA reporting 
requirements would apply to such releases, but those authorities do not 
necessarily require actual clean-up of the release. EPA seeks comment 
on whether DOT and CERCLA authorities are sufficient to provide 
adequate protection to public health in the event of a spill or release 
on a public right-of-way considered on-site or if 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-of-way 
regardless of whether it is on or off site. One way to implement that 
result could be to limit the on-site exemption from transporter 
requirements in Sec. 263.10(b) so that Secs. 263.30 and 263.31 would 
continue to apply to any discharge of hazardous waste on a public 
right-of-way even if it is considered ``on-site.''

G. Permit Modifications to Receive Off-site Waste Munitions

    Some RCRA permits at military installations have conditions 
prohibiting the receipt of ``off-site'' waste. Under these permit 
restrictions, if the point of generation of a waste munition is any 
place other than the permitted installation, then the waste munition 
could not be accepted at the facility for treatment, storage, or 
disposal without a permit modification. DOD maintains that this 
situation will cause a serious disruption of its munitions management 
program.
    EPA shares DOD's concern that today's proposal might disrupt DOD's 
ongoing munitions management program, and in response is proposing in 
today's rule a means to minimize this impact. Under this proposal, 
permitted facilities with prohibitions would be allowed to continue 
receiving waste munitions from off-site sources, upon notification to 
EPA, until a final permit modification is approved. In the case of 
interim status, facilities would be allowed to continue receiving off-
site wastes, although it might be necessary for the facility to amend 
its permit application.
    There are three specific requirements that would attach to this 
provision and be codified at 40 CFR 270.42(h). First, to be covered 
under this provision the permitted facility must be in existence on the 
date these rules go into effect. Second, for permitted facilities, the 
facility must submit a request for a Class 1 permit modification 
following the procedures of 40 CFR 270.42(a), on or before the 
effective date. Third, a permitted facility must develop and submit a 
Class 2 permit modification within 180 days of the effective date. If 
extenuating circumstances will not allow submission of a Class 2 
modification within 180 days, the facility may, within the 180 days, 
request the permitting agency to allow an extension for a specified 
period. The permitting agency shall respond to any request for an 
extension within 30 days. If no action is taken by the permitting 
agency within 30 days, the facility is considered to have been granted 
the extension. The permitting agency's action may be to extend the 30 
day response time.
    Today's proposal would 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.
    These proposed requirements are similar to the provisions for newly 
listed wastes in 40 CFR 270.42(g), which are designed to prevent the 
disruption of ongoing waste management activities, while bringing them 
promptly under regulatory control. EPA anticipates that the provisions 
in proposed 40 CFR 270.42(h) will similarly prevent disruption in the 
handling of waste munitions.
    Despite this proposed approach, DOD remains concerned about any 
option that might restrict the movement of munitions undergoing 
demilitarization or add, in its view, unnecessary paperwork costs and 
redundant reviews. As DOD has pointed out, operations at the receiving 
facility would remain the same after permit modifications, and 
conditions affecting human health and environmental protection would 
generally not change. For example, the provisions of the facility's 
permit addressing the types of waste, the quantities that might be 
treated at any given time, and permissible releases from the treatment 
process would likely remain the same. In which case, the permit 
modification would be a paperwork exercise, adding to costs but not 
adding to environmental protection. DOD's preferred option, discussed 
in Section V.A.1 of this preamble, would be to set the point of 
generation of the waste at the point when it arrives at the receiving 
unit. In this case, the waste would have been generated on-site, and 
its management would not constitute a permit violation.
    EPA understands DOD's arguments, but is concerned about the 
expectations of the public in the vicinity of permitted installations 
and the perception that permit conditions are being circumvented. The 
permit was issued through a site-specific public process, and, on its 
face, it appears to prohibit acceptance of just the sort of material 
that would be allowed under DOD's recommended approach. Arguably, the 
most consistent way to address this issue would be through a site-
specific permit modification, rather than a national rulemaking. EPA 
questions whether it would be appropriate to promulgate a regulation 
that would in effect remove off-site prohibitions from particular 
permits--at least as they applied to waste munitions--without site-
specific notice and an opportunity for comment.
    DOD has particularly cited the costs of permit modifications, 
which, it has argued, will cost in excess of $50,000 apiece. EPA 
questions whether a permit modification would be as costly as DOD 
estimates, especially since the modification would presumably only 
amend the permit's prohibition against off-site waste, and the permit's 
technical or procedural conditions would generally not be changed. EPA 
does agree, however, that permit modifications to allow ``off-site'' 
waste munitions will increase the compliance burden on DOD and the 
procedural burden on State regulators. In the economic analysis 
supporting this proposal, EPA has estimated that the permit 
modifications will cost $30,000 each (DOD's original estimate) and that 
24 permits would have to be modified (DOD's estimate). Much of the 
costs, in EPA's view, would result from the need for public outreach 
rather than technical work associated with the permit modification.
    However, in light of DOD's concerns, EPA requests comments on both 
the proposed approach and DOD's approach, and with specific 
recommendations on alternative means to address concerns regarding 
public involvement in the process.

V. Discussion of Major Alternatives

    In addition to the approach proposed in today's notice, EPA 
considered several alternatives to addressing major issues. These 
alternatives are discussed below. 

[[Page 56485]]


A. Stockpiled Munitions

1. Approach Based on Army Regulation 200-1
    DOD and the individual Services have historically taken the 
position that munitions in the military stockpile only become waste 
when they are received at a treatment or disposal unit. This approach 
has been incorporated into Army regulations in AR 200-1 and, until 
recently, guided military practice. DOD believes its traditional 
approach addresses two key points: (1) That military munitions are 
fundamentally different from most other types of industrial hazardous 
waste due to their unique physical and chemical characteristics, and 
(2) that the management of military munitions is different from the 
situation RCRA was enacted to address in that there are extensive 
management, oversight, and accountability controls already in place.
    The primary difference between DOD's and EPA's approach is in the 
definition of the waste's point of generation. Under the approach 
proposed today, the point of waste generation is generally when the 
waste is removed from storage for treatment or disposal; after that 
point, the munition is regulated as hazardous waste. Under the approach 
in AR 200-1, the point of generation is moved to receipt of the 
munition at the waste treatment or disposal unit. Before that point, 
the material would not be considered RCRA solid or hazardous waste.
    DOD is concerned about EPA's proposed approach in part because of 
the costs and paperwork associated with transporting hazardous waste. 
More important, however, DOD is concerned that many RCRA permits at 
military installations prohibit the receipt of ``off-site'' waste. 
DOD's AR 200-1 approach would solve both of these concerns.
    As discussed previously, EPA addresses these concerns in today's 
proposal by exempting DOD-controlled shipments between DOD 
installations from the RCRA manifest requirements, and by providing 
Class 1 followed by Class 2 permit modifications to allow for off-site 
wastes. Nevertheless, EPA solicits comments on both approaches.
2. DOD Interim Guidance
    A second alternative would be for EPA to codify the approach 
outlined by the military Services in interim guidance issued in 
November 1993. Under this Services-wide interim approach, munitions 
removed from the active inventory undergo review to determine whether 
they can be returned to service or used for other purposes. When the 
possibility of beneficial uses has been eliminated, the material would 
be transferred to a hazardous waste account (e.g., the ``BHW'' account) 
and orders to destroy the munition transmitted to the installations 
that held it. The munition would become a hazardous waste at the point 
the order was received by its custodian. The custodian, then, would 
become the generator of the ``waste''; generator standards would apply 
at the storage magazine; and RCRA land disposal restrictions would 
require prompt treatment and disposal.
    EPA has chosen not to propose this approach because, in EPA's view, 
it would not provide any significant increase in environmental 
protection. EPA also shares DOD's concerns that the approach might 
significantly complicate the military's safe management of the military 
stockpile.
    In particular, DOD has expressed two major concerns with this 
approach. First, if stockpiled munitions in a magazine were declared 
hazardous waste, that magazine would become subject to RCRA generator 
requirements, including RCRA tank, container, or containment-building 
standards; these standards, in turn, might require retrofitting of the 
units, even though they were designed according to military standards 
to protect against explosive hazards. Second, if the munitions were not 
removed from the magazine and shipped off installation within 90 days, 
the installation would become subject to RCRA permit requirements. 
Thus, the installation would be faced with the choice of readjusting 
its standard operating procedures for munitions to ensure that items in 
the BHW account were shipped off-site promptly, or seek a RCRA permit--
a 2 to 3 year process involving considerable time and paperwork. 
Neither result, in DOD's view, would lead to increased safety or 
environmental protection, and risk might actually increase because 
munitions would be moved more frequently.
3. Munitions Scheduled for Destruction by International Treaty
    Several interested parties have also suggested that when a munition 
has been slated for destruction by act of Congress or treaty, there is 
clear evidence of an intent to discard, and therefore the munition 
should be considered solid waste. For example, Congress has instructed 
the Department of Defense to destroy the chemical weapons stockpile by 
December 31, 2004 (National Defense Authorization Act for Fiscal Year 
(FY) 93), and, once the United States ratifies the Chemicals Weapons 
Convention and the Convention goes into force, the U.S. will be bound 
by international treaty to destroy the weapons within ten years. It has 
been argued that the act of Congress and U.S. ratification of the 
Convention (when that occurs) would constitute a decision to discard 
the munitions. Therefore, the munitions should be handled as hazardous 
waste.
    EPA has not taken this position to date in interpreting its solid 
waste regulations, and it is not proposing to do so in today's rule. 
Disarmament conventions and Congressional directives to demilitarize a 
weapons system should not, as a general matter, be interpreted as a 
decision to discard a munition. For example, the Chemical Weapons 
Conventions (like most such conventions) establishes a staged schedule, 
to allow mutual assurances that all signatories are fulfilling the 
agreement. Thus, the stockpiled munitions serve a deterrent purpose. 
Furthermore, the phased schedule laid out by the treaty would put the 
Army in violation of the RCRA land disposal restrictions, which would 
prohibit storage of ``waste'' munitions beyond one year (with limited 
extensions). Indeed, despite the convention, the stored munitions (with 
the exception of M55 rockets) remain part of the active military 
stockpile. While these ``products'' may be slated for phase-out in the 
future, they are still available (at least in theory) for use in the 
interim.
    Furthermore, EPA questions whether RCRA regulation would 
substantially add to the safe management of military munitions slated 
for destruction. Considerable attention, to be sure, has focused on the 
stability and safety of the chemical weapons stockpile. EPA notes, 
however, that the munition on which most of the discussion has 
centered--the M55 rocket--is already regulated as hazardous waste. 
Therefore, the main concern with the stored chemical weapons is already 
being addressed as a regulatory matter. In addition, under proposed 
Sec. 261.2(g)(1)(iii), leaking munitions would be regulated under 
subtitle C. Therefore, leaking chemical munitions would require 
regulation. Finally, the general safety of stockpiled chemical 
munitions is already the subject of considerable internal and external 
review. EPA, as a result, tentatively concludes that additional 
oversight under RCRA would not significantly increase protection of 
human health and the environment, while increasing the paperwork burden 
on the services and the workload burden of the regulatory agencies. 

[[Page 56486]]

4. Alternatives Based on Condition of Munition
    EPA also considered definitional approaches based on the 
characteristics of the munition. It has been suggested, for example, 
that munitions should become hazardous waste when they can no longer be 
used for their intended purposes. This determination might be based on 
an analysis of the munition itself, or on a weapon's predicted service 
life. Similarly, ``waste'' munitions might include off-specification 
munitions and munitions rendered obsolete because the armaments for 
which they were made no longer exist. EPA, however, has tentatively 
rejected this approach (except in the case of leaking or deteriorated 
munitions).
    First, this approach would be inconsistent with EPA's approach to 
other ``products.'' Commercial products do not automatically become 
solid waste when they can no longer be used for their intended 
purposes, and off-specification commercial products are not considered 
solid waste. These materials remain products; they may be put to other 
uses, or reprocessed for their original use, or simply stored for 
possible future uses without being brought under RCRA jurisdiction. The 
event that triggers RCRA jurisdiction is an intent to discard the 
material.
    Second, EPA believes that this approach would be extremely 
difficult for regulators to implement or enforce. The determination 
that a munition can or cannot be used for its intended purpose, for 
example, will often be highly technical and require detailed expertise 
in weaponry. EPA and State regulators typically will not have this 
expertise, and it will often be hard to rebut an assertion by military 
personnel that a munition can indeed be used. Service life is also 
likely to be an unreliable guide, because weapons do not necessarily 
lose their usefulness at the completion of service life, and 
reprocessing is often a possibility. Above all, EPA is concerned that 
this approach would not provide the clarity of regulations that 
Congress sought in passing the FFCA. Instead, the approach might lead 
to protracted disagreements between the regulators and the regulated 
over whether a particular munition is still usable as a munition, with 
no clear environmental issue at stake.
5. Regulation of the Demilitarization Process
    One of the primary benefits of RCRA regulation, according to 
critics of DOD, is that prompt treatment of waste would be required 
under the RCRA land disposal restrictions or LDRs. These restrictions 
require that hazardous waste be treated before it is disposed of in a 
land disposal unit. Furthermore, the statute prohibits facilities from 
storing waste before treatment, except as necessary to accumulate 
sufficient quantities for proper treatment and disposal (RCRA 
Sec. 3004(j)). (Under EPA's enforcement policy, if storage is for 
longer than a year, the person holding the waste must be able to 
demonstrate that the storage is necessary to accumulate sufficient 
quantities.) Thus, if ``obsolete,'' ``unserviceable,'' or ``unusable'' 
munitions were defined as hazardous wastes, their prompt destruction 
would be required.
    One commenter representing members of the commercial waste 
treatment industry--Strategic Environmental Analysis, Inc.--expressed 
strong support for applying RCRA oversight at the point when a munition 
became unserviceable. The commenter was particularly concerned that, if 
RCRA did not apply at this point, DOD could play ``shell games'' and 
store waste munitions indefinitely. At the same time, the commenter 
acknowledged the military's need for flexibility in evaluating and 
managing obsolete munitions. To address these concerns, it recommended 
a regulatory approach that would, in effect, bring the military 
demilitarization process under RCRA regulatory control and set specific 
schedules for the recycling or destruction of obsolete munitions.
    Under the recommended approach, EPA would define off-specification, 
obsolete, or unusable munitions as hazardous waste. This waste would be 
subject to technical management standards, but not yet covered by 
permit requirements or the land disposal restrictions. Hazardous waste 
munitions could be stored one to five years before they became subject 
to the land disposal restrictions. During this time, the holder of the 
munition or the appropriate service would investigate possible 
reclamation. If reclamation was determined to be feasible, it would be 
required within one to two years. (Reclamation would take place under 
specially designed RCRA standards.) If reclamation were not feasible, 
the munition would have to be treated according to land disposal 
standards within the regulatorily permitted time frames (i.e., one to 
two years), and the facility storing the munition would require a RCRA 
permit.
    This approach, EPA notes, establishes a radically new definition of 
``solid waste'' under RCRA, and applies RCRA standards to the 
reclamation of unused products--a considerable extension of the current 
regulatory scope of RCRA. In effect, the approach applies RCRA 
requirements to munitions within the demilitarization account and sets 
a limit on the time period a munition can remain within that account 
before reclamation or destruction.
    EPA has not proposed this approach for several reasons. First--
leaving aside the question of whether this approach is consistent with 
the statutory scope of RCRA--EPA does not believe it is appropriate in 
this rulemaking to develop a broadly expanded regulatory definition of 
solid waste. EPA also notes that commenters did not provide evidence of 
human health or environmental damage resulting from non-RCRA storage of 
``obsolete'' munitions, nor did it provide details on military ``shell 
games'' delaying proper treatment and disposal. While these problems 
may to a certain extent exist, EPA would require considerably more 
evidence before it imposed such a far-reaching regulatory scheme, going 
well beyond requirements that apply to commercial products.
    In addition, although EPA has not developed specific cost estimates 
for the recommended approach, it clearly could impose substantial 
burdens not only on DOD but also on regulators as well. Presumably, DOD 
would be subject to significant recordkeeping and reporting burdens 
necessary to identify obsolete munitions and document the 
demilitarization process. Reclamation of unserviceable munitions would 
for the first time come under regulation. EPA and the States would 
assume new obligations in inspecting perhaps thousands of storage units 
and ensuring that regulatory storage times were not exceeded. 
Fulfilling these obligations would likely divert limited resources from 
more pressing and demonstrable environmental problems. Especially given 
that the substantive requirements on stored munitions would not change, 
EPA questions whether this diversion of resources is justified.

B. Range Management

1. Active Ranges
    EPA has consistently taken the position that the use of products 
for their intended purpose does not constitute waste management and is 
not reached by RCRA. Thus, today's proposal excludes military munitions 
training and testing activities at firing ranges from RCRA regulation 
on these grounds.
    One group of interested parties has argued for an alternative 
approach at active ranges. According to this group, discharged 
munitions at military firing 

[[Page 56487]]
ranges clearly meet the definition of solid waste under RCRA; while 
their firing may or may not constitute ``disposal'' of a product, they 
become waste ``as soon as they hit the ground''--at this point they 
become discarded material that has served its useful purpose, that is 
no longer needed by the military, and that will never be retrieved for 
any useful purpose. These commenters argued that EPA should use its 
RCRA authority to tailor special regulations for military firing 
ranges. For example, DOD and the relevant services might be required to 
track all fired munitions, retrieve and properly dispose of fired 
munitions at reasonable intervals, and (where the munition is 
irretrievable) manage the munitions in place in a way that guarantees 
that off-site migration of contaminants does not occur.
    In support of the need for RCRA regulation, these commenters have 
pointed to examples of environmental damage or potential threats 
associated with firing ranges. These include deaths resulting from 
detonation of unexploded ordnance at old ranges transferred to non-
military ownership; numerous other cases of unexploded munitions or 
discarded chemical munitions found on non-military lands; threats to 
endangered species and other ecosystem damage from range activities; 
death of thousands of waterfowl resulting from consumption of residual 
white phosphorus at an artillery impact range; destruction of lands 
that are culturally or religiously significant to Native Americans; 
possible adverse health effects related to air emissions from military 
training exercises; soil and groundwater at ranges contaminated with 
heavy metals and possibly organic toxics; and high heavy metal 
concentrations in streambeds and fish tissue in the area of firing 
ranges.
    In developing this rulemaking, EPA has not independently reviewed 
each of these examples in detail, and it recognizes that in many cases 
the extent of damage has been the subject of considerable disagreement. 
Furthermore, it is often unclear whether an acknowledged problem was 
caused by weapons testing or training at ranges, or by other activities 
(e.g., open burning/open detonation of munitions, other waste 
management activities, or weapons manufacture and processing). At the 
same time, however, military ranges have clearly been associated with 
numerous environmental or safety concerns.
    Although it recognizes these concerns, EPA is not proposing in 
today's rule to regulate military firing range activities under RCRA. 
EPA is taking this approach for several reasons. Above all, EPA 
questions whether RCRA regulatory authority appropriately extends to 
activities like weapons testing or training exercises, which involve 
the use of a product and which are not ``waste management'' as it has 
historically been understood. Further, EPA questions whether the RCRA 
regulatory apparatus is well adapted to the regulation of weapons 
testing or training, especially given RCRA's reliance on site-by-site 
permitting and the existence of statutory constructs such as the land 
disposal restrictions and minimum technology requirements, which make 
no sense in the context of range management.
    DOD critics recognize the difficulties of applying conventional 
RCRA requirements (e.g., full RCRA permits) to every military firing 
range, and instead suggest a ``permit-by-rule'' approach. EPA has 
already issued permits-by-rule for certain activities involving 
hazardous waste; however, this approach has been adopted only in cases 
where detailed EPA regulations already exist under other statutory 
authorities implemented by EPA. The regulatory and legal difficulties 
of implementing such an approach at ranges are considerable. More 
particularly, EPA questions the need for, or (in some cases) the 
advisability, of the specific regulations suggested by DOD critics. A 
requirement that all fired munitions be tracked would be impracticable. 
It would also be largely redundant with existing DOD requirements. (DOD 
Directive 6055.9-STD, Chapter 12, requires that installations maintain 
permanent records of ``known and suspected'' ranges, including 
``contamination by nomenclature, hazard, quantity, exact locations, and 
dud rates.'') Similarly, a requirement that ranges be regularly cleared 
for unexploded ordnance may be practical in some circumstances, but in 
others involve a significant safety threat to military personnel. 
According to DOD, the Air Force is able to require routine clearance of 
bombing ranges, where relatively limited numbers of unexploded 
munitions will be found. The Army, however, does not apply similar 
requirements to artillery ranges, given the much larger number of 
unexploded rounds.
    DOD and the Services already have regulations governing range 
activities. For example, the DDESB has issued regulations requiring 
recordkeeping, remediation, use restrictions, and similar requirements. 
EPA believes that the most appropriate approach to regulating day-to-
day range activities is through these standards, rather than under 
RCRA--given the poor fit of the statute. EPA recognizes that RCRA would 
provide for independent oversight and enforcement, an important factor 
for DOD critics. It questions, however, whether the costs of this 
oversight (both to DOD and the regulatory agencies) would be justified. 
This is particularly the case since many of the concerns addressed by 
commenters are already addressed under other independent authorities 
(e.g., DOD and the services must comply with the Endangered Species 
Act; CERCLA governs transfer of ranges (and other military property) to 
non-Federal ownership; and RCRA and CERCLA remedial authorities are 
available for conventional contamination resulting from range 
activities), or under any circumstances would fall outside the scope of 
RCRA (e.g., radioactive materials).
2. Applicability of Range Cleanup Authorities
    Proposed Sec. 261.2(g)(4)(i) states that munitions left in place 
are considered solid waste for statutory purposes when a range is 
closed, or when the property is transferred from military control. In 
practice, this requirement would make the munitions potentially subject 
to section 7003 of RCRA in the case of an imminent and substantial 
endangerment, and to sections 3004(u) and 3008(h) cleanup authorities 
if the facility was otherwise subject to RCRA permitting requirements. 
As discussed earlier in this preamble, the proposal also contains a 
sunset provision; munitions left in place at closed or transferred 
ranges would no longer be subject to RCRA cleanup authorities once DOD 
promulgates, pursuant to DOD's own statutory authorities, regulations 
governing cleanup of ranges.
    Some critics of DOD are likely to argue that today's proposal does 
not go far enough. Section 7003 is a discretionary authority for EPA, 
and sections 3004(u) and 3008(h) only apply at RCRA treatment, storage, 
and disposal facilities where releases have been identified. Thus, 
according to some commenters, these authorities may not adequately 
address closing ranges. It has been suggested that EPA impose ``post-
closure'' requirements on all closed military ranges where munitions or 
other contaminants are left in place. These requirements might or might 
not be imposed through a permit, and they might include permanent 
access restrictions, monitoring for off-site releases, and other 
requirements.
    EPA notes that current statutory restrictions on Federal property 
transfers cover many of the problems 

[[Page 56488]]
that a post-closure requirement would also address. For example, under 
section 120(h)(3) of CERCLA, deeds conveying contaminated real property 
from the United States to non-Federal ownership must contain a covenant 
that all remedial action necessary to protect human health and the 
environment has been taken with respect to any hazardous substances 
remaining at the property. All remedial actions necessary to protect 
human health and the environment have been taken when EPA determines 
that an approved remedy is constructed and operating properly and 
successfully. Therefore, current statutory provisions already provide 
considerable legal protection when a former range is transferred to 
non-Federal owners. The applicability of these safeguards is less 
clear, however, when a closed range on an installation is put to other 
uses, or a range is transferred from the Department of Defense to 
another Federal agency. EPA solicits comments on the need for ``post-
closure'' controls under RCRA to address these situations where 
property remains under Federal ownership. Comments should address the 
legal basis for such controls under RCRA; their need, given current 
controls (including current DOD regulations and practices); the level 
of controls that would be appropriate; and the regulatory burden of 
such controls, both on DOD and the regulatory agencies.

C. Alternative Organization (Separate CFR Part)

    EPA also sees the benefit of a uniform nationwide system for 
managing waste military munitions given DOD's national defense mission, 
nationwide presence, and logistical and operational needs. A consistent 
set of standards for waste military munitions will simplify integration 
of these rules with the DDESB and the Service requirements for the 
management of all military munitions (including waste munitions). 
Indeed, EPA believes Congress' intent in passing RCRA Sec. 3004(y) was 
to establish a clearer, uniform national system for regulating military 
munitions. To support such clarity and consistency, DOD has recommended 
that the regulations for military munitions be included in a separate 
part of the CFR, which would identify the requirements that apply to 
military munitions in one single place. The new part as proposed by DOD 
would still contain numerous cross-references to other pertinent parts 
and sections, and the military would still have to comply with other 
parts for their non-munitions hazardous waste.
    EPA solicits comment on whether this approach would be simpler to 
implement, easier to enforce, or easier for States to adopt. For an 
example of how the alternative approach might be structured, commenters 
may refer to the DOD proposal, which may be obtained by contacting Mr. 
Ed Sims, U.S. Army Environmental Center, Environmental Compliance 
Division, Mail Code SFIM-AEC-ECA, Building E4435, Aberdeen Proving 
Ground, Maryland 21010-5401, through the DOD Home Page on the Internet 
at: [email protected], or from the EPA docket for today's 
rule. DOD recommends that the standards be placed in 40 CFR part 269. 
However, EPA believes that, if this approach is adopted, it should be 
placed in a separate subpart in 40 CFR part 266, which addresses other 
special types of waste and waste management facilities.

VI. State Authority

    Under section 3006 of RCRA, EPA may authorize States to administer 
and enforce the RCRA hazardous waste program. (See 40 CFR part 271.) 
After authorization, the authorized State administers the program in 
lieu of the Federal government, although EPA retains enforcement 
authority under sections 3008, 7003, and 3013 of RCRA. New Federal 
requirements (such as today's rule) do not apply until they have been 
adopted by the State and the State's authorization has been revised to 
incorporate the requirements.12

    \12\ Under 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.
---------------------------------------------------------------------------

    Under RCRA regulations, States must adopt and become authorized for 
new requirements within one to two years of the rule's effective date, 
where the requirements are more stringent or broader than existing 
requirements. Section 3009 of RCRA allows States to impose standards 
that are more stringent than those in the Federal program.
    Today's proposal, however, raises an issue regarding State 
authority because Congress clearly expected EPA to develop national 
standards for waste munitions through the RCRA rulemaking process. 
Although today's rule would lay out such national standards, States 
under the standard RCRA approach could enforce their own more stringent 
standards under their own State programs. This situation, at least in 
theory, could lead to just the sort of piecemeal approach that the FFCA 
was intended to avoid. Therefore, EPA is also considering, in addition 
to the standard RCRA approach to state authorization, an approach that 
would prohibit States from enforcing broader or more stringent 
requirements with respect to military munitions. This alternative 
approach would be specific to today's proposal and, because it would be 
tied to the waiver of sovereign immunity in RCRA, it would in any case 
be limited to rules where the only regulated entity was the Federal 
government. In today's notice, EPA solicits comment on whether this 
alternative approach should be adopted for military munitions, or 
whether the standard RCRA approach should be maintained.
    As explained above, the standard RCRA approach would allow States 
to promulgate regulations that are broader in scope or more stringent 
than Federal requirements. And States would not be required to adopt 
new regulations that are less stringent or narrower than regulations 
they already have in place. The legal basis for this approach would 
derive from section 3009, which allows States to impose more stringent 
hazardous waste standards.
    Under the standard approach, therefore, states would be required to 
adopt those portions of today's rule that are more stringent or broader 
in scope than current requirements, but they would not be required to 
adopt less stringent requirements. Many of the requirements in today's 
rule, in EPA's view, are neither more nor less stringent than current 
regulatory requirements applicable to other materials. Therefore, it is 
EPA's view that under current RCRA procedures, the adoption of these 
regulatory provisions by States would not be required, as long as the 
States interpret their current regulations in a manner that is no less 
stringent than today's proposal. Similarly, States would not be 
required to pick up those portions of today's proposal if they are 
promulgated in a final rule, that are less stringent than existing 
requirements. The less stringent portions of the rule are: (1) the 
modified definition of ``on-site'' (Sec. 260.10), (2) the exemption of 
emergency responses involving explosives from RCRA transport 
requirements (Sec. 262.10(h)), and (3) the RCRA manifest exemption for 
the off-site shipment of stockpiled munitions waste from one DOD 
installation to another.
    Although states would not be required to adopt less stringent 
requirements under this approach, EPA strongly urges States to adopt 
all aspects of today's rule, when it is finalized, to ensure clear 

[[Page 56489]]
guidelines for handlers of waste military munitions, State regulators, 
and the public. EPA believes that, although States under the standard 
approach can be more stringent, Congress intended for the rule to 
establish a uniform and consistent program for the management of waste 
military munitions. Therefore, States should adopt these regulations as 
quickly as their legislative and regulatory processes will allow.
    In two respects, today's proposed rule is more stringent than 
current requirements: (1) The requirement that military installations 
retrieve munitions fired off-range (Sec. 261.2(g)(4)(ii)), and (2) the 
requirement that military personnel responding to immediate threats 
involving military munitions maintain records of the response 
(Secs. 264.1(g)(8)(iv), 265.1(c)(11)(iv), and 270.1(c)(3)(iii)). If 
these proposed requirements are promulgated in a final rule, authorized 
States must adopt these requirements as part of their State programs 
and apply to EPA for approval of their program revisions. Section 
270.21(e)(2) sets out the deadline for State program modifications; 
Sec. 271.21 identifies the procedures for revision of State programs.
    The above approach is consistent with the basic principles of 
Federal-State relationships under RCRA. EPA is committed to a 
partnership role with the States and recognizes that States should be 
the primary implementers of the hazardous waste program. Furthermore, 
it has been axiomatic under RCRA that States run their program under 
their own State laws, and that, while EPA sets national minimum 
standards, States may choose to be more stringent. At the same time, 
EPA recognizes DOD's very real need for national consistency in 
managing waste munitions, given DOD's national defense mission, nation-
wide presence, and logistical and operational needs. Therefore, as 
discussed above, EPA is considering an alternative approach, under this 
rule, that ensures national standards by precluding States from 
enforcing more stringent requirements on waste military munitions.
    This approach would characterize EPA's requirements as more 
stringent than the current requirements because they are new standards 
with respect to the identification of when munitions become waste and 
as to the storage and transportation standards for that waste. Under 
this alternative these regulations, when final, would not apply in an 
authorized State until such time as a State has revised its authorized 
program to incorporate these requirements and such revisions have been 
approved by EPA in accordance with 40 CFR Part 271. Additionally, this 
approach would interpret the waiver of sovereign immunity in section 
6001 of RCRA to prohibit broader or more stringent State requirements 
as applied to military munitions than those requirements adopted in a 
final rule under section 3004(y).
    The approach would be supported by policy and legal arguments that 
the generally available authority of the States to promulgate more 
stringent rules than those issued by EPA under RCRA is not present in 
the case of rules regulating military munitions. It could be argued 
that Congress in the FFCA intended that EPA, in consultation with DOD, 
the States, and interested parties, develop national regulations that 
reflected the views of all and that settled both the jurisdictional and 
the technical issues at one time.
    The argument that the scope of the waiver of sovereign immunity 
does not permit a State to impose more stringent requirements than 
those contained in Federal regulation depends on the language of RCRA 
6001. This section provides that Federal agencies ``shall be subject 
to, and comply with, all Federal, State, interstate, and local 
requirements * * * respecting control and abatement of solid waste or 
hazardous waste disposal and management in the same manner, and to the 
same extent, as any person is subject to under such requirements.'' (42 
U.S.C. 6961) EPA used similar language in section 118 of the Clean Air 
Act, in its General Conformity Rule (40 CFR Part 51) to preclude States 
from applying more stringent requirements on federally-assisted 
facilities. In the case of today's rule, it would be argued that, 
because military munitions are items unique to the military, more 
stringent state regulation would, by definition, apply only to the 
military and thus be discriminatory and outside the scope of the RCRA 
waiver of sovereign immunity in section 6001.
    EPA will carefully consider both approaches and their policy and 
legal interpretations. Interested parties, including both DOD and the 
States, are asked to comment on the approaches and to address such 
issues as the potential for discrimination against the Federal 
government; the extent to which the military munitions rule would or 
could apply to non-Federal entities or to entities whose costs of 
compliance would not ultimately be borne by the Federal government; the 
policy considerations raised by the dangers of military munitions and 
the operational needs of the Military Services; and the practical 
implementation issues that both approaches would raise.

VII. 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 proposal is a significant rule 
under Executive Order 12866 due to the novel policy issues raised. EPA 
estimates that today's rule results in national annual incremental 
costs of $190,000 per year. This represents a savings over baseline 
costs of approximately $1,400,000 to over $2,500,000 per year. For more 
information on the costs impacts of today's proposal and of some 
alternative approaches, see the Economic Impact Analysis of the 
Proposed Munitions Rule, in EPA Docket #* * *
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; (4) storage 
standards for waste munitions; and (5) maintenance and closure of 
military ranges. Some management approaches to some of these issues may 
result in significant costs to the U.S. Department of Defense. However, 
EPA has estimated that the proposed rule, which would relax 
requirements from the assumed full subtitle C regulations, would not 
result overall in additional financial burden to the Department of 
Defense or any military installation. In many instances, EPA has 
concluded that 

[[Page 56490]]
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 $190,000 per year to the 
Department of Defense. The most significant costs would be related to 
the need for permit modifications for treatment and disposal facilities 
receiving off-site wastes. However, today's proposal results in avoided 
costs on the order of $1,400,000 to $2,500,000 per year over baseline. 
Baseline is based on DOD's current operations.
    The principal sources of annual savings include avoided costs for 
new permits, contingency plans, manifests, and retrofitted storage 
units. These avoided costs may be more significant when compared with 
other regulatory alternatives considered by EPA. For example, analysis 
of costs for several alternatives suggests that incremental costs for 
full Subtitle C requirements and active range management may exceed 
$410,000,000 per year. Other alternatives may exceed $430,000,000 per 
year. The cost analysis for the proposed rule and alternatives is 
presented in the technical background document, Economic Impact 
Analysis of the Proposed Munitions Rule. These higher costs result 
primarily from the costs for active range management.
    EPA did not develop specific costs for range closure and clean up 
(e.g., prior to property transfer) under RCRA 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, and thus, there would be no incremental costs 
under today's proposal. EPA requests that commenters submit additional 
information relevant to the cost for clean-up of closed ranges under 
each of these authorities.
2. Benefits Analysis
    EPA is proposing that stockpiled munitions generally do not become 
hazardous waste subject to regulation until they are removed from 
storage for transportation to a disposal unit. This proposal recognizes 
that current DOD storage regulations have been successful in protecting 
human health and the environment, and that additional requirements 
would be redundant. (See section IV.B.1.f of today's proposed rule). 
EPA also has proposed to exempt stockpiled waste military munitions 
from RCRA manifest and other requirements when transported because DOD 
standards provide comparable protection. The benefit of this proposed 
option is the annual cost savings of approximately $1,400,000 to over 
$2,500,000, due to avoided retrofits, permits, contingency plans, and 
manifest costs.
    One exception to the above proposed definition is for munitions 
that are ``deteriorated or damaged (e.g. leaks, broken seals) to the 
point that they cannot be put into serviceable condition, and cannot 
reasonably be recycled or used for other purposes.'' Such munitions 
would be designated as regulatory solid waste under the proposed 
regulation. The benefit of regulating deteriorated or damaged munitions 
as a solid waste under RCRA would be the assurance that such munitions 
would be stored and transported in a safe manner and destroyed as soon 
as safely feasible, thus limiting the potential exposure of humans or 
the environment to hazardous substances.
    The use of munitions for their intended purpose (i.e. discharged at 
a firing range) is not considered ``waste management'' for the purposes 
of RCRA. However, under today's proposal, used or fired munitions left 
in the environment become ``discarded'' in a RCRA statutory sense, and 
therefore are subject to RCRA statutory authorities, including RCRA 
sections 7003, 3004 (u) and (v), and 3008(h).
    The benefits of considering used or fired munitions as 
``discarded'' at the point of property transfer or discharge off-
installation range are especially clear in the case of unexploded 
ordnance (UXO). Military personnel are trained in handling explosive 
munitions, and military installations have security precautions to 
prevent civilian exposure to explosive devices. Once property 
containing UXO leaves military control, however, there is no assurance 
that the same measure of protection would be maintained, even if it is 
transferred to another Federal Agency.
    The Department of Defense Explosives Safety Board Accident Database 
reports that since 1943, there have been a total of 30 non-operational 
accidents from military unexploded ordnance, resulting in seventy-seven 
injuries and twenty-six fatalities. In many cases, these accidents 
occurred after property transfer. As more and more bases undergo 
closure, the potential for accidents from abandoned unexploded ordnance 
will increase. By including used or fired munitions which leave 
military control in the statutory definition of ``solid waste,'' EPA 
and authorized States will be able to provide independent oversight of 
property transfers involving former ranges.

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 proposal will primarily affect 
Federal Agencies, such as the Department of Defense, and therefore few, 
if any, small entities will be affected. Furthermore, since today's 
proposal generally provides savings over current requirements, EPA 
believes that any small entities engaged in activity covered by the 
rule will not be adversely affected. However, the Department of Defense 
has raised the issue that these regulations may adversely impact 
businesses doing munitions management activities for the Department of 
Defense, the Department of Energy, the Coast Guard, and the National 
Guard. EPA requests that commenters submit additional information 
related to the types of businesses that may be impacted, the number of 
small businesses that would be affected, and the extent of adverse 
impacts to these businesses.

C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1980, 44 USC 350l et seq., 
authorizes the Director of OMB to review certain information collection 
requests by Federal agencies. EPA has determined that the recordkeeping 
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 recordkeeping or reporting 
requirements.
    Comments regarding this determination may be sent to Ken Shuster 
(RE: ICR Determination), EPA (Mail Code 5303W), 401 M St, SW, 
Washington, D.C. 20460. 

[[Page 56491]]


D. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, 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 
$190,000 per year over ten years or $1,300,000 in any one year. Thus, 
today's rule is not subject to the requirements of sections 202 and 205 
of the UMRA.

VIII. References/Docket

    The regulatory docket for this proposal contains a number of 
background materials. To obtain a list of these items, contact the RCRA 
Docket at 202-260-9327 and ask for the list of references in Docket #F-
94-MMP-FFFFF.

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

    Air pollution control, Emergency responses, Hazardous waste, 
Insurance, Storage containers, Reporting and recordkeeping 
requirements, Security measures, Surety bonds, Treatment and disposal.

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: October 31, 1995.
Carol M. Browner,
Administrator.
    For the reasons set forth in the preamble, 40 CFR Parts 260, 261, 
262, 263, 264, 265, and 270 are proposed to be 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 through 6927, 6930, 
6934, 6935, 6937 through 6939, and 6974.

    2. Section 260.10 is amended by revising the definition of ``on-
site'' and by adding the following definitions, in alphabetical order, 
to read as follows:


Sec. 260.10  Definitions.

* * * * *
    Explosives or munitions emergency response expert means Department 
of Defense (DOD) emergency explosive ordnance disposal (EOD) or 
technical escort unit (TEU) personnel; DOD-certified civilian 
contractor personnel; or other trained Federal, State, local, or 
civilian chemical or conventional munitions or explosives handling, 
render-safe, destruction, and response experts.
    Explosives or munitions emergency means a situation involving the 
suspected or detected presence of unexploded explosive ordnance (UXO), 
damaged explosive ordnance, an improvised explosive device (IED), other 
potentially explosive material or device, or other potentially harming 
military chemical warfare material or device, that creates an imminent 
threat to human health, including safety, or the environment, including 
property, as determined by an emergency response expert, and calls for 
immediate action by the emergency response expert to eliminate the 
threat.
    Explosives or munitions emergency response means all immediate 
response activities by emergency response experts to eliminate an 
emergency threat by treating or destroying the ordnance in place or 
rendering the ordnance safe and/or removing it to another location for 
treatment or destruction. An emergency response includes transportation 
and treatment to the extent necessary to abate the immediate threat. 
Emergencies and expert responses can occur in the public sector or on 
Federal installations.
* * * * *
    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, and National Guard 
personnel. Military munitions include: 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 

[[Page 56492]]
missiles, bombs, warheads, mortar, artillery, 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, devices, and components thereof 
managed under DOE's nuclear weapons program.
    Military range means designated air, land, and water areas set 
aside, managed, and used to test and evaluate military explosives, 
other ordnance, and weapon systems, and to train personnel in their use 
and handling. Ranges include firing lines and positions, firing lanes, 
impact areas, and buffer zones with restricted access and exclusionary 
areas.
* * * * *
    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. 
``On-site'' also includes contiguous property comprised of an 
individual generation site and/or facility under the control of the 
same person, regardless of whether it is divided by a public or private 
right-of-way and whether 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 the owner controls and to 
which the public does not have access is also considered ``on-site'' 
property.
* * * * *

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 revising paragraph (a)(2) 
introductory text and adding a new paragraph (g) to read as follows:


Sec. 261.2  Definition of solid waste.

    (a) * * *
    (2) Except for military munitions addressed in Sec. 261.2(g), a 
discarded material is any material which is:
* * * * *
    (g) Military munitions. (1) Unused military munitions are discarded 
material and therefore a solid waste when any of the following occurs:
    (i) The munition is abandoned by being disposed of, burned, or 
incinerated, or treated prior to disposal, or
    (ii) 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
    (iii) The munition is deteriorated or damaged (e.g., the integrity 
of the round 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
    (iv) The munition has been declared a solid waste by an authorized 
military official.
    (2) Used or fired military munitions are solid wastes if they meet 
the definition of discarded material in Sec. 261.2(a)(2), unless they 
are excluded by paragraphs (a)(1) or (g)(3) of this section.
    (3) Use of military munitions for their intended purpose does not 
constitute discard and is not subject to regulation under parts 260 
through 271 of this chapter. ``Use for intended purpose'' includes:
    (i) Use in training of troops and of explosives and munitions 
emergency response experts (including training in proper destruction of 
excess unused propellant or other munitions during training exercises),
    (ii) Use in research, development, testing, and evaluation of 
military munitions, weapons, or weapon systems, and
    (iii) Recovery, collection, and on-range destruction of unexploded 
ordnance and contaminants during range clearance operations at active, 
inactive, or closing ranges.
    (4) Military munitions at ranges. Munitions discharged during 
military activities at ranges are discarded material (and therefore 
solid waste) for purposes of Sec. 1004(27) of RCRA under the following 
circumstances:
    (i)(A) The munition is left in place at the firing range at the 
time the range is closed or when the range is transferred from military 
control, whichever occurs first, except that,
    (B) Upon the issuance of DOD regulations that govern the cleanup of 
munitions on closed or transferred ranges and that provide for State 
and public participation in the cleanup decisionmaking process at 
specific sites, these DOD regulations shall supersede all RCRA 
authority over military munitions at closed and transferred military 
ranges.
    (ii) The munition lands off-range and it is not promptly rendered 
safe (if necessary) and retrieved. To the extent feasible, 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).
    (5) Military munitions that have not been discharged, including 
subcomponents thereof, do not become a solid waste when they are being 
repaired, reused, recycled, reclaimed, disassembled, reconfigured, or 
otherwise subjected to materials recovery activities.

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

    1. The authority citation for Part 262 continues to read as 
follows:

    Authority: 42 U.S.C. 6906, 6912(a), 6922 through 6925, 6937, and 
6938, unless otherwise noted.

    2. Section 262.10 is amended by adding, before the notes, new 
paragraphs (h) and (i) to read as follows:


Sec. 262.10  Purpose, scope, and applicability.

* * * * *
    (h) Persons responding to an explosives or munitions emergency in 
accordance with sections 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.
    (i) A generator of military munitions that become solid wastes 
under 40 CFR 261.2(g)(1)(ii through iv) is exempt from subpart B and 
Secs. 262.32(b), 262.40(a), and 262.42 of this part when the munition 
is shipped under Department of Defense shipping controls (including at 
a minimum: Government Bill of Lading (GBL) (GSA Standard Form 1109) and 
associated Special Instructions and Notes (SIN) and Routing 
Instructions and Notes (RIN)--a series of files within an automated 
information base used in preparing the GBL continuation sheets, 
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) from a 
federally-owned or operated installation to a DOD-owned or operated 
treatment, storage, or disposal facility, except that the Federal 
agency must report to the EPA Regional Administrator any waste that was 
not received by the receiving facility within 

[[Page 56493]]
45 days of the day the waste was shipped.
* * * * *

PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE

    1. The authority citation for Part 263 continues to read as 
follows:

    Authority: 42 U.S.C. 6912(a), and 6922 through 6925.

    2. Section 263.10 is amended by redesignating paragraph (c) as (e), 
and adding new paragraphs (c) and (d) to read as follows:


Sec. 263.10  Scope.

* * * * *
    (c) The regulations in this part do not apply to transportation 
during an explosives or munitions emergency response, conducted in 
accordance with Secs. 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).
    (d) The regulations in this part do not apply to the transportation 
of military munitions that become solid wastes under 40 CFR 261.2(g) 
(1)(ii through iv) when shipped under Department of Defense shipping 
controls (including at a minimum: Government Bill of Lading (GBL) (GSA 
Standard Form 1109) and associated Special Instructions and Notes (SIN) 
and Routing Instructions and Notes (RIN)--a series of files within an 
automated information base used in preparing the GBL continuation 
sheets, 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) from a DOD-owned or operated installation to a DOD-owned or 
operated treatment, storage, or disposal facility.
* * * * *

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


Sec. 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.
* * * * *
    (iv) In the case of an explosives or munitions emergency response, 
if a Federal, State, or local official acting within the scope of his 
or her official responsibilities, or if an explosives or munitions 
emergency response expert determines that immediate removal of the 
material or waste is necessary to protect human health or the 
environment, that official or expert 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 expert's 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 264.70 is revised to read as follows:


Sec. 264.70  Applicability.

    The regulations in this subpart apply to owners and operators of 
both on-site and off-site facilities, except as Sec. 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 Sec. 263.l0(d). 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 
Secs. 264.1200 through 264.1202, to read as follows:

Subpart EE--Military Hazardous Waste Munitions Storage


Sec. 264.1200  Applicability.

    The requirements of this subpart apply to owners or operators who 
store military wastes and munitions classified as hazardous wastes in 
military magazines, except as Sec. 264.1 provides otherwise. (NOTE: 
Depending on explosive hazards, military hazardous waste munitions 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)).


Sec. 264.1201  Design and operating standards.

    (a) Hazardous waste munitions 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, or atmosphere;
    (2) Provide a primary barrier, which may be a container (including 
a shell) or tank, designed to contain the hazardous waste;
    (3) For non-liquid wastes stored outdoors, provide that the waste 
will not be in standing precipitation;
    (4) For liquid wastes, provide a secondary containment system that 
assures that any released liquids or precipitation are promptly 
detected and removed 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) Military hazardous waste munitions stored under this subpart 
may be stored in one of the following:
    (1) Earth-covered magazines. Earth-covered 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 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.
    (iii) Designed with walls and earthen covers that direct an 
explosion in the unit in a safe direction to prevent propagation of the 
explosion to adjacent units.
    (2) Above-ground magazines. Above-ground magazines must be designed 
to disintegrate rather than blow apart into fragments.
    (3) Outdoor or open storage areas.
    (c) Hazardous waste munition units must be adequately designed and 
spaced to prevent propagation from one storage unit to another in the 
event of detonation. 

[[Page 56494]]

    (d) Hazardous waste munitions must be stored in accordance with a 
Standard Operating Procedure specifying procedures to ensure safety, 
security, and environmental protection. These procedures would 
supersede 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.
    (e) Hazardous waste munitions must be packaged to ensure safety in 
handling and storage.
    (f) Hazardous waste munitions must be inventoried at least 
annually.
    (g) Inspection and monitoring as necessary to ensure stability and 
no migration of contaminants out of the magazine. At waste chemical 
munitions storage units, the preferred method for detection of leakers 
is the use of remote sensing equipment.


Sec. 264.1202  Closure and post-closure care.

    (a) At closure of a military magazine 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 Sec. 261.3(d) of this 
chapter applies. The closure plan, closure activities, cost estimates 
for closure, and financial responsibility for military magazines 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 magazine.
    (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 (Sec. 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, 6912(a), 6924, 6925, 6935, and 6936, 
unless otherwise noted.

    2. Section 265.1 is amended by adding new paragraphs (c)(11)(i)(D) 
and (c)(11)(iv) to read as follows:


Sec. 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.
* * * * *
    (iv) In the case of an explosives or munitions emergency response, 
if a Federal, State, or local official acting within the scope of his 
or her official responsibilities, or if an explosives or munitions 
emergency response expert determines that immediate removal of the 
material or waste is necessary to protect human health or the 
environment, that official or expert 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 emergency 
response expert's 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 265.70 is revised to read as follows:


Sec. 265.70  Applicability.

    The regulations in this subpart apply to owners and operators of 
both on-site and off-site facilities, except as Sec. 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 Sec. 263.10(d).
    4. Part 265 is amended by adding new subpart EE, consisting of 
Secs. 265.1200 through 265.1202, to read as follows:

Subpart EE--Military Hazardous Waste Munitions Storage


Sec. 265.1200  Applicability.

    The requirements of this subpart apply to owners or operators who 
store military wastes and munitions classified as hazardous wastes in 
military magazines, except as Sec. 265.1 provides otherwise. (NOTE: 
Depending on explosive hazards, military hazardous waste munitions 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)).


Sec. 265.1201  Design and operating standards.

    (a) Hazardous waste munitions 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, or atmosphere;
    (2) Provide a primary barrier, which may be a container (including 
a shell) or tank, designed to contain the hazardous waste;
    (3) For non-liquid wastes stored outdoors, provide that the waste 
will not be in standing precipitation;
    (4) For liquid wastes, provide a secondary containment system that 
assures that any released liquids or precipitation are promptly 
detected and removed 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) Military hazardous waste munitions stored under this subpart 
may be stored in one of the following:
    (1) Earth-covered magazines. Earth-covered 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 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.
    (iii) Designed with walls and earthen covers that direct an 
explosion in the unit in a safe direction to prevent propagation of the 
explosion to adjacent units.
    (2) Above-ground magazines. Above-ground magazines must be designed 
to 

[[Page 56495]]
disintegrate rather than blow apart into fragments.
    (3) Outdoor or open storage areas (for munitions that do not pose a 
significant potential for explosion).
    (c) Hazardous waste munition units must be adequately designed and 
spaced to prevent propagation from one storage unit to another in the 
event of detonation.
    (d) Hazardous waste munitions must be stored in accordance with a 
Standard Operating Procedure specifying procedures to ensure safety, 
security, and environmental protection. These procedures would 
supersede 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.
    (e) Hazardous waste munitions must be packaged to ensure safety in 
handling and storage.
    (f) Hazardous waste munitions must be inventoried at least 
annually.
    (g) Inspection and monitoring as necessary to ensure stability and 
no migration of contaminants out of the magazine. At waste chemical 
munitions storage units, the preferred method for detection of leakers 
is the use of remote sensing equipment.


Sec. 265.1202  Closure and post-closure care.

    (a) At closure of a military magazine 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 Sec. 261.3(d) of this 
chapter applies. The closure plan, closure activities, cost estimates 
for closure, and financial responsibility for military magazines 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 magazine.
    (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 (Sec. 264.310).

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:


Sec. 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.
* * * * *
    (iii) In the case of immediate responses involving military 
munitions, the responding military emergency response expert's 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:


Sec. 270.42  Permit modification at the request of the permittee.

* * * * *
    (h) Military hazardous waste munitions treatment and disposal. (1) 
The permittee is authorized to continue to accept military munitions 
designated as hazardous wastes under Sec. 261.2(g) of this chapter, 
notwithstanding any permit conditions barring the permittee from 
accepting off-site wastes, if:
    (i) The facility was in existence as a hazardous waste facility on 
the date when the waste munition became subject to hazardous waste 
regulatory requirements;
    (ii) On or before the date when the waste munition becomes subject 
to hazardous waste regulatory requirements, the permittee submits a 
Class l modification request to remove or amend the permit provision 
restricting the receipt of off-site waste munitions; and
    (iii) The permittee submits a complete Class 2 modification request 
within 180 days of the date when the waste munition became subject to 
hazardous waste regulatory requirements.
    (2) Within the 180-day period for submission of the Class 2 
modification request, the facility may request the permitting agency to 
extend the 180 days for a specified period. If the permitting agency 
does not respond to the extension request within 30 days, the permittee 
is automatically granted the extension.
[FR Doc. 95-27434 Filed 11-7-95; 8:45 am]
BILLING CODE 6560-50-P