[Federal Register Volume 62, Number 187 (Friday, September 26, 1997)]
[Proposed Rules]
[Pages 50796-50843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25269]



[[Page 50795]]

_______________________________________________________________________

Part VII





Department of Defense





_______________________________________________________________________



32 CFR Part 178



Closed, Transferred, and Transferring Ranges Containing Military 
Munitions; Proposed Rule

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

[[Page 50796]]



DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 178

RIN 0790-AG46


Closed, Transferred, and Transferring Ranges Containing Military 
Munitions

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department of Defense (DoD) is proposing a rule that 
identifies a process for evaluating appropriate response actions on 
closed, transferred, and transferring military ranges. Response actions 
will address safety, human health, and the environment. This rule 
contains a five-part process that is not inconsistent with the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) and is tailored to the special risks posed by military 
munitions and military ranges. All closed, transferred, and 
transferring military ranges will be identified. A range assessment 
will be conducted in which a site-specific accelerated response 
(various options for protective measures, including monitoring) will be 
implemented. If these measures are not sufficient, a more detailed 
site-specific range evaluation will be conducted. Recurring reviews 
will be conducted, and an administrative close-out phase also is 
included.

DATES: Written comments on this proposed rule will be accepted until 
December 26, 1997.

ADDRESSES: Written comments (one original and two copies) should be 
addressed to: DoD Range Rule, P.O. Box 4137, Gaithersburg, MD 20885-
4137. Comments may also be submitted electronically by sending 
electronic mail (``e-mail'') through the internet to: [email protected]. 
All electronic comments must be submitted as an American Standard Code 
for Information Interchange (ASCII) file without special characters or 
any form of encryption, or as a Microsoft Word file. The administrative 
record for this rulemaking will be kept in paper form. Accordingly, the 
Department of Defense will convert all documents received 
electronically into printed paper form as they are received and will 
place the paper copies in the administrative record. In addition, 
comments may be faxed to (800) 870-6547.
    Public comments and the supporting information used for this rule 
will be made available for public inspection and copying at the DoD 
range rule administrative record located at 910 Clopper Road, 
Gaithersburg, MD 20878-1399. This administrative record is open from 
9:00 a.m. to 4:00 p.m., Monday through Friday, excluding Federal 
holidays. To review the administrative record materials, the public 
must make an appointment by calling (301) 258-8753.

FOR FURTHER INFORMATION CONTACT: To request a copy of the Range Rule or 
to ask a general question, please call the toll-free DoD range rule 
information request line (available 24 hours a day, 7 days a week) at 
(888) 541-1081. The toll-free number for the hearing-impaired is (800) 
870-6557. In addition, this proposed rule may be downloaded from the 
World Wide Web at http://www.acq.osd.mil/ens/. For specific technical 
questions, please contact Mr. Joseph Murphy, U.S. Army Environmental 
Center Range Rule Office, or Ms. Karen Heckelman, U.S. Army 
Environmental Center Office of Counsel, at (410) 612-7104.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Legal Authority
II. Background
III. Summary of Proposed Rule
IV. Section-by Section Analysis
I. Legal Authority
II. Background
III. Summary of Proposed Rule
IV. Section-by-Section Analysis
    A. Purpose, scope, and applicability
    B. Definitions
    1. Military munitions
    2. Military range
    3. Closed range
    4. Transferring range
    5. Transferred range
    6. Inactive range
    7. Active range
    8. Unexploded ordnance
    9. Other constituents
    10. Federal land manager
    11. American Indian tribe
    12. Property owner
    C. Summary of challenges
    1. Safety
    2. Current technological capabilities
    3. Technology development
    4. Magnitude
    D. Overview of the range response process
    1. Introduction
    2. Program overview
    3. Programmatic concepts
    E. Detailed discussion of the phases of the range response 
process
    1. Identification of closed, transferred, and transferring 
military ranges
    2. Range assessment/accelerated responses
    3. Evaluation of RA/AR results
    4. Range evaluation
    5. Range evaluation findings
    6. Site-specific response evaluation
    7. Site-specific response implementation
    8. Recurring reviews
    9. Ending the range response process
    F. Other issues
    1. DoD environmental response authorities and relationship to 
other laws
    2. Water ranges
    3. Other range activities
    4. Chemical agent constituents
    5. Buried military munitions
    6. Depleted uranium
    7. Regulator, American Indian tribe, and public involvement
    8. Small arms ranges
    9. Guidance
    10. Dispute resolution
    11. Allocation of operation and maintenance costs between 
federal agencies
    12. Future land use issues for transfers between federal 
agencies
V. Discussion of other major alternatives
    A. General
    B. Comprehensive Environmental Response, Compensation and 
Liability Act
    C. Defense Environmental Restoration Program
    D. Resource Conservation and Recovery Act
    E. DoD explosives safety standards promulgated pursuant to 10 
U.S.C. 172
    F. Status quo
VI. Administrative requirements
    A. Regulatory impact analysis
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental justice
    E. Unfunded mandates
VII. References/docket

I. Legal Authority

    This part is proposed under the authorities of the Defense 
Environmental Restoration Program (DERP), in 10 U.S.C. 2701 et seq.; 
the DoD Explosives Safety Board (DDESB), in 10 U.S.C. 172 et seq.; and 
Section 104 of CERCLA, in 42 U.S.C. 9601 et seq., as delegated to the 
DoD by Executive Order (E.O.) 12580 (59 FR 2923, January 23, 1987).

II. Background

    Section 107 of the Federal Facility Compliance Act of 1992 amended 
the Resource Conservation and Recovery Act (RCRA) and required the U.S. 
Environmental Protection Agency (EPA) to promulgate regulations 
identifying when conventional and chemical military munitions become 
hazardous waste subject to RCRA Subtitle C regulations. EPA's proposed 
military munitions rule (60 FR 56476, November 8, 1995) would have 
identified military munitions left on a closed range or a range 
transferred from military control as meeting the statutory definition 
of solid waste in RCRA Section 1004(27), potentially subject to RCRA 
corrective action or Section 7003 authorities. However, EPA's proposed 
rule also stated that if the Department of Defense, pursuant to the 
Department of Defense's own statutory authority, were to

[[Page 50797]]

promulgate a rule that addressed military munitions on closed or 
transferred ranges in a manner that was protective of human health and 
the environment and that allowed for public involvement in addressing 
these ranges, EPA would interpret the statutory definition of solid 
waste as not including military munitions left on closed or transferred 
ranges. The Department of Defense began development of this proposal, 
the ``DoD Range Rule,'' in response to EPA's proposed military 
munitions rule.
    The final EPA military munitions rule was published on February 12, 
1997 (62 FR 6622). In this final rule, EPA postponed action on whether 
to identify as solid waste military munitions left on closed or 
transferred ranges. EPA will reach its final decision on this issue 
based on further analyses of comments received on the military 
munitions rule and on the Department of Defense's final regulation 
governing the cleanup of munitions on closed and transferred ranges. In 
the final military munitions rule, EPA indicated that it is prepared to 
address this issue under Federal environmental laws if the Department 
of Defense does not promulgate the range rule or if EPA finds that the 
range rule does not adequately protect human health and the 
environment.
    The Department of Defense is including transferring ranges within 
the scope of the range rule, even though they were not included in the 
scope of EPA's proposed military munitions rule, to more 
comprehensively address this issue. The DoD proposed rule addresses the 
unique explosives safety considerations associated with military 
munitions (including unexploded ordnance (UXO)) and the need for 
environmental protection, and it does so under DERP, 10 U.S.C. 172, and 
CERCLA authorities rather than under RCRA.

III. Summary of Proposed Rule

    This proposal identifies a process for evaluating response actions 
on closed, transferred, and transferring military ranges. These 
response actions fully encompass safety, are protective of human health 
and the environment, and address risks based upon reasonably 
anticipated future land use.
    Closed ranges include those ranges that are within military control 
but are put to a use incompatible with range activities. Transferring 
ranges include those ranges associated with Base Realignment and 
Closure (BRAC) activities and other property transfers to nonmilitary 
entities. Transferred ranges include those being identified in the 
Formerly Used Defense Site (FUDS) program.
    The Department of Defense's proposed rule contains a phased 
process, with accelerated response (AR) options as part of an early 
phase. All closed, transferred, and transferring military ranges will 
be identified. Then a site-specific range assessment (RA), in which an 
AR involving various protective measures such as monitoring is 
implemented, will determine if the protective measures are sufficient 
to safeguard safety, human health, and the environment. If the 
protective measures in and of themselves are not sufficient at a 
specific military range, the range evaluation (RE) process will be 
initiated. The RE process includes more detailed data collection to 
support a site-specific safety risk assessment and a site-specific 
human health and ecological risk assessment. At the completion of the 
RA and/or RE, the Department of Defense will document its decision 
after input from Federal and State regulators, American Indian tribes, 
and the public. Recurring reviews will also be conducted. The final 
phase is an administrative close-out of range responses that have been 
completed.
    In this proposed rule, the Department of Defense articulates the 
nature and extent of its environmental response authorities under DERP, 
10 U.S.C. 172, and CERCLA. It is doing so in the form of creating a 
formal military range response process based on the general delegation 
of response authority given to the Department of Defense by Congress 
under DERP and by the President under CERCLA; the specific emphasis in 
DERP and 10 U.S.C. 172 on limiting risks posed to human health and the 
environment by military munitions (including UXO) and military ranges; 
and the unique nature of the risks posed by military munitions and 
military ranges, for which the Department of Defense alone has special 
responsibility and expertise.

IV. Section-by-Section Analysis

A. Purpose, Scope and Applicability

    This proposal applies to all the DoD components, such as the Office 
of the Secretary of Defense, the Military Departments, the Chairman of 
the Joint Chiefs of Staff, the National Guard Bureau (NGB), and the 
U.S. Coast Guard (USCG). It applies to military munitions on closed, 
transferred, and transferring military ranges previously or currently 
owned by, leased to, or otherwise possessed or used by the United 
States. These military ranges may not be under the administrative 
control of the Secretary of Defense (or the Secretary of War prior to 
1949); however, the munitions themselves remain under the jurisdiction 
of the Secretary of Defense. For this reason, this proposal applies to 
military munitions on closed, transferred, or transferring military 
ranges where the range itself is under the administrative control of 
another Federal agency or property owner, provided that the activity 
that led to the munitions being on those ranges was in support of the 
Department of Defense's national defense or national security mission. 
For example, the national laboratories under the U.S. Department of 
Energy (DOE) conduct research, development, training, and evaluation of 
military munitions on behalf of the Department of Defense. Similarly, 
USCG conducts training activities involving the use of military 
munitions as part of their mission in support of the Department of 
Defense's national defense mission. In these cases the munitions remain 
under the jurisdiction of the Secretary of Defense, but the range may 
fall under the administrative control of the Secretary of Energy or the 
Secretary of Transportation. This rule uses the term ``Federal Land 
Manager'' to refer to Federal agencies having or clearly anticipated to 
receive jurisdiction, custody, or control of land affected by this 
proposal. The scope of this proposal is thus not inconsistent with DERP 
(10 U.S.C. 2701(c)), CERCLA, and EPA's military munitions rule.
    In some instances, however, the United States does not own the 
property utilized as a military range but instead leases or leased the 
property, or otherwise possesses, possessed or used the property. 
Additionally, the land could be owned by a State entity, as when 
National Guard activities are conducted. For this reason, this proposal 
would be applied to military ranges owned by an entity other than the 
United States but where military activities, such as operation of a 
range by the NGB,1 have occurred.
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    \1\  The NGB will be the Department of Defense agency 
responsible for evaluating and implementing response actions on 
closed, transferred, and transferring military ranges that are 
owned, leased, or otherwise possessed by a State National Guard if 
NGB validates that the military range is or was used for a military 
purpose. The DoD point of contact for military ranges owned or 
leased by a State National Guard will be located at the NGB.
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    This rule does not apply to any closed, transferred, or 
transferring military ranges that are subject to response activities 
pursuant to any specific statutory authority (e.g., Title X of Pub. L. 
103-139, DoD Appropriations Act, 1994, Conveyance of Kaho'olawe Island, 
Hawaii to the State of Hawaii,

[[Page 50798]]

where Congress has mandated special response actions, and a special 
cleanup agreement was developed between the Secretary of the Navy and 
the State of Hawaii) or pursuant to any agreements that were negotiated 
prior to the effective date of this rule and that cover military 
ranges. However, in either case, should any aspects of this proposed 
rule be useful in making a given response more efficient or cost-
effective, then, upon mutual consent of the parties to the agreement, 
nothing in this rule would prevent the response from being so adapted 
for use at such a range. This rule also does not apply to ranges 
located outside the United States, Puerto Rico, Guam, American Samoa, 
the Commonwealth of the Northern Mariana Islands, or the Virgin 
Islands.
    Under CERCLA Section 120(e), the DoD component must enter into an 
interagency agreement with the EPA Administrator ``for the expeditious 
completion * * * of all necessary remedial action'' at a DoD site on 
the National Priorities List (NPL). Where a closed, transferred, or 
transferring range was identified and included in the interagency 
agreement for an NPL site, the interagency agreement, even if 
negotiated prior to the effective date of this rule, will govern. If 
the interagency agreement provides that subsequently identified areas 
of concern are included automatically in the interagency agreement, 
then for purposes of Sec. 178.2(b)(2), such subsequently identified 
areas of concern would be considered to be ``identified and included in 
an interagency agreement for an NPL site.'' As stipulated in the 
preceding paragraph, nothing would prevent the response from following 
this rule instead, upon mutual consent of the parties to the agreement. 
If the range was not ``identified and included in the interagency 
agreement for an NPL site,'' this rule will be utilized. In some cases, 
UXO investigations or response actions are underway on closed, 
transferred, or transferring ranges at facilities where there are 
unresolved issues concerning the scope of the interagency or Federal 
facility agreement. This proposal does not apply to ongoing UXO 
response actions at such facilities, unless mutually agreed to by all 
parties to the interagency or Federal facility agreement.
    Finally, this proposal does not apply to explosives or munitions 
emergency responses, as defined in EPA's military munitions rule (62 FR 
6622, February 12, 1997). In the final rule, EPA defines an explosives 
or munitions emergency as all immediate response activities by an 
explosives and munitions emergency response specialist to control, 
mitigate, or eliminate the actual or potential threat encountered 
during an explosives or munitions emergency. As defined by EPA, an 
explosives or munitions emergency response may include in-place render-
safe procedures, treatment or destruction of the explosives or 
munitions, and/or transport of those items to another location to be 
rendered safe, treated, or destroyed. Explosives and munitions 
emergency responses can occur on either public or private lands. The 
Department of Defense may not be the first responder to a military 
munitions emergency (for example, the local police or another Federal 
agency may be the first to arrive on the scene).
    Under EPA's military munitions rule, explosives or munitions 
emergency response activities are exempted from most requirements under 
RCRA. Because explosives or munitions emergencies may or may not 
involve military munitions on a closed, transferred, or transferring 
military range, the Department of Defense has decided to exclude these 
activities from the scope of this rule and to conduct the activities in 
accordance with the provisions of EPA's military munitions rule. The 
fact that an area has been subject to an emergency response in the past 
should not, however, preclude that area from being subject to the range 
rule. The Department of Defense solicits comments on proposed 
Secs. 178.1--178.3, which address the purpose, scope, and applicability 
of this rule.

B. Definitions

    This proposal includes definitions for several terms that clarify 
the scope and applicability of this proposed rule. While the Department 
of Defense is not separately defining the nine criteria from the 
National Contingency Plan (NCP), the nine criteria mentioned in 
Secs. 178.7(c) and 178.9(d) have the same meanings as the nine criteria 
as set out in the NCP. The Department of Defense requests comments on 
the following proposed definitions.
1. Military Munitions
    This proposal includes a definition of military munitions in 
Sec. 178.4(g). This definition is the same as the definition in EPA's 
final military munitions rule (62 FR 6622, February 12, 1997).
2. Military Range
    This proposal includes a definition of a military range in 
Sec. 178.4(h). A military range is any land mass or water body that is 
or was used for the conduct of training, research, development, 
testing, or evaluation of military munitions or explosives. A military 
range can be used for many purposes. Examples include missile, 
artillery, aerial bombing, tank, naval surface warfare, mortar, 
antiaircraft, grenade, small arms, demolition, and multipurpose ranges 
where combined arms are utilized. The definition in Sec. 178.4(h) is 
the same as EPA's definition in the final military munitions rule (62 
FR 6622, February 12, 1997), except that additional information is 
provided on activities and locations that do not meet the definition of 
a military range.
    A classic setup of a live fire area military range consists of a 
central area called the ``impact area.'' The impact area varies in size 
depending on the type of military munitions employed. The impact area 
contains the targets that are fired upon and thus poses the greatest 
potential safety risk due to the concentration of military munitions 
employed (i.e., the impact area will normally contain the greatest 
concentration of UXO). Surrounding the impact area is a buffer zone. 
This area is not intentionally fired into but may include some UXO; 
thus military activities are not conducted in this area. Outside the 
buffer zone are the firing/release points from which military munitions 
are employed (e.g., fired, dropped, placed).
    Another example of a military range includes designated land and 
water areas set aside for the purpose of training and conducting 
``maneuvers.'' These maneuver areas are used to conduct military 
exercises and create an environment that simulates an area of conflict 
or an active war zone. During these maneuvers, training aids and 
military munitions simulators are used and expended. Examples are 
training ammunitions, artillery simulators, smoke grenades, 
pyrotechnics, mine simulators, and riot control agents used to simulate 
a chemical agent attack. Even though these training aids and simulators 
are used to create an environment that is safer than a war or open 
conflict, they may still pose an explosives safety concern. For this 
proposed rule, the definition of military ranges includes current and 
former designated maneuver areas on land and water.
    Airspace and water or land areas underlying airspace used for 
aircraft-related training, testing, or research and development where 
military munitions were not used do not fall within the definition of 
military range solely as a result of the aircraft-related activities. 
Examples of airspace and underlying water or land areas that would not 
be considered a military range for purposes of this rule include areas 
used for air-to-air training, electronic scoring site ranges, military 
operations areas, and

[[Page 50799]]

military training routes (MTR). Electronic scoring site ranges provide 
bomber aircraft with a weapon drop score without the aircraft's 
actually releasing any military munitions. Military operations areas 
are areas that separate certain military activities (e.g., air-to-air 
training) from civil and military aircraft traffic under instrument 
flight rules. MTRs are used to conduct low-altitude navigation and 
tactical training in excess of 250 knots air speed below 10,000 feet 
mean sea level altitude. No military munitions are dropped or fired in 
MTRs.
    A water range is another example of a military range. CERCLA and 
DERP address releases or threats of releases of hazardous substances, 
pollutants, and contaminants into the ``environment,'' which is defined 
in CERCLA as including navigable waters, the water of the contiguous 
zone, and ocean waters.2 In general, in 33 CFR 2.05-1 to 
2.05-35, the terms ``navigable waters,'' ``contiguous zone,'' and 
``ocean waters'' are defined as being, respectively, the internal 
waters of the United States and its coastal waters out to a distance of 
3 nautical miles, 12 nautical miles from the U.S. coast, and 200 
nautical miles from the U.S. coast. As a result, the DoD ranges located 
on water courses within these three zones are likewise subject to this 
proposed regulation.
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    \2\  CERCLA Section 101(8) defines ``environment'' as including 
``(A) the navigable waters, the water of the contiguous zone, and 
ocean waters of which the natural resources are under the exclusive 
management authority of the United States under the Magnuson Fishery 
Conservation and Management Act of 1976, and (B), any other surface 
water, ground water, drinking water supply, land surface or 
subsurface strata, or ambient air within the United States or under 
the jurisdiction of the United States.''
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    Over the life of a military range, the types and quantities of 
military munitions expended on the range vary greatly due to changes in 
mission and technology. An important characteristic of military ranges 
is that their use and/or the military munitions employed normally 
changes over time. As technology improves and weapons systems are 
replaced, new types of military munitions are developed and employed. 
Because of limited land availability and safety requirements, new 
ranges are often constructed on top of old ranges. Thus a variety of 
military munitions (including UXO) exist on a military range because of 
the different types of weapons that have been employed on a particular 
range during its life cycle. Changes in training needs over the years 
also contribute to the occurrence of several classes and types of 
military munitions at military ranges.
    Historic battlefields are not covered by this proposed definition 
of a military range. Battlefields were used for actual combat and thus 
were not used for training, research, development, testing, and 
evaluation. The Department of Defense has transferred areas that were 
historic battlefields and may contain UXO from past conflicts. Even 
though these areas are not ``military ranges'' and are not covered by 
this proposal, the Department of Defense will continue to provide 
explosive ordnance disposal (EOD) support to civil authorities for any 
UXO discovered on historic battlefields.
3. Closed Range
    This proposal includes a definition of a closed range in 
Sec. 178.4(d). This definition was provided in EPA's proposed military 
munitions rule (60 FR 56476, November 8, 1995) and is consistent with 
the final military munitions rule (62 FR 6622, February 12, 1997). 
Closed ranges are ranges that have been taken out of service and either 
have been put to new uses that are incompatible with range activities 
or are not considered by the military to be potential range areas. 
Examples of incompatible use may include the construction of a 
permanent building not compatible with range operations or training, 
such as houses, schools, hospitals, clinics, commissaries, libraries, 
and other such buildings. Closed ranges remain under the control of the 
military. Closed ranges would include those ranges that are on Federal 
lands or otherwise possessed by the military, determined at the 
respective military department's Secretariat-level position to be 
closed, and where future use is incompatible with range activities. 
Areas that meet the definition of a closed range will be regulated 
under this rule.
4. Transferring Range
    This proposal includes a definition of a transferring range in 
Sec. 178.4(n). Under that definition, a military range that is proposed 
to be leased, transferred, or returned from the Department of Defense 
to another entity, including Federal entities, is a ``transferring 
range.'' To qualify as a military range ``proposed'' to be leased, 
transferred, or returned, within the meaning of this rule, the proposal 
must be concrete and specific. Further experience likely will be needed 
to develop and clarify this definition, particularly the requirement 
that a proposal be ``specific and concrete.'' DoD notes that where a 
Federal agency might receive jurisdiction, but the transfer is not 
sufficiently concrete or specific to be ``proposed'' within the meaning 
of the definition, the agency may sit on the project team for 
informational purposes only, and such participation is encouraged.
    A number of military ranges are proposed for transfer outside of 
the military control. Transferring ranges include military ranges 
associated with the BRAC program, as well as any other property 
transactions in which military ranges are transferred to nonmilitary 
entities. It is important to note that, immediately prior to becoming a 
transferring range, a military range could be considered closed, 
inactive, or active. Transferring ranges remain under military control 
until they have been officially transferred to another party. Transfer 
may be by deed or lease, or by return under the terms of a withdrawal, 
special-use permit or authorization, right-of-way, public land order, 
or other instrument under which the Department of Defense used the 
property. An active range will not be considered to be a ``transferring 
range'' until the transfer is imminent. While an active or transferred 
range is easier to identify, classifying a military range as 
``transferring'' is more complex, and is based on multiple site-
specific factors. Reasonably anticipated land uses for the range 
property will be identified and agreed to prior to the land transfer.
    In some situations, the Department of Defense may not transfer a 
military range or a portion of the range if during the assessment it is 
determined that the risks cannot be reliably managed or reduced (unless 
such transfer is congressionally mandated). If technology limits the 
range response and thus restricts the use of the land, but later 
improvements in technology allow for a change in the designated land 
use, the Department of Defense is responsible for conducting a later 
response, if doing so is consistent with the land transfer agreement 
and reasonably anticipated land uses that were originally identified. 
Areas that meet the definition of a transferring range will be 
regulated under this rule. EPA's military munitions rule does not 
address transferring ranges; the Department of Defense has included a 
definition in this proposal to more comprehensively address the issue.
5. Transferred Range
    This proposal includes a definition of a transferred range in 
Sec. 178.4(m). A transferred range is a military range that has been 
released from military control. FUDS are areas that were once 
controlled by the Secretary of Defense and may have portions that were 
used as military ranges. Transferred ranges

[[Page 50800]]

include those being identified in the FUDS program. These areas could 
have been transferred to other Federal agencies (U.S. Department of the 
Interior (DOI), DOE, etc.), State or local governments, or private 
citizens.
    The transfer may have been by deed or lease, or by return under the 
terms of a withdrawal, special-use permit or authorization, right-of-
way, public land order, or other instrument under which the Department 
of Defense used the property. For example, public lands may be 
federally owned lands under the jurisdiction of the Secretary of the 
Interior and administered by the Bureau of Land Management (BLM). These 
lands may be withdrawn (by statute, executive order, or public land 
order) from the operation of the public land laws and reserved for 
other Federal agencies' uses, including the Department of Defense. 
Agencies holding withdrawn public lands that they no longer need are to 
file with BLM a notice of intent to relinquish such lands (43 CFR 2372; 
41 CFR 101-47.202-6). The BLM will then determine if the lands are 
suitable for return to the public domain for administration under the 
public land laws. If the lands are no longer suitable for return to the 
public domain, they will be processed as ``real property'' under the 
Federal Property and Administrative Services Act of 1949, as amended 
(40 U.S.C. 472), or under the property management and disposal 
provisions of the defense base closure laws, as applicable.
6. Inactive Range
    This proposal includes a definition of an inactive range in 
Sec. 178.4(f). As defined in EPA's military munitions rule (62 FR 6622, 
February 12, 1997), an inactive range is ``a military range that is not 
currently being used, but that is still under military control and is 
considered by the military to be a potential range area, and that has 
not been put to a new use incompatible with range activities.'' The 
Department of Defense has military range areas that have been used in 
the past for training, research, development, testing, or evaluating 
military munitions. Inactive ranges are held in reserve in case the 
Department of Defense has a change in mission that requires additional 
range areas. Some inactive ranges remain under military control to 
protect national security, as the activities conducted on them were 
classified. Therefore, inactive ranges would not be considered 
``closed'' under this rule. Inactive ranges are not covered by this 
proposed rule or EPA's military munitions rule, but they do fall under 
existing environmental and DoD regulations if the source of possible 
contamination is other constituents, not military munitions, or if 
contamination from range activities is moving off the range. Active and 
inactive ranges will be addressed in a forthcoming DoD policy to be 
issued by DDESB on proper safety-based management techniques for such 
sites. The Department of Defense will issue guidance on when an 
inactive range should be classified as a closed range. Factors in this 
decision-making process include future testing, training, and new 
weapons development needs, as well as needed range rotation.
7. Active Range
    This proposal includes a definition of an active range in 
Sec. 178.4(b), which is the same as the definition of an active range 
in EPA's military munitions rule (62 FR 6622, February 12, 1997). The 
scope of the DoD range rule is limited to closed, transferred, and 
transferring ranges; a definition of active ranges is included in this 
proposal for the sake of clarity.
8. Unexploded Ordnance
    This proposal includes a definition of UXO in Sec. 178.4(o). This 
definition is the same as the definition of UXO in EPA's military 
munitions rule (62 FR 6622, February 12, 1997). Military munitions are 
designed to be safe during storage and handling operations and will not 
normally detonate until an item is actually employed. A military 
munition becomes UXO only after it has been employed and failed, in 
total or in part, to function properly. Due to the complex design of 
many military munitions and the large number of military munitions 
employed, some of them are almost certain to become UXO. The highly 
likely presence of UXO on closed, transferred, and transferring 
military ranges creates a safety risk.
9. Other Constituents
    This proposal includes a definition of other constituents in 
Sec. 178.4(j). Due to their complexity and varied functions, military 
munitions may contain many other constituents that may be a source of 
concern on military ranges.
    Military munitions can be composed of propellants, explosives, and 
pyrotechnics (PEP); chemical agents; metal parts; and other inert 
components. When munitions are employed on a range, the PEP components 
generally are consumed, leaving behind metal parts and other inert 
components that may be distributed in small pieces across a large area. 
The risk caused by the metal parts and other inert components will 
depend on the types of materiel used, the susceptibility of this 
materiel to leaching and other transport mechanisms, the physical 
characteristics of the range (the climate, amount of rainfall, soil 
type, etc.), and the quantity of military munitions employed. These 
components of military munitions, if released into the environment, are 
included in the definition of other constituents.
    A small percentage of military munitions employed on military 
ranges fail to function as intended, which can result in UXO remaining 
on the range. UXO can pose a safety hazard (as discussed in Section 
IV.C.1. of this preamble, Safety) and/or an environmental concern. PEP 
compounds in military munitions could be released to the environment 
when the munitions casing is damaged or deteriorated. To a lesser 
extent, metal or other materials could build up over time in the 
environment. While UXO itself is not considered an other constituent, 
compounds released from the UXO are included in the definition of other 
constituents. At significant concentrations, other constituents may 
present explosives safety risks.
    Other constituents that may be identified on military ranges also 
could include fluids from vehicles used as targets or from activities 
that occurred prior to the area's being used as a military range (e.g., 
landfill, industrial operations). Other constituents that are present 
on a military range and that fall under other regulatory authorities 
may be addressed by the appropriate agency (see Section IV.F.1.b. of 
this preamble, Relationship to Other Laws, and Section V, Discussion of 
Other Major Alternatives).
10. Federal Land Manager
    This proposal includes a definition of Federal land manager in 
Sec. 178.4(e). DERP applies to property ``owned by, leased to, or 
otherwise possessed by the U.S. and under the jurisdiction of the 
Secretary [of Defense]'' (10 U.S.C. at 2701(c)). For simplicity, the 
Department of Defense has used the term ``Federal land manager'' 
throughout the rule to refer to a Federal agency that has received or 
is clearly anticipated to receive jurisdiction, custody, or control 
over the property. The phrase ``clearly anticipated to receive 
jurisdiction'' refers to situations where the transfer to the Federal 
agency is statutorily established; legally required; incorporated in a 
legislative proposal formally supported by the Administration; 
designated under the land reuse plan; or where the transfer to the 
Federal agency is otherwise recognized as being clearly anticipated,

[[Page 50801]]

such as where both the Federal agency and the DoD component have agreed 
that such transfer will take place. Where a Federal agency has been 
proposed to receive jurisdiction, custody, or control of a former 
range, but the agency is not yet a Federal land manager as defined in 
this rule, the agency may sit on the project team for informational 
purposes only.
11. American Indian Tribe
    This proposal includes a definition of American Indian tribe in 
Sec. 178.4(c). This term is used in the proposed DoD range rule to 
describe Native American tribes and Native Alaskan villages that meet 
specific criteria so that they can be afforded substantially the same 
treatment as States under this rule, and thus receive a concurrence 
role in the range response process. The governing body of the American 
Indian tribe must be federally recognized by the Department of 
Interior; have an appropriate tribal governing body that performs 
health, safety, or environmental functions; and have real property 
interests, as defined in Sec. 178.4(l) of this rule, over some or all 
of a closed, transferred, or transferring range at which a response, 
including pre-response activities, is ongoing or contemplated.
12. Property Owner
    This proposal includes a definition of a property owner in 
Sec. 178.4(l). The term ``property owner'' as used in this proposal 
refers to non-Federal entities that now own property that is a closed, 
transferred, or transferring military range, and to Native American 
tribes and Native Alaskan villages that own property or land held in 
trust by the United States for that tribe or village or its individual 
members. ``Property owner'' also includes any non-Federal entity 
legally entitled to control access to the property, to the exclusion of 
the right of the legal owner to control access, if known to the 
responsible DoD component. This situation may exist if the person 
legally entitled to control access to the property is different from 
the current legal owner (e.g., in lease situations).

C. Summary of Challenges

    Military munitions are designed to injure or kill people and/or to 
damage or destroy property. Thus, during any environmental response 
activity, the presence or suspected presence of military munitions 
creates unique challenges due to explosives safety concerns. Before 
undertaking any response action on a closed, transferred, or 
transferring military range, the Department of Defense must first 
consider the explosives safety risks inherent in locating, 
investigating, evaluating, and responding to military range areas where 
military munitions are known or suspected to be present. The explosives 
safety risk is equally great regardless of whether military munitions 
(including UXO) or other constituents are being addressed in the 
response action. Response personnel, even those specially trained to 
deal with the explosives safety hazards associated with military 
munitions, must not be exposed to an unreasonable explosives safety 
risk in order to address less compelling environmental concerns. The 
risk to response personnel increases as the density of military 
munitions, e.g., UXO, increases. Additionally, rough terrain and thick 
vegetation restrict visibility and mobility, thereby substantially 
increasing the explosives safety risks associated with response 
activities. Response activities are made more difficult and dangerous 
because technology is not yet sophisticated enough to ensure positive 
detection, identification, and subsequent removal of all military 
munitions in any given area.
1. Safety
    The Department of Defense is committted to the management of safety 
risks associated with exposure of the public and clearance personnel to 
military munitions. As discussed throughout this rule, the explosives 
safety risks from locating and clearing unstable materials such as UXO 
are very high. The investigation and restoration activities associated 
with other constituents present similar risks, as they usually occur in 
areas that also contain UXO. The Department of Defense is the 
recognized expert in the management of these risks. Federal, State, and 
local regulators typically seek DoD's expertise in safely managing 
military munitions and other ordnance discovered at non-DoD sites. 
Unless the explosive risk is first eliminated or at least reduced, 
catastrophic injury or fatalities may result from any response 
activity.
    Typical military munitions/UXO on military ranges may include: 
bombs (up to 2,000 pounds), artillery, mortar, aircraft cannon, or 
tank-fired projectiles (20-millimeter through 16-inch), dispensed 
munitions, submunitions, rockets, guided missiles, grenades, general 
demolition materials, bulk explosives, pyrotechnics, torpedoes, mines, 
small arms ammunition, and chemical munitions. Military munitions are 
designed to be safe during storage, handling, and transportation. The 
fuzes used with these items also have built-in safety features to 
preclude arming of the munition until actual employment (firing, 
placing, etc.) of the item. It is not until after the munition has been 
employed and failed to function (totally or in part) that it becomes 
UXO.
    Although the fuze is the most sensitive portion of the UXO, the 
filler may pose an even greater danger to human health and the 
environment. By their nature, high-explosive fillers present risks. 
Explosives may deteriorate over time to form sensitive crystals that 
could detonate if subjected to heat, shock, or friction. Chemical 
munitions contain chemical agents that present additional safety risks. 
High-explosive fillers, deteriorated explosives, and chemical munitions 
are a few examples of military munitions where the filler itself 
requires special safety consideration, even if the fuzing mechanism is 
no longer capable of firing.
    Fuzes are designed to initiate a train of fire or detonation in 
ordnance by an action such as mechanical or electronic timing, 
electrical or mechanical energy, impact, radar, chemical, pyrotechnic, 
hydrostatic pressure, etc. Once safety devices (such as safety pins, 
safety blocks, and arming wires) are removed, a fuze can require one or 
more of the following forces to fully arm: acceleration, deceleration, 
setback, or centrifugal force. EOD personnel cannot visually determine 
if a fuze is armed. Therefore a fuze must be considered armed and ready 
to fire if the right force is applied. For example, a clockwork 
mechanism fuze that has armed but failed to function contains a firing 
pin under spring tension which, if disturbed, could fire. Also, many 
military munitions pose even more serious risks because they have a 
secondary system that will, should the munition fail to operate as 
intended, detonate the munition if it is disturbed in any way.
    Addressing the unique problems associated with UXO on military 
ranges requires that knowledgeable UXO personnel and specialized safety 
procedures be used. The acute hazard associated with the presence of 
armed and potentially deadly UXO is the primary factor that drives the 
sequence of investigative and remedial actions. In essence, acute 
safety concerns direct and determine the sequence of site activities. 
Once the explosives hazards are identified and addressed, further 
response actions may occur. In some cases, normal activities may be 
delayed (e.g., drilling monitoring wells in UXO areas), or additional 
requirements may have to be met (e.g., UXO surface

[[Page 50802]]

clearance, followed by downhole magnetometry at regular intervals to 
detect subsurface ordnance present in the area where a well is being 
drilled). The most acute risk is to the response personnel who come 
near the UXO. In some cases, the risk may be so high as to preclude a 
clearance action.
2. Current Technological Capabilities
    a. Military munitions/UXO detection: Military munitions detection, 
which is often referred to as ordnance detection, has been undertaken 
since the first military munitions were found on the battlefield. The 
clearing of military munitions requires personnel to have the 
capability to safely and precisely locate these items regardless of 
whether they are lying on the surface, covered with heavy overgrowth, 
buried deeply in the soil, or located underwater and potentially buried 
in the sediments.
    Several recent tests and evaluations have identified shortfalls in 
UXO detection technology. Detection technologies can be hampered by the 
depth of penetration of the munition. The penetration depth is 
dependent on the munition's velocity upon impact, size, weight, shape, 
angle of entry, and the type and composition of soil. Obvious physical 
signs made by military munitions, such as entry holes, are quickly 
erased by natural weather processes or are often destroyed by other 
impacting ordnance. The growth of grass and brush compound the problem 
by covering munitions lying on the surface. Since many of the ranges 
covered by this proposed rule have not been active for many years, 
vegetation often hinders the ability to detect the munitions. Methods 
to address the problems of dense vegetation, such as deforestation and 
controlled burns, can cause other environmental problems. Underwater 
items often are buried by silt or covered with marine growth. In 
addition, military munitions on water ranges can be greatly affected by 
coastal storms and tidal actions that can immerse the military 
munitions in a bed of sediments or uncover military munitions that were 
previously embedded in sediments. Furthermore, the depth or condition 
of a water range may make analysis, much less retrieval, effectively 
impossible, or may pose an unreasonable risk to the health and safety 
of range response personnel.
    In summary, items that affect UXO detection include: munition size, 
composition, depth, and orientation; soil composition and geology; 
vegetation and terrain; and background interference from metal scrap. 
Strides will have to be taken to eliminate the high degree of 
uncertainty associated with UXO detection. Safe clearance operations 
require technologies that can detect and determine the precise location 
of a broad spectrum of military munitions in a wide variety of soil and 
surface conditions, both on land and under water. Safe clearance 
operations also require the capability to internally examine items to 
identify hazardous contents, including fuzing as well as filler 
material.
    Detection and location of military munitions depend primarily on 
the ability to distinguish their physical characteristics from those of 
the surrounding environment. Characteristics that have the most impact 
on the effectiveness of current detection and removal technologies 
include the materials used in the ordnance case, fuzing, and filler. 
The majority of casings are constructed of ferrous (i.e., iron-
containing) metal. Nonferrous metals and plastics, however, are used 
for some submunitions and land mines. Nonferrous military munitions 
make detection much more difficult and subsequent clearance more 
dangerous. Fuzing systems include combinations of ferrous and 
nonferrous metals, plastics, electrical circuits, and small amounts of 
explosive materials. Filler materials include a variety of high 
explosives, chemical agents, pyrotechnics, and inert items such as 
concrete and sand.
    Common methods used to detect military munitions include visual 
searches, magnetometers, electromagnetic induction (metal detectors), 
and ground-penetrating radar (GPR). A visual search for military 
munitions is restricted to the surface and often is hindered by 
vegetation and terrain. Magnetometers are the most commonly used form 
of detecting military munitions below the surface and can be adapted 
for underwater use. Low-sensitivity magnetometers have a limited depth 
of detection capability, while high-sensitivity magnetometers have a 
large number of false detections. Magnetometers can only detect 
munitions that contain ferrous metal. Metal detectors can locate both 
ferrous and nonferrous metallic objects and can be adapted for use 
under water; however, metal detectors can only detect munitions that 
are located very near the surface. GPR can collect rough images of 
buried metallic and nonmetallic munitions, but its effectiveness is 
severely limited in certain soil conditions. In general, the material 
used in the construction of military munitions, the munition's size and 
depth, and the soil's composition all affect the effectiveness of 
available technology.
    (1) Advanced technology demonstrations. Congress authorized and 
appropriated funding in fiscal years 1993 to 1995 to conduct unexploded 
munition technology demonstrations. In response, the U.S. Army 
Environmental Center established the UXO Advanced Technology 
Demonstration (ATD) Program with technical support from the U.S. Naval 
EOD Technology Division. The objective of this program was to evaluate 
and identify innovative, cost-effective, commercially available systems 
for the detection, identification, and removal of UXO. These 
demonstrations have established a technology baseline for UXO detection 
and removal. In addition, the ATDs have progressively monitored state-
of-the-art UXO technology advancements.
    There are four separate and distinct projects associated with the 
multiyear Congressional funding:
    (1) Jefferson Proving Ground (JPG) Phase I ATD, conducted during 
summer 1994.
    (2) JPG Phase II ATD, conducted during summer 1995.
    (3) Live Site ATDs, conducted during summer 1995.
    (4) JPG Phase III ATD, conducted during summer and fall 1996.
    The JPG Phases I through III ATDs were conducted at a controlled 
test site, which contained numerous types of inert ordnance precisely 
located at various depths and orientations. The Live Site ATDs were 
conducted at five sites across the United States that contained live 
ordnance. Commercial companies were invited to demonstrate their 
system's ability to detect, characterize, or remotely excavate UXO.
    To date, more than 60 technologies have been demonstrated and 
evaluated as part of the ATD program. The demonstrators represented 
airborne, ground vehicle, and man-portable platforms; magnetometer, 
GPR, electromagnetic induction, and infrared sensors; target processing 
software; and excavation technologies.
    To date, technology performance ATD results have shown systems 
exhibiting ordnance detection capabilities ranging from 0-85%. JPG 
Phase III results, although not yet published and released, once again 
indicate increased detection performance. While commercial technology 
has exhibited less than desirable capabilities (especially evidenced 
during JPG Phase I), private industry has made strides to identify 
technology performance weak points. Phases II and III show evidence of 
increased private industry teaming efforts, commercial research and 
development efforts, and clearer understanding of government needs.

[[Page 50803]]

Combined, this translates into enhanced systems and capabilities. 
However, throughout all ATDs, UXO detection technology continues to 
exhibit extremely high false alarm rates and minimal or no 
discrimination ability. Systems are unable to determine if a detected 
anomaly is ordnance or a piece of scrap metal. For example, if 100 
ordnance items are located on a range scheduled for remediation, a 
technology may be able to detect 85 of the 100 UXO items. However, the 
demonstrator would also falsely identify over 200 other locations. For 
excavation purposes, this translates into many empty holes and 
unnecessary excavation.
    (2) Other assessments of UXO technology. The Army Corps of 
Engineers recently evaluated UXO detection technology applications at 
33 specific sites. The Army Corps of Engineers stated that, in general:

    [T]hree [main types of UXO sensor] technologies [(magnetometry, 
infrared, and ground-penetrating radar)] for the detection and 
location of [UXO] tend to dominate. While other evolving technology 
is promising, there is considerable development yet remaining. The 
most important observation, however, is that there is no single 
technology that can accomplish this task unambiguously. For all 
their merits, neither magnetometers, GPR, nor [metal detectors] 
alone can assure more than a modicum of success probability. While 
each is a powerful technology with distinct advantages, none has the 
breadth of capability to interpret all of the phenomena that are 
typically encountered in the search for [UXO]. This includes the 
capability to discriminate [UXO] from background artifacts, the 
ability to resolve individual entities below-ground, and the ability 
to determine depth below the surface independent of 
geology.3

    \3\ U.S. Army Corps of Engineers, ``Sensor Technology Assessment 
for Ordnance and Explosive Waste Detection and Location,'' page 134 
(March 1, 1995).
---------------------------------------------------------------------------

    Of the 28 systems the Army Corps of Engineers evaluated, only 5 
were rated above average. Four were rated as average, while 19 were 
rated as below average. The Army Corps of Engineers concluded that 
``the vast diversity of ordnance * * * coupled with the very nature of 
its designed use * * * renders the detection and location of [UXO] a 
very difficult task.''
    Additionally, the DoD Inspector General has reviewed UXO detection 
technologies and stated that ``the technology currently employed to 
detect and remove ordnance is primitive and labor intensive.'' 
4 In a 1994 report, the DoD Inspector General stated:

    \4\ The Department of Defense, Inspector General, Memorandum for 
Deputy Under Secretary of Defense (Environment Security), ``Review 
of Policies and Procedures Guiding the Cleanup of Ordnance on 
Department of Defense Lands,'' page 35 (November 22, 1994).
---------------------------------------------------------------------------

    To date, there has been limited success in identifying UXO on or 
near the cleared surface. Detecting and identifying UXO underground 
present a much greater challenge * * *. We found that relatively 
primitive detection and ``pick and shovel'' removal methods are 
typically used for ordnance and explosive waste cleanup. The basic 
approach is to remove as much vegetation as possible, mark off 
grids, then use crews with hand held magnetometers to ``sweep'' the 
area. The magnetometers will detect any metal to a maximum depth of 
approximately three feet. When a metal object is detected, it is 
exposed by careful hand excavation. Most of the objects identified 
through that procedure are simply non-explosive scrap metal. 
However, when UXO is found, it is either destroyed in place or 
removed to a safe location for destruction. Those procedures are 
usually labor intensive and thus very expensive. The dangerous 
nature of the work requires the use of highly trained Explosive 
Ordnance Disposal personnel.5
---------------------------------------------------------------------------

    \5\ The Department of Defense, Inspector General, Memorandum for 
Deputy Under Secretary of Defense (Environment Security), ``Review 
of Policies and Procedures Guiding the Cleanup of Ordnance on 
Department of Defense Lands,'' page 35 (November 22, 1994).

    The Inspector General concluded that UXO cleanup operations were 
``relatively simplistic, labor intensive, sometimes environmentally 
disruptive, and expensive.'' 6 Thus, despite the efforts 
placed on developing effective detection technology, UXO detection 
technology cannot currently support a totally efficient response 
effort.
---------------------------------------------------------------------------

    \6\ The Department of Defense, Inspector General, Memorandum for 
Deputy Under Secretary of Defense (Environment Security), ``Review 
of Policies and Procedures Guiding the Cleanup of Ordnance on 
Department of Defense Lands,'' page 42 (November 22, 1994).
---------------------------------------------------------------------------

    b. Clearance technology and activities: In earlier years, military 
munitions generally were detonated in place. Even now, detonation in 
place is a primary response when moving a munition presents a safety 
risk. Section IV.C.1 of this preamble, Safety, describes some of the 
basic elements that affect the explosives safety risk of UXO. To 
accomplish range clearance, a series of complex detection and location 
tasks must be undertaken, such as locating surface and subsurface 
objects, distinguishing if the object is or may be a munitions item, 
and identifying the type of device and the type of filler used. Once 
located, there are two types of clearance methods available: point 
recovery and area recovery. Point recovery relies heavily on 
technologies to locate possible ordnance items and uses current 
construction, mining, and drilling technologies to unearth the detected 
objects. Area recovery is the removal and sifting of all soil to a 
certain depth, utilizing heavy equipment to remove ordnance items and 
debris.
    The safe excavation of buried military munitions requires the 
removal of large quantities of soil. As the clearance depth increases, 
fewer military munitions are found, but the items that are found 
typically contain large amounts of explosives. The precise location of 
the buried items becomes more difficult, so their recovery often 
becomes a major excavation effort. Both methods are labor intensive, 
time-consuming, and expensive. They also present a high risk of injury 
or death to clearance personnel due to the larger amounts of explosives 
in the buried munitions. Results from the demonstration at JPG showed 
that robotic excavation of located UXO is feasible. Robotic responses 
are time-consuming, however, and could have a significant adverse 
impact on the speed of response operations if a large quantity of UXO 
requires excavation.
    c. Other constituents: This rule addresses military munitions and 
other constituents on a military range. The Department of Defense 
recognizes that other constituents include materials that are uniquely 
military in nature. EPA has not established a scientific environmental 
baseline relative to fate, transport, and toxicological impact of these 
materials, or the degradation products on the environment. Although 
some scientific data have been collected on some of these materials on 
a site-specific basis, these data cannot be directly extrapolated to a 
national risk analysis profile. The Department of Defense will need to 
gain a better understanding of the adverse environmental impact, if 
any, of these uniquely military materials through ongoing research and 
development. In order to ensure the most effective response to other 
constituents that are uniquely military materials on ranges, the 
Department of Defense will prepare and implement an overall technology 
research and development plan based on information needed to complete 
the range hazards analysis and range response prioritization.
3. Technology Development
    The Department of Defense recognizes the potential negative 
environmental impacts presented by UXO and is committed to reducing the 
quantity of UXO generated to the greatest extent possible. This 
commitment is evidenced across the life-cycle management of military 
munitions. The UXO reduction effort begins during the design phase of

[[Page 50804]]

new munitions, where attempts to produce ``green munitions'' by 
eliminating toxic components are underway. Significant research and 
development efforts are also underway to find environmentally 
acceptable ways to dispose of or destroy munitions at the end of their 
life cycle. For example, the Department of Defense now is fielding a 
UXO tracking system based on geo-prepositioning technology. This 
tracking system is designed to provide range managers with the 
location, type, and quantity of UXO and will assist them in reducing or 
eliminating unidentified UXO during routine range sweep operations. 
Finally, fully recognizing the limits of current technology to reliably 
find subsurface UXO, the Department of Defense is committing resources 
to develop, in concert with the private sector, new and emergent 
technologies that will improve the ability to locate and eliminate UXO. 
Therefore, the Department of Defense sees a pressing need for 
additional research in these areas. This is particularly true when 
safety considerations prevent entering the range to conduct site-
specific investigations of other constituents or when the available 
methods to address UXO, such as a large-scale excavation, are known to 
have serious environmental impacts.
    While detecting, approaching, detonating, and even in some cases 
excavating and moving UXO is possible, the process for assessing ranges 
and for evaluating alternatives for site-specific responses provides 
only limited opportunity for technological advancement. Due to the 
current need for advancement in these areas, both here in the United 
States and throughout the world, the Department of Defense believes 
that there must be a commitment to conducting research and technology 
development in these areas separate from the actions being taken at 
specific ranges. Since fiscal year 1993, Congress authorized and 
appropriated $25 million for a DoD program at JPG to identify and 
demonstrate the ``state-of-the-art'' in UXO detection and remediation 
technologies. The JPG program did establish what state-of-the-art 
detection technology existed and highlighted areas in need of future 
development. Congress has authorized and appropriated an additional $5 
million (beginning in fiscal year 1997) to continue the ATD Program, 
JPG Phase IV.
    Opportunities to evaluate and implement new technologies can occur 
anywhere from range assessments to recurring reviews. The Department of 
Defense is soliciting recommendations on means to integrate research 
and technology development into the range response program as outlined 
in this proposal.
    Realizing that the only true way to eliminate UXO is to reduce the 
use of live munitions, the Department of Defense is focusing additional 
efforts on greater use of simulators, practice munitions, or less-than-
lethal technology to reduce the quantity of UXO being introduced on 
active ranges. It is a fact, however, that to prepare for war, the 
nation's servicemen and women must train with live munitions. The 
Department of Defense has therefore committed to minimizing to the 
greatest degree possible the introduction of UXO into the environment 
through aggressive range management practices.
4. Magnitude
    Military munitions have been expended in the United States since 
pre-Revolutionary War times. Employment of military munitions has 
always led to some percentage of the munitions not functioning as 
intended, resulting in the presence of UXO. Through the end of the 
1800s, the bulk of military munitions was expended in the United States 
during armed conflicts. Although no battles other than in Hawaii, 
Alaska, Guam, and several other territories have been fought on U.S. 
soil in the 20th century, military training and weapons development to 
deter and prepare for armed conflicts have resulted in the presence of 
military munitions at ranges throughout the country. During both World 
Wars, extensive defenses were established along the Atlantic and 
Pacific coasts. Many of the military installations established to train 
and support U.S. armed forces during World War II continued to use 
military ranges throughout the Cold war era. As the extent of the U.S. 
military force's structure varied throughout the 20th century, military 
installations have expanded or decreased operations, and some have 
ceased operating entirely.
    a. Transferred ranges: Many transferred ranges are a subset of 
FUDS, but not all of them qualify for the FUDS program. The FUDS 
program has identified approximately 8,000 former DoD properties. Of 
these, fewer than 1,000 have the potential to be classified as 
transferred ranges. The largest amount of acreage affected resides on 
the 169 sites identified on DOI-controlled lands. The current estimate 
is that more than 7 million acres of DOI property potentially contain 
military munitions. A large number of these DOI sites are suspected of 
having been used as military ranges during the World War II era. The 
Department of Defense may identify transferred ranges through archive 
searches, aerial photography, interviews with past employees, and other 
available sources of documentation.
    b. Transferring ranges: Transferring ranges are frequently the 
result of closure decisions under BRAC. The Department of Defense also 
leases properties from other parties for use as military ranges. When a 
decision is made to terminate a lease, the affected range will be 
classified as a transferring range. In addition, the Department of 
Defense can excess property that may contain military ranges. However, 
the Department of Defense has established policies over the past decade 
to prevent the release from DoD control of additional properties 
containing military munitions that may pose risks to the public.
    c. Closed ranges: Closed ranges are located on active military or 
National Guard installations. Military ranges on active military 
installations can be divided into three categories: active ranges that 
are currently being used to train or test military munitions; inactive 
ranges that are being kept in the range inventory in case conflict 
would break out requiring an increased level of training in the future; 
and closed ranges that are no longer needed for training or testing by 
the military and have been converted to an incompatible use. The 
Department of Defense began to keep records of inactive and active 
ranges in the mid-1970s. The Department of Defense recognizes the need 
to identify and maintain an inventory of closed ranges. The Department 
of Defense may identify closed ranges through archive searches, aerial 
photography, interviews with past employees, and other available 
sources of documentation.

D. Overview of the Range Response Process

1. Introduction
    Addressing the unique problems associated with military munitions 
and other constituents on military ranges demands an approach that 
modifies the one taken under the CERCLA response and RCRA corrective 
action programs. The most significant reason for this difference is the 
absolute need to minimize explosives safety risks in planning, 
conducting, and implementing response actions. This is because the 
acute hazards associated with military munitions (especially UXO) are 
the primary factor driving the scope, sequence, and types of actions 
that are possible on the range. These concerns are unique to military 
ranges

[[Page 50805]]

in that most actions on CERCLA response or RCRA corrective action sites 
do not need to consider an explosion hazard posed by the presence of a 
munition or explosive. For example, installation of a monitoring well 
at most CERCLA sites does not require surveying the access route for 
buried military munitions or conducting a magnetometer survey as the 
well is drilled. Another example where range responses require a 
different approach is in balancing the risks and impacts of addressing 
the military munitions and/or UXO and other constituents against the 
risks involved in not taking an action. Minimizing explosives safety 
risks while achieving the proper balance between these competing 
concerns is the goal of the program described in this proposal.
    The requirements of 10 U.S.C. 172, DERP, and CERCLA to respond to 
environmental risks at ranges provide a basis for the Department of 
Defense to develop a response program that addresses the same factors 
as are applied at CERCLA response or RCRA corrective action sites where 
military munitions or UXO are not present, but with a different and 
overarching emphasis: to protect not only the public and environment in 
general but the response personnel as well. In developing this 
proposal, the Department of Defense sought to be as consistent as 
possible with the overall process used in CERCLA response and RCRA 
corrective action programs. In taking this approach to developing this 
proposed rule, the Department of Defense drew not only on its 
experience and expertise with respect to ranges but also on its own 
experience with site investigation and response under CERCLA response 
and RCRA corrective action. Further, the Department of Defense drew on 
the experience of other Federal agencies. One very important source was 
EPA's own reviews of, and recommendations for improving, the CERCLA 
response and RCRA corrective action programs.
    In developing the response process for military ranges described in 
this proposal, the Department of Defense established the following 
basic parameters. First, the process must minimize explosives safety 
risks; protect human health and the environment; and directly include 
the public, American Indian tribes, and appropriate Federal and State 
agencies by seeking their active participation throughout the process. 
Second, the process should focus on informed risk management decision-
making and risk management actions rather than protracted study. Third, 
the process should, where possible, draw on the lessons learned in the 
CERCLA response and RCRA corrective action programs, and incorporate 
into its basic approach the recommended changes to improving those 
programs.
    The Department of Defense is developing, in consultation with other 
Federal agencies, a conceptual time frame to establish timeline goals 
for beginning the first two phases of the range response process. The 
Department of Defense expects this conceptual time frame to be included 
in the final rule. See also Sec. 178.6(a). Conceptual time frames for 
the later three phases will be made publicly available when developed.
2. Program Overview
    The process for addressing military ranges has five basic phases. 
These are: (1) Range identification, (2) Range assessment/accelerated 
response (RA/AR), (3) RE/site-specific response, (4) Recurring review, 
and (5) Ending the range response action. A graphical portrayal of the 
process appears in figure 1, DoD Range Rule Process Overview. The 
demarcations between the phases are mostly for discussion purposes and 
are not distinct starting and stopping points. A military range 
addressed through this process can fall into more than one phase at any 
given time, depending on site-specific considerations.

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    The process for conducting response actions at military ranges 
integrates site assessment functions into a process that allows for an 
informed decision on how to best manage the risks posed by military 
munitions and other constituents at the range. Furthermore, the range 
response process as outlined in this proposal relies heavily on taking 
prompt action to address risks. One of the principal ways the range 
response process will achieve this is through implementation of ARs. 
ARs use readily available means to address the identified risks posed 
by UXO or other constituents (e.g., access controls, techniques to 
reduce the migration potential of other constituents), while continuing 
the assessment of the range to determine the need for subsequent 
actions, such as detailed studies or implementation of more complex 
solutions. Under this process, the decision whether to carry out an AR 
occurs as soon as there is enough information showing that conditions 
warrant such action. Further assessment of range conditions would focus 
on gathering additional data to assess the effectiveness of the AR, as 
well as on identifying other problems. Any further assessment must 
support decisions on how to address the identified risks remaining at 
the site. Should site conditions suggest a need for additional studies 
or responses, these can take place either through continuation of the 
RA/AR phase or, if these studies or actions require long periods to 
conduct or implement, by proceeding to the RE/site-specific response 
evaluation (SSRE) phase.
    As can be seen from the overview flowchart in figure 1, the 
Department of Defense is providing the public, American Indian tribes, 
and regulatory agencies opportunities for involvement or access to 
information at every step of the process. The Department of Defense 
sees early and frequent interaction with the public and government 
agencies (including American Indian tribal governments) as essential to 
the success of this process, as it not only enhances risk management 
decisionmaking but also helps prevent disputes over the actions taken. 
Emphasis is placed on public, regulatory agency, and American Indian 
tribal involvement throughout the process.
3. Programmatic Concepts
    a. Public and government agency involvement: In this proposal, the 
Department of Defense has committed to involving the public and 
government agencies throughout the range response process. The process 
provides for this involvement through widely accepted mechanisms such 
as public notice and comment periods, public meetings, and public 
availability of information. It also expands on these basic mechanisms 
through making information on each range as readily accessible to the 
public and government agencies as is practical, and by offering 
opportunities for public, government agency, and American Indian tribal 
interaction directly with the project team conducting the response. 
Where public interest is sufficient, the public will be involved 
through implementation of a public involvement plan (PIP) that is not 
inconsistent with CERCLA.
    There are several mechanisms that the Department of Defense intends 
to use to involve the public, Federal and State regulators, American 
Indian tribes, and other Federal agencies in the range response 
process. These mechanisms are not inconsistent with the public 
participation requirements under the CERCLA program and, as with 
CERCLA, occur at various points in the process. In general, these 
requirements (described in greater detail later in this proposed rule) 
seek to: (1) Make information on response activities publicly 
available; (2) keep the public and appropriate Federal, State, and 
local agencies and American Indian tribes aware of planned and 
completed actions; (3) solicit written comments from the public and 
government agencies on proposed actions, and provide a responsiveness 
summary for public comments before the final decision to proceed; and 
(4) provide an opportunity for concurrence by the appropriate Federal 
and/or State environmental regulatory agencies, American Indian tribe, 
and Federal land manager. The responsible DoD component will also be 
responsible for operating an information repository where the public 
will have access to releasable documents. An administrative record for 
all actions will be included in the information repository.
    As part of its effort to provide for meaningful regulator and 
public participation in the site-specific range response process, the 
Department of Defense will provide a technology education program to 
assist regulators, American Indian tribes, and the public in obtaining 
a layperson's understanding of the complex subject of UXO detection and 
removal technology. The objective of the program is not to make the 
participants experts in the science of UXO detection and removal 
technologies, but rather to increase their general knowledge. At the 
RA/AR phase, the responsible DoD component will provide an explanation 
of available UXO detection and remediation technologies to the 
Restoration Advisory Board (RAB) or Extended Project Team (EPT). This 
program will consist of a focused presentation (2 to 8 hours in 
duration) on current UXO detection and removal technologies and, if 
necessary, technology update presentations (2 to 4 hours in duration) 
to capture significant technology advancements that have been made 
since the initial presentation. The program's objective will be to 
increase the participants' general understanding of the science, its 
capabilities and its limitations.
    In addition to these means for involving the public and government 
agencies, the Department of Defense also is examining other mechanisms 
for making information readily accessible. First, as part of the 
identification phase of the range response process, the Department of 
Defense will identify an official point of contact (POC) for each range 
addressed under these provisions. Whenever there is an inquiry by the 
public, a tribe, or a Federal, State, or local agency, the POC will be 
responsible for providing any relevant and releasable information, or 
for providing a formal written response explaining in detail why that 
information was not provided.
    Second, the Department of Defense plans that the information 
contained in the range inventory and tracking system to be established 
under the provisions of proposed Sec. 178.6(a)(1) will be readily 
accessible to the public, possibly including via the internet. The 
Department of Defense is also examining the practicality of making 
information about specific ranges (e.g., reports, updates, decision 
documents) available through this same venue. In the final rule, the 
Department of Defense will specifically address the types of 
information that will be available through the internet and how to 
obtain it.
    Third, as part of the identification phase, the Department of 
Defense proposes that it will submit for inclusion in the permanent 
land record at the local jurisdiction level for a parcel of land 
identified as a closed, transferred, or transferring range, a formal 
notice addressing: (1) The identification of the parcel of land as a 
known or possible military range, including the unique identifier and 
common name assigned to that range; (2) a statement that the land may 
have been a military range; (3) a statement about the potential hazards 
associated with military ranges; (4) the DoD component to contact for 
additional information. As the range progresses through the range 
response process, the

[[Page 50809]]

Department of Defense will append summaries of information contained in 
formal decision documents to this notice.
    Where RABs exist or can be established, they will be utilized to 
involve the regulators, American Indian tribes, and the public in this 
rule's proposed process. If a RAB does not exist and sufficient 
interest to establish a RAB is not obtainable, a mechanism the 
Department of Defense is considering to involve the public and 
government agencies is the use of EPTs. When a RAB cannot be 
established, the Department of Defense will identify interested members 
of the community from the RAB solicitation process and seek support for 
the establishment of an EPT. An EPT is a highly focused subcommittee 
similar to a RAB.7 While most RABs address installation-wide 
remedial activities, an EPT is intended to involve the public and other 
agencies at the individual military ranges where response actions are 
planned and implemented. A primary objective of the EPT is to develop a 
common understanding of the scope and proposed approach to the upcoming 
range response activities. Under this concept, the EPT consists of the 
DoD staff and contractors responsible for planning, conducting, and 
implementing response actions at a specific range (i.e., the internal 
project team) 8; specific representatives of the public 
(where a RAB exists, EPT representatives would be nominated from the 
RAB; where a RAB does not exist, EPT representatives would be nominated 
from interested members of the community); specific personnel from 
Federal and State regulatory agencies (e.g., environmental regulatory 
personnel, as identified by their respective agency); and American 
Indian tribes and others with direct technical expertise or a 
significant interest in the results of the action.
---------------------------------------------------------------------------

    \7\ DERP, at 10 U.S.C.2705(d), states that the Department of 
Defense may permit the establishment of a restoration advisory board 
in connection with an installation (or group of installations) where 
[the Department of Defense] is planning or implementing 
environmental restoration activities.'' Since this proposed rule 
establishes a formal process for planning and implementing response 
actions at military ranges, creation of EPTs within existing RABs 
(or establishment of a RAB for this purpose) will be utilized to the 
maximum practicable extent and in accordance with DoD policies and 
guidance on the establishment of RABs.
    \8\ The project team consists of the responsible DoD component 
and, as appropriate, the Federal land manager(s). Federal land 
managers will have direct access to information through the project 
team. The project team will have meetings, conference calls, and/or 
other methods to ensure regular communication and input. The project 
team is responsible for:
    (1) Scoping of the response action, including but not limited 
to, problem definition, establishing data quality objectives, 
selection of response alternatives for evaluation, and project 
planning.
    (2) Preparing all necessary planning documents for conducting 
the response.
    (3) Preparing all reports (including recommendations on 
appropriate responses) and decision documents related to the 
response.
    (4) Managing the project for purposes of assignment of 
responsibilities to any subteams, budget, procurement, allocation of 
resources, and resolution or elevation of disputes.
    (5) Coordinating response activities with the EPT, the RAB, or 
other forums for public involvement.
---------------------------------------------------------------------------

    EPT meetings should provide opportunities to: (1) Communicate the 
initial understanding of the range and the project team's initial 
approach for planning and conducting a response; (2) identify issues of 
concern; and (3) solicit viewpoints. The success of an EPT depends 
largely on the commitment of all the parties to consistent and 
continued involvement. With such a commitment, the EPT becomes the 
primary forum for presentation and discussion of identified problems, 
recommended solutions, and unresolved concerns to the public and the 
other Federal or State agencies. Through this exchange, the Department 
of Defense can address public, government agency, and tribal concerns 
as the response process proceeds, rather than at its conclusion. The 
Department of Defense believes that the use of EPTs not only will 
foster mutual exchange of ideas, concerns, and technical information at 
the working level, but also will allow DoD decision-makers the 
opportunity to redirect planned response actions as necessary before 
committing to a course of action. The Department of Defense will also 
consider other forums for public involvement as the specifics of the 
site and the interest of the community dictate. The EPT will be 
conducted in a manner that is consistent with the final published rule 
on RABs, which was proposed on August 6, 1996 (61 FR 40764-40772) and 
is planned to be published in calendar year 1997.
    In Sec. 178.14 of this proposed rule, a concurrence role is 
included for Federal and/or State environmental regulatory agencies, 
American Indian tribes, and Federal land managers when a response will 
be conducted on a closed, transferred, or transferring range under 
their jurisdiction, custody, or control. The concurrence role 
specifically applies to Federal and/or State environmental regulators, 
American Indian tribes, and Federal land managers, as appropriate. 
Regulatory agencies are given a concurrence role because other 
regulatory authorities may apply to a military range. Federal land 
managers are given a concurrence role due to the independent statutory 
authorities they have pertaining to lands under their jurisdiction, 
custody, or control. American Indian tribes are a given a concurrence 
role in order to provide them with substantially the same role as 
States. Specifically, the Department of Defense will seek review of and 
concurrence on the draft decision document identified in Sec. 178.14(d) 
in this proposed rule. In addition, the Department of Defense will seek 
concurrence on the RA work plans identified under Sec. 178.7(b)(2). 
Technical impracticability (TI) and no further action determinations, 
as well as requests for applicable or relevant and appropriate 
requirements (ARAR) waivers, will be contained in the draft decision 
document appropriate to the specific response phase underway, and thus 
will be provided for review and concurrence. Procedures for ARs 
described in Sec. 178.7(e)(4) are not inconsistent with time-critical 
removals taken under CERCLA, and the Department of Defense intends to 
apply the same administrative procedures as those that are applicable 
to CERCLA time-critical removals. However, the Department of Defense 
does not intend to ask for concurrence on these AR decision documents, 
but does intend to make them available for comment.
    Section 178.14 provides for document review times of 45 days. This 
will allow the response process to progress more rapidly. Additionally, 
Sec. 178.14 of this rule encourages the use of site-specific or area-
wide agreements between the Department of Defense and Federal or State 
environmental agencies, the Department of Defense and American Indian 
tribes, or the Department of Defense and Federal land managers. These 
agreements may modify, upon mutual agreement of the parties, the review 
times and dispute resolution procedures, as well as cover other 
pertinent issues. If nonconcurrence is received, then dispute 
resolution will be invoked. If no written response is received by the 
responsible DoD component within the established review period 
(including extension, if applicable), then the responsible DoD 
component may proceed with a range response action or invoke the 
dispute resolution process, or both.
    The Department of Defense requests comment on the general 
mechanisms described for involving the public and government agencies 
and seeks specific comments on establishing EPTs. The Department of 
Defense requests that commentors provide specific recommendations on 
mechanisms to identify public and government agencies that might be 
interested in

[[Page 50810]]

participating in EPTs, especially groups that represent the public.
    b. Development of a risk assessment model for use at ranges: The 
Department of Defense recognizes that there is an urgent need to 
develop a risk assessment model for military ranges in order to carry 
out the requirements of these regulations. Although there are already 
several risk assessment models for ranges under various stages of 
development, none comprehensively address the risks posed by both 
military munitions and other constituents. In implementing these 
provisions, the Department of Defense intends to develop a model or 
protocol that: (1) Addresses the risks posed by military munitions and 
UXO and (2) incorporates to the maximum extent possible the models EPA 
has developed for assessing the acute and chronic risks posed by 
releases at CERCLA and RCRA sites. The Department of Defense does 
recognize that completing this model/protocol by the promulgation date 
of this rule is a very ambitious objective. Should the Department of 
Defense not be able to finalize the risk model/protocol, an interim 
model/protocol will be put into place before the promulgation date of 
this rule. The Department of Defense will develop the model/protocol in 
consultation with EPA and also will seek input from Federal land 
managers, States, American Indian tribes, and the public in the 
development of the model/protocol. The Department of Defense will seek 
public input by publishing a notice of availability of the interim and/
or draft final version of the risk model/protocol. The notice will 
provide for public comment on this guidance document. Further, the 
Department of Defense plans to develop a streamlined version of this 
model/protocol to use as a screening tool, as EPA did with its 
streamlined version of the Hazard Ranking System (HRS) for screening 
sites during the CERCLA response process. This streamlined version will 
rely more on qualitative information than quantitative information. The 
primary use of this streamlined model/protocol will be to focus the RA/
AR process and to assess the need for implementing ARs. The decision to 
utilize the more detailed risk assessment model/protocol (versus solely 
the streamlined version) will be made by the Department of Defense in 
consultation with regulators and the RAB or EPT.
    In the explosives safety element of the model/protocol, the 
Department of Defense plans to consider the following types of factors:
    (1) The specific type(s) of military munitions employed on the 
range.
    (2) The quantity of each type of munition employed.
    (3) The fuze types used on these military munitions.
    (4) The density (i.e., spatial distribution) of UXO on the range.
    (5) The estimated depth of the military munitions (based on 
penetration data).
    (6) Public access to the range (i.e., likelihood of exposure of the 
public).
    (7) The terrain, vegetation, soil type, and climate.
    (8) Current and anticipated land use.
    In the other constituents element of the model/protocol, the 
Department of Defense plans to incorporate many of the factors 
considered in the HRS and EPA's ``Risk Assessment Guidance in Superfund 
(RAGS).'' In general, these models assess the risk posed by the site 
based on:
    (1) The identity and concentration of the constituents known or 
believed present at the site.
    (2) The environmental setting of the site (e.g., surface and 
groundwater features, soils and geology, terrain, climate, vegetation).
    (3) The human and environmental receptors potentially exposed at or 
near the site.
    (4) The exposure pathways of concern (e.g., direct contact, 
inhalation, ingestion).
    (5) The known or suspected acute and chronic hazards posed by 
exposure.
    (6) Current and anticipated land use.
    The Department of Defense requests recommendations on additional 
factors to consider in both the explosives safety and constituent 
elements of the model/protocol. Further, the Department of Defense 
solicits recommendations on whether it should integrate these 
explosives safety and environmental protection elements into a single, 
unified model.
    c. Technical impracticability: At a limited number of sites, the 
Department of Defense foresees that explosives safety concerns and 
limitations of existing UXO detection and destruction technologies may 
lead to consideration of site-specific remedies that are limited to 
institutional controls and monitoring. Institutional controls, such as 
fences or barriers to control public access, would be implemented to 
restrict access to unsafe areas and thereby limit the explosives safety 
risks and constituent threats to human health. Monitoring would be 
implemented to ensure that constituent releases do not migrate to where 
they pose unacceptable risks to human health and the environment. At 
other sites, safety and technical considerations may allow a limited, 
active response in conjunction with institutional controls and 
monitoring.
    A TI determination may occur during the site evaluation and 
response action process. An example where active response actions may 
not be technically practicable is a water range that may be too deep to 
allow investigation or implementation of an accelerated or site-
specific response using current technologies. Other conditions may 
exist at range sites where it is readily apparent that on-range 
response actions are technically impracticable due to explosives safety 
concerns or lack of adequate technology to address the site conditions. 
Where it is readily apparent, as in the deep water range scenario, that 
it is technically impracticable to implement active response actions, 
the Department of Defense may make a TI determination and approve only 
institutional controls without initial attempts to actively remove UXO 
from the range. Conversely, there may be range sites where the 
Department of Defense will extensively investigate and evaluate site 
conditions and feasible alternatives, implement active response 
actions, and subsequently discover that the site conditions render a 
particular type of response action technically impracticable due to 
explosives safety or technological limitation concerns.
    As discussed later in this proposed rulemaking, the Department of 
Defense proposes to use a range response process that is similar to the 
NCP process developed by EPA for sites addressed under CERCLA. In 
arriving at a TI determination, the Department of Defense proposes to 
develop a TI recommendation that would be included in the appropriate 
report for the applicable phase or stage of the range response process. 
The TI recommendation will address the specific information and 
analyses necessary to support a TI decision and recommendations for 
actions that may be needed to prevent deterioration of the 
environmental conditions at the site. These actions may typically 
include measures to prevent further environmental degradation, 
implementation of management and institutional controls, and 
continuation of adequate monitoring to ensure that constituent releases 
do not migrate from the range and that the constituents left in place 
do not pose a risk equal to or greater than the explosives safety risk. 
Reports supporting TI recommendations are subject to review and comment 
(see Sec. 178.14(c) of this proposal). Decision documents recommending 
TI determinations are subject to

[[Page 50811]]

concurrence (see Secs. 178.14 (d) and (e) of this proposal).
    The Department of Defense will seek regulator and American Indian 
tribe concurrence and will consider public comments received on the TI 
recommendation in deciding whether to approve a TI determination. The 
Department of Defense will issue a formal decision document if the TI 
recommendation is approved at the DoD level. A notice of availability 
for any report containing a TI recommendation will be published. The 
decision document for such a report, recommending a TI determination, 
will explain the basis for the decision, a synopsis of comments 
received and the Department of Defense's responses to relevant 
comments, any conditions required as part of the TI determination, and 
the frequency of subsequent periodic reviews (``recurring reviews'') to 
reevaluate the TI determination. (Recurring reviews are discussed in 
more detail later in this proposed rule.) The recurring review would 
determine if: (1) The control measures in place are functioning 
adequately, and (2) advances in UXO detection or destruction 
technologies can acceptably reduce the explosives safety risk posed to 
personnel entering the site. If the recurring review process indicates 
that the reasons for having issued the TI determination can be 
overcome, the Department of Defense will reevaluate the need to pursue 
additional response actions for the range sites. If practicable from a 
safety and technological viewpoint, the Department of Defense will 
implement the new response action based on advances in technology.
    The concept of TI determinations to forgo certain response actions 
due to safety or technological limitations is not novel. For example, 
although used in a different context and on a more limited scale, EPA 
has previously issued guidance on evaluating the technical 
impracticability of groundwater restoration at certain sites having 
hydrogeologic constraints or contaminant-related factors that severely 
impede the success of active restoration. (For an example, see Guidance 
for Evaluating the Technical Impracticability of Ground-Water 
Restoration, Interim Final, OSWER Directive 9234.2-25 9 
(September 1993)). Under appropriate conditions, EPA's guidance allows 
a waiver of Federal or State cleanup standards that otherwise would be 
normally required for groundwater restoration efforts under CERCLA. 
EPA's guidance also allows selection of alternative remedial 
technologies commensurate with the waiver of the cleanup standards. Due 
to the extreme safety risks associated with range sites containing UXO 
and the limited detection technology currently available for 
effectively locating UXO, the Department of Defense proposes to use 
EPA's TI waiver concept to implement appropriate and protective 
institutional controls and to periodically review the practicability of 
implementing additional response actions.
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    \9\ Copies of EPA's ``Guidance for Evaluating the Technical 
Impracticability of Ground-Water Restoration, Interim Final, OSWER 
Directive 9234.2-25'' (September 1993) can be obtained, at cost, 
from the National Technical Information Service, 5285 Port Royal 
Road, Springfield, VA 22161 (telephone 703-487-4650).
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E. Detailed Discussion of the Phases of the Range Response Process

    1. Identification of Closed, Transferred, and Transferring Military 
Ranges
    The first phase of the range response process is the identification 
of closed, transferred, and transferring ranges. In this phase, a list 
of the ranges subject to these requirements will be developed. Proposed 
Sec. 178.6, Identification of closed, transferred, and transferring 
ranges, defines the specific requirements for the identification phase 
of the range response process.
    a. Identification and establishment of a tracking system: In 
summary, upon the effective date of these regulations, the Department 
of Defense will undertake a coordinated effort to identify all land and 
water areas potentially subject to these provisions. This information 
will form a permanent record and centralized tracking system for 
closed, transferred, and transferring military ranges. Such a system 
provides a valuable tool for the Department of Defense's internal use 
in managing the program. Furthermore, the Department of Defense intends 
that the information in this tracking system be readily accessible to 
the public and other governmental agencies. As mentioned before, one 
alternative the Department of Defense intends to examine is whether the 
internet could serve as a means for public access to the tracking 
system.
    The Department of Defense believes the following information about 
each range is the minimum necessary to include in this tracking system:
    (1) A unique identifier for the range.
    (2) The common name for the range.
    (3) The status of the range (i.e., closed, transferring, 
transferred).
    (4) The name, address, and telephone number of a POC at the 
Department of Defense or Military Service organization with 
responsibility for implementing the range rule at that range.
    (5) The States and counties (including independent cities and 
towns) in which the range lies.
    (6) A representation or description of the range showing its 
location, boundaries, and areal extent.
    (7) The general type(s) of military munitions used on the range 
(e.g., artillery, small arms, naval gunnery).
    (8) A list of parties other than the Department of Defense or a 
military department with ownership interest in or governmental 
administrative control of the land or its resources.
    The Department of Defense requests comments on these basic 
information requirements, specifically with respect to recommendations 
for additional information to include in the centralized tracking 
system. In addition, the Department of Defense requests recommendations 
on other mechanisms for making this information accessible to the 
public. The Department of Defense plans to update the tracking system, 
including the priority assigned to each range, at least once per year 
to indicate which military ranges have entered the RA/AR phase and 
which ranges have been identified for entering the RA/AR next.
    b. Notices in official land records: This proposal makes use of 
current DoD recordkeeping practices. For example, permanent records are 
required for each range area. These records indicate known and 
suspected range areas, and identify military munitions used, their 
hazard, quantity, locations, and UXO rates. Another example is that 
transfer records are required to detail past ammunition and explosives 
use, provide information on other constituents present, and advise the 
user not to excavate or drill in range areas without a metal detection 
survey. This information is required to be entered in the permanent 
land records of the civil jurisdiction in which the property is 
located. To the extent to which any of these records are available for 
closed, transferred, or transferring ranges, they will be used in the 
range identification process.
    Following identification and collection of sufficient information 
about the location and boundaries of a range identified under these 
provisions, the Department of Defense will examine the appropriate land 
records. A formal notice in the official local land record for that 
range should include, at a minimum:
    (1) The proper legal description of the land that was or may have 
been used as a military range, including the unique

[[Page 50812]]

identifier and common name assigned to that range.
    (2) A statement that the land may have been a military range.
    (3) A summary description of the hazards commonly encountered at 
military ranges (e.g., UXO).
    (4) The DoD component to contact for additional information about 
that range.
    Upon analysis of additional information and the implementation of 
accelerated or site-specific responses, the Department of Defense will 
update this notice to reflect the current conditions at the range.
    c. Supply of information to Federal mapping agencies and State and 
tribal geographic information systems (GIS): The Department of Defense 
also plans to provide certain information on the ranges identified 
under these requirements to those Federal, State, and Native American 
tribal agencies charged with the development and distribution of 
official maps and charts. The Department of Defense will recommend that 
these agencies include in updates to these maps and charts a means of 
delineating these areas, as well as several pertinent pieces of 
information. This information includes the unique identifier for each 
range, the name of the DoD organization with responsibility for 
implementing these provisions on that range, and a brief statement of 
the potential hazards associated with entry into these areas. In 
addition, the Department of Defense requests comments as to whether 
this information would be useful to local governmental entities with 
mapping or zoning responsibilities or to private firms that prepare and 
print maps for public distribution. If the commentor believes this to 
be the case, the Department of Defense requests the commentor's 
recommendations on means to provide that information to those entities.
    d. Prioritization for range assessment/accelerated response: While 
the Department of Defense believes that, immediately following their 
identification, all ranges should enter the RA/AR phase of the range 
response process, current fiscal realities show a need for a system to 
determine the order in which ranges enter the RA/AR phase. Of the 
various approaches available, the Department of Defense believes that 
one consideration for ranking these ranges for entry into the RA/AR 
phase is the degree to which the Department of Defense or a Military 
Service can control access to the area, since this is one simple yet 
effective means of managing the potential risk posed by the range. 
Access control sets forth a basis for prioritization, but other 
environmental factors will be considered, such as imminent hazards, and 
the likelihood of release migration within 1 year.
    Based on the consideration of access controls and risk management, 
the first group of ranges that would be addressed are those already 
transferred from DoD control, because the Department of Defense has the 
least ability to exercise control over those areas. The second group 
would be the ranges planned or scheduled for transfer from DoD control; 
these ranges are still subject to DoD control, but failure to transfer 
the range in a timely manner can impact other activities, for example a 
land transfer under BRAC Act provisions. The final group will be those 
ranges that, while closed, are still under DoD control. The Department 
of Defense recognizes, however, that other factors may influence the 
need to conduct a response action. Therefore, in determining which 
ranges will enter into the RA/AR phase, the Department of Defense will 
consider factors relating to safety and environmental hazard potential, 
such as:
    (1) Whether a site access can be controlled and the population is 
at risk.
    (2) The potential for direct human contact and evidence of people 
entering into the range area.
    (3) Whether a response action has been or is being taken at that 
range under the FUDS program or other environmental restoration 
programs.
    (4) Planned or mandated dates for transfer of the range from DoD 
control.
    (5) Documented incidents involving UXO or off-range releases of 
other constituents from the range.
    (6) The potential for drinking water contamination.
    (7) The potential for destruction of sensitive ecosystems.
    (8) The potential for damages to natural resources.
    (9) The potential for releases to the air.
    (10) The degree of public interest in the range.
    (11) The degree of Federal land manager interest in the range.
    (12) The degree of state or Federal regulator or American Indian 
tribe interest in the range.
    The priority assigned to each range is another element the 
Department of Defense plans to include in the tracking system. The 
Department of Defense plans to update the tracking system, including 
the priority assigned to each range, at least once per year to indicate 
which military ranges have entered the RA/AR phase and which ranges 
have been identified for entering the RA/AR next. The Department of 
Defense solicits comments on this approach to prioritizing military 
ranges, with specific emphasis on other factors to consider when 
assigning a priority ranking to a given range.
    e. Public and government agency involvement: One of the basic 
requirements the Department of Defense established when developing this 
proposal was the commitment to involving the public and government 
agencies in each phase of the range response process. The responsible 
DoD component will work with the community to provide information 
concerning response activities, respond to inquiries, and provide 
information concerning the conditions at the range. The responsible DoD 
component will notify, at a minimum, immediately affected citizens, 
State and local officials, and, when appropriate, civil defense or 
emergency management agencies. During the identification phase, one of 
the primary goals is to ensure public access to information on each 
range subject to these requirements. The Department of Defense does, 
however, recognize an additional opportunity for public and government 
agency involvement during this phase. The Department of Defense 
proposes allowing public and government agency submission of documents 
identifying the location of closed, transferred, or transferring 
ranges. Upon verification of the accuracy of such submissions, the 
Department of Defense would enter that range into the tracking system 
of ranges subject to these provisions.
    The Department of Defense solicits comments on additional 
mechanisms to involve the public and government agencies in the 
identification process and means to provide access to information about 
ranges identified subject to these requirements.
2. Range Assessment/Accelerated Responses
    One goal of the RA/AR is to determine the condition of the 
property. Another goal of the RA/AR phase is finding ways to accelerate 
the response process by delineating areas within the range where 
response activities are necessary and by limiting the effort spent 
collecting data to only the level necessary to address the 
uncertainties that accompany prompt action. The Department of Defense 
intends that the RA/AR phase use readily available information to 
determine if additional investigation or implementation of an AR is 
warranted, based on range conditions. Therefore, the RA/AR phase is 
dependent on: (1) Identification of the types and sufficiency of data 
needed for

[[Page 50813]]

an informed risk management decision; (2) the ability to implement ARs 
when appropriate; and (3) analysis of information to know when (a) 
enough information either has been or cannot be gathered to make an 
informed risk management decision, and (b) when an identified risk can 
or cannot be addressed by an AR. The Department of Defense will be 
issuing detailed guidance on how to conduct the RA/AR phase and 
believes that it will be possible to develop standardized procedures 
and reporting requirements for RA/AR activities.
    For clarity, the following discussion presents the RA and AR 
separately. However, the Department of Defense intends for them to be 
concurrent, interrelated activities.
    a. Range assessment: The RA is a limited-scope investigation 
designed to distinguish between ranges, and areas within ranges, posing 
little or no safety, human health, or environmental risks and ranges, 
or areas within ranges, that do pose such risks. Ranges that pose a 
risk warrant further investigation or implementation of an AR. The 
Department of Defense intends that the initial effort in an RA be a 
compilation and analysis of existing information about the range and 
its surroundings, similar to the CERCLA preliminary assessment or a 
RCRA facility assessment. The RA emphasizes collection of available 
information through a combination of file searches and ``desktop'' 
information collection and analysis. If, based on analysis of the 
existing information about the range, collection of additional 
information is believed necessary to better delineate the range or 
areas within the range where response activities are warranted, then 
visual inspection of the range or sampling of environmental media may 
be undertaken to provide an improved understanding of the conditions at 
the range. The Department of Defense will be issuing guidance on the 
specific requirements and procedures for conducting an RA.
    (1) Scope of the range assessment. The Department of Defense 
envisions implementing the RA by conducting several levels of 
information collection and assessment. The first level of the RA is to 
determine if the range is subject to these requirements and if there is 
readily available information suggesting that the range poses a hazard. 
This usually can be done by reviewing the official records of the 
installation, local records, or other references. Such documents are 
often the primary source of information on range locations and 
operations conducted at those ranges.
    If in fact the area was or is a military range subject to these 
provisions, the next phase of the RA is collection of information on 
the types and quantities of military munitions employed at the range. 
At a minimum the Department of Defense sees a need for the following 
types of information:
    (1) The type(s) of military munitions employed on the range.
    (2) The estimated quantity of military munitions employed.
    (3) Time frames during which the military munitions were employed 
on the range.
    (4) The chemical constituents of those munitions.
    (5) The fuze types used on these military munitions.
    (6) Identification of locations within the range where these 
military munitions are known or suspected to have been employed.
    (7) The estimated density of UXO in those locations.
    (8) The estimated depth of the munitions (based on penetration 
data).
    (9) Information on range clearance operations or reported incidents 
involving UXO on the range.
    (10) Safety issues related to military munitions employed on the 
range.
    (11) The type(s) of any targets that may have been used on the 
range.
    (12) Other past and present uses of the range.
    This information feeds into the assessment of the risks posed by 
the military munitions and UXO potentially found on the range.
    One of the critical early efforts during the RA is the 
identification and delineation of areas within a range that pose 
varying explosives safety hazards and environmental threats. 
Delineation procedures will adequately define different types of range 
areas. Delineation of range areas would likely include, but not 
necessarily be limited to: Impact areas; buffer zones; firing areas; 
maneuver areas; military munition stockpile areas; open burning/open 
detonation areas; disposal areas; and any other areas of concern 
(including off-range areas where constituents may have migrated from 
on-range sources). Environmental threats can include, but are not 
limited to, chronic, mutagenic, or teratogenic effects.
    A goal of this effort will be to identify areas with a higher 
explosives safety risk from those areas that are either unaffected or 
minimally affected. Once delineated, a range area would proceed through 
the five-phase process independently of other areas. For example, an 
impact area with a high explosives safety risk that is confirmed to be 
too dangerous to assess or remediate would proceed on a distinctly 
different path through the five-phase process than would an adjacent 
buffer zone that was confirmed to have a lower explosives safety risk 
but has significant quantities of other constituents. The buffer zone 
and other site areas that fit into this category would, as a group, 
proceed to the RE/SSRE phase, where focused characterization and 
response activities ultimately would take place.
    Another goal of range delineation during the RA will be to assess 
what ARs can be implemented at areas geographically outside ranges with 
a high explosives safety risk, but where constituent levels from 
employed munitions or other constituents are significant. It is likely 
that all ranges will include areas with a lower explosives safety risk, 
where characterization and possible response efforts may be feasible in 
order to provide for incremental risk reduction. This will serve to 
specifically address releases from other constituents.
    If the Department of Defense, in consultation with the RAB and/or 
EPT, determines that any of the following conditions exist, the 
affected portion(s) of the range should proceed without delay to the RE 
phase. These conditions are (1) that the range presents issues that are 
too complex to be addressed in the RA; (2) that all or part of the 
range poses an imminent threat to human health or the environment which 
cannot be mitigated effectively through an AR; or (3) that an AR had 
been implemented but substantial environmental threats remain.
    To address the risks posed by other constituents, including CERCLA 
hazardous substances, known or suspected to be present on the range, 
the Department of Defense will use existing information on the 
constituents identified during the assessment of the military munitions 
employed on the range and any other potential constituents identified 
from other activities on the range. The goal of this aspect of the RA 
is to develop an initial ``target'' list of constituents and to suggest 
locations for sampling for use in later phases in which environmental 
samples may be collected and analyzed; to identify the corresponding 
ARARs; and to address the ability of that RA to meet the ARAR 
requirements and protect human health and the environment. This 
assessment also will collect readily available existing information on 
the identity, concentration, and characteristics (e.g., toxicological, 
fate and transport) of the identified constituents. This information 
feeds into the initial

[[Page 50814]]

assessment of the risk posed by other constituents at the range.
    The RA also will require collection of existing data on the 
environmental setting of the range, the location and identity of 
receptors potentially impacted by the range, and specific routes of 
exposure of concern. Specifically, the RA involves collection of 
existing information on such factors as:
    (1) Local hydrologic and hydrogeologic conditions (which includes 
groundwater).
    (2) Soils and geology.
    (3) Terrain.
    (4) Climate and meteorological data.
    (5) Vegetation.
    (6) Current and predicted land use.
    (7) Cultural resources.
    (8) Receptors (i.e., humans, ecological receptors).
    (9) Exposure pathways of concern (e.g., direct contact, inhalation, 
ingestion, or exposure to radionuclides).
    The Department of Defense believes that a significant portion of 
the information needed to address these factors is available from 
existing sources such as topographic maps, aerial photographs, on-line 
databases, and published studies.
    The preliminary phases of the RA, which depend primarily on 
existing information, can suggest that a visual inspection of the range 
or limited-scale sampling of environmental media is necessary to 
develop a more complete understanding of the conditions at the range or 
to better delineate areas requiring response activities. In either 
case, entry onto the range requires the development of an explosives 
safety plan and submittal of the plan to DDESB for coordination. If the 
information suggests a need for sampling of environmental media, the 
DoD organization conducting the response should develop a work plan 
describing the objectives and plan for conducting the sampling, 
including the standard operating procedures (SOPs) to be used for the 
range response. Typically, the plan for sampling and analysis of 
environmental media will use a format similar to the one used when 
conducting these activities under a CERCLA response or RCRA corrective 
action.
    Once collected, the information on the military munitions employed 
at the range, the other constituents believed present, and the 
environmental setting of the range serves the following purposes:
    (1) Identification of any actual or potential threats posed by the 
site (e.g., reported incidents involving UXO, documented releases of 
other constituents from the range).
    (2) Initial assessment of the identified risks posed by the 
military munitions and other constituents on the range, with a 
qualitative identification of the source-pathway-receptor chain and UXO 
density potential.
    (3) Focus of follow-on studies or monitoring.
    (4) Assessment of the need to implement ARs.
    (2) Accelerated responses. An AR is any readily available, proven 
method of addressing the identified risks posed by military munitions 
or other constituents at ranges subject to these requirements. Some 
examples of ARs include:
    (1) Posting signs warning of the danger associated with range.
    (2) Erecting fences or other measures to control access.
    (3) Implementing simple erosion controls (e.g., silt fences).
    (4) Suspending incompatible land uses (where the Department of 
Defense can do so).
    (5) Implementing community education and awareness programs.
    (6) Requiring ``dig permits'' at areas where the Department of 
Defense has control over site activities.
    (7) Conducting source removals or surface sweeps for UXO.
    (8) Implementing deed restrictions.
    (9) Implementing a monitoring program (for example, to assess if 
constituents are migrating off the range in stormwater runoff or 
percolating into groundwater).
    (10) Providing alternative sources of drinking water.
    (11) Performing other effective engineering, institutional, or 
exposure controls.
    This is by no means a complete listing of the types of ARs 
available to address the identified risks posed by ranges. The 
Department of Defense plans to develop detailed guidance on ARs in the 
near term which will be not inconsistent with CERCLA.
    The Department of Defense sees merit in using the same criteria for 
evaluating AR alternatives and for evaluating more complex and tailored 
site-specific responses. A later section of this proposal provides a 
detailed discussion of these criteria. The primary differences are in 
the scope of the evaluation of alternatives, and that the AR analyses 
rely on qualitative rather than quantitative information. In these 
ways, the AR process is similar to the process identified in the NCP 
for non-time-critical removal actions (at least 6 months' planning 
time) and time-critical removal actions (less than 6 months' planning 
time). For example, the process for selecting an AR is similar to the 
engineering evaluation/cost analysis performed as part of non-time-
critical removal actions identified in the NCP.
    In general, using the data collected during the RA, this process 
will be a qualitative evaluation of the source-pathway-receptor link 
that creates the risk. These data will be analyzed to determine which 
AR options would most effectively sever that link or reduce its 
impacts.
    (3) Public and government agency involvement. Before beginning the 
RA/AR phase, the DoD organization responsible for that range will send 
a written notice to the appropriate Federal, State, and local officials 
and American Indian tribes informing them that these activities will be 
starting. This notice will also request that these officials name a POC 
within their organization and identify that POC to the project team.
    Throughout the RA/AR phase, the public, government agencies, and 
American Indian tribes will have access to validated information about 
range conditions, the potential hazards posed by the site, and any ARs 
undertaken to address those hazards. In addition, the public will have 
access to RA/AR reports and decision documents. Usually, access to this 
information is through the information repository; however, unresolved 
questions or concerns can be taken to the DoD POC or to the EPT, if one 
exists. Other venues for information exchange are the RAB (if one 
exists), and/or informal meetings with community leaders or other 
government officials.
    For all ARs where implementation of an on-site action is expected 
to take more than 120 days to complete, within that period the 
responsible DoD component will conduct interviews with local officials, 
community residents, public interest groups, or other interested or 
affected parties, as appropriate, to solicit their concerns, 
information needs, and how or when citizens would like to be involved 
in the range response process. The Department of Defense also will 
prepare a formal PIP based on community interviews or other relevant 
information, specifying the public involvement activities that are 
needed during the response.
    Before undertaking an AR, the DoD organization responsible for the 
activities at that range will formally document its decision. This 
document will briefly summarize conditions at the range, explain the 
hazards the AR was to address, and provide other useful and relevant 
information.
    Except where an emergency response is required to address an 
imminent

[[Page 50815]]

threat to human health or the environment, the public, regulators, 
American Indian tribes, and (where appropriate) Federal land managers 
will be provided a reasonable opportunity to comment on proposed RA/AR 
actions, based on information included in the RA/AR report. This report 
will be subject to a 45-day review and comment period prior to 
implementation of the AR. If requested, the Department of Defense also 
will hold a public availability session. If the physical construction 
associated with an AR, including implementation of site access control 
measures, is reasonably expected to be completed within 120 days of the 
commencement of the AR (i.e., completion of the RA), the opportunity 
for review and comment may be provided during or when the AR has been 
implemented. While an AR might be fully protective, the majority of ARs 
will be interim responses by nature, particularly those for which the 
physical construction is reasonably expected to be completed within 120 
days of commencement. In cases where an AR is expected to be fully 
protective and to make a site-specific response unnecessary, public 
participation through review and comment on the RA prior to 
implementation of the AR should be afforded, even when the AR can be 
implemented within 120 days.
3. Evaluation of Range Assessment/Accelerated Response Results
    As discussed in Section IV.E.2 of this preamble; one goal of the 
RA/AR process is to couple existing information with a limited 
gathering of additional information to make informed risk management 
decisions at the range. If the range poses a hazard, ARs, as 
appropriate, can be taken to address that hazard. This process 
continues until enough information is available to make an informed 
risk management decision (or, alternatively, the effort necessary to 
collect that information is beyond the scope of the RA); and all 
identified hazards have been addressed through implementation of an AR 
(or a determination has been made that ARs are unable to address the 
identified hazards).
    Once at this point, the DoD organization conducting activities at 
the site may implement a time-critical AR or will make the RA/AR report 
available for comment and will then issue a decision document for the 
proposed action. The RA/AR report will document the findings of all 
assessment activities and the reasons for and effectiveness of each AR 
at the range. The RA/AR report will also make one of the following 
recommendations:
    (1) Issue a determination of no further action (typically where the 
area was not a range or there is no appreciable risk associated with 
the range).
    (2) Conduct recurring reviews because all identified risks have 
been effectively managed and are expected to remain effectively managed 
in the long-term.
    (3) Conduct an RE because of a need for additional information to 
make an informed risk management decision or in anticipation of a site-
specific response to address the remaining hazards.
    (4) Issue a TI determination because, while a risk remains, there 
are no alternatives available capable of addressing the identified 
risk. For example, a TI determination would be appropriate at a naval 
gunnery range located in deep water (i.e., over 300 feet deep), where 
existing technology is not available to effectively implement a 
response. Another example would be an artillery range with a large 
number of UXO located in a small area of rugged terrain where manual 
clearance is required. Due to the density of the UXO, entry into the 
area may be too hazardous to undertake; clearance of one UXO by 
detonation may lead to sympathetic detonation of nearby rounds, due to 
the proximity of the UXO item to other UXO items. This situation would 
present an unacceptable explosives safety risk, in that the 
sympathetically detonated round may undergo a low-order detonation, 
scattering unconsumed explosives over a wide area, worsening the 
problem. In a case such as this, not directly addressing the UXO while 
implementing other types of control measures may be the most 
appropriate response action. Typically, recommendations for other 
appropriate control measures and recurring reviews will be a part of a 
recommendation for the TI determination.
    Once the draft RA/AR report is complete, the Department of Defense 
will include it in the administrative record and make it publicly 
accessible at the information repository. The Department of Defense 
also will publish a notice of availability of the draft RA/AR report 
and brief description of the action being proposed in the report in a 
major local newspaper of general circulation and announce a 45-day 
period for submission of written comments to the DoD POC for that 
range. If requested, the Department of Defense will hold a public 
meeting or availability session. Following the comment period, the 
Department of Defense will develop written responses to significant 
comments received during the comment period, consider any issues 
brought out by these comments, and prepare a formal decision document 
outlining which recommendation will be adopted. A copy of the decision 
document and all supporting information will become a part of the 
administrative record for the military range, and the Department of 
Defense will mail a copy of the decision document to all appropriate 
government agencies and the current property owner.
4. Range Evaluation
    REs are detailed investigations of the military munitions employed 
on the military range, the other constituents believed or known to be 
present, and the environmental setting. Generally, an RE will be 
performed when making an informed risk management decision requires the 
collection and analysis of a significant quantity of quantitative 
information not otherwise available. This information collection often 
is a complex, long-term effort (e.g., groundwater monitoring) that 
demands careful planning before its execution. This phase includes 
evaluation of site safety, and potential human health and ecological 
impacts. RE examples include, but are not limited to:
    (1) Military ranges where chemical munitions were employed and 
where the RA/AR process shows a potential exposure from a chemical 
agent release.
    (2) Military ranges where land use or the degree of public access 
is incompatible with the condition of the range following the RA/AR 
process.
    (3) Military ranges with a reasonable potential for contamination 
of surface water or groundwater that is in excess of applicable 
standards and which is a potential source of drinking water.
    a. Scope of a range evaluation: The types of information collected 
during the RE are similar to those collected during the RA/AR phase and 
serve the same purposes; however, the information collected is far more 
specific and typically quantitative in nature. For example, while the 
RA/AR phase sought information on the type(s) of military munitions 
employed on the range, an RE might seek to determine the specific 
military munitions employed. Similarly, where the RA/AR used estimates 
of various values such as the quantity of military munitions employed 
on the range and the density (i.e., distribution) of UXO, the RE uses a 
combination of detailed ``desktop'' evaluations and field sampling to 
refine the estimates.
    The first step in conducting the RE is reviewing the available 
information to focus the RE. The Department of Defense intends all REs 
to be focused studies, tailored to answering specific

[[Page 50816]]

questions. Conducting such a focused study requires defining:
    (1) The objective of the information collection effort (i.e., what 
question is to be answered).
    (2) The boundaries of the information collection effort.
    (3) The role of the data in supporting risk management decisions.
    (4) The specific type, quantity, and quality of information to 
collect to meet the objective.
    (5) The acceptable level of uncertainty (in terms of the accuracy) 
of the information.
    For example, to assess the risk posed by the other constituents 
known or suspected to be present on the range, the Department of 
Defense will use existing information on the other constituents 
identified during the RA, as well as any other readily available 
sources. This review will provide the basis for developing a ``target'' 
list of potential constituents. This approach also will focus the 
collected information on the health and environmental characteristics 
of the constituents that may be present on the range. Similarly, it is 
possible to focus collection of information on the environmental 
setting. If, for example, the range is in an area where, due to an 
extremely high concentration of total dissolved solids, the groundwater 
is not useful for drinking or agriculture, it may be appropriate to 
limit assessment of potential groundwater impacts.
    b. The range evaluation plan: The Department of Defense intends 
this focusing effort to lead to the development of a single, concise 
document, the RE plan. The RE plan will provide all necessary 
information about the objectives established for the RE, the rationale 
for those objectives, and how those objectives will be achieved. For 
example, this document would explain the focus of the RE, define the 
objective(s), boundaries, data uses, sampling and analysis protocols, 
safety, and data analysis procedures required to complete the RE. The 
Department of Defense will issue detailed guidance on how to conduct an 
RE, and believes that it will be possible to develop a standard RE plan 
that, with minor modifications, can be adopted for use at the majority 
of these ranges. The DoD organizations conducting the RE will make this 
document a part of the administrative record and will publish a notice 
of availability in a local newspaper. The notice will summarize the 
purpose of the document and inform the public how to gain access to the 
RE plan. At a minimum, the RE plan will be made available at the 
information repository.
    c. The range risk assessment: The collection and analysis of 
additional information about conditions at the range lead to the 
primary purpose of the RE, a detailed, quantitative assessment of the 
risks posed by the military munitions and other constituents at the 
range. The level of risk posed by the site is one element in making an 
informed risk management decision about the need for a site-specific 
response.
    In general terms, the military range risk assessment model/protocol 
the Department of Defense plans to develop requires similar types of 
information for military munitions and other constituents. These 
information requirements include:
    (1) Identification of the source of the risk (e.g., identification 
of the specific military munitions or other constituents).
    (2) Identification of receptors, pathways, and potential for 
exposure.
    (3) Identification of the effects of exposure (e.g., the types of 
injuries that accidental explosion of military munitions can cause; the 
acute, chronic, and carcinogenic effects of exposure to other 
constituents).
    While the explosives safety and other constituent risk assessments 
generally require similar types of information, the specific 
information requirements are different and reflect the basic 
differences between explosives safety risks and constituent releases. 
For example, injury from the detonation of conventional military 
munitions requires either direct or indirect exposure to the energy (as 
pressure or heat) released by the explosion, or to energy imparted to 
materials by the explosion (e.g., shrapnel); generally, the injury is 
due to physical trauma. In contrast, exposure to other constituents 
usually involves entry into the receptor by ingestion, inhalation, or 
dermal absorption, and the effects are due primarily to disruption of 
physical functions in the receptor. Therefore, the specific information 
required to assess the effects of exposure will be different.
    Currently, the risk assessment models used for military munitions 
and UXO do not adequately address the potential risks associated with 
constituent exposure. Likewise, the risk assessment models for 
constituent exposure do not address the effects of explosions or other 
injuries caused by military munitions. For these reasons, the 
Department of Defense will be developing, in consultation with and with 
the assistance of EPA, a risk assessment model or protocol to use at 
military ranges. This risk assessment model or protocol will provide an 
assessment of risks posed by military munitions and UXO at the range, 
as well as the human health and environmental risks posed by the 
constituents to: (1) Provide an estimate of the risks posed by military 
range conditions; and (2) to serve as a tool for assessing (a) the 
effectiveness of a given response at addressing those risks and (b) the 
potential consequences (either positive or negative) of implementing a 
response targeted at addressing a specific risk. The Department of 
Defense, in conjunction with EPA, will seek Federal land manager, 
State, American Indian tribe, and public input during the development 
of the risk assessment model or protocol. Because of the importance of 
this model/protocol, an interim version is to be developed and made 
publicly available prior to the promulgation of the final rule. A final 
version will be developed and made publicly available no later than 1 
year after the final rule is promulgated.
    It is equally important to note that, since the explosives safety 
element of the overall range RA examines the identified risks posed by 
military munitions and UXO on the range, an evaluation of these risks 
must be conducted concurrently with the development of the RE plan, 
especially if on-range data collection is contemplated. Even if very 
limited information on potential explosives safety hazards exists, any 
such information is critical to assessing the practicality of on-range 
actions and to developing the explosives safety plan (which must be 
submitted to DDESB for approval before commencing any on-range 
activity). Like the explosives safety risk assessment, the constituent 
risk assessment examines the risks posed by constituents known or 
suspected of being present on the range. The preliminary phases of this 
assessment also will need to be conducted concurrently with the 
development of the RE plan, since the information requirements for the 
constituent risk assessment are critical to focusing investigative 
efforts. Furthermore, available data on the constituents known to be or 
suspected of being on the range are critical to developing a health and 
safety plan for on-site workers.
    d. Public and government agency involvement: During the RE, the 
public, government agencies, and American Indian tribes have access to 
validated information about range conditions and the potential hazards 
posed by the site. In addition, the public will have access to the 
final RE report and any related decision documents. As with the RA/AR, 
access to this information is through the information repository, the

[[Page 50817]]

DoD POC, the EPT (if one exists), the RAB (if one exists), and formal 
or informal meetings. Furthermore, before beginning the RE, the DoD 
component responsible for that range will send a written notice to 
appropriate Federal, State, and local officials informing them that 
these activities will be starting.
    If a formal RE report is prepared, then a 45-day public comment 
period on the report will occur, as well as a public availability 
session if requested. If the recommendation is to proceed directly to 
the SSRE, however, a letter report will summarize the RE findings and 
the public comment period will occur on the SSRE report. Following the 
public comment period, the Department of Defense will develop written 
responses to significant comments received during the comment period 
and consider any issues brought out by these comments. A copy of the 
draft decision document will be provided to the appropriate Federal or 
State agency, American Indian tribe, and Federal land manager for 
concurrence.
5. Range Evaluation Findings
    The goal of an RE is to couple existing information with focused 
information collection to assess the risk posed by the military 
munitions and other constituents on the military range. This 
information is necessary to make informed risk management decisions. 
Once the objectives set for the RE are reached, the findings and 
conclusions will be presented in a formal RE report. Depending on the 
scope and findings of the RE, the RE report also will make one of the 
following recommendations:
    (1) Conduct recurring reviews because the quantitative analyses 
demonstrated that all identified risks are effectively managed and will 
remain effectively managed over the long term.
    (2) Issue a TI determination because, while a risk remains, there 
are no available alternatives capable of addressing the risk. 
Typically, recommendations for other appropriate control measures and 
recurring reviews will be a part of a recommendation for a TI 
determination.
    If the findings of the RE demonstrate a need for a site-specific 
response to address remaining risks, the Department of Defense may 
prepare a letter report instead of an RE report and proceed directly to 
the SSRE. If a letter report is prepared, then the DoD organization 
conducting the response must prepare a formal decision document that 
summarizes the findings of the RE, identifies the hazards requiring a 
site-specific response, and describes the anticipated scope and 
starting of the SSRE. This decision document will be made available to 
the public, and concurrence will be sought from appropriate Federal, 
State, and American Indian tribal officials.
    If, however, the responsible DoD component recommends either 
proceeding to the recurring review process or issuing a TI 
determination, the responsible DoD component will prepare a formal RE 
report, publish a notice of availability and a brief description of the 
RE report in a major local newspaper of general circulation, and 
announce a 45-day period for submission of written comments to the DoD 
POC for that military range. If requested, the Department of Defense 
also will hold a public meeting or availability session. Following the 
comment period, the Department of Defense will develop written 
responses to significant comments received during the comment period, 
consider any issues brought out by these comments, and prepare a formal 
decision document on which recommendation will be adopted. A copy of 
the decision document and all supporting information will become part 
of the administrative record for the range, and a copy of the decision 
document will be mailed to appropriate government agencies and the 
current property owner.
6. Site-Specific Response Evaluation
    An SSRE examines various response alternatives that address risks 
posed by the range which have not been or cannot be effectively 
addressed by ARs. The SSRE process is similar to the feasibility study 
under CERCLA; however, there is one very important distinction: 
explosives safety is a frequent overriding concern. If a given response 
alternative cannot minimize explosives safety risks, then it will be 
dropped from consideration. EPA stated in the preamble to the final NCP 
that short-term effectiveness:

* * * will consider who may be exposed during the remedial action, 
what risks those populations may face, how those risks can be 
mitigated, and what risks cannot be readily controlled. Workers are 
included in the population that may be affected by short-term 
exposures. (55 FR 8722, March 8, 1990)

    Furthermore, the NCP explains that the threshold assessment of 
overall protection ``draws on the assessments of other evaluation 
criteria,'' which specifically includes the short-term effectiveness 
(40 CFR 300.430(d)(iii)(A)). Hence, in the remedy selection process, 
worker safety is not only considered when determining the short-term 
effectiveness of a remedy, but is also an integral part of the analysis 
in determining whether a remedial alternative meets the threshold 
requirement of overall protectiveness. As EPA stated in response to 
comments on the proposed NCP:

    EPA agrees that unacceptable short-term impacts can cause an 
alternative to be considered non-protective of human health and the 
environment and can remove that alternative from consideration as a 
viable option. (55 FR 8725, March 8, 1990)

    EPA adopted a similar approach, in which one factor carries more 
weight than others, in developing the evaluation process under the NCP 
(40 CFR 300). Under the NCP, EPA considers overall protection of human 
health and the environment and compliance with ARARs as ``threshold 
criteria'' that each alternative must meet to be eligible for further 
consideration.
    The Department of Defense intends to identify and address ARARs 
exactly as prescribed under CERCLA and in the NCP. In the event that 
the Department of Defense wishes to waive an ARAR, it will justify the 
waiver under the criteria and processes stipulated under CERCLA and in 
the NCP. The Department of Defense will provide a written description 
of the ARAR to be waived; the waiver type to be invoked; and the 
justification for invoking the waiver. The Department of Defense will 
provide regulators with the opportunity to review and concur on ARAR 
waivers, as appropriate. The provisions of CERCLA Section 121(f)(2)(B), 
concerning a State's ability to challenge ARAR waivers, remains 
unaffected by this range rule.
    a. The Department of Defense screening process: The NCP allows use 
of a screening process to reduce the number of alternatives to be 
considered in detail if a wide array of alternatives initially is 
developed. The screening process involves three evaluative criteria: 
(1) Long- and short-term effectiveness; (2) long- and short-term 
implementability; and (3) long- and short-term cost-effectiveness. 
Effectiveness of alternatives refers to their overall performance in 
eliminating, reducing, or controlling current and potential health 
risks, both during planning and implementation. Short-term 
effectiveness includes consideration of risks to workers who are 
involved in conducting the response. EPA guidance allows, at the 
screening process, elimination of alternatives that are clearly 
unacceptable in terms of short- and long-term human health risks. EPA 
guidance further provides that this evaluation is based primarily on 
many simplifying assumptions and on professional judgment at the 
screening

[[Page 50818]]

stage and is intended to identify alternatives with clearly 
unacceptable short-term risks. At DoD range sites covered by the 
proposed rule, the Department of Defense anticipates that the explosive 
risks posed by military munitions to response personnel will warrant 
screening out response alternatives that might otherwise be considered 
at typical CERCLA sites. If a given response alternative cannot provide 
adequate explosives safety, this will result in its elimination from 
consideration. If however, none of the on-range response alternatives 
identified provide for adequate explosives safety for workers involved 
in the response, the Department of Defense must consider other 
alternatives that will prevent the situation from worsening, or that 
will prevent or control releases of UXO or other constituents from the 
range, or prevent community exposure.
    b. Scope of the site-specific response evaluation:As with REs, the 
Department of Defense intends that the SSRE be a highly focused 
investigation of response alternatives to address a specific risk. 
Where similar risks were successfully addressed at other ranges, the 
SSRE should focus on only those alternatives, rather than on conducting 
research and development of alternative technologies. 10 In 
recent years, EPA has adopted a similar philosophy and now advocates 
examination of ``presumptive remedies.'' Presumptive remedies are 
preferred technologies for common categories of sites, based on 
historical patterns of remedy selection, and scientific and engineering 
evaluation of performance. Focusing on developing standardized 
approaches for addressing the identified risks posed by a military 
range would allow streamlining of the process, provide consistent 
resolutions when dealing with recurring problems, and usually result in 
significant savings.
---------------------------------------------------------------------------

    \10\  In August 1996, the Department of Defense established a 
UXO Technology Executive Committee that will centralize the efforts 
on research, development, and management of technology for UXO 
detection, neutralization, and remediation.
---------------------------------------------------------------------------

    c. The site-specific response evaluation plan: The Department of 
Defense intends this focusing effort to lead to the development of an 
SSRE plan. The SSRE plan will be a single, concise document that 
provides all necessary information about the objectives established for 
the SSRE, the rationale for those objectives, and how those objectives 
will be achieved. As necessary, the document will detail sampling and 
analysis protocols, safety requirements, data analysis procedures, or 
treatability studies required to complete the SSRE. The SSRE plan will 
be part of the administrative record, and the Department of Defense 
will publish a notice of its availability in a local newspaper. The 
notice will summarize the purpose of the document and inform the public 
how to gain access to it. The Department of Defense will be issuing 
detailed guidance on how to conduct an SSRE and how to effectively 
convey the information in the SSRE plan to the general public.
    (1) Conducting the site-specific response evaluation. Once the SSRE 
plan is complete, the first step in conducting an SSRE is to identify a 
preliminary list of objectives for the response. These preliminary 
objectives will depend on the various site-specific factors such as the 
type of problems to be addressed, environmental setting, and subsequent 
land use. The second step is to identify general classes of response 
actions that meet or exceed the preliminary objectives identified for 
the response. The third step is to determine or estimate the scope of 
the response using an appropriate unit of measure. This can be, for 
example, the quantity of military munitions or media present or the 
size of the range. This determination allows elimination from further 
consideration of remedial alternatives that are incapable of treating 
the necessary quantity of military munitions or contaminated material 
in a reasonable time frame. The fourth step is to identify and screen 
specific technologies and, within a class of technologies, options for 
the actual treatment process. The fifth step is detailed evaluation of 
the effectiveness of the remaining options. The sixth and final step is 
to identify the alternatives or combinations of alternatives for a more 
detailed evaluation.
    Any alternative that remains under consideration after the final 
step may require individual treatability studies, if such studies are 
needed, to provide sufficient data to: fully assess the alternative's 
suitability; support its design and implementation (if selected); or 
refine cost estimates and reduce performance uncertainties. 
Treatability studies are not required for all alternatives; if enough 
information exists to allow an accurate evaluation of each remedial 
alternative without conducting treatability studies, the Department of 
Defense will weigh the cost and time of conducting such a study against 
the potential benefits.
    The detailed analysis of range response alternatives consists of 
examining each alternative against the following nine criteria, which 
are used by EPA in evaluating CERCLA remedial alternatives. A 
comparative analysis of the proposed alternative to each of the other 
alternatives is then performed. In developing these criteria, the 
Department of Defense adopted the basic concepts embodied in the nine 
evaluation criteria used to assess remedial alternatives under the NCP.
    (1) Overall protection of human health and the environment 
(including explosives safety and natural resources).
    (2) Compliance with ARARs established under Federal and State law.
    (3) Long-term effectiveness and permanence.
    (4) Reduction in toxicity, mobility, quantity, or volume.
    (5) Short-term effectiveness.
    (6) Implementability.
    (7) Cost.
    (8) Acceptability to appropriate Federal and State officials.
    (9) Community (including property owner) acceptance.
    Explosives safety and protection of human health, including risks 
posed to response personnel, are of paramount concern. Under EPA 
guidance, the detailed evaluation of responses resulting from each 
alternative must consider short-term risks. EPA considers the short-
term risk to response personnel in evaluating whether a proposed 
remedial alternative meets the threshold criterion of overall 
protection of human health and the environment. The Department of 
Defense expects that explosives safety and risk to response personnel 
will be recurring issues and overriding considerations in the detailed 
evaluation of alternatives for range responses.
    The first criterion addresses the ability of each alternative to 
protect human health and the environment from the acute, chronic, and 
carcinogenic effects of exposure to the constituents present at the 
range. This criterion draws on the constituent risk assessment and the 
evaluations of other criteria, especially the long- and short-term 
effectiveness evaluations. The Department of Defense believes that, in 
evaluating this criterion at military ranges subject to this proposed 
rule, a balance will need to be struck between protection of human 
health (including explosives safety) and protection of the environment. 
For example, while it may be feasible to excavate UXO to a depth of 
several feet over a large area, doing so will have a negative impact on 
the local environment. If that area also were critical habitat to a 
threatened or endangered species, then the benefits of UXO removal 
would have to be balanced against the disruption of that species' 
habitat. Furthermore, if a response alternative cannot minimize 
explosives safety risks, it will be

[[Page 50819]]

dropped from consideration. In assessing this criterion, an explosives 
safety plan addressing all alternatives will be submitted to the DDESB 
for evaluation.
    Compliance with Federal and State ARARs is identical to the 
evaluation criteria required under CERCLA and the NCP. This criterion 
requires evaluation of the ability of each alternative to comply with 
chemical-specific, action-specific, and location-specific requirements 
that are either directly applicable to the response action or, in best 
professional engineering judgment, similar enough to the conditions of 
the site and response action to warrant their use (termed by EPA as 
``relevant and appropriate requirements''). For example, the Department 
of Defense's on-site response actions must comply with the substantive 
requirements of RCRA. Under CERCLA, the Department of Defense plans to 
adopt the process established in the NCP for waiving an applicable 
requirement. If required, concurrence of that waiver must be sought 
from the appropriate Federal or State agencies. For the assessment of 
the effectiveness of an AR, compliance with applicable requirements is 
required only to the extent practicable given the exigencies of the 
situation. In this way, this requirement is directly analogous to the 
requirement for ARAR compliance during a CERCLA removal action.
    The long-term effectiveness evaluation assesses the residual risk 
posed by military munitions or other constituents that will remain at 
the range following the completion of the response action, and 
considers the reliability and adequacy of those actions in providing a 
long-term or permanent solution to the hazard posed at the range. The 
Department of Defense also believes that this criterion should consider 
any long-term liabilities associated with the response. For example, in 
evaluating a response action when wastes will be shipped to an off-site 
commercial facility for treatment or disposal, the Department of 
Defense should consider the potential CERCLA liability incurred by that 
action.
    Evaluation of how the response reduces the explosives safety risks, 
toxicity, mobility, quantity, or volume of the military munitions or 
constituents (as appropriate) involves assessment of the effectiveness 
of the alternative at treating the military munitions or other 
constituents present on the range and the quantity that will remain 
following the response action.
    The short-term effectiveness criterion addresses the risks or 
impacts of the alternative from the start of the action through to the 
time when the response objectives are achieved. Under this criterion, 
each alternative is evaluated to determine the degree of protection 
afforded to on-site workers and the surrounding community during 
implementation. Each alternative is also examined for possible adverse 
environmental impacts arising from implementation of the response or 
the time required to achieve the response action's objectives.
    The implementability criterion assesses both the technical and 
administrative feasibility of implementing each alternative. Included 
in this assessment are (1) consideration of the availability of the 
necessary resources to implement the alternative, (2) an assessment of 
the reliability of the alternative (also a consideration under the 
short- and long-term effectiveness criteria), and (3) whether the 
action will impede other responses at the range. Another aspect of this 
assessment is the determination of the requirements for interaction 
with other Federal, State, or local agencies or American Indian tribes. 
For example, this assessment may require determining the need for 
obtaining a permit for a given alternative. Another factor the 
Department of Defense may consider in the assessment under this 
criterion is the availability of on- and off-range treatment and 
disposal units for wastes generated by the response action. In the case 
of chemical munitions, the statutory provisions of 50 U.S.C. 512a 
regulate the transportation, destruction, and open-air testing of these 
munitions; thus, the availability of the treatment or disposal capacity 
at the nearest chemical military munitions stockpile facility may be 
one of the most important factors limiting response alternatives. The 
Department of Defense is currently developing mobile treatment systems 
for these chemical munitions in an effort to preclude any need to 
transport them off-site.
    Cost evaluation requires assessment of the direct and indirect 
capital costs as well as the operating and maintenance (O&M) costs 
associated with the alternative. O&M costs are usually a significant 
portion of the overall costs. The evaluation of this cost should 
consider any long-term financial liability associated with the 
response.
    Assessment of the last two criteria, acceptability of each 
alternative to Federal and State agencies and community acceptance, 
requires consultation with these parties. By this point in the range 
response process, the public and government agencies should be fully 
engaged and their concerns already addressed. Some of the ways the DoD 
organization conducting the response can achieve this goal is through 
an EPT or RAB (if one exists), and through mechanisms such as public 
availability sessions.
    Once all the alternatives are evaluated against the nine criteria 
to see if they meet the basic requirements, they are compared to one 
another to determine the pros and cons of each. For example, one 
alternative might provide a reduction in risk equal to another for a 
similar cost, but have a far greater potential for requiring another 
action sometime in the future. A specific example involves the use of 
off-site disposal facilities as opposed to an on-site action. In this 
case, the Department of Defense would need to consider the potential 
CERCLA liability arising from a release at the off-site facility in 
making the selection. Another example would be where one alternative 
provides a slightly higher degree of protection than another, but at 
vastly greater cost. The balancing of these alternatives will need to 
evaluate carefully the significance of the difference in protection and 
the significance of the cost difference. Such a determination in 
balancing the alternatives should be based on quantitative analysis, 
but ultimately the decision is largely a matter of professional 
judgment.
    (2) Explosives safety and the nine NCP criteria. Explosives safety 
issues will be adequately addressed under the current CERCLA process by 
using the existing nine criteria described in the final NCP. 
Specifically, worker safety is part of the analysis in evaluating the 
criterion of short-term effectiveness. EPA states in the preamble to 
the final NCP that the short-term effectiveness criterion considers: 
who may be exposed during the remedial action; what risks those 
populations may face; how those risks can be mitigated; and what risks 
cannot readily be controlled. Workers are included in the population 
that may be affected by short-term exposures (55 FR 8723, March 8, 
1990).
    Section 2.2.9 of EPA's Guidance for Conducting Remedial 
Investigations and Feasibility Studies Under CERCLA, Interim Final, 
EPA/540/G-89/004 11 (October 1988) is consistent with the 
NCP position. This guidance states, ``Protecting the health and safety 
of the investigative team and the general public is a major concern 
during remedial response actions. Workers may be exposed to a variety 
of hazards

[[Page 50820]]

including toxic chemicals, biological agents, radioactive materials, 
heat or other physical stresses, equipment-related accidents, and fires 
or explosions.''
---------------------------------------------------------------------------

    \11\  Copies of EPA's ``Guidance for Conducting Remedial 
Investigations and Feasibility Studies Under CERCLA, Interim Final, 
EPA/540/G-89/004'' (October 1988) can be obtained, at cost, from the 
National Technical Information Service, 5285 Port Royal Road, 
Springfield, VA 22161 (telephone 703-487-4650).
---------------------------------------------------------------------------

    Furthermore, the NCP explains that the threshold assessment of 
overall protection ``draws on the assessments of other evaluation 
criteria,'' which include short-term effectiveness (40 CFR 300.430 
(d)(iii)(A)). Hence, in the remedy selection process, worker safety is 
considered not only when determining the short-term effectiveness of a 
remedy, but also as an integral part of the threshold requirement of 
overall protectiveness. As EPA stated in response to comments on the 
proposed NCP, ``EPA agrees that unacceptable short-term impacts can 
cause an alternative to be considered non-protective of human health 
and the environment and can remove that alternative from consideration 
as a viable option'' (55 FR 8725, March 8, 1990). In summary, 
information as presented in the NCP, as well as EPA guidance, ensures 
that risks to workers during investigative and response actions would 
be adequately addressed within the present CERCLA process.
    d. Site-specific response evaluation report: As discussed in 
Section IV.E.5. of this preamble, if the identified risks posed by the 
military range require an SSRE, an RE letter report may be prepared in 
lieu of an RE report. The SSRE report will document the findings of 
both the RE and the SSRE. The SSRE report will provide a complete 
summary of the information collection and range risk assessment 
conducted during the RE, as well as the findings and conclusions of the 
SSRE. Depending on the findings of the RE and SSRE, the SSRE report 
will make one of the following recommendations:
    (1) Identifying the recommended response alternative(s) for 
implementation, discussing the hazard(s) the response is to address, 
the results of the evaluation criteria, and the means of assessing the 
effectiveness of that response after it has been implemented.
    (2) Conducting recurring reviews because the quantitative analyses 
demonstrated that all identified risks are effectively managed and are 
expected to remain managed in the long term.
    (3) Issuing a TI determination because, while an identified risk 
remains, there are no available alternatives capable of addressing the 
risk. Typically, recommendations for other appropriate control measures 
and recurring reviews will be part of a recommendation for a TI 
determination.
    e. Public and government agency involvement: The Department of 
Defense will provide a copy of the draft SSRE report to appropriate 
Federal and State agencies for review and comment. The Department of 
Defense also will publish a notice of availability and brief summary of 
the SSRE report in a major local newspaper of general circulation, and 
announce a 45-day period for submission of written comments to the DoD 
POC for that range. If requested, the Department of Defense also will 
hold a public meeting or availability session. Following the public 
comment period, the Department of Defense will develop written 
responses to significant comments received during the comment period 
and consider any issues brought out by these comments.
    If significant changes result from this process, it may be 
necessary to issue a revised SSRE report and solicit further public 
comment. This is necessary only if the changes are so dramatic that 
they could not have been foreseen based on information available before 
the public comment period. Evaluation of new alternatives because a 
waiver of an applicable requirement was not granted is one example of 
when this might occur; however, selection of a new preferred 
alternative from among those already evaluated would not trigger the 
need for further comment. Following the comment period and development 
of written responses to those comments, the Department of Defense will 
formally document its decision and reasons for choosing the selected 
response alternative.
    The Department of Defense will prepare a formal decision document 
describing the actions to be taken. A copy of the final SSRE report, 
the decision document, and all supporting information will become part 
of the administrative record for the range response at that site. A 
copy of the draft decision document will be provided to the appropriate 
Federal or State agency, American Indian tribe, and Federal land 
manager for concurrence.
    f. Documenting the selection of alternatives: A formal decision 
document will identify the alternative(s) to be implemented and discuss 
the goals of the response (e.g., the risk to be addressed) and how the 
response will achieve those goals. This discussion needs to provide 
information as to how the alternative(s) provides for explosives 
safety, protects human health and the environment, addresses the 
concerns that the public and government agencies expressed in written 
comments, and eliminates, reduces, or controls the identified risks 
posed by military munitions or other constituents present at the 
military range. The decision document also will: (1) Discuss the 
Federal and State ARARs; (2) identify any ARARs not met; (3) provide 
justification for a waiver of those requirements; (4) specify the 
conditions of any waiver; and (5) discuss coordination of the waiver 
with appropriate Federal or State agencies. Finally, the document will 
discuss whether military munitions or other constituents will remain at 
the range. If so, the document also must describe the specific 
mechanisms used to ensure that land use remains compatible with any 
remaining military munitions or other constituents, and describe the 
frequency of recurring reviews. A copy of the decision document and all 
supporting information becomes a part of the administrative record for 
the range, and a copy of the decision document will be mailed to 
appropriate Federal and State agencies, American Indian tribe, and the 
current property owner.
7. Site-Specific Response Implementation
    Under both the CERCLA response and the RCRA corrective action 
programs, implementation of the selected responses is a separate action 
from the detailed site assessment, evaluation of remedial alternatives, 
and process for selecting the remedy. The Department of Defense sees no 
real need for this demarcation; indeed, the Department of Defense hopes 
that the preliminary phases of implementing a site-specific response 
can be occurring simultaneously with the development of the formal 
decision document. This is not an indication that the Department of 
Defense will not give the comments received on the SSRE report careful 
and deliberate consideration, but rather that the Department of Defense 
hopes to speed the design, construction, operation, and monitoring of 
the response by capitalizing on existing information, design documents, 
or plans. This will be especially true if the alternative is either an 
accelerated response used by the Department of Defense at a military 
range or a ``presumptive remedy'' used by the Department of Defense, 
EPA, or another Federal agency at a site undergoing a CERCLA response 
or RCRA corrective action.
    a. Implementation planning: Once the site-specific response 
selection process is complete, the DoD organization conducting the 
response will plan implementation, operation, and monitoring of the 
response alternative. This planning process includes several required 
steps, such as setting design and performance specifications,

[[Page 50821]]

preparing complete construction drawings and operating plans, and 
starting the procurement of any required goods or services. In 
addition, the Department of Defense is considering including another 
recommended practice: preparing an implementation strategy document to 
describe the manner and methods to meet the requirements of applicable 
Federal, State, and local regulations for performance and construction; 
reduce environmental and community impacts; address the technical 
factors related to the design; account for assumptions made in 
developing the design; and account for possible sources of error in the 
design process. This document also would outline contingency plans for 
managing foreseeable deviations.
    b. The response implementation plan: As with every other phase, the 
Department of Defense believes that focusing the implementation process 
is critical to the success of the response. To achieve this, the 
Department of Defense proposes to develop a single, concise document 
providing all necessary information about the objectives established 
for the response, the rationale for those objectives, and how those 
objectives will be achieved. As necessary, the document also will 
detail the design, construction, operation, maintenance, monitoring, 
and decommissioning of the response alternative. An explosives safety 
plan addressing explosives safety risks will be developed and forwarded 
to DDESB for approval. This document will be part of the administrative 
record, and the Department of Defense will publish a notice of its 
availability in a local newspaper. The notice will summarize the 
purpose of the document and tell the public where and how to gain 
access to it.
    c. Implementation of the alternative: The first step in 
implementing the response is development of appropriate sets of 
construction drawings, engineering calculations, process flow diagrams, 
critical path analyses, and lists and specifications for all equipment 
and materials. Development of operational guidance for and training of 
personnel involved in implementing the response should begin as needed. 
Once these elements are in place, implementing the response is a two-
phase process. The first phase involves the actual construction and 
initial operation of the response, and the second phase involves 
operation until the response achieves the response objectives. Actual 
implementation or construction includes conducting necessary quality 
assurance inspections and preparing any necessary periodic reports on 
progress in executing the response. Clearly, there must be DDESB review 
of all phases of the implementation process, including the construction 
and acceptance testing activities. This function ensures that the 
construction of the remedy follows the specifications and requirements 
detailed in the planning process for implementation and the terms of 
any contracts for operation. The Department of Defense also will 
monitor the response to determine its effectiveness. Upon completion of 
each phase of monitoring, the results will be analyzed to determine if 
the remedy has achieved the response objectives.
    d. Public and government agency involvement: Any releasable 
documents or reports developed during this phase of the range response 
process are part of the administrative record and will be made 
available for public inspection at the information repository. The 
public, government agencies, and American Indian tribes may take 
concerns or questions about the response directly to the DoD POC, the 
EPT, or the RAB. Federal or State agencies that have granted a waiver 
from an applicable requirement may request regular updates on the 
progress of the response and its compliance with any conditions imposed 
in granting the waiver.
8. Recurring Reviews
    In this rule, the Department of Defense is proposing to require 
recurring reviews of ARs, conditions imposed as part of a TI 
determination, and site-specific responses. Sites issued a 
determination of no further action will not be subject to recurring 
reviews, but if a previously unidentified risk is identified at a later 
date, the Department of Defense is obligated to take necessary response 
actions.
    The purpose of recurring reviews is to determine if the responses 
taken continue to ensure explosives safety, protect human health and 
the environment, prevent off-range releases of other constituents, and 
provide an opportunity for assessing the applicability of new UXO 
technology or other new technology that will overcome a previous TI 
determination.12 The focus of the review will depend upon 
the response objectives and the specific responses implemented to 
address the identified hazards at the range. For example, for responses 
that provided explosives safety or human health protection through 
limiting access to the range, the recurring review will focus on the 
effectiveness of the mechanisms and institutional controls put into 
place to control access. For ranges where a long-term response is 
required, the recurring review will focus the ability of the response 
to achieve its specific performance objectives within a specified time 
frame.
---------------------------------------------------------------------------

    \12\ The Department of Defense has established a UXO Technology 
Executive Committee that will centralize the assessment of new UXO 
technologies.
---------------------------------------------------------------------------

    a. Frequency of recurring reviews: Under CERCLA Section 121, EPA 
conducts reviews of remedial actions at sites on the NPL at least every 
5 years, starting with implementation of the remedial action. The 
Department of Defense is proposing that the first recurring review at 
closed, transferred, and transferring ranges occur after 3 years. 
Subsequent recurring reviews would occur at year 7 and at 5-year 
intervals thereafter, or as necessary to ensure that the response is 
still effectively addressing the identified risks posed at the range. 
The Department of Defense proposes this frequency because problems with 
responses typically manifest themselves in the time shortly after 
implementation. Recurring reviews will be set on a more frequent 
schedule (e.g., years 2, 5, 9, 14 * * *) when necessary.
    The Department of Defense also proposes that should a problem with 
a response be identified outside the recurring review process, for 
example by a private citizen, that party can submit a request to the 
DoD component responsible for the range to have the response reviewed. 
Such a request will need to provide sufficient details as to the 
location of the range, the problem noted, and the identity of the party 
submitting the request so that it can be handled in a timely manner.
    b. Documenting recurring review findings: At each recurring review, 
the Department of Defense will formally document the review procedures 
and the evaluation criteria used to assess the effectiveness of the 
response in a recurring review report. The document also will describe 
any information collected or analysis conducted as part of the review. 
Finally, the document will provide a discussion of the findings, 
stating whether or not the response continues to address the hazards at 
the range and if any new problem is discovered in the period since the 
last review. If the response failed to remain effective, or if a new 
problem is discovered, the DoD component responsible for that range 
will provide a discussion of what actions will be taken to return the 
response to full effectiveness. If a new problem is identified, the 
responsible DoD component will document the actions to be taken to 
address that problem and the schedule for the

[[Page 50822]]

actions. For the most part, this will involve returning to the 
appropriate phase of the range response process (e.g., go back to the 
RA/AR phase and implement an AR). The responsible DoD component then 
will take action as necessary to address the risks posed by the range.
    c. Public and government agency involvement: If the review 
determines that the response remains effective, the Department of 
Defense will publish a notice to that effect in a major local newspaper 
of general distribution. The recurring review report will be included 
in the administrative record and made publicly available at the 
information repository. If the review finds that the response is not 
effective, the Department of Defense will publish a notice to that 
effect and will hold a public meeting or availability session if 
requested to do so by the public. Furthermore, the Department of 
Defense will prepare a formal decision document describing any actions 
to be taken and will send formal written notice to appropriate Federal, 
State, and American Indian tribal officials that discusses the findings 
of the review and the Department of Defense's planned actions to 
address the risks posed by the military range. A copy of the draft 
decision document will be provided to the appropriate Federal or State 
agency, American Indian tribe, and Federal land manager for 
concurrence.
9. Ending the Range Response Process
    Following completion of an appropriate number of recurring reviews 
to demonstrate that the range is unlikely to pose an explosives safety 
risk or a risk to human health or the environment, the Department of 
Defense will administratively close out and end the range response. 
Typically, this will require that:
    (1) The Department of Defense has demonstrated that any military 
munitions or other constituents at the range pose minimal hazards.
    (2) The specific response objectives are achieved and all related 
monitoring activities to demonstrate that are complete.
    (3) For responses that do not involve restoring groundwater or 
surface water (for example, in-situ soil treatment), the response is 
fully operational and performing to design specifications. A response 
becomes ``fully operational'' either 1 year after construction is 
complete or when the remedy is determined to be functioning properly 
and is performing as designed, whichever is earlier.
    (4) For response actions involving treatment or other measures to 
restore groundwater or surface water quality to a level that ensures 
protection of human health and the environment, the operation of such 
treatment or other measures for a period of up to 10 years after the 
response becomes ``fully operational'' will be considered part of the 
response action, and not O&M.
    (5) The only remaining activities at the site involve O&M. O&M 
measures are initiated after the response action has achieved its goal 
as outlined in the decision document, and is determined to be ``fully 
operational'' (except for groundwater or surface water restoration 
actions as described in IV.E.9.(4)).
    Once these requirements are met, the Department of Defense will 
prepare a range close-out report justifying completion of the response. 
This report will include:
    (1) A summary of the range's history and past and current 
conditions.
    (2) Demonstration that all response objectives have been met.
    (3) A determination that sufficient monitoring results have been 
collected to demonstrate that the response objectives have been 
achieved.
    (4) Demonstration that any long-term maintenance requirements for 
the response are capable of being successfully carried out.
    (5) Documentation that the range response has effectively addressed 
the hazards posed by military munitions and other constituents at the 
range.
    a. Public and government agency involvement: The responsible DoD 
component will provide a copy of the draft range close-out report to 
the appropriate State and Federal agencies, American Indian tribe, and 
Federal land manager for their review and comment. The Department of 
Defense also will publish a notice of availability and brief summary of 
the range close-out report in a major local newspaper of general 
circulation, and announce a 45-day period for submission of written 
public comments to the DoD POC for that range. If requested, the 
Department of Defense also will hold a public meeting or availability 
session. The Department of Defense will prepare a formal decision 
document describing the actions to be taken, and will provide that 
document to the appropriate regulators, American Indian tribe, and 
Federal land manager for concurrence in accordance with Sec. 178.14 of 
this rule. A copy of the draft decision document will be provided to 
the appropriate Federal or State agency, American Indian tribe, and 
Federal land manager for concurrence. The final range close-out report, 
decision document, and supporting information will be placed in the 
administrative record for the range response.
    b. The Department of Defense's continuing obligation: Under DERP 
and 10 U.S.C. 172, the Department of Defense is never fully relieved of 
its obligation to address environmental damages caused by military 
munitions or other constituents. If at some future date a problem is 
discovered at a range where the Department of Defense completed the 
range response process, the Department of Defense will conduct an 
appropriate response to address that problem. This response typically 
will be handled as an explosives or military munitions emergency 
response; however, if the circumstances indicate a need for a more 
detailed response, the Department of Defense will reopen the range 
response process and conduct any appropriate actions. If a response is 
needed due to the Federal land manager's or property owner's failure to 
comply with the deed restrictions or other land-use limitations placed 
on the use of the property, however, the Department of Defense is not 
responsible for conducting any part of the response that has been made 
necessary by this failure to comply. After the range rule process has 
been administratively ended, the Department of Defense is still 
responsible for continuing any long-term maintenance or monitoring 
requirements that were part of the Department of Defense response at a 
given range.
    The Department of Defense also has stated that if technology limits 
the range response and the use of the land is restricted, but later, 
cost-effective improvements in technology allow for the removal of such 
a restriction, the Department of Defense is responsible for conducting 
a later response, if doing so is consistent with the land transfer 
agreement and reasonably anticipated land uses that were originally 
identified and there is a current need for the removal of such a 
restriction. Assessments of the applicability of new technology 
typically will occur in the recurring review phase, but also may arise 
after the range response has been administratively ended. Assessment of 
the applicability of new technology will relate to new UXO technology 
or other new technology that will overcome a previous TI determination.

F. Other Issues

1. DoD Environmental Response Authorities and Relationship to Other 
Laws
    a. Regulatory and environmental response authorities: In this 
proposed rule, the Department of Defense has

[[Page 50823]]

articulated, for the first time in regulatory form, the nature and 
extent of its environmental response authorities under DERP, DDESB, and 
CERCLA. It has chosen to do so in the case of response activities at 
closed, transferred, and transferring ranges because of the unique 
risks to safety, human health, and the environment posed by such sites, 
and because of the Department of Defense's expertise in safely managing 
the risks posed by military munitions and military ranges. DERP, DDESB, 
and CERCLA give the Department of Defense authority to respond to 
releases or threatened releases from its facilities (including NPL 
sites). Like any other executive agency that has been directed to carry 
out a legislative mandate, the Department of Defense is entitled to 
create regulations that spell out how this mandate will be effectuated. 
The Department of Defense has chosen to do this for range responses 
because of two focused, statutory mandates that direct the Department 
of Defense's attention to the issue of ordnance and range activities: 
DERP and 10 U.S.C. 172, which established the DDESB. In this proposed 
rule, the Department of Defense intends that military munitions and 
other constituents on closed, transferred, or transferring military 
ranges are to be addressed under DERP and DDESB authorities in a manner 
that is not inconsistent with CERCLA. Accordingly, substantive 
requirements of RCRA may be the source of ARARs to any response actions 
deemed necessary. This proposed rule's process is one that is tailored 
to the unique risks posed by military munitions and military ranges 
(i.e., the risks of UXO and any other constituents that may emanate 
from UXO, exploded ordnance, or range activities).
    When Congress established DERP in 1986, it directed the Secretary 
of Defense to ``carry out a program of environmental restoration'' at 
facilities under the jurisdiction of the Secretary of Defense. Section 
2701(b)(2) of DERP specifically cites one of the program goals of DERP 
to be the ``correction of other environmental damage (such as detection 
and disposal of unexploded ordnance) which creates an imminent and 
substantial endangerment to the public health or welfare or to the 
environment.'' Under 10 U.S.C. 172, the Department of Defense has a 
specific charter to prevent ``hazardous conditions from arising to 
endanger life and property inside or outside storage reservations'' 
when it comes to military munitions (including UXO). The DoD agency 
entrusted with carrying out this mandate is the DDESB. The DDESB is a 
multi-Service entity that has issued military munitions safety 
standards and guidance documents such as DoD Directive 6055.9, 
Ammunition and Explosives Safety Standards,13 that are 
followed by all of the armed Services. Case law and the opinion of the 
U.S. Attorney General support the concept that the DDESB has broad 
rulemaking powers regarding safety issues over munitions (1949, 41 Op. 
Atty. Gen. October 27; 14 see also McQueary v. Laird, 449 
F.2d 608 (10th Cir. 1971) 15 and Pratt v. Hercules, Inc., 
570 F. Supp. 773 (D. Utah 1982)).16 Thus, DERP and DDESB are 
the foundation for the Department of Defense's creation of a range-
specific response process.
---------------------------------------------------------------------------

    \13\ Copies of DoD Directive 6055.9 may be obtained, at cost, 
from the National Technical Information Service, 5285 Port Royal 
Road, Springfield, VA 22161 (telephone 703-487-4650).
    \14\ Copies of this Attorney General opinion may be obtained by 
visiting the DoD range rule administrative record at 910 Clopper 
Road, Gaithersburg, MD 20878-1399 (telephone 301-258-8753).
    \15\ Copies of this case may be obtained by visiting the DoD 
range rule administrative record at 910 Clopper Road, Gaithersburg, 
MD 20878-1399 (telephone 301-258-8753).
    \16\ Copies of this case may be obtained by visiting the DoD 
range rule administrative record at 910 Clopper Road, Gaithersburg, 
MD 20878-1399 (telephone 301-258-8753).
---------------------------------------------------------------------------

    The DERP and DDESB authorities are then combined with the 
preexisting authority and obligations under CERCLA to engage in 
environmental response activities. The Department of Defense was 
already involved in removal and remediation activities at its 
facilities under the auspices of its Installation Restoration Program 
(IRP) for many years prior to the creation of CERCLA. The scope of this 
early IRP was responding to the releases or the substantial threat of 
releases of hazardous substances into the environment, as well as 
pollutants and contaminants that present an imminent and substantial 
danger to public health or welfare. The Department of Defense's IRP 
continued, with certain modifications, after the enactment of CERCLA in 
1980. The Superfund Amendments and Reauthorization Act (SARA) clarified 
the nature of the Department of Defense's authority to respond to 
releases from its installations. SARA created CERCLA Section 120, which 
waived Federal sovereign immunity to the requirements of CERCLA.
    CERCLA Section 104 states that the President is authorized by 
Congress to take removal and remedial actions consistent with the NCP 
whenever there is a release or a substantial threat of a release of a 
hazardous substance into the environment or a release or threat of 
release of a pollutant or contaminant into the environment that may 
present an imminent and substantial danger to public health or welfare. 
CERCLA Section 115 states that the President is authorized to delegate 
any assigned duties or powers and to promulgate any regulations 
necessary to carry out the requirements of CERCLA.
    In E.O. 12580 (59 FR 2923 (January 23, 1987)), the President in 
Section 2(d) delegated his Section 104 authority (as well as other 
authorities) to the Secretary of Defense with respect to releases or 
threatened releases where either the release is on or the sole source 
of the release is from any facility or vessel under the jurisdiction, 
custody, or control of the Department of Defense. The President's 
delegation to the Secretary of Defense is not conditioned on the NPL 
status of the release in question. The Department of Defense must 
exercise its CERCLA authority in a manner consistent with the 
requirements of Section 120 of CERCLA.
    CERCLA Section 120 requires the Department of Defense to perform 
restoration activities in a manner consistent with guidelines, rules, 
regulations, or criteria developed by EPA, such as the NCP. In the NCP, 
EPA has recognized the various delegations made in E.O. 12580 and the 
various responsibilities of Federal agencies under CERCLA Section 120 
by referring to Federal agencies that are responding to releases from 
their facilities as CERCLA ``lead agents.'' This ``lead agency'' status 
applies regardless of whether the release in question is from an NPL or 
a non-NPL site (i.e., ``the Federal agency maintains its lead agency 
responsibilities whether the remedy is selected by the Federal agency 
for non-NPL sites, or by EPA and the Federal agency or by the EPA alone 
under CERCLA Section 120'' (40 CFR 300.5)).
    The Department of Defense has been designated as the lead removal 
response authority with respect to military munitions in the NCP (40 
CFR 300.120(d)). Thus the Department of Defense has lead agency 
authority under CERCLA (see also 40 CFR 300.5). Currently under the 
CERCLA program, the Department of Defense has the authority to select 
the appropriate response at non-NPL sites that are under the 
jurisdiction, custody, or control of the Department of 
Defense.17 At NPL sites, EPA and the Department of Defense 
jointly choose the appropriate

[[Page 50824]]

response. If there is a disagreement, EPA has the final decision. The 
Department of Defense wants to make it clear that the hallmark of an 
effective ``lead agency'' is effective involvement by the public, as 
well as by EPA and State regulators. The Department of Defense believes 
that the process proposed in this rule allows responses at military 
ranges to be evaluated in an open fashion, with direct public and 
regulator involvement. Other Federal agencies have been delegated 
similar CERCLA authorities in E.O. 12580 in connection with facilities 
under their jurisdiction, custody, or control.
---------------------------------------------------------------------------

    \17\ Note that DoD authorities under DERP also extend to 
carrying out response actions consistent with DERP and CERCLA at a 
``site which was under the jurisdiction of the Secretary'' of 
Defense.
---------------------------------------------------------------------------

    While this proposal is not inconsistent with the CERCLA process, an 
interaction and balancing of immediate UXO safety concerns with 
potential chronic environmental concerns must occur. Unlike other 
materials, UXO poses an immediate explosives safety risk to human 
health that must be considered before environmental concerns can be 
addressed. While explosives safety remains an overriding concern, the 
Department of Defense recognizes that if CERCLA hazardous substances or 
RCRA hazardous wastes exist on the range, other regulatory authorities 
(e.g., State RCRA authorities) may apply. As a practical matter, 
requirements could be imposed outside of the area suspected of 
containing UXO to address contamination from these hazardous substances 
or waste (for example, groundwater collection).
    Certain regulators have designated constituents of military 
munitions as a hazardous waste or hazardous substance under their State 
CERCLA/RCRA programs. Some States may assert a regulatory cleanup 
authority, despite the Federal statutory bases for the Department of 
Defense's response process. Should conflicts develop between the 
Department of Defense and regulators, it is the Department of Defense's 
intention to work out compromise solutions that will respect the 
statutory and regulatory authorities of all parties and yet achieve the 
necessary expedited and safe response envisioned by this proposed rule, 
while recognizing that the regulatory agency retains decision-making 
authority, consistent with CERCLA and RCRA, for human health and the 
environment.
    The Department of Defense's proposed range-specific response 
process is further supported by the unique threats that military 
munitions pose to human health and the environment. The Department of 
Defense's use of military munitions has arisen from its mission of 
national defense, and the Department of Defense has special expertise 
in managing explosives safety risks. As described throughout this rule, 
the risks to safety, human health, and the environment inherent in 
locating and responding to such relatively unstable materials as UXO 
are considerable. The location and response activities associated with 
other constituents are equally dangerous because such activities will 
typically occur within areas containing UXO. The Department of Defense 
is the recognized expert in the management of these risks. With its 
years of experience in safely handling and managing UXO, the Department 
of Defense has the expertise for determining when immediate safety 
concerns may prevent certain actions to address potential environmental 
concerns. Due to the specialized mission of the Department of Defense, 
the requirement for explosives safety expertise is a critical element 
unavailable within other organizations. The Department of Defense 
maintains the nation's institutional military munitions knowledge. EPA 
has formally recognized the Department of Defense's expertise in 
explosives safety, and it is appropriate that the Department of Defense 
regulate the safety implications of UXO on ranges. Typically, Federal, 
State, and local regulators seek the Department of Defense's expertise 
when it comes to safely managing military munitions and other ordnance 
discovered at non-DoD sites. Since it is an expert in military 
munitions, it is appropriate for the Department of Defense to use its 
inherent statutory explosives safety and environmental response 
authorities in DERP, 10 U.S.C. 172, and CERCLA to address the risks 
posed by military munitions and other constituents at the Department of 
Defense's closed, transferred, and transferring military ranges.
    In summary, the Department of Defense believes there are three 
reasons that justify establishing a special process for response 
activities at its closed, transferred, and transferring military 
ranges: (1) The specific emphasis addressing the imminent and 
substantial threats posed to human health and the environment by 
military munitions that is found in DERP and 10 U.S.C. 172; (2) the 
general delegation of response authority given to the Department of 
Defense by Congress under DERP and by the President under CERCLA; and 
(3) the unique nature of the threats posed to human health and the 
environment by military munitions and military ranges.
    b. Relationship to other laws: Under this proposal, the Department 
of Defense will follow the ARAR process in selecting response 
activities at its closed, transferred, and transferring ranges, and as 
such, many environmental laws will be considered at this stage. If 
further action is necessary and can be safely performed, these 
additional environmental laws will be considered. For example, in the 
process of removing military munitions, or even installing some 
protective measures, habitat destruction may occur. If the response 
action could affect a species listed pursuant to the Endangered Species 
Act, the Department of Defense must consult with the U.S. Fish and 
Wildlife Service to ensure that the action is not likely to jeopardize 
such species or adversely impact its designated critical habitat. In 
addition, prior to any excavation, the Department of Defense will take 
appropriate measures to identify resources protected under the National 
Historic Preservation Act, Archeological Resources Preservation Act, 
and Native American Graves Protection and Repatriation Act. If any 
protected resources are likely to be affected, the Department of 
Defense will comply with the requirements of these acts.
    Another example of coordination with other laws involves the Safe 
Drinking Water Act (SDWA). If contaminants on a military range are 
affecting the quality of an actual or potential drinking water supply 
(e.g., a Class I or II groundwater as defined under the SDWA), then, 
consistent with CERCLA Section 121, this contamination must be 
addressed. Safety factors under the DERP program would still be 
considered, and it is possible that safety factors could require 
alternatives other than source removal, such as collection and 
treatment of contaminated groundwater outside the range area.
    Clean Air Act requirements such as emission limits in a State 
Implementation Plan (SIP) could be a source of ARARs. In the case of 
remedial activities that generate air emissions, for example, the 
response would have to meet the SIP's substantive requirements.
    Under RCRA, if military munitions/UXO are excavated from the range 
and taken off-site, RCRA hazardous waste requirements would apply, as 
appropriate. As stated in EPA's military munitions rule, ``used or 
fired munitions are solid wastes when they are removed from their 
landing spot and then either (1) managed off-range * * * or (2) 
disposed of (i.e., buried or landfilled) on-range'' (62 FR 6632, 
February 12, 1997). Also, EPA has made it clear in the preamble to the 
NCP and various CERCLA guidance documents that aspects of the RCRA 
corrective action program may also be a source of

[[Page 50825]]

ARARs for the Department of Defense's response actions. For example, 
the flexibility afforded to restoration activities by RCRA's corrective 
action management unit and temporary unit concepts may be of use in 
expediting the Department of Defense's restoration activities.
    The Department of Defense solicits comments on the interaction of 
this proposed range rule process with other environmental laws and 
regulations.
2. Water Ranges
    The process of conducting response activities at closed, 
transferred, and transferring water ranges is particularly daunting. 
The retrieval, rendering safe, and even the location of military 
munitions in such ranges are extremely difficult. For example, tidal 
action may make maneuvering difficult and visibility poor; deep waters 
require remotely operated equipment; and military munitions often are 
buried in sediments. Orientation and location are therefore extremely 
difficult in the ocean environment. Typically, the Navy is limited to 
diver point searches and sweeps for recovery of military munitions. 
There is no technology available with the accuracy and discrimination 
needed to rapidly survey, detect, pinpoint, and classify underwater 
military munitions.
    UXO has a long life in the underwater environment. Projectiles and 
bombs are designed with thick metal cases that take years to corrode. 
Nonetheless, experience with aged intact military munitions reveals 
that fills are typically in deteriorated condition, with formation of 
metal/explosive compounds and other chemical changes. Because such 
materials may be more sensitive, most UXO recovered from water ranges 
is destroyed soon after it is recovered. The toxicity of military 
munitions ingredients in water ranges generally is low. Most toxic 
compounds are rapidly decomposed by hydrolysis, photolysis, and 
oxidation once they are dissolved in water.
    Because of the inherent difficulty in locating, rendering safe, 
and/or retrieving military munitions in water ranges, and because of 
significant risks to human health and safety posed to Navy personnel by 
such activities (i.e., the dangers inherent in underwater activities), 
as well as the water range UXO itself (i.e., its relatively unstable 
and sensitive nature), the types of ARs and site-specific responses 
will likely be significantly different than the responses for land-
based military ranges. With regard to responses at water ranges, this 
proposed rule will be implemented in a manner consistent with the 
rights and obligations of the United States under the Law of the Sea 
Convention.
3. Other Range Activities
    Activities not related to training or researching, developing, or 
evaluating military munitions may occur or have occurred on closed, 
transferred, and transferring military ranges. Some examples of these 
activities are open burning/open detonation (OB/OD) and certain 
explosive ordnance disposal (EOD) activities.
    OB/OD sites are used to thermally treat waste military munitions by 
a controlled burn or a controlled detonation. Some OB/OD sites were in 
use for a number of years before RCRA was enacted. Many OB/OD sites 
were located within military ranges. OB/OD operations may not have 
completely destroyed the military munitions, resulting in the presence 
of UXO and its associated explosives safety risks.
    OB/OD sites that exist on closed, transferred, and transferring 
ranges and were never permitted (and did not need to be permitted 
during their active life) are covered by this rule because they may 
contain UXO or other constituents. According to current RCRA standards, 
RCRA-permitted OB/OD facilities (or OB/OD facilities that should have 
been permitted) need to undergo RCRA closure as directed in their 
individual treatment facility permit or post-closure care permit, once 
the decision has been made that the facility will no longer be 
operated.
    In ``Standards Applicable to Owners and Operators of Closed and 
Closing Hazardous Waste Management Facilities' (59 FR 55778, November 
8, 1994), EPA recently proposed eliminating the regulatory requirement 
that it issue permits to all facilities subject to post-closure care 
requirements in favor of imposing the same substantive requirements at 
the facility by using ``alternate legal authorities.'' Although EPA's 
rule has not been finally promulgated, the Department of Defense 
intends to work with EPA to establish its CERCLA/DERP authorities as an 
adequate alternate legal authority for purposes of CERCLA/DERP-based 
response actions (in lieu of RCRA closure activities) at appropriate 
OB/OD sites located on the Department of Defense's closed, transferred, 
and transferring ranges.
    EOD ranges are not sites that are used for routine OB/OD 
activities. EOD sites are designated to be used for EOD procedures that 
are conducted during munitions or explosives emergency responses. 
Individual and organizational EOD training may also be conducted at 
these sites. Often, EOD sites are located within military ranges, which 
provide the explosives safety distances from personnel, buildings, and 
facilities, as well as controlled access to the ranges. Both of these 
conditions also are required for EOD sites. EOD sites involved in such 
activities are within the scope of this proposed rule. EOD activities 
that are non-emergency and non-training are usually waste treatment and 
disposal activities and are conducted at permitted facilities; such 
activities are not covered by this rule.
4. Chemical Agent Constituents
    Live chemical agent testing and demilitarization prior to 1969 was 
performed on certain military ranges. Some of this testing occurred on 
closed and transferred ranges, and possibly on some transferring 
military ranges as well. When chemical munitions were employed on a 
military range, a certain percentage of the fired military munitions 
did not function and became UXO. Chemical UXO poses a unique and 
difficult situation for the technical escort unit (TEU), an EOD team 
specially trained to handle chemical munitions. Although the explosive 
component of a chemical UXO is much less than that of the conventional 
high-explosive UXO, TEU personnel must assess the round and handle the 
UXO wearing personal protective equipment and follow special procedures 
and techniques unique to the Department of Defense and the Chemical 
Warfare Material program in case of a chemical release. This greatly 
slows the assessment and handling process. Increased safety precautions 
are necessary when there is a potential for the presence of chemical 
UXO, due to the potentially greater risk to the health and safety of 
workers and the public should a chemical UXO detonate. In addition, the 
transport and destruction of lethal chemical agent are regulated by 50 
U.S.C. 1512 and 1512a, requiring special approvals by the Secretary of 
Defense and the Secretary of Health and Human Services prior to either 
transport or destruction. In addition, notification is required to be 
given to Congress and affected State governors prior to any such 
destruction or transportation.
5. Buried Military Munitions
    The historical and then-acceptable practice by the Department of 
Defense was to bury certain military munitions. Many of these past 
burial sites have been remediated, but a number of them still exist, 
and some may be located on closed, transferred, or transferring ranges. 
The Department of Defense

[[Page 50826]]

believes that military munitions disposed of by burial or disposal in a 
landfill are a solid waste, and, if hazardous, would be subject to RCRA 
Subtitle C regulation when unearthed and further managed; they could 
also potentially be subject to RCRA corrective action and/or CERCLA. 
These buried munitions pose the same safety and hazard risks as UXO. In 
fact, buried munitions can involve greater safety risks than UXO, 
because the number and types of military munitions may not be known. 
The presence or suspected presence of buried military munitions will be 
a significant factor in whether response actions can be performed on 
the range. Even though they are potentially subject to RCRA, burial 
sites that are located on closed, transferred, or transferring military 
ranges should be evaluated in accordance with this rule. The Department 
of Defense solicits comment on this approach of addressing past burial 
sites of military munitions on closed, transferred, and transferring 
ranges.
6. Depleted Uranium
    Depleted uranium (DU) is a byproduct of the uranium enrichment 
processes. DU is used in the commercial sector by the aircraft industry 
as counterweights, by the power industry as radiation shielding, and by 
the military as an armor-piercing projectile due to its hardness, 
strength, and density. DU's potential radiation exposure is small. As 
an alpha particle emitter, its radiation does not penetrate human skin 
or even ordinary paper. DU may be present on closed, transferred, and 
transferring ranges. DU is regulated by the U.S. Nuclear Regulatory 
Commission.
7. Regulator, American Indian Tribe, and Public Involvement
    a. General: The Department of Defense will ensure a substantial 
role for the public, American Indian tribes, and regulators in this 
rule's process. In addition to the detailed roles outlined in Section 
IV.E. of this preamble, d etailed discussion of the phases of the range 
response process, the Department of Defense encourages States to enter 
into a Defense/State Memorandum of Agreement (DSMOA) to increase State 
involvement and strengthen the DoD/State partnership. The Department of 
Defense will make use of established RABs to involve the public 
throughout the process, or other forums, such as EPTs, as the specifics 
of the site and interest of the community dictate. While a finalized 
Defense and Tribal Memorandum of Agreement (DTMOA) does not yet exist, 
a DTMOA would be treated in a similar fashion.
    The Department of Defense intends to seek regulatory agency 
involvement throughout the range response process. Communication and 
participation with environmental regulators should be frequent and 
should go beyond participation in RABs. While RABs are a valuable forum 
for communication between community, regulator, and the Department of 
Defense stakeholders, the RAB should not serve as a substitute for 
regulator involvement. The level of regulator participation should be 
consistent with the BRAC guidance on regulator involvement. Frequent 
communications, such as weekly or monthly progress meetings, data 
exchanges, and early notification of new information, are critical to 
building a team approach between environmental regulators and the DoD 
component responsible for the range.
    Range responses executed with BRAC and Environmental Restoration 
Account funds will be eligible to be incorporated into the DSMOA 
process. The DSMOA process is designed to account for State oversight 
in the BRAC and Environmental Restoration Account programs, but 
prohibits incorporation of other projects not funded by these two 
accounts. To address the revision of the cooperative agreements, the 
Department of Defense is contemplating a special revision cycle for the 
States to incorporate new requirements resulting from the DoD range 
rule.
    b. American Indian tribes: The U.S. Government has a unique legal 
relationship with Native American tribes as set forth in the U.S. 
Constitution, treaties, statutes, and court decisions. In implementing 
this rule's proposed process, the Department of Defense will act in a 
manner that is consistent with the ``Government-to-Government Relations 
With Native American Tribal Governments'' memorandum issued by 
President Clinton (59 FR 22951, May 4, 1994), the Native American 
Graves and Repatriation Act (as mentioned in Section IV.F.1.b. of this 
preamble, Relationship to Other Laws), and any military policies on 
Native American relations.
    Section 178.4(c) provides a definition of American Indian tribe as 
used in this proposed DoD range rule. To be afforded substantially the 
same treatment as States under this rule, and thus receive a 
concurrence role, the governing body of the American Indian tribe must 
be federally recognized by the Department of Interior; have an 
appropriate tribal governing body that performs health, safety, or 
environmental functions; and have real property interests (as defined 
in Sec. 178.4(l) of this rule) over some or all of a closed, 
transferred, or transferring range at which a response, including pre-
response activities, is ongoing or contemplated.
    To ensure meaningful participation by federally recognized tribes 
and villages that do not meet this rule's definition of an American 
Indian tribe, the Department of Defense encourages such tribes and 
villages to participate in RABs and/or EPTs as applicable, and to 
participate in all public forums provided (such as attending public 
meetings and technical education programs, and commenting on site-
specific documents and notifications produced during the range response 
process). On a site-specific basis, the Department of Defense intends 
to notify, coordinate with, and consult with Native American tribes and 
Native Alaskan villages in accordance with tribal trust obligations and 
with the presidential memorandum on government-to-government relations. 
Furthermore, the Department of Defense recognizes that federally 
recognized tribes and villages have specific rights created under 
treaties, statutes, and other regulations. For example, the NCP 
provides that a Native American tribe may bring an action for injury 
to, destruction of, or loss of natural resources belonging to, managed 
by, controlled by, or appertaining to such tribe, or held in trust for 
the benefit of such tribe, or belonging to a member of such tribe if 
such resources are subject to a restriction on alienation (55 FR 8788, 
March 8, 1990). Nothing in this proposal is intended to preempt or 
restrict such tribal rights, privileges, or authorities.
    This proposal also describes what information and notices are to be 
provided to appropriate officials of the American Indian tribes (see, 
for example, Sec. 178.7(e)). Notices to these officials should also 
include the affected trustee (e.g., the Department of Interior), when 
applicable. The Department of Defense particularly requests comments on 
this portion of the proposed rule, especially concerning the 
relationship between federally recognized tribes and this rule, the 
level of detail needed on this subject, and the interaction between 
tribes and States under the range rule.
    c. State involvement in ARARs: The Department of Defense will 
provide the States 45 working days to review the draft RA/AR report, 
the draft RE report if prepared, the draft SSRE report, the draft range 
close-out report, and the draft recurring review report. A key 
component of the DoD/State partnership will be the communication of 
potential Federal and State ARARs and, as appropriate, other pertinent 
advisories,

[[Page 50827]]

criteria, or guidance to be considered (TBCs), prior to the response 
selection. ARARs and TBCs will be identified early in the alternatives 
analysis to allow adequate time to identify them and screen the 
alternatives appropriately. The Department of Defense will request that 
the States review and concur in the draft decision document for each 
phase of the range response process. If the responsible DoD component 
is considering a waiver of State ARARs, it will place the waiver 
request in the appropriate decision document being submitted for 
concurrence.
8. Small Arms Ranges
    Small arms ranges are a subset/type of military ranges. Military 
ranges are designed to teach, sustain, and maintain individual and 
collective group (i.e., unit) skills. Multipurpose ranges support 
integrated live-fire training of large caliber weapons (such as tanks) 
with small arms (machine guns). Small arms training is therefore not 
always confined to a range dedicated solely to a particular type of 
small caliber weapon. Because small arms ranges, along with large 
caliber and multipurpose ranges, are commonly configured around a 
common impact area in a range complex, small arms ranges can be located 
inside the surface danger zone of other ranges, such as artillery or 
tank ranges, thus increasing the chance of UXO or other military 
munitions and debris being present on the range. It is also possible 
that the area of the small arms range may have been used in the past as 
a military range that employed large caliber weapons, thus again 
increasing the chance of UXO or other military munitions and debris 
being present.
    Smaller caliber weapons also are uniquely military in nature due to 
the types and specifications of ammunition they use; they must meet 
military specifications and be manufactured to U.S. and North Atlantic 
Treaty Organization (NATO) standards. The ammunition used is designed 
for a number of purposes: for use against armored aircraft, light 
armored vehicles, concrete shelters, and other bullet-resistant 
targets; incendiary effects against aircraft; signaling; personnel; and 
light material targets. Due to the type and specifications of the 
ammunition, small arms ranges are covered by this proposed rule if they 
are located on a closed, transferred, or transferring military range.
9. Guidance
    The Department of Defense will develop implementing guidance on 
this proposed rule. The guidance will be coordinated with the EPA, 
States, American Indian tribes, and other Federal agencies before being 
issued as final. This guidance will address, at a minimum, 
implementation of the safety risk assessment model or protocol, the 
decision-making process, and record searches.
10. Dispute Resolution
    The Department of Defense has structured this proposed process for 
range response activities to maximize frequent and meaningful public, 
American Indian tribe, and regulator involvement. As such, the process 
should typically resolve issues before they become disputes. The 
proposed rule contains a formal alternative dispute resolution (ADR) 
process for Federal and State regulatory agencies, American Indian 
tribes, and Federal land managers in Sec. 178.15(b).
    If, however, a dispute arises that cannot be resolved informally, 
the Department of Defense encourages any property owner who is not 
specifically described in Sec. 178.15(b) and who may feel aggrieved by 
the Department of Defense's response activities to pursue the following 
ADR 18 mechanism with the Department of Defense to resolve 
differences: A property owner disputing a response at a closed, 
transferred, transferring range can submit the dispute in writing to 
the DoD POC for that range. The Department of Defense will attempt to 
resolve the dispute within 30 days, or a longer period if mutually 
agreed upon. Negotiation and other forms of mutually acceptable, 
nonbinding ADR, which may include non-binding mediation by a qualified 
third party, may be utilized. If a mutually agreeable resolution is 
reached, it will be documented in writing. If, after 30 days or a 
longer agreed-upon period, a mutually acceptable resolution is not 
reached, the parties may exercise any rights, remedies, or privileges 
available to them under applicable law. For example, if a hazardous 
substance is involved, the citizens' suit provision of CERCLA may be 
applicable. Additionally, procedures under the Military Claims Act (10 
U.S.C. 2732 et seq.) could be utilized by private property owners of 
transferred ranges. In addition, the dispute resolution processes 
spelled out in E.O. 12088 (43 FR 47707, October 13, 1978) and E.O. 
12146 (44 FR 42657, July 18, 1979) are available for disputes between 
Federal agencies and between Federal and State agencies. The Department 
of Defense solicits input on whether this ADR process for property 
owners should be a mandatory requirement or if any mechanisms should 
even be suggested.
---------------------------------------------------------------------------

    \18\ The Administrative Dispute Resolution Act (5 U.S.C. 571 et 
seq.) and E.O. 12778 (56 FR 12778 (October 23, 1991)) encourage 
Federal agencies to utilize ADR processes to resolve issues that 
might otherwise be litigated.
---------------------------------------------------------------------------

    A more formalized dispute resolution procedure is included for 
Federal and State environmental regulatory agencies, American Indian 
tribes, and Federal land managers in Sec. 178.15(b). The Department of 
Defense encourages environmental regulators, American Indian tribes, 
and Federal land managers to utilize this dispute resolution procedure 
instead of asserting additional statutory authorities over 
environmental remediation at military ranges, although the use of these 
procedures does not preclude the use of other statutory authorities. 
Additionally, site-specific or area-wide agreements may be applicable 
to a given military range which may provide for alternative dispute 
resolution procedures. The procedure specifically applies to Federal 
and/or State environmental regulators, American Indian tribes, and 
Federal land managers as appropriate.
    The formal procedure provides for five levels of dispute 
resolution: the project manager level, the installation commander 
level, the military headquarters level, the environmental policy-maker 
at the Secretariat staff level, and an appropriate political appointee 
with responsibility for environmental policy within the responsible DoD 
component. Because the title varies among the military departments, the 
terms ``headquarters level'' and ``principal environmental policy-maker 
level'' are used. For example, for the Air Force, the term 
``headquarters level'' would refer to the Major Command to which the 
installation reports, while the term ``principal environmental policy 
maker'' would refer to the Air Force Deputy Assistant Secretary for 
Environment, Safety, and Occupational Health. These personnel would 
meet with a similarly positioned person in the Federal or State agency 
or American Indian tribe.
    An additional level of dispute resolution is available to Federal 
agencies: elevating the dispute to the Office of Management and Budget 
(OMB). The dispute resolution process recognizes that regulatory 
agencies dissatisfied with an outcome under the dispute resolution 
process may elect to pursue resolution under other applicable laws such 
as CERCLA or RCRA. Nothing in this rule is intended to preempt State 
regulatory or enforcement powers or authority concerning hazardous 
waste or

[[Page 50828]]

hazardous substances, nor is it intended to affect the waiver of 
sovereign immunity by the United States contained in the Federal 
Facility Compliance Act of 1992 or any other environmental law.
    In recognition of their unique status, the dispute resolution 
mechanism provided to American Indian tribes in the DoD range rule is 
similar to that offered to the States. The final phase of the dispute 
resolution process provides for resolution between the Secretary of the 
Military Department, or his/her designee who must be a political 
appointee whose appointment requires the advice and consent of the 
Senate, and the American Indian tribal leader or his/her designee. 
Because the title may vary among the various American Indian tribes, 
the term ``tribal leader'' has been used to refer to the head of the 
tribe. Thus the term American Indian tribal leader would refer to the 
Governor, President, Chief Executive Officer, or other final decision-
maker for the American Indian tribe.
    In addition to this first option for the final step in dispute 
resolution for States and American Indian tribes, as presented in 
Sec. 178.15(b)(5), the Department of Defense is considering a second 
and third option. The second option is to provide the State governor or 
the American Indian tribal leader with final decision-making authority 
for issues under dispute. While the Department of Defense is 
considering this option, it believes that there are significant legal 
impediments. In the range rule, the Department of Defense voluntarily 
acknowledges its obligations, independent of any other authorities that 
might be available to State regulators or tribes, to address UXO and 
other constituents from DoD activities on closed, transferred, and 
transferring ranges. Because the Department of Defense is utilizing 
statutory authorities for which it has responsibility and no authority 
to delegate, it believes it should be the final decision-maker under 
the DoD range rule. Since nothing in the range rule removes or limits 
any authorities the States and tribes have, the Department of Defense 
will have a strong incentive to ensure that any actions it takes under 
the range rule will be fully satisfactory to States and tribes.
    The Department of Defense is, however, seriously considering the 
third option. Under this option, should the Secretary of the 
responsible DoD component's military department and the State governor 
or American Indian tribal leader be unable to resolve a dispute by 
consensus, then the responsible DoD component would prepare a written 
statement acknowledging the inability of the responsible DoD component 
and the State or tribe to resolve the dispute and recognizing that the 
responsible DoD component and the State or tribe may pursue their 
authorities under any applicable law.
    The Department of Defense believes that utilization of the 
mechanisms in this proposed rule, in lieu of any other authorities that 
might be applicable, would present substantial advantages for all 
interested parties because environmental and safety risks will be 
addressed more promptly and more comprehensively through this rule. As 
made clear in the dispute resolution provision, if a State or Federal 
agency or American Indian tribe is dissatisfied with the results of the 
application of this rule, there is recourse outside the Department of 
Defense; the State may choose to apply other legal authorities that 
might be applicable, and the Federal agency may elevate the dispute to 
OMB or choose to apply other applicable legal authorities.
    CERCLA Section 120(e)(4) requires that the selection of a remedial 
action be made by the head of the relevant department (i.e., the DoD 
component) and the EPA Administrator, or, if unable to reach agreement 
on the selection of a remedial action, by the EPA Administrator. 
Section 178.15(b)(4) thus integrates this statutory authority into this 
proposed rule to avoid duplicative procedures and unnecessary delays. 
Section 178.15(b)(4) of this rule recognizes that there may be an 
overlap between EPA's authority under CERCLA for the final selection of 
a remedial action at an NPL site and the Department of Defense's 
authority under 10 U.S.C. 172 and 2701 for explosives safety 
19 and military munitions. Thus, consistent with Section 10 
of E.O. 12580 on Superfund Implementation, the dispute can be raised to 
OMB. While such a dispute theoretically is possible, the Department of 
Defense is confident that the dispute resolution process contained in 
this rule would result in the selection of a response that is fully 
satisfactory to the EPA Administrator and to the Secretary of the 
Military Department prior to the OMB stage.
---------------------------------------------------------------------------

    \19\ The Department of Defense notes that, under isolated 
circumstances, other constituents subject to CERCLA could be present 
in concentrations that constitute an explosives safety hazard. In 
such case, the Secretary of the Military Department would resolve 
the explosives safety issues, and the EPA Administrator would 
resolve the other issues related to the release of those other 
constituents.
---------------------------------------------------------------------------

    Range response activities will not be suspended during the dispute 
resolution process absent extraordinary circumstances. If the secretary 
of a Federal land manager, or his/her designee whose appointment 
requires the advice and consent of the Senate, provides a written 
declaration with supporting rationale to the Department Secretary for 
the responsible DoD component, stating that an immediate suspension of 
response activities during the full dispute resolution process is 
needed to prevent substantial environmental harm that would result from 
the performance of the activity itself, then the responsible DoD 
component shall immediately suspend such activity, to the extent 
consistent with the protection of human health from any imminent and 
substantial danger. The suspension issue (i.e., whether to suspend 
response actions during the full dispute resolution process) will be 
raised directly to the Military Service Department Secretary, or his/
her designee whose appointment requires the advice and consent of the 
Senate, consistent with Sec. 178.15(b)(4). The Secretary of the Federal 
land manager and the Military Service Department Secretary will have 5 
calendar days to arrive at a consensus on the suspension issue. If no 
consensus is reached, then the Federal land manager will have 5 
calendar days to raise the suspension issue to OMB and request OMB to 
decide whether to continue the suspension of the response action. Five 
days following the submission of the suspension issue to OMB, the 
Military Service can resume activity unless OMB makes or has made a 
determination that the response actions should not resume pending 
resolution of the underlying dispute, or that an additional time period 
is needed to consider the merits of the arguments over whether the 
response action should be allowed to resume.
    Because of the extensive involvement of the Federal land manager 
throughout the range rule process, this mechanism should be rarely 
used, and will typically be based on concerns over endangered species 
or other issues involving statutory protections. This process is 
intended as a true emergency measure to assure the Federal land manager 
that it will be able to protect its lands from substantial 
environmental damage while the merits of the dispute are fully aired. 
Because the suspension of an action could result in substantial 
contract costs to the government and delays in the mitigation of risks 
to human health and the environment from UXO, the Federal land manager 
should endeavor to raise its concerns over substantial environmental 
effects of a proposed

[[Page 50829]]

response action at the earliest possible time.
    One Federal commentor has suggested that the time limits of this 
provision be changed from 5 days to 10 days. Additionally, a State 
commentor has asked if States can suspend response actions during a 
dispute. The Department of Defense seeks comments on both of these 
issues.
11. Allocation of Operation and Maintenance Costs Between Federal 
Agencies
    The Department of Defense intends to enter into a memorandum of 
understanding (MOU) with Federal land managers to establish the general 
principle that the Department of Defense is responsible for the 
incremental O&M costs attributable to military munitions (including UXO 
and its associated constituents) employed by the Department of Defense 
at ranges that are under the responsibility of another Federal land 
manager and for which the Department of Defense would be responsible 
under the proposed rule for the costs of the response, unless otherwise 
specified by law. Such an MOU would be modified only by mutual 
agreement of the parties. This MOU would establish a workgroup to 
review quality controls and the consistency of decisions whether to 
commence the RA/AR process at former ranges managed by a Federal land 
manager. The MOU would incorporate the dispute resolution process for 
allegations that the Department of Defense arbitrarily applied the 
factors in Sec. 178.6(b) or relied upon inaccurate information.
    The Department of Defense and the Federal land manager also would 
enter into site-specific MOUs to establish the costs for which the 
Department of Defense would be responsible at that range. The costs and 
the requirements would be established for a range as part of the 
response selection process called for under the rule, including the 
selection of an AR.
12. Future Land Use Issues for Transfers Between Federal Agencies
    The Department of Defense and the Federal land managers have agreed 
to enter into a memorandum of agreement (MOA) to discuss future land 
use issues. Section 178.16 of this proposed rule generally discusses 
future land use issues at these Federal properties. The Department of 
Defense has divided this issue into three topics: Transferring ranges, 
transferred ranges, and responsibility for additional response actions. 
For transferring ranges, the Department of Defense will conduct and 
fund response activities consistent with all reasonably anticipated 
future land uses that are identified and agreed to between the parties 
to the land transfer prior to the transfer. Where the transfer of the 
military range is mandated by statute, executive order, a previously 
concluded agreement between the Department of Defense and the Federal 
land manager, or under terms of a withdrawal, special-use permit or 
authorization, right-of-way, public land order, or other instrument 
issued by the Federal land manager, under which the Department of 
Defense used the property, and where future land uses are not 
identified or response activities are not specified in such statute, 
order, agreement, or instrument, any dispute will be resolved through 
utilization of the dispute resolution procedure identified in the range 
rule. Where the transfer is not legally mandated, disagreement over 
what the reasonably anticipated future land uses are may result in the 
transfer of the property to some other party, or no transfer. 
Technology limitations may restrict current uses or cleanup of the 
property. Reasonably anticipated future land uses for the property will 
not necessarily be limited by current technological limitations on the 
cleanup of UXO on ranges.
    For transferred ranges, in the absence of a prior agreement 
identifying reasonably anticipated future land uses or imposing land 
use restrictions, the Department of Defense will conduct and fund 
response activities consistent with all reasonably anticipated future 
land uses at the time of the range response. Reasonably anticipated 
future land uses will be decided by the Federal land manager with the 
concurrence of the Department of Defense. If there is disagreement, the 
dispute resolution procedure identified in the range rule will be 
utilized. Technology limitations may restrict current uses or cleanup 
of the property. Reasonably anticipated future land uses for the 
property will not necessarily be limited by current technological 
limitations on the cleanup of UXO on ranges.
    Section 178.16 also lists a number of specific circumstances where 
the Department of Defense will conduct and fund additional response 
actions at these Federal properties (for example, when the remedy fails 
or additional UXO is found that creates conditions inconsistent with 
the established reasonably anticipated land use, the Department of 
Defense will conduct and fund additional response actions at these 
Federal properties to achieve consistency with the established 
reasonably anticipated land use). The Department of Defense seeks 
comments on the applicability of these future land use concepts to 
parties other than Federal land managers.
    The MOA will also discuss responsibilities for additional response 
actions should a response previously implemented under the range rule 
later conflict with a Federal land manager's trust obligations or 
statutory management responsibilities. Where the Federal land manager 
makes a determination that the level of response previously implemented 
pursuant to the range rule is inconsistent with the Federal land 
manager's trust obligations or statutory responsibilities for 
management and stewardship of the land and natural resources for the 
United States and the public, the Federal land manager shall identify 
to the Department of Defense what further response action is necessary 
to meet those obligations or responsibilities and shall identify how 
the OMB decisional factors described in this paragraph are implicated 
by the proposed additional response action. If the Department of 
Defense elects not to fund or perform the additional response action so 
identified, the Federal land manager may invoke the dispute resolution 
procedure in the range rule. If such a dispute arises, EPA shall be 
provided notice and an opportunity to participate in discussions with 
OMB. When OMB resolves a dispute as to whether the Department of 
Defense or the Federal land manager should fund or perform additional 
response action identified by a Federal land manager pursuant to this 
section, OMB shall consider and balance:
    (1) The importance of the proposed additional response action in 
meeting the Federal land manager's obligations or responsibilities.
    (2) Any reasonable alternatives by which the Federal land manager 
could satisfy its obligations and responsibilities, including 
alternatives that utilize innovative technology or that require no 
additional response action.
    (3) The cost and cost-effectiveness of the proposed additional 
response action in comparison to the other reasonable alternatives.
    (4) The cost of the cleanup to the Federal government as a whole.
    (5) The availability or expected availability of appropriated funds 
at each of the respective agencies to fund or perform the proposed 
additional response action.
    The Department of Defense and the Federal land managers have agreed 
to include the language of the MOA concerning future land use in the 
site-

[[Page 50830]]

 specific agreements under which land is to be transferred from the 
Department of Defense to a Federal land manager. The Department of 
Defense seeks comments on the applicability of these future land use 
concepts to parties other than Federal land managers.

V. Discussion of Other Major Alternatives

 A. General

    In proposing this rule, the Department of Defense is considering 
several alternatives to address military munitions on closed, 
transferred, or transferring ranges. In assessing each of these 
alternatives, the Department of Defense has sought to identify the 
relative merits of each statutorily based process in meeting the goals 
of establishing a single, logical, and comprehensive process that 
addresses explosives safety, human health, and environmental concerns. 
In the Department of Defense's view, a single, specific process is 
necessary to avoid confusion and to ensure that effective response 
activities are undertaken in a fiscally responsible manner. That 
process must recognize and consider the unique explosives safety 
hazards associated with military munitions, and concomitantly with any 
response activity conducted on closed, transferred, or transferring 
ranges. The process must ensure that the public and regulators are 
fully informed and engaged at every stage of the process, including 
substantial and meaningful public and regulator participation in the 
response selection and implementation. The process must be accessible, 
consistent, and lead to informed decision-making. As noted elsewhere in 
this rulemaking, the Department of Defense's response activities, both 
on-and off-range, have been variously subject to rules implemented 
under DERP, CERCLA, RCRA, or a combination. With respect to military 
munitions, DDESB exercises independent statutory authority over 
explosives safety. As such, the Department of Defense has identified 
and continues to consider several alternatives based on each of these 
statutory authorities.

B. Comprehensive Environmental Response, Compensation, and Liability 
Act

    The Department of Defense also is considering the adequacy of 
CERCLA to address military munitions on closed, transferred, or 
transferring ranges. As specified in CERCLA Section 104, CERCLA is 
triggered by the ``release or substantial threat of a release into the 
environment'' of a ``hazardous substance'' or of a ``pollutant or 
contaminant which may present an imminent and substantial danger to the 
public health or welfare.'' Neither military munitions nor UXO are, as 
a class, designated as CERCLA hazardous substances. However, the 
Department of Defense is considering whether UXO should, as a class, be 
recognized for purposes of this rule as CERCLA pollutants or 
contaminants. A CERCLA pollutant or contaminant triggers a CERCLA 
response if an imminent and substantial endangerment to the public 
health or welfare exists.
    The procedural and technical standards for conducting CERCLA 
response activities are codified at 40 CFR 300, National Oil and 
Hazardous Substances Pollution Contingency Plan (55 FR 8666, March 8, 
1990). The NCP establishes five steps to respond to releases or 
potential releases of hazardous substances: (1) Identifying releases; 
(2) conducting a removal action if warranted; (3) conducting a site 
assessment, and, if warranted, listing the site on the NPL; (4) 
performing a remedial investigation/feasibility study (RI/FS); and (5) 
implementing the remedy through remedial design/remedial action (RD/
RA).
    The first step, release identification, occurs through various 
means, including: reports of releases; investigations by Federal, 
State, or local government agencies; land inventories or surveys; or 
incidental discoveries. All sites where a release is identified should 
be reported to the National Response Center and/or EPA, and all Federal 
sites should be listed on the Federal agency hazardous waste compliance 
docket.
    The second step in the CERCLA response process is conducting a 
removal action, as appropriate. This is not to say that removal actions 
cannot be undertaken at other points in the process; they can be 
conducted at any time during a CERCLA response. Removals, as described 
in 40 CFR 300.415, are actions taken to mitigate immediate threats to 
human health and the environment. There are three types of removals: 
(1) Emergency removals where action is required within hours or days; 
(2) time-critical removals where up to 6 months can elapse before 
action is necessary; and (3) non-time-critical removals, where more 
than 6 months can elapse before action is taken. A non-time-critical 
removal requires the development of an engineering evaluation/cost 
analysis, as well as more significant public outreach than is required 
for an emergency or time-critical removal. Removal actions are 
undertaken at the discretion of the lead agency, and should, to the 
maximum extent practicable, contribute to the overall remediation of 
the site. The decision to move from a removal action to a remedial 
action is also at the discretion of the lead agency (40 CFR 
300.415(f)). All removal actions require the development of an action 
memorandum that describes the action taken and the rationale for that 
action.
    Site assessment, the third step in the CERCLA process, has several 
stages and is outlined in the NCP at 40 CFR 300.420. First, the lead 
agency conducts a preliminary assessment (PA), which is a ``desktop'' 
review of available information about the site and involves the 
collection of demographic information and information about the 
environmental setting of the site. Sites not posing a sufficient threat 
to human health or the environment to warrant a CERCLA response are 
screened out. The second stage, site inspection (SI), may be required 
to further evaluate site conditions. The SI is a more detailed 
investigation of site conditions, usually involving sampling of 
environmental media. Information from the PA and SI is the basis for 
the third stage, scoring the site using the hazard ranking system 
(HRS). The HRS is a model for assessing the site's relative threat to 
human health and the environment. If a site scores at or above 28.5, it 
may be placed on the NPL, and an RI/FS will be required.
    The fourth phase of the CERCLA remedial process is the RI/FS (40 
CFR 300.430). The RI/FS characterizes the site and evaluates various 
alternatives for remediation of the site. Unlike the SI, the RI 
involves the collection of sufficiently detailed information to fully 
characterize site conditions, determine the nature and extent of the 
contamination, evaluate risks posed by the site, and assess the 
performance of options for remediation. The FS involves development, 
screening, and detailed evaluation of each remedial option. Each 
alternative is evaluated against the following nine criteria:
    (1) Overall protection of human health and the environment 
(including explosives safety and natural resources).
    (2) Compliance with ARARs.
    (3) Long-term effectiveness and permanence of the remedy.
    (4) Reduction of the toxicity, mobility, quantity, or volume of the 
contaminants present at the site.
    (5) Short-term effectiveness of the remedy.
    (6) Implementability of the remedy.
    (7) Cost of the remedy.
    (8) Federal and State acceptance of the selected alternative.

[[Page 50831]]

    (9) Community (including current property owner) acceptance of the 
selected alternative.
    The RI/FS phase leads to the selection of the remedial option, the 
development of a proposed plan, and the signing of a record of decision 
(ROD). Once the ROD is signed, the RI/FS phase is complete.
    The fifth step of the CERCLA process, outlined under 40 CFR 
300.435, is the RD/RA, where the selected remedy is actually 
implemented. The RD involves all aspects of designing the remedial 
action, including development of technical drawings, specifications, 
operational guidance, and training. The RA involves the actual 
construction, operation, and monitoring of the remedial action selected 
to clean up the contamination at the site. Depending upon site 
conditions, an RA may continue for many years. Upon completion of the 
RA and demonstration that the site has been remediated to the required 
levels, the site is deleted from the NPL.
    The Department of Defense recognizes the fact that the NCP and E.O. 
12580, which implement CERCLA, identify the Department of Defense as 
the lead agency with respect to releases from its facilities, including 
those involving military munitions. Thus, while the CERCLA process 
provides a potentially viable alternative to the proposed rule, the 
Department of Defense has identified some initial concerns. For 
example, confusion exists as to the extent of EPA's response authority 
and the application of State ARARs. While E.O. 12580 delegates to the 
Department of Defense the authority to conduct these response 
activities, the Department of Defense is not often directly involved in 
the national priority listing of these response activities.
    The Department of Defense recognizes that CERCLA is a possible and 
existing alternative to the range rule. The Department of Defense has 
closely modeled the range rule on the CERCLA process and utilizes 
CERCLA and DERP, an amendment to CERCLA, as authorities for 
promulgation of the range rule. However, the range rule has advantages 
over CERCLA. The range rule focuses exclusively on range issues, unlike 
CERCLA, and will provide for a consistent response by the Military 
Services. The range rule is not limited to those materials addressed 
under CERCLA. Additionally, the range rule will require the Department 
of Defense to respond to former ranges without a State forcing action 
under CERCLA or other State authorities.

C. Defense Environmental Restoration Program

    DERP was established in 1986 by Section 211 of SARA. DERP is 
codified at 10 U.S.C. 2701, et seq. and establishes the Department of 
Defense's responsibility and authority to address UXO (which is a 
subset of military munitions), as well as hazardous substances, 
pollutants, and contaminants on DoD property. Likewise, DERP 
establishes funding authority for these response activities. For 
example, in 1996, Congress appropriated more than $1.4 billion for the 
Department of Defense's response activities. DERP, therefore, ensures 
that the obligation to undertake response activities is directly linked 
with the Department of Defense's authority to undertake these response 
activities and its authority to fund them. This approach under DERP is 
not inconsistent with existing statutory, regulatory, and policy 
pronouncements in CERCLA, the NCP, and E.O. 12580.
    The NCP and E.O. 12580 identify the Department of Defense as the 
lead agency under CERCLA for releases or threatened releases of 
hazardous substances, pollutants, and contaminants from the Department 
of Defense's facilities. Consistent with this designation, the 
Department of Defense has conducted removal or remedial responses at 
its NPL and non-NPL sites in accordance with the processes set forth in 
CERCLA and the NCP.
    Less clear, however, is the role of explosives safety under DERP. 
The Department of Defense believes that explosives safety is 
inextricably linked to any response activity that is undertaken on a 
military range. Thus, consistent with its statutory mandate under 10 
U.S.C. 172, the Department of Defense is proposing to incorporate into 
this process the additional consideration of explosives safety when 
addressing military munitions and other constituents on closed, 
transferred, or transferring ranges. In doing so, the Department of 
Defense believes that response activities on military ranges will be 
expedited and will more fully address human health and environmental 
issues in the practical context of explosives safety.

D. Resource Conservation and Recovery Act

    In its proposed military munitions rule (60 FR 56476, November 8, 
1995), EPA proposed 40 CFR 261.2(g)(4)(i), which would have identified 
military munitions on closed and transferred ranges as a statutory 
solid waste. EPA proposed allowing the Department of Defense's range 
rule to supersede this provision as long as the range rule was 
protective of human health and the environment and allowed for public 
involvement in addressing the cleanup of closed and transferred ranges. 
In its final military munitions rule (62 FR 6622, February 12, 1997), 
however, EPA decided to postpone action on this section of the proposed 
munitions rule to conduct further analyses of comments and to evaluate 
the Department of Defense's range rule. In the final military munitions 
rule, EPA indicated that it is prepared to address this issue under 
Federal environmental laws if the Department of Defense does not 
promulgate the range rule or if EPA finds that the range rule does not 
adequately protect human health and the environment.
    While the Department of Defense recognizes the RCRA corrective 
action process as an available alternative to the proposed rule, the 
Department of Defense has identified several initial concerns that may 
weigh against use of this alternative. First, the question of whether 
military munitions that have been used for their intended purpose and 
that remain on a closed, transferred, or transferring military range 
are a solid waste has generated much discussion. See Barcelo v. Brown, 
478 F Supp. 646, 668-669 (D. Puerto Rico 1979) \20\ and Connecticut 
Coastal Fishermen's Assoc. v. Remington Arms Co., 989 F.2d 1305 (2d. 
Cir. 1993). \21\ Also, the use of munitions has not been characterized 
as disposal because the ordinary use of munitions includes placement on 
the land.
---------------------------------------------------------------------------

    \20\ Copies of this case may be obtained by visiting the DoD 
range rule administrative record at 910 Clopper Road, Gaithersburg, 
MD 20878-1399 (telephone 301-258-8753).
    \21\ Copies of this case may be obtained by visiting the DoD 
range rule administrative record at 910 Clopper Road, Gaitherburg, 
MD 20878-1399 (telephone 301-258-8753).
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    In the proposed Military Munitions Rule, EPA concluded that ``the 
legal arguments supporting the characterization of munitions on closed 
or transferred ranges as ``solid waste,'' and the legal arguments 
opposing such a characterization are finely balanced, with the result 
that EPA has the discretion to select either interpretation pursuant to 
[RCRA] Section 3004(y).'' EPA did not repeat or reject this discussion 
in the Final Rule.
    Second, the applicability of RCRA's remedial authorities (i.e., 
Sections 3004 (u) and (v) or Section 3008(h)) requires that a range be 
collocated at a RCRA-permitted or interim status facility. Some closed, 
transferred, or transferring ranges may not be located at RCRA-

[[Page 50832]]

 permitted facilities or facilities with interim status, thereby 
falling outside the scope of RCRA's authorities. The Range Rule would, 
in contrast, apply to all closed, transferred, or transferring ranges, 
and would impose a uniform set of requirements and procedures 
regardless of whether or not the range is at a site subject to RCRA.
    Last, as with CERCLA, the Department of Defense is concerned that 
the RCRA corrective action process, as outlined in the 1990 proposed 
rule concerning solid waste, does not address explosives safety issues. 
As noted elsewhere in this proposed rule, explosives safety risks must 
be minimized during all phases of a response activity involving 
military munitions.

E. DoD Explosives Safety Standards Promulgated Pursuant to 10 U.S.C. 
172

    Pursuant to 10 U.S.C. 172, Congress established the DDESB, an 
independent entity whose charter involves determining appropriate 
safety standards for dealing with military munitions. While the 
Department of Defense believes that such standards are of paramount 
importance in any activity involving military munitions, it recognizes 
that in the environmental context, other factors must be considered.
    The DDESB process for addressing military munitions is set forth in 
Chapter 12 of DoD 6055.9-STD.\22\ Specifically, the process requires 
that a site-specific evaluation of the explosives safety hazards and an 
explosives safety plan be developed and submitted to DDESB prior to the 
undertaking of any response action. In the event that a site-specific 
evaluation is impracticable, the DDESB process provides for the use of 
default criteria in addressing the explosive hazards present or 
suspected. In both instances, the response undertaken is not 
inconsistent with the anticipated use of the property. Absent from this 
evaluation and determination is a consideration of the chronic effects 
of other constituents on the environment.
---------------------------------------------------------------------------

    \22\ See footnote 13 in Section IV.F.1.a. for information on 
obtaining DoD issuances.
---------------------------------------------------------------------------

    Application of DDESB standards in response activities would differ 
from the proposed rule, as the DDESB standards focus primarily on 
concern for explosives safety. The proposed rule accounts for 
explosives safety concerns, while also addressing the effects of other 
constituents on human health and the environment.

F. Status Quo

    As noted in the foregoing discussion of alternatives, the current 
applicability of all of the foregoing laws and regulations and the lack 
of any clear direction to the Department of Defense on the appropriate 
process for addressing military munitions responses is confusing, 
inefficient, costly, and time-consuming, and may be ineffective. This 
confusion contributes to public and regulator concern that military 
munitions are not being addressed adequately. The Department of Defense 
is committed to sound environmental stewardship in all of its 
activities. This commitment includes addressing the safety, human 
health, and environmental effects of military munitions on closed, 
transferred, and transferring ranges.
    In recent years, Congress and the public have demanded that the 
Department of Defense make available for public use lands that are no 
longer needed to perform the military's mission. In light of the 
Department of Defense's downsizing efforts, the BRAC process, and 
increasing fiscal constraints, more land is being identified for 
transfer. These transfers are subject to a plethora of environmental 
laws and regulations, which often involve different, and sometimes 
inconsistent, processes and decision-makers. To date, the public and 
regulators have relied on RCRA and CERCLA as the primary environmental 
laws governing DoD response activities. Additionally, the Department of 
Defense's response to military munitions is subject to DERP and DDESB 
criteria. The Department of Defense views this confusion as an 
impediment to effective, timely, and fiscally responsible responses to 
military munitions on closed, transferred, and transferring ranges. 
This rulemaking will identify a single, specific process by which the 
Department of Defense will execute its responsibilities, while 
providing for meaningful public and regulator participation throughout 
all phases of the process.

VI. Administrative Requirements

A. Regulatory Impact Analysis

    Under E.O. 12866 (59 FR 51735 (October 4, 1993)), the Department of 
Defense must determine whether this regulatory action is 
``significant'' and therefore subject to review by OMB and to the 
requirements of this E.O., which include assessing the costs and 
benefits anticipated as a result of the proposed regulatory action. The 
E.O. defines ``significant regulatory action'' as one that is likely to 
result in a rule that may: (1) Have an annual effect on the economy of 
$100 million or more or may adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this E.O.
    The Department of Defense recognizes that E.O. 12866 contains an 
exemption for ``military functions''; however, the Department of 
Defense has decided to prepare a cost/benefit analysis due to the novel 
legal and policy issues raised by this proposal. The Department of 
Defense estimates that this proposed rule would result in national 
incremental costs of $709,000,000, or $47 to $71 million per year over 
a 10- to 15-year period. This represents a savings from costs that 
would be anticipated under a RCRA program of $12,984,000,000, or $865 
to $1,300 million per year over a 10- to 15-year period. For more 
information on the cost impacts of this proposed rule and of some 
alternative approaches, see the Department of Defense (DoD) Final 
Report: Range Rule Regulatory Impact Analysis, July 3, 1996, in the 
range rule docket.
1. Cost Analysis
    Implementing this proposed rule equates to national incremental 
costs of $709,000,000. These costs are less than those of other 
alternatives; for example, a RCRA program that is anticipated to cost 
$12,984,000,000.
2. Benefits Analysis
    Benefits include increased protection of the public, increased 
protection of UXO response workers, a consistent process, increased 
public involvement in responses, a substantial role for regulatory 
agencies and for American Indian tribes, and a substantial role for 
Federal land managers. Implementing a comprehensive approach to respond 
to closed, transferred, and transferring ranges while ensuring public 
safety, worker safety, and protection of human health and the 
environment is essential and would be a beneficial outcome of this 
proposed rule.

[[Page 50833]]

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601, et seq., 
requires Federal agencies to consider ``small entities'' throughout the 
regulatory process. Section 603 of the Regulatory Flexibility Act 
requires an initial screening analysis to be performed to determine 
whether small entities will be adversely affected by the regulation. If 
affected small entities are identified, regulatory alternatives must be 
considered to mitigate the potential impacts. Small entities as 
described in the Regulatory Flexibility Act are only those ``business, 
organizations and governmental jurisdictions subject to regulation.''
    The Department of Defense has determined that this proposal will 
primarily affect the Department and that few, if any, small entities 
will be affected.

C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3501, authorizes the 
Director of OMB to review certain information collection requests by 
Federal agencies. The recordkeeping and reporting requirements of this 
proposed rule do not constitute a ``collection of information'' as 
defined in 44 U.S.C. 3502(3) of the Paperwork Reduction Act of 1995.

D. Environmental Justice

    On February 11, 1994, President Clinton issued E.O. 12898, Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations. This E.O. requires Federal agencies to identify 
and address disproportionately high and adverse human health and 
environmental effects of Federal programs, policies, and activities on 
minority and low-income populations.
    This rulemaking effort will incorporate environmental justice 
concerns in promoting partnerships with all the public and government 
agencies and will carefully consider where and how any public 
availability sessions will be offered. The Department of Defense is 
soliciting comment and input from all public entities and government 
agencies, including members of the environmental justice community and 
members of the regulated community.
    This proposed rule is intended to reduce risks from military 
munitions. The rule involves not one site, but will affect property 
nationwide. Because of the locations of some of this property, in the 
implementation of the rule the potential exists for impacts to minority 
or low-income communities. The rule itself, however, is not expected to 
cause any disproportionate impacts to minority or low-income 
communities versus affluent or nonminority communities.

E. Unfunded Mandates

    Title II of the Unfunded Mandates Report Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
Department of Defense generally must prepare a written statement, 
including a cost-benefit analysis, for proposed and final rules with 
``Federal mandates'' that may result in expenditures to State, local, 
and tribal governments, in the aggregate, or to the private sector, of 
$100 million or more in any one year.
    The Department of Defense has determined that this rule does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any one year. Thus, this proposed 
rule is not subject to the requirements of Section 202 of the UMRA.

VII. References/Docket

    The regulatory docket for this proposed rule contains a number of 
background materials. To obtain a list of these background materials, 
contact the toll-free DoD range rule information request line at (888) 
541-1081 (voice), (800) 870-6547 (fax), or (800) 870-6557 for the 
hearing-impaired.
    Accordingly, 32 CFR part 178 is proposed to be added to read as 
follows:

PART 178--CLOSED, TRANSFERRED, AND TRANSFERRING RANGES CONTAINING 
MILITARY MUNITIONS

Sec.
178.1  Purpose and objectives.
178.2  Scope.
178.3  Applicability.
178.4  Definitions.
178.5  Responsibilities.
178.6  Identification of closed, transferred, and transferring 
ranges.
178.7  Range assessment/accelerated response.
178.8  Range evaluation.
178.9  Site-specific response evaluation.
178.10  Site-specific response implementation.
178.11  Recurring reviews.
178.12  Ending the range response process.
178.13  Information repository and the administrative record.
178.14  Participation of and concurrence role for Federal and State 
regulatory agencies, American Indian tribes, and Federal land 
managers.
178.15  Dispute resolution.
178.16  Future land use for transfers within the Federal government.

    Authority: 10 U.S.C. 2701 et seq.; 10 U.S.C. 172; 42 U.S.C. 
9601, et seq.; and E.O. 12580, 3 CFR, 1987 Comp., p. 193.


Sec. 178.1  Purpose and objectives.

    (a) This part establishes the procedures for evaluating and 
responding to explosives safety, human health, and environmental risks 
on closed, transferred, and transferring military ranges and for 
providing opportunities for full and active participation by Federal, 
State, and local agencies; American Indian tribes; and the public in 
the evaluation and responses conducted at those military ranges.
    (b) This part implements the authorities and responsibilities of 
the Department of Defense (DoD) under 10 U.S.C. 2701 et seq., the 
Defense Environmental Restoration Program; 10 U.S.C. 172, Ammunition 
Storage Board; 42 U.S.C. 9601 et seq., the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980, as amended; and 
Executive Order 12580, Superfund Implementation, 59 FR 2923 (January 
23, 1987), 3 CFR, 1987 Comp., p. 193, as amended. When appropriate, it 
may also be used in conjunction with other authorities governing 
effects to land or water.


Sec. 178.2  Scope.

    (a) This part applies to closed, transferred, and transferring 
military ranges located in the United States, Puerto Rico, Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the Virgin Islands, and which are or were owned by, leased to, or 
otherwise possessed or used by the United States where military 
munitions have been used in training or research, development, testing, 
and evaluation (RDT&E) by the Department of Defense or an agent of the 
Department of Defense in furtherance of the national defense or 
security.
    (b) This part does not apply to:
    (1) Active and inactive ranges.
    (2) Any closed, transferred, or transferring range that, upon [the 
effective date of the final rule], was identified and included in an 
interagency agreement for a National Priorities List (NPL) site, or 
which is subject to response activities pursuant to any specific 
statutory authority or pursuant to any agreement that addresses 
military ranges that has taken

[[Page 50834]]

effect prior to [the effective date of the final rule]. Should, 
however, any aspects of this part be useful in making a given response 
more efficient, effective, or protective, then nothing in this part 
shall prohibit their application upon mutual consent of the parties. In 
cases where unexploded ordnance (UXO) investigations or response 
actions are underway on closed, transferred, or transferring ranges at 
the time of [the effective date of the final rule], this part, this 
part will not apply unless mutually agreed to by the parties to the 
interagency or Federal facility agreement.
    (3) Airspace designated as a military operation area or military 
training route (MTR), or their underlying water or land areas where 
military munitions have not been used.
    (4) Properties that are historic battlefields.
    (5) Sites where military munitions or explosives are destroyed as 
part of a munitions or explosives emergency response as defined under 
40 CFR 260.10 and subject to the provisions of 40 CFR 261 through 272 
(inclusive).
    (6) Ranges located outside the United States, Puerto Rico, Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the Virgin Islands.


Sec. 178.3  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard when it is operating as 
a Military Service in the Department of the Navy), the Chairman of the 
Joint Chiefs of Staff, the Unified Combatant Commands, the Defense 
Agencies, the DoD Field Activities, and the National Guard Bureau (NGB) 
(hereafter referred to collectively as ``DoD components''). For 
purposes of this part, the Department of War and the Department of the 
Navy as they existed prior to the creation of the Department of Defense 
are also considered DoD components.


Sec. 178.4  Definitions.

    When used in this part, the following terms have the meanings given 
as shown:
    (a) Accelerated responses (ARs). Any readily available, generally 
used, reliable, and easily implemented methods of addressing the risk 
posed by military munitions, unexploded ordnance, or other constituents 
at military ranges. ARs may be fully protective in and of themselves.
    (b) Active range. A military range that is currently in service and 
is being regularly used for range activities.
    (c) American Indian tribe. For purposes of this part, the term 
American Indian tribe means Native American tribes and Native Alaskan 
villages that:
    (1) Are federally recognized as an Indian tribe or a Native Alaskan 
village by the Secretary of the Department of Interior, in accordance 
with 26 CFR 83.5;
    (2) Have a tribal governing body that is currently performing 
governmental functions to promote the health, safety, and welfare of 
the affected population or to protect the environment within a defined 
geographical area, and;
    (3) Are the property owner, as defined in paragraph (l) of this 
section, of any portion of a closed, transferred, or transferring range 
at which a response is ongoing or contemplated.
    (d) Closed range. A military range that has been taken out of 
service as a range and that either has been put to new uses that are 
incompatible with range activities or is not considered by the military 
to be a potential range area. A closed range is still under the control 
of a DoD component.
    (e) Federal land manager. Federal agencies having or clearly 
anticipated to receive jurisdiction, custody, or control over the 
property.
    (f) Inactive range. A military range that is not currently being 
used, but that is still under military control and is considered by the 
military to be a potential range area, and that has not been put to a 
new use that is incompatible with range activities.
    (g) Military munitions. All ammunition products and components 
produced or used by or for the U.S. Department of Defense or the U.S. 
Armed Services for national defense and security, including military 
munitions under the control of the Department of Defense, the U.S. 
Coast Guard, the U.S. Department of Energy (DOE), and National Guard 
personnel. The term military munitions includes: confined gaseous, 
liquid, and solid propellants, explosives, pyrotechnics, chemical and 
riot control agents, smokes and incendiaries used by DoD components, 
including bulk explosives and chemical warfare agents, chemical 
munitions, rockets, guided and ballistic missiles, bombs, warheads, 
mortar rounds, artillery ammunition, small arms ammunition, grenades, 
mines, torpedoes, depth charges, cluster munitions and dispensers, 
demolition charges, and devices and components thereof. Military 
munitions do not include wholly inert items, improvised explosive 
devices, and nuclear weapons, nuclear devices, and nuclear components 
thereof. However, the term does include nonnuclear components of 
nuclear devices, managed under DOE's nuclear weapons program, after all 
required sanitization operations under the Atomic Energy Act of 1954, 
as amended, have been completed.
    (h) Military range. A designated land or water area set aside, 
managed, and used to conduct research on, develop, test, and evaluate 
military munitions and explosives, other ordnance, or weapon systems, 
or to train military personnel in their use and handling. Ranges 
include firing lines and positions, maneuver areas, firing lanes, test 
pads, detonation pads, impact areas, and buffer zones with restricted 
access and exclusionary areas. The definition of a military range does 
not include airspace, or water, or land areas underlying airspace used 
for training, testing, or research and development where military 
munitions have not been used.
    (i) Operation and maintenance (O&M). O&M means measures that are 
required to maintain the effectiveness of response actions. O&M 
measures are initiated after the response action has achieved the goal 
in the decision document and is determined to be ``fully operational.''
    (j) Other constituents. Other constituents are potentially 
hazardous chemicals that are located on or originate from closed, 
transferred, or transferring ranges and are released from military 
munitions or UXO, or resulted from other activities on military ranges. 
Other Constituents may be subject to other statutory authorities, 
including, but not limited to, the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601, et 
seq.) and the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 
6901, et seq.).
    (k) Project team. The responsible DoD component, its designated 
representatives, any Federal land manager with jurisdiction, custody, 
or control for all or part of the range, and its designated 
representatives. The designated representatives provide the working-
level direction for scoping the response action, preparing planning 
documents, conducting investigations and studies, and preparing 
reports.
    (l) Property owner. A non-Federal entity that owns a piece of 
property, or a Native American tribe or Native Alaskan village that 
owns a piece of property or land, held in trust by the United States 
for that tribe or village or its individual tribal or village members, 
that is a closed, transferred, or transferring military range.
    (m) Transferred range. A military range that is no longer under 
military

[[Page 50835]]

control and has been leased, transferred, or returned to another 
entity, including Federal entities. This includes a military range that 
is no longer under military control but was used under the terms of a 
withdrawal, executive order, special-use permit or authorization, 
right-of-way, public land order, or other instrument issued by the 
Federal land manager.
    (n) Transferring range. A military range that is proposed to be 
leased, transferred, or returned from the Department of Defense to 
another entity, including Federal entities. This includes a military 
range that is used under the terms of a withdrawal, executive order, 
special-use permit or authorization, right-of-way, public land order, 
or other instrument issued by the Federal land manager. An active range 
will not be considered a ``transferring range'' until the transfer is 
imminent.
    (o) Unexploded ordnance. Military munitions that have been primed, 
fuzed, armed, or otherwise prepared for action, and have been fired, 
dropped, launched, projected, or placed in such a manner as to 
constitute a hazard to operations, installation, personnel, or material 
and remain unexploded either by malfunction, design, or any other 
cause.


Sec. 178.5  Responsibilities.

    (a) The DoD component responsible for the military munitions or 
other constituents present at a closed, transferred, or transferring 
military range, or another DoD component designated by the Secretary of 
Defense shall exercise the responsibilities set forth in this part. 
This entity shall be referred to in this part as the ``responsible DoD 
component'' or the ``DoD component responsible for'' a range.
    (b) In the case of closed, transferred, or transferring ranges that 
are owned, leased, or otherwise possessed by a State National Guard and 
are covered by this part, the NGB shall be the responsible DoD 
component.
    (c) If the closed, transferred, or transferring military range 
includes property under the jurisdiction, custody, or control of a 
Federal land manager, the responsible DoD component must establish a 
project team that will include the Federal land manager. The project 
team will exercise the responsibilities of the responsible DoD 
component in the working-level development and management of the range 
response process at that range. Where a Federal agency has been 
proposed to receive jurisdiction, custody, or control of a former range 
but the agency is not yet a Federal land manager as defined in this 
part, the agency may sit on the project team for informational purposes 
only.
    (d) The Department of Defense recognizes that other Federal 
agencies listed in 40 CFR 300.175 have duties established by statute, 
executive order, or presidential directive that may apply to or be 
impacted by response actions conducted under the regulations set forth 
in this part. These agencies may be called upon by the responsible DoD 
component or other Federal agency during response planning and 
implementation to provide assistance in their respective areas of 
authority or expertise, as described in 40 CFR 300.175, consistent with 
the agencies' capabilities and authorities.


Sec. 178.6  Identification of closed, transferred, and transferring 
ranges.

    (a) Within 18 months of [the effective date of the final rule], 
each DoD component shall develop a list of all known closed, 
transferred, and transferring ranges subject to this part and 
controlled at any time by that DoD component, and shall submit that 
list to a DoD component designated by the Secretary of Defense for use 
in developing the central inventory database.
    (1) The information for each military range in the inventory 
database shall include, at a minimum:
    (i) A unique identifier for the range.
    (ii) The current status of the range (i.e., closed, transferred, 
transferring).
    (iii) The name, address, and telephone number of a point of contact 
at the responsible DoD component.
    (iv) An appropriate record showing the location, boundaries, and 
areal extent of the range including all counties, independent cities 
and towns in which the range is located, as well as all states in which 
that range is located.
    (v) Known entities, other than a DoD component, with current 
ownership interest or control of the land or its resources.
    (vi) Any deed restrictions currently in place that might affect the 
potential for exposure to military munitions, UXO, or other 
constituents present at the range.
    (2) The inventory database shall be updated on a periodic basis (at 
least annually) to reflect new information that has become available.
    (b) Each military range included in the inventory database will be 
assigned a relative priority for range assessment/accelerated response 
(RA/AR) activities based on the overall conditions at the range. When 
assigned, this priority will be included in the record for each 
military range in the inventory database. The Department of Defense 
will consider factors relating to safety and environmental hazard 
potential, such as:
    (1) Whether access to a site can be controlled, and the population 
is potentially at risk.
    (2) The potential for direct human contact and evidence of people 
entering into the range area.
    (3) Whether a response action has been or is being taken at that 
range under the Formerly Used Defense Sites (FUDS) program or other 
environmental restoration programs.
    (4) Planned or mandated dates for transfer of the range from DoD 
control.
    (5) Documented incidents involving UXO or off-range releases of 
other constituents from the range.
    (6) The potential for drinking water contamination.
    (7) The potential for destruction of sensitive ecosystems.
    (8) The potential for damages to natural resources.
    (9) The potential for releases to the air.
    (10) The degree of public interest in the range.
    (11) The degree of Federal land manager interest in the range.
    (12) The degree of State or Federal regulator or American Indian 
tribal interest in the range.
    (c) This paragraph describes Federal, State, and local government; 
American Indian tribe; and public involvement with the inventory 
database.
    (1) Upon the designation of the responsible DoD component, that DoD 
component shall work with the community to provide information 
concerning conditions at the range, response activities, and shall 
respond to inquiries. The responsible DoD component shall notify, at a 
minimum, immediately affected individuals; State, local, and tribal 
officials; and, when appropriate, civil defense or emergency management 
agencies.
    (2) Federal, State, and local officials; members of Native American 
tribes and Native Alaskan villages; and the public possessing detailed 
information on areas believed to be military ranges are encouraged to 
submit that information in writing to the Office of the Deputy Under 
Secretary of Defense (Environmental Security, 3000 Defense Pentagon, 
Washington, DC 20301-3000). If, based on the Department of Defense's 
evaluation of that information, the area is identified as a military 
range subject to this part, it will be included in the inventory 
database.


Sec. 178.7  Range assessment/accelerated response.

    (a) Purpose. The purpose of the RA/AR is to promptly identify and 
respond

[[Page 50836]]

to risks posed by military munitions, UXO, and other constituents at 
military ranges subject to this part and to distinguish between 
military ranges posing little or no explosives safety, human health, or 
environmental risk and military ranges that pose a greater risk. The 
RA/AR shall use readily available information or limited data 
collection efforts to determine if additional investigation is 
required, or if implementation of an AR is warranted.
    (b) Range assessment. As used in this part, the range assessment:
    (1) Is a limited-scope investigation designed to assess the risk 
posed by any military munitions, UXO, or other constituents found at 
the range.
    (2) Shall, to the extent feasible, rely on available information 
gathered through a combination of file searches and desktop information 
collection and analysis. If warranted, additional data may be collected 
by such methods as visual inspection of the range or focused sampling 
of environmental media in an effort to develop an improved 
understanding of the conditions at the range. Such on-range activities 
require development of a work plan describing the objectives and plan 
for conducting any such activities.
    (i) Prior to any activities that require entry onto the range, an 
explosives safety plan must be approved by the DoD Explosives Safety 
Board (DDESB) or other explosives safety organization designated by 
DDESB. The work plan implemented by the responsible DoD component must 
provide for an appropriate balance between the risks to the safety of 
the investigators and the risk to the community and environment. The 
draft work plan will be coordinated with and comment sought from the 
appropriate Federal, State, and local governments and American Indian 
tribe. The final work plan will be subject to regulatory concurrence.
    (ii) Proposed decisions that recommend limiting the entry into 
specific areas of the range based on munitions safety hazards will be 
provided to stakeholders, together with a description of the criteria 
and rationale used to develop such recommendations. In response to such 
a proposed decision, the responsible DoD component must:
    (A) Seek reversal or modifications of the proposed decision, or
    (B) Develop an alternative explosives safety plan that meets the 
conditions of the proposed or modified decision.
    (iii) Prior to entry onto a transferred range, written permission 
must be obtained from the current Federal land manager or property 
owner.
    (3) Shall initiate range delineation procedures that will 
adequately define discrete areas within a range that pose varying 
explosives safety hazards and environmental risks.
    (4) Should include collection of the following information:
    (i) Information about the types, quantities, constituents, and 
other factors related to the military munitions employed on the range.
    (ii) Information on previous range clearance operations or reported 
incidents involving military munitions or UXO on the range.
    (iii) Safety issues related to use of military munitions on the 
range.
    (iv) The identity, concentration, and human health or environmental 
effects of other constituents known or believed to be present on the 
range.
    (v) The type(s) of any targets that may have been used on the 
range.
    (vi) Other past and present uses of the range.
    (vii) Any prior agreements identifying reasonably anticipated 
future land uses or imposing land use restrictions, and, in the absence 
of these, current and reasonably anticipated future land uses. (viii) 
The environmental setting of the range, including:
    (A) The location and identity of receptors (e.g., human, threatened 
and endangered species) potentially impacted by the range.
    (B) Specific exposure routes of concern.
    (C) Local hydrologic and hydrogeologic conditions (which include 
groundwater).
    (D) Soils and geology.
    (E) Terrain.
    (F) Climate.
    (G) Biological resources.
    (H) Cultural resources.
    (c) Accelerated response. (1) Examples of ARs include, but are not 
limited to:
    (i) Conducting source removals or surface sweeps for UXO.
    (ii) Posting signs warning of the dangers associated with the 
range.
    (iii) Erecting fences or other similar physical means to control 
access.
    (iv) Implementing erosion controls (e.g., silt fences).
    (v) Suspending incompatible land uses (where DoD has the ability to 
do so).
    (vi) Implementing community education and awareness programs.
    (vii) Implementing a monitoring program.
    (viii) Other appropriate engineering, institutional, or exposure 
controls.
    (2) Selection of an AR. AR alternatives shall be evaluated using 
qualitative (or if available, quantitative) information to assess how 
the AR would address the following nine criteria, which shall have the 
same meanings as set forth in the National Contingency Plan (NCP):
    (i) Overall protection of human health and the environment 
(including explosives safety and natural resources).
    (A) All AR alternatives must minimize explosives safety risks.
    (B) If the AR requires entry onto the range, an explosives safety 
plan must be approved by DDESB or other explosives safety organization 
designated by DDESB.
    (ii) Compliance with applicable or relevant and appropriate 
requirements (ARARs) established under Federal and State law, to the 
extent practicable given the exigencies of the situation.
    (iii) Long-term effectiveness and permanence.
    (iv) Reduction in the toxicity, mobility, quantity, or volume of 
other constituents present at the range.
    (v) Short-term effectiveness.
    (vi) Implementability.
    (vii) Cost.
    (viii) Acceptability to Federal and State regulatory agencies, or 
agencies with jurisdiction over affected resources.
    (ix) Community (including current property owner) acceptance.
    (d) Evaluation of RA/AR process results. (1) The RA/AR process 
continues until:
    (i) Enough information has been gathered to make an informed risk 
management decision, or it is determined that the effort necessary to 
collect that information is beyond the scope of the RA.
    (ii) Identified risks have been addressed through implementation of 
an AR, or it is determined that ARs are unable to address the 
identified risk.
    (2) An RA/AR report shall be prepared to document the findings of 
all assessment activities and the reasons for and effectiveness of each 
AR implemented.
    (3) The RA/AR report shall make a recommendation as to appropriate 
action, including one or a combination of the following 
recommendations:
    (i) Issue a determination of no further action (residual munitions 
risk is below the threshold of concern and no continued protective 
measures or institutional controls are needed).
    (ii) Conduct recurring reviews of the ARs implemented.
    (iii) Conduct a range evaluation (RE).
    (iv) Issue a technical impracticability (TI) determination.
    (v) Other recommendations, as appropriate.
    (e) Public and government agency involvement. This section 
describes

[[Page 50837]]

Federal, State, and local government, American Indian tribal, and 
public involvement with the RA/AR process.
    (1) Before beginning the RA/AR, the responsible DoD component shall 
send a written notice to the appropriate Federal, State, and local 
governments and American Indian tribe, informing them that these 
activities will be starting. This notice will also request that these 
governments designate a point of contact within their organization and 
identify that point of contact to the responsible project team. The 
responsible DoD component shall also send a copy of this notice to the 
current property owner.
    (2) All validated information about conditions at the military 
range, the documented risks posed by the site, and any ARs to address 
those risks shall be included in the administrative record and be made 
available to Federal, State, and local governments; American Indian 
tribes; and the public through the information repository.
    (3) For all ARs where implementation of an on-site action is 
expected to take more than one hundred twenty (120) days to complete, 
within that period the responsible DoD component shall conduct 
interviews with local officials, community residents, public interest 
groups, or other interested or affected parties, as appropriate, to 
solicit their concerns, information needs, and how or when they would 
like to be involved in the range response process. The responsible DoD 
component shall also prepare a formal public involvement plan (PIP) 
based on the community interviews or other relevant information, 
specifying the public involvement activities that are needed during the 
response.
    (4) The RA report shall be subject to a forty-five (45)-day review 
and comment period prior to implementation of the AR. However, if the 
physical construction associated with an interim AR, including 
implementation of site access control measures, is reasonably expected 
to be completed within 120 days of the commencement of the AR (i.e., 
completion of the RA), the opportunity for review and comment may be 
provided during or when the AR has been implemented.
    (5) As part of involving Federal, State, and local governments; 
American Indian tribes; and the public in the range response, the 
responsible DoD component shall make use of existing Restoration 
Advisory Boards (RABs) to involve these parties throughout the process, 
or other forums, such as an Extended Project Team (EPT), as the 
specifics of the site or interest of the community indicate.
    (6) Range responses conducted under this part shall include a 
technology education program which provides an opportunity for members 
of the public, American Indian tribes, and regulators to receive a 
general explanation of available UXO detection and remediation 
technologies, their capabilities, and their limitations. This program 
will be provided by the responsible DoD component beginning in the RA/
AR phase. The program shall consist of a presentation to the RAB or EPT 
which generally explains the UXO detection and removal technologies 
available to respond to former military ranges. Additional 
presentations may be made as a follow-up to the initial presentation if 
significant technology advancements have been made.
    (7) Except as provided in paragraph (e)(4) of this section, once 
the RA/AR report is complete, the responsible DoD component shall:
    (i) Send a copy of the draft RA/AR report to the appropriate 
Federal and State regulators and American Indian tribe, seeking their 
review and comment.
    (ii) Publish a notice of availability and brief description of the 
RA/AR report in a major local newspaper of general circulation 
announcing a forty-five (45)-day period for submission of written 
comments.
    (iii) Hold a public meeting or availability session, if requested.
    (iv) Develop written responses to significant comments received 
during the comment period and prepare a final RA/AR report.
    (8) Except as provided in paragraph (e)(4) of this section, the 
responsible DoD component shall then prepare a formal decision document 
specifying the action(s) to be taken.
    (i) This decision document and all supporting information are part 
of the administrative record.
    (ii) Copies of the decision document will be sent to the 
appropriate Federal, State, and local governments; American Indian 
tribe; and current property owner.
    (iii) The responsible DoD component shall seek concurrence on the 
decision document in accordance with Sec. 178.14(e).


Sec. 178.8  Range evaluation.

    (a) Purpose. The purpose of the RE is to conduct a detailed 
investigation designed to fully characterize the risks posed by any 
military munitions, UXO, or other constituents known or believed to be 
present at the military range. The purpose of this investigation is to 
determine if the AR measures are adequate or whether a site-specific 
response is necessary. The RE will typically require the collection and 
analysis of quantitative information not otherwise available, in 
addition to the data assembled for the RA/AR.
    (b) The RE plan. An RE plan shall be prepared providing information 
as to the objectives established for the RE, the rationale for those 
objectives, and how those objectives will be achieved. As necessary, 
the RE plan shall include any sampling and analysis protocols, 
explosives safety requirements, data analysis procedures, or studies 
required to complete the RE.
    (1) Prior to any activities that require entry onto the range, a 
site safety plan must be approved by the DDESB or other explosives 
safety organization designated by DDESB.
    (2) Prior to entry onto a transferred range, written permission 
must be obtained from the current Federal land manager or property 
owner.
    (c) Information collected during the RE should include:
    (1) Information about the types, quantities, constituents, and 
other factors related to the military munitions employed on the range.
    (2) Information on previous range clearance operations or reported 
incidents involving military munitions or UXO on the range.
    (3) Safety issues related to use of military munitions on the 
range.
    (4) The identity, concentration, and human health or environmental 
effects of other constituents known or believed to be present on the 
range.
    (5) Any prior agreements identifying reasonably anticipated future 
land uses or imposing land use restrictions, and, in the absence of 
these, current and reasonably anticipated future land uses.
    (6) The environmental setting of the range, including:
    (i) The location and identity of receptors (e.g., human, threatened 
and endangered species) potentially impacted by the range.
    (ii) Specific exposure routes of concern.
    (iii) Local hydrologic and hydrogeologic conditions (including 
groundwater).
    (iv) Soils and geology.
    (v) Terrain.
    (vi) Climate.
    (vii) Biological resources.
    (viii) Cultural resources.
    (d) Range risk assessment. (1) Information obtained from the RE 
will be used to conduct a detailed, quantitative assessment of the 
risks posed by any military munitions, UXO, or other constituents 
identified at the

[[Page 50838]]

military range to provide an estimate of the overall risk posed by the 
range, and to serve as a tool for assessing the effectiveness of a 
given response at addressing those risks. The range risk assessment 
will evaluate explosives safety, human health, and environmental risks.
    (2) The range risk assessment shall consider:
    (i) Identification of the source of the risk (e.g., identification 
of the specific munitions or constituents).
    (ii) The likelihood of exposure.
    (iii) The effects of exposure.
    (e) RE report. (1) The findings and conclusions of the RE will be 
presented in a formal RE report. The RE report shall make a 
recommendation as to appropriate action, including one or a combination 
of the following recommendations:
    (i) The AR was adequate to address the identified risks.
    (ii) Conduct recurring reviews.
    (iii) Issue a TI determination.
    (iv) Conduct a site-specific response.
    (v) Issue a determination of no further action.
    (vi) Other recommendations, as appropriate.
    (2) If the recommendation is to initiate a site-specific response, 
a letter report may be used to summarize the findings of the RE, 
identify the risks requiring a site-specific response, and the 
anticipated scope and start of the site-specific response evaluation 
(SSRE). No formal RE report would be prepared, and instead the SSRE 
report would incorporate the findings and conclusions of the RE.
    (f) Public and government agency involvement. This paragraph 
describes Federal, State, and local government; American Indian tribe; 
and public involvement with the RE process.
    (1) Before beginning the RE, the responsible DoD component shall 
send a written notice to the appropriate Federal, State, and local 
governments and American Indian tribe informing them that these 
activities will be starting. This notice will also request that these 
governments designate a point of contact within their organization and 
identify that point of contact to the responsible DoD component. The 
responsible DoD component shall also send a copy of this written notice 
to the current property owner.
    (2) The RE plan, all validated information about conditions at the 
military range, and any documented risks posed by the site shall be 
included in the administrative record and be made available to Federal, 
State, and local governments; American Indian tribes; and the public 
through the information repository.
    (3) As appropriate, the responsible DoD component shall hold a 
public availability session to provide information on the status of the 
RE when appropriate.
    (4) If a letter report in accordance with paragraph (e)(2) of this 
section is prepared, then the responsible DoD component shall:
    (i) Prepare a formal decision document that summarizes findings of 
the RE, identifies the risks requiring a site-specific response, and 
describes the anticipated scope and start date of the SSRE.
    (ii) Make the decision document available to the public.
    (iii) Send a copy of the decision document to the appropriate 
Federal, State, and local governments and American Indian tribe. A copy 
shall also be sent to the current property owner.
    (iv) Seek concurrence on the decision document in accordance with 
Sec. 178.14(e).
    (5) If a formal RE report is prepared, then, upon completion of the 
draft RE report, the responsible DoD component shall:
    (i) Send a copy of the draft RE report to the appropriate Federal 
and State regulators and American Indian tribe, seeking their review 
and comment.
    (ii) Publish a Notice of Availability and a brief description of 
the RE report in a major local newspaper of general circulation and 
announce a forty-five (45)-day period for submission of written 
comments.
    (iii) Hold a public meeting or availability session, if requested.
    (iv) Develop written responses to significant comments received 
during the comment period and prepare a final RE report.
    (6) After an RE report is finalized, the responsible DoD component 
shall prepare a formal decision document recommending the action(s) to 
be taken.
    (i) This decision document and all its supporting information are 
part of the administrative record.
    (ii) Copies of the decision document and final report will be sent 
to the appropriate Federal, State, and local governments; American 
Indian tribe; and current property owners.
    (iii) The responsible DoD component shall seek concurrence on the 
decision document in accordance with Sec. 178.14(e).


Sec. 178.9  Site-specific response evaluation.

    (a) Purpose. An SSRE examines response alternatives that address 
the remaining risks identified by the RE that have not been, or cannot 
be, effectively addressed by ARs. SSREs are highly focused 
investigations of response alternatives that address risks based upon 
reasonably anticipated future land use.
    (b) SSRE plan. An SSRE plan that provides the following information 
shall be prepared: the objectives established for the SSRE, the 
rationale for those objectives, and how those objectives will be 
achieved. As necessary, the SSRE plan shall include any sampling and 
analysis protocols, explosives safety requirements, data analysis 
procedures, or studies required to complete the SSRE.
    (1) Prior to any activities that require entry onto the range, an 
explosives safety plan must be approved by the DDESB or other 
explosives safety organization designated by DDESB.
    (2) Prior to entry onto a transferred range, written permission 
must be obtained from the current Federal land manager or property 
owner.
    (c) Development of site-specific response alternatives. Site-
specific response alternatives shall be initially developed and 
screened in the following manner:
    (1) Identify a preliminary list of objectives for the response.
    (2) Identify general categories of response actions that will meet 
or exceed the preliminary objectives.
    (3) Determine the scope of the response.
    (4) Identify and screen specific technologies and, within a class 
of technologies, identify options for the actual treatment process.
    (5) Identify the alternatives or combinations of alternatives for a 
more detailed evaluation.
    (6) Conduct bench or pilot-scale studies as necessary.
    (d) Analysis of site-specific response alternatives. The following 
evaluation criteria shall be interpreted and have the same meanings as 
set forth in the NCP and shall be interpreted in the same manner as in 
the preamble to the NCP and any relevant policy or guidance issued by 
EPA. The response alternatives developed in paragraph (c) of this 
section shall be further analyzed with respect to the following nine 
evaluation criteria:
    (1) Protection of human health and the environment (including 
explosives safety and natural resources).
    (2) Compliance with Federal and State ARARs, or appropriate use of 
waivers from those requirements.
    (3) Long-term effectiveness. Assess the residual risk posed by 
military munitions (including UXO) or other constituents that will 
remain at the range following the completion of the

[[Page 50839]]

response action, and consider the reliability and adequacy of the 
action in providing a long-term or permanent solution to the hazards 
posed at the range. The long-term effectiveness evaluation shall also 
include an assessment of any potential long-term liabilities associated 
with the response action.
    (4) Reduction in toxicity, mobility, quantity, or volume of other 
constituents present at the range.
    (5) Short-term effectiveness. Address the risks or impacts of the 
alternative from the start of the action through to the time when the 
response objectives are achieved.
    (6) Implementability. Assess both the technical and administrative 
feasibility of implementing each alternative. Included in this 
assessment are:
    (i) Consideration of the availability of the necessary resources to 
implement the alternative.
    (ii) Assessment of the reliability of the alternative.
    (iii) Assessment of whether the action will impede other responses 
at the range.
    (iv) Requirements for interaction with other Federal, State, or 
local governments or American Indian tribes.
    (v) Availability of on- and off-range treatment and disposal 
capacity.
    (7) Cost. Assess direct and indirect capital costs; operating and 
maintenance costs; and long-term liability costs associated with the 
alternative.
    (8) Acceptability of each alternative to Federal and State 
regulatory agencies or agencies with jurisdiction over affected 
resources.
    (9) Community acceptance (community and/or property owner 
acceptance).
    (e) Site-specific response evaluation report. (1) The findings and 
conclusions of the SSRE shall be presented in an SSRE report. If only a 
letter report is prepared for an RE, the findings and conclusions of 
the RE shall be documented in the SSRE report. The SSRE report shall 
make a recommendation of appropriate action, including one or a 
combination of the following recommendations:
    (i) Implement the recommended response alternative(s).
    (ii) Conduct recurring reviews.
    (iii) Issue a TI determination.
    (2) [Reserved]
    (f) The SSRE report shall document the selection of alternative(s) 
by:
    (1) Identifying the alternative(s) to be implemented.
    (2) Discussing the goals of the response (e.g., the risk to be 
addressed).
    (3) Explaining how the response is expected to achieve the goals.
    (4) Providing information as to how the alternative(s):
    (i) Provides for explosives safety.
    (ii) Protects human health and the environment.
    (iii) Addresses the concerns of the public and government agencies 
that were received in the written comments.
    (iv) Eliminates, reduces, or controls the risks posed by military 
munitions, UXO, or other constituents present at the range.
    (v) Meets ARARs, or identifies those requirements that will not be 
met, and provides the justification for the waivers, and any conditions 
imposed.
    (vi) Discusses whether military munitions, UXO, or other 
constituents will remain at the range following the completion of the 
response, and if so, describes the specific mechanisms used to ensure 
that land use remains compatible with any residual hazard, and 
designates the frequency of recurring reviews.
    (g) Public and government agency involvement. This paragraph 
describes Federal, State, and local government; American Indian tribal; 
and public involvement in the RE/SSRE process.
    (1) The RE and SSRE Plans, all validated information about 
conditions at the military range, any documented risks posed by the 
site, and any validated information generated during the SSRE shall be 
included in the administrative record and be made available to the 
appropriate Federal, State, and local governments; American Indian 
tribe; and the public through the information repository.
    (2) As appropriate, the responsible DoD component will hold public 
availability sessions to provide information on the status of the RE 
and SSRE.
    (3) Once the draft SSRE report is complete, the responsible DoD 
component shall:
    (i) Send a copy of the draft SSRE report to the appropriate Federal 
and State regulators and American Indian tribe, seeking their review 
and comment.
    (ii) Publish a notice of availability and brief description of the 
SSRE report in a major local newspaper of general circulation 
announcing a forty-five (45)-day period for submission of written 
comments.
    (iii) If requested, hold a public meeting or availability session.
    (iv) Develop written responses to significant comments received 
during the comment period and prepare a final SSRE report.
    (4) The responsible DoD component shall then prepare a formal 
decision document specifying the action(s) to be taken.
    (i) This decision document and all supporting information are part 
of the administrative record.
    (ii) Copies of the final SSRE report and decision document will be 
provided to the appropriate Federal, State, and local governments and 
American Indian tribe. In the case of a military range on privately 
owned lands, a copy of these documents shall also be sent to the 
current property owner.
    (iii) The responsible DoD component shall seek concurrence on the 
decision document in accordance with Sec. 178.14(e).


Sec. 178.10  Site-specific response implementation.

    (a) Implementation plan. A response implementation plan shall be 
prepared describing the objectives established for the response, the 
rationale for those objectives, and how those objectives will be 
achieved. As necessary, the document shall also detail the design, 
construction, operation, maintenance, monitoring, and decommissioning 
of the response alternative, and any operational guidance and training 
of personnel involved in implementing the response.
    (1) Prior to any activities that require entry onto a range, an 
explosives safety plan must be approved by the DDESB.
    (2) Prior to entry onto a transferred range, written permission 
must be obtained from the current Federal land manager or property 
owner.
    (b) Response implementation. Implementation of the response 
requires the following:
    (1) Actual construction and initial operation of the response, 
including conducting necessary quality assurance inspections and 
preparing any necessary periodic reports on progress in executing the 
response.
    (2) Once the response is fully operational, monitoring the response 
to determine its effectiveness.
    (3) Operation until all response objectives are achieved.
    (c) Public and government agency involvement. This paragraph 
describes Federal, State, and local government; American Indian tribal; 
and public involvement in the process of implementing the site-specific 
response.
    (1) All validated information about conditions at the military 
range, the documented risks posed by the site, and the site-specific 
response to address those risks shall be included in the administrative 
record and be made available to Federal, State, and local governments; 
American Indian tribes; and the public through the information 
repository.

[[Page 50840]]

    (2) As appropriate, the responsible DoD component will hold public 
availability sessions to provide information on the status of the 
response.
    (3) If requested, the responsible DoD component shall provide 
periodic updates on the status of the response to the appropriate 
Federal, State, and local governments and American Indian tribe.
    (4) A periodic update on the status of the response shall be sent 
to the current property owner.


Sec. 178.11  Recurring reviews.

    (a) Purpose. The purpose of recurring reviews is to determine if 
the responses taken continue to minimize explosives safety risks and 
protect human health and the environment, and to provide an opportunity 
for assessing new technology. The scope of the review will depend upon 
the response objectives and the specific responses implemented. The 
review will evaluate the changes in physical conditions at the range, 
changes in public accessibility, applicability of new UXO technology or 
other new technology that will overcome a previous TI determination, 
and continued effectiveness of the response.
    (b) Conduct of recurring reviews. Recurring reviews shall be 
conducted for ARs, any conditions imposed as part of a TI 
determination, and site-specific responses. Sites with a determination 
of no further action are not subject to recurring reviews.
    (c) Frequency of recurring reviews. (1) Recurring Reviews shall be 
conducted starting in the third year following the completion of the 
response.
    (2) Subsequent reviews may, as needed, be repeated in the seventh 
year and at five-year intervals thereafter, for as long as needed.
    (3) The review cycle may be set on a different or more frequent 
schedule (e.g., years 2, 5, 9, 14), as necessary.
    (d) Documenting recurring review findings. (1) At each recurring 
review, the review procedures and the evaluation criteria used to 
assess the effectiveness of the response will be documented in a 
recurring review report.
    (2) The recurring review report will provide a discussion of the 
findings, stating whether or not the response continues to effectively 
address the risk at the range, and if any new problems have been 
discovered in the period since the last review, such as changes in 
public accessibility (due, for example, to changes in adjacent land 
uses).
    (3) If the response failed to remain effective, or a new problem is 
discovered, then the responsible DoD component will document the 
action(s) which will be taken to address that problem and the schedule 
for the action. If the response was inadequate, then the response 
process starts again at the RA/AR phase.
    (e) Public and government agency involvement. This paragraph 
describes Federal, State, and local government; American Indian tribal; 
and public involvement in the recurring review process.
    (1) The responsible DoD component shall:
    (i) Send a copy of the draft recurring review report to the 
appropriate Federal and State regulators and American Indian tribe, 
seeking their review and comment.
    (ii) Publish a notice of whether the response remains effective or 
not in a major local newspaper of general circulation.
    (iii) Hold a public availability session or meeting, if requested.
    (2) The responsible DoD component shall then prepare a formal 
decision document specifying the actions(s) to be taken.
    (i) This decision document and all supporting information are part 
of the administrative record.
    (ii) Copies of the decision document will be provided to the 
appropriate Federal, State, and local governments and American Indian 
tribe. In the case of a military range on privately owned land, a copy 
of this document shall also be sent to the current property owner.
    (iii) The responsible DoD component shall seek concurrence on the 
decision document in accordance with Sec. 178.14(e).


Sec. 178.12  Ending the range response process.

    (a) Following completion of an appropriate number of recurring 
reviews to demonstrate that the range poses no significant risk to 
public health or the environment, and commensurate with the originally 
agreed upon use of the property, the responsible DoD component may 
administratively close out and end the range response process subject 
to the following requirements:
    (1) Demonstration that any military munitions (including UXO) or 
other constituents at the military range pose minimal risks.
    (2) The specific response objectives have been achieved and all 
related monitoring activities demonstrate that achievement.
    (3) The response is fully operational and performing to design 
specifications.
    (4) The only remaining activities at the site involve operations 
and maintenance.
    (b) Range close-out report. A range close-out report shall be 
prepared supporting completion of the response. This report will 
include:
    (1) A summary of the range's history and past and current 
conditions.
    (2) Demonstration that all response objectives have been met.
    (3) A determination that sufficient monitoring results have been 
collected to demonstrate that the response objectives have been 
achieved.
    (4) Demonstration that any long-term maintenance requirements for 
the response are capable of being successfully carried out.
    (5) Documentation that the range response has effectively addressed 
the risks posed by military munitions, UXO, or other constituents at 
the range. Approval must be obtained from DDESB.
    (c) Public and government agency involvement. This paragraph 
describes Federal, State, and local government; American Indian tribal; 
and public involvement in the process of ending the range response.
    (1) Once the draft range close-out report is complete, the 
responsible DoD component shall:
    (i) Send a copy of the draft range close-out report to the 
appropriate Federal and state regulators and American Indian Tribe, 
seeking their review and comment.
    (ii) Publish a notice of intent to end response activities in a 
major local newspaper of general circulation announcing a forty-five 
(45)-day period for submission of written comments.
    (iii) Hold a public meeting or availability session, if requested.
    (iv) Develop written responses to significant comments received 
during the comment period and prepare a final range close-out report.
    (2) The responsible DoD component shall then prepare a formal 
decision document specifying the action(s) to be taken.
    (i) This decision document and all supporting information are part 
of the administrative record.
    (ii) Copies of the decision document and final report will be sent 
to the appropriate Federal, State, and local governments; American 
Indian tribe; and the current property owner.
    (iii) The responsible DoD component shall seek concurrence on the 
decision document in accordance with Sec. 178.14(e).
    (d) The Department of Defense's continuing obligation. If at some 
future date a problem is discovered at a military range that has been 
administratively closed out, the Department of Defense will conduct an

[[Page 50841]]

appropriate response to address the problem. This response typically 
will be handled as an explosives or munitions emergency response; 
however, if the circumstances indicate a need for a more detailed 
response, the Department of Defense will reopen the range response 
process and conduct any appropriate actions.


Sec. 178.13  Information repository and the administrative record.

    (a) Purpose. The Department of Defense seeks to ensure full and 
active participation by any public or private entity interested in the 
range response process. Accomplishing this requires making information 
about the response activities taken at each military range available to 
the public. This section establishes the minimum requirements for 
making this information available.
    (b) Information repository. The responsible DoD component shall 
establish an information repository.
    (1) This information repository will be located where it is easily 
accessible to the local population, such as the community library. The 
information repository will be established when the RA/AR is initiated.
    (2) Upon completion of each relevant study document, report, or 
decision document, the responsible DoD component will place a copy of 
that document in the information repository.
    (c) Administrative record. The responsible DoD component shall 
establish an administrative record that contains the documents that 
form the basis for the selection of response actions.
    (1) The administrative record shall be maintained at a location 
near the site being addressed, as established by the responsible DoD 
component.
    (2) A copy of the administrative record shall be made publicly 
available at the information repository.
    (3) Documents to be placed in the administrative record include, 
but are not limited to, the following:
    (i) Notice that the RA/AR is being initiated.
    (ii) The RA/AR report.
    (iii) The RE plan.
    (iv) All explosives safety plans.
    (v) The RE report.
    (vi) The SSRE plan.
    (vii) The site-specific evaluation report.
    (viii) The site-specific response implementation plan.
    (ix) Recurring review reports.
    (x) The range close-out report.
    (xi) All decision documents.
    (xii) All public comments.


Sec. 178.14  Participation of and concurrence role for Federal and 
State regulatory agencies, American Indian tribes, and Federal land 
managers.

    (a) General. This part provides the appropriate Federal and State 
environmental remediation regulatory agencies and American Indian 
tribes with the opportunity to concur and participate in the 
development of the various decision documents under this part. This 
part also provides Federal land managers having jurisdiction, custody, 
or control over property on which a range response will occur the 
opportunity to concur and otherwise participate. The provisions of this 
section are in addition to the provisions elsewhere in this part which 
provide for participation of Federal, state, and local governments; 
American Indian tribes; the public; and current property owners.
    (b) A Federal land manager for a transferred or transferring range 
will be given the opportunity to participate on the range response 
project team during all phases of the range response as an equal member 
of the team, with access to project documents and information. The 
Federal land manager will be provided a concurrence role during the 
evaluation and response at the range, including at the RA/AR, RE/SSRE, 
recurring review, and administrative close-out phases. In the absence 
of concurrence on significant issues or a document, a Federal land 
manager member of the project team may invoke the formal dispute 
resolution mechanism provided in Sec. 178.15(b).
    (c) Review. As required under this part, the responsible DoD 
component will seek review and comments from the appropriate Federal, 
State, and local governments; American Indian tribe; Federal land 
manager; the public; and other parties on the following: the RA/AR 
report under Sec. 178.7; the RE report under Sec. 178.8, if prepared; 
the SSRE report under Sec. 178.9; the recurring review report under 
Sec. 178.11; and the range close-out report under Sec. 178.12. The 
parties identified in paragraph (e) of this section shall have forty-
five (45) days for review of these documents. The responsible DoD 
component will then respond to significant comments, after which the 
responsible DoD component will issue a draft decision document for 
concurrence from the parties identified in paragraph (e).
    (d) Decision documents. For purposes of this paragraph, ``decision 
documents'' shall mean the following: the decision document prepared 
under Sec. 178.7(e)(8) for the RA/AR phase; the decision document 
prepared under Sec. 178.8(f)(4) or (6) for the RE; the decision 
document prepared under Sec. 178.9(g)(4) for the SSRE; the decision 
document prepared under Sec. 178.11(e)(2) for the recurring review 
phase; the decision document prepared under Sec. 178.12(c)(2) for the 
administrative close-out phase; and any final work plan for on-range 
activities under Sec. 178.7(b)(2)(i). These decision documents shall 
include any TI or no further action determinations, as well as ARAR 
waivers.
    (e) Concurrence. When the responsible DoD component provides a 
draft decision document, the appropriate Federal or State regulatory 
agency or affected American Indian tribe, as well as to any Federal 
land manager having jurisdiction, custody, or control over property on 
which a range response will occur, will have forty-five (45) calendar 
days from the date of dispatch to provide its written concurrence or 
nonconcurrence with the draft decision document. An extension of up to 
thirty (30) additional days may be granted by the responsible DoD 
component, upon request. If no written response is received by the 
responsible DoD component within that forty-five (45)-day period, or 
seventy-five (75)-day period if an extension was granted, then the 
responsible DoD component may proceed with a range response action or 
invoke the dispute resolution process as set forth in Sec. 178.15(b), 
or both. If a regulatory agency, American Indian tribe, or Federal land 
manager provides a timely nonconcurrence to the responsible DoD 
component, then the regulatory agency, American Indian tribe, or 
Federal land manager and the responsible DoD component will attempt to 
informally resolve the dispute. If they are unable to informally 
resolve the dispute to the satisfaction of the regulatory agency, 
American Indian tribe, or Federal land manager, then the regulatory 
agency, American Indian tribe, or Federal land manager, as the case may 
be, may utilize the formal dispute resolution mechanism provided in 
Sec. 178.15(b).
    (f) Alternative timelines and dispute resolution. The responsible 
DoD components and regulatory agencies, American Indian tribes, or 
Federal land managers may enter into agreements, either site-specific 
or area-wide, that provide for different timelines and dispute 
resolution procedures. These agreements may combine the review and 
dispute resolution procedures under this part with environmental 
remediation actions taken under other authorities or agreements in 
order to achieve efficiency and uniformity. Any such agreement will not 
make the review and dispute resolution processes or decision documents 
under this part

[[Page 50842]]

subject to the assessment of fines or penalties of any kind.


Sec. 178.15  Dispute resolution.

    (a) If a dispute arises under this part, interested entities who 
may feel aggrieved by the responsible DoD component's response 
activities are encouraged to pursue alternative dispute resolution 
mechanisms with the responsible DoD component to resolve any 
differences over the response alternatives selected.
    (b) If a dispute on a significant issue or document arises under 
Sec. 178.14 that is not resolved informally between the Federal or 
State regulatory agency, American Indian tribe, or Federal land manager 
and the responsible DoD component at the project officer level, then 
the regulatory agency, American Indian tribe, Federal land manager, or 
responsible DoD component, as the case may be, may pursue the following 
formal dispute resolution procedure:
    (1) The regulatory agency, American Indian tribe, or Federal land 
manager will provide a written statement of its dispute, along with any 
rationale or supporting documents, to the military commander 
representing the responsible DoD component. The military commander will 
engage in discussions with the regulatory agency, American Indian 
tribe, or Federal land manager in an attempt to arrive at a consensus 
and resolve the dispute.
    (2) If no resolution is reached within thirty (30) calendar days of 
receipt of the statement of dispute, then the dispute may be elevated 
to the responsible DoD component's headquarters-level official, or his/
her designee. The headquarters-level official for the responsible DoD 
component will engage in discussions with the regulatory agency, 
American Indian tribe, or Federal land manager to attempt to arrive at 
a consensus. If consensus is not achieved, the headquarters-level 
official for the responsible DoD component will announce his or her 
resolution of the dispute, along with a written statement of the 
supporting rationale.
    (3) Within thirty (30) calendar days from announcement of a 
resolution under Sec. 178.15(b)(2), the dispute may be elevated to the 
principal environmental policymaker for the responsible DoD component, 
or his or her designee. The principal environmental policymaker for the 
DoD component will engage in discussions with the regulatory agency, 
American Indian tribe, or Federal land manager to attempt to arrive at 
a consensus. If consensus is not achieved, the headquarters-level 
official for the DoD component will announce his or her resolution of 
the dispute, along with a written statement of the supporting 
rationale.
    (4) In the case of a dispute involving Federal agencies with 
respect to the application and/or interpretation of this part, a 
Federal agency dissatisfied with the results of the dispute resolution 
process in paragraphs (b)(1) through (b)(3) of this section may raise 
its dispute within thirty (30) calendar days from announcement of a 
resolution under paragraph (b)(3) to the Secretary of the Military 
Department, or his or her designee who must be a political appointee 
whose appointment requires the advice and consent of the Senate, and to 
its Department Secretary/Agency Administrator, or his or her designee 
who also must be a political appointee whose appointment requires the 
advice and consent of the Senate. For disputes arising at a closed, 
transferred, or transferring range that is a facility listed on the 
NPL, the Secretary of the Military Department (or his or her designee) 
shall resolve issues related to explosives safety, and the EPA 
Administrator (or his or her designee) shall resolve issues related to 
the release or substantial threat of release of other constituents that 
are subject to CERCLA jurisdiction. If consensus is not achieved, then 
the Secretary of the Military Department (or his or her designee) and/
or, as applicable, the EPA Administrator (or his or her designee) will 
announce his or her resolution of the dispute, along with a written 
statement of the supporting rationale. Nothing in this paragraph shall 
restrict or enlarge the authority of the EPA Administrator with respect 
to a facility on the NPL. If any party is dissatisfied with the 
resolution of the dispute, the dispute may be elevated to the Office of 
Management and Budget (OMB).
    (5) In the case of a dispute involving a State regulatory agency or 
American Indian tribe with respect to the application and/or 
interpretation of this part, a State or tribe dissatisfied with the 
results of the dispute resolution process in paragraphs (b)(1) through 
(b)(3) of this section may raise its dispute within thirty (30) 
calendar days from announcement of a resolution under paragraph (b)(3) 
to the Secretary of the Military Department, or his or her designee who 
must be a political appointee whose appointment requires the advice and 
consent of the Senate, and to the Governor of the State or the American 
Indian tribal leader as appropriate, or their designee. If consensus is 
not achieved, the Department Secretary or his or her designee will 
announce his or her resolution of the dispute, along with a written 
statement of the supporting rationale, with respect to the application 
and interpretation of this part, and the State or tribe may pursue its 
authority under any applicable laws.
    (6) The dispute resolution process set forth in this section may 
also be utilized by a DoD component as provided for elsewhere in this 
part (for example, when significant unresolved issues exist). The same 
levels for dispute resolution will be utilized in such cases; however, 
in such cases, the DoD component would provide a written statement of 
its dispute, along with supporting rationale, to the regulatory agency, 
American Indian tribe, or Federal land manager, as applicable.
    (7) Range response activities will not be suspended during the 
dispute resolution process absent extraordinary circumstances. If the 
Secretary of a Federal land manager, or his or her designee whose 
appointment requires the advice and consent of the Senate, provides a 
written declaration with supporting rationale to the Department 
Secretary for the DoD component, stating that an immediate suspension 
of response activities during the full dispute resolution process is 
needed to prevent substantial environmental harm that would result from 
the performance of the activity itself, the responsible DoD component 
shall immediately suspend such activity, to the extent consistent with 
the protection of human health from any imminent and substantial 
danger. The suspension issue (i.e., whether to suspend response actions 
during the full dispute resolution process) will be raised directly to 
the Military Service Department Secretary, or his or her designee whose 
appointment requires the advice and consent of the Senate, consistent 
with paragraph (b)(4) of this section. The Secretary of the Federal 
land manager and the Military Service's Department Secretary will have 
5 calendar days to arrive at a consensus on the suspension issue. If no 
consensus is reached, then the Federal land manager will have 5 
calendar days to raise the suspension issue to OMB and request OMB to 
decide whether to continue the suspension of the response action. Five 
days following the submission of the suspension issue to OMB, the 
Military Service can resume activity unless OMB makes or has made a 
determination that the response actions should not resume pending 
resolution of the underlying dispute, or that an additional time period 
is needed to consider the merits of the arguments over whether the 
response action should be allowed to resume.

[[Page 50843]]

    (8) These time limits may be extended on the mutual agreement of 
the parties to the dispute.


Sec. 178.16  Future land use for transfers within the Federal 
government.

    (a) This section discusses how future land use issues are 
incorporated where a Federal land manager has jurisdiction, custody, or 
control over property on which a range response will or has occurred.
    (b) For transferring ranges, the Department of Defense will conduct 
and fund response activities consistent with all reasonably anticipated 
future land uses that are identified and agreed to between the parties 
to the land transfer prior to the transfer. Where the transfer of the 
military range is mandated by statute, Executive Order, a previously 
concluded agreement between the Department of Defense and the Federal 
land manager, or under the terms of a withdrawal, special-use permit or 
authorization, right-of-way, public land order, or other instrument 
issued by the Federal land manager under which the Department of 
Defense used the property, and where future land uses are not 
identified or response activities are not specified in such statute, 
order, agreement, or instrument, any dispute will be resolved through 
utilization of the dispute resolution procedure identified in this 
part. Where the transfer is not legally mandated, disagreement over 
what the reasonably anticipated future land uses are may result in the 
transfer of the property to some other party, or no transfer. 
Technology limitations may restrict current uses or cleanup of the 
property. Reasonably anticipated future land uses for the property will 
not necessarily be limited by current technological limitations on the 
cleanup of UXO on ranges.
    (c) For transferred ranges, in the absence of a prior agreement 
identifying reasonably anticipated future land uses or imposing land 
use restrictions, the Department of Defense will conduct and fund 
response activities consistent with all reasonably anticipated future 
land uses at the time of the range response. Reasonably anticipated 
future land uses will be decided by the Federal land manager with the 
concurrence of the Department of Defense. If there is disagreement, the 
dispute resolution procedure identified in this part will be utilized. 
Technology limitations may restrict current uses or cleanup of the 
property. Reasonably anticipated future land uses for the property will 
not necessarily be limited by current technological limitations on the 
cleanup of UXO on ranges.
    (d) If there is disagreement over the reasonably anticipated future 
land uses, the dispute resolution provisions in Sec. 178.15 will be 
utilized. Technology limitations may restrict current uses or cleanup 
of the property. Reasonably anticipated future land uses for the 
property will not necessarily be limited by current technological 
limitations on the cleanup of unexploded ordnance on ranges.
    (e) The Department of Defense will conduct and fund additional 
response actions where:
    (1) The remedy fails (e.g., the remedy fails to meet previously 
identified remediation goals or response objectives; restrictions on 
access or other institutional controls fail not due to the acts or 
omissions of the Federal land manager but due to changes in the use of 
or access to surrounding parcels of property, such as those relating to 
population growth and migration; or through other developments out of 
the control of the Federal land manager); or
    (2) Contamination (i.e., other constituents) caused by the 
Department of Defense of a previously unknown nature, location, 
magnitude, or extent creates conditions inconsistent with the 
reasonably anticipated land use that had been agreed upon or otherwise 
established; or
    (3) Additional UXO is found that creates conditions inconsistent 
with the established reasonably anticipated land use; or
    (4) Changes in applicable laws or regulations concerning cleanup 
standards necessitate reassessment of a previous response; or
    (5) UXO technology limited the range response, with the result that 
the use of the land is more restricted than the established reasonably 
anticipated future land use, but later improvements in technology that 
are cost effective allow for removal of such a restriction and there is 
a current need for the removal of such restriction; or
    (6) A statute, a final and binding court order, or a final and 
binding administrative order necessitates additional response actions 
to address UXO attributable to Department of Defense activities on the 
property, provided that the order is not occasioned by Federal land 
manager activities that are inconsistent with the reasonably 
anticipated future land use; or
    (7) The remedy fails to protect previously unidentified significant 
environmental or cultural resources that would have been protected 
consistent with the established reasonably anticipated future land use 
and this part, had their existence been known at the time of the 
previous range response.

    Dated: September 18, 1997.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 97-25269 Filed 9-25-97; 8:45 am]
BILLING CODE 5000-04-P