[Federal Register Volume 89, Number 55 (Wednesday, March 20, 2024)]
[Proposed Rules]
[Pages 19952-20030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05088]



[[Page 19951]]

Vol. 89

Wednesday,

No. 55

March 20, 2024

Part II





Environmental Protection Agency





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40 CFR Parts 124, 260, 264, et al.





Revisions to Standards for the Open Burning/Open Detonation of Waste 
Explosives; Proposed Rule

  Federal Register / Vol. 89 , No. 55 / Wednesday, March 20, 2024 / 
Proposed Rules  

[[Page 19952]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 124, 260, 264, 265, 270, and 271

[EPA-HQ-OLEM-2021-0397; FRL-8592-01-OLEM]
RIN 2050-AH24


Revisions to Standards for the Open Burning/Open Detonation of 
Waste Explosives

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) 
proposes to revise regulations that allow for the open burning and 
detonation (OB/OD) of waste explosives. This allowance or ``variance'' 
to the prohibition on the open burning of hazardous waste was 
established at a time when there were no alternatives for the safe 
treatment of waste explosives. However, recent findings from the 
National Academy of Sciences, Engineering, and Medicine (NASEM) and the 
EPA have identified safe alternatives which are potentially applicable 
to treat some energetic/explosive waste streams. Because there may be 
safe alternatives available and in use today that capture and treat 
emissions prior to release, regulations would be revised to describe 
specified procedures for the existing requirements to evaluate and 
implement alternative treatment technologies. These proposed revisions 
would reduce OB/OD of waste explosives and increase control of air 
emissions through improved implementation of existing requirements that 
facilities must evaluate and use safe and available alternative 
technologies in lieu of OB/OD.

DATES: Comments must be received on or before May 20, 2024. Under the 
Paperwork Reduction Act (PRA), comments on the information collection 
provisions are best assured of consideration if the Office of 
Management and Budget (OMB) receives a copy of your comments on or 
before April 19, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2021-0397, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, OLEM Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: For further information regarding 
specific aspects of this document, contact Sasha Lucas-Gerhard (email 
address: [email protected], phone number: (202) 566-0346) or Paul 
Diss (email address: [email protected], phone number: (202) 566-0321), 
in the Program Implementation and Information Division, Office of 
Resource Conservation and Recovery.

SUPPLEMENTARY INFORMATION: 

Table of Contents

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
    D. What are the overall economic impacts of this action?
    E. Summary of the Proposed Rule
II. Detailed Discussion of the Proposed Rulemaking
    A. Background
    B. Scope of Applicability
    C. Waste Characterization
    D. Alternative Treatment Technology Evaluations
    E. Timing for Rule Compliance
    F. Permitting of Alternative Technologies
    G. Technical Standards for OB/OD Units
    H. Wastes Prohibited or Restricted From OB/OD
    I. Delay of Closure for OB/OD Units
    J. Minimum Safe Distances for Treatment of Waste Explosives
    K. Explosives or Munitions Emergency Provisions
    L. Mobile Treatment Units for Waste Explosives
III. State Authorization
IV. Statutory and Executive Order Reviews

I. General Information

A. Does this action apply to me?

    This proposed rule potentially affects owners and operators of 
facilities that use OB/OD to treat waste explosives. This includes 
facilities that currently treat waste explosives in a miscellaneous 
unit permitted under 40 CFR part 264, subpart X; facilities that treat 
waste explosives under 40 CFR 265.382 (interim status); and other 
entities that use or would use OB/OD to treat waste explosives, for 
example, as part of emergency responses conducted under an emergency 
permit, or as part of cleanup actions.
    To determine whether your entity is affected by this action, you 
should carefully examine the changes to the regulatory text. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed under FOR FURTHER 
INFORMATION CONTACT.

B. What action is the Agency taking?

    EPA is proposing revisions to regulations under the Resource 
Conservation and Recovery Act (RCRA) related to use of OB/OD to treat 
waste explosives. This includes proposed changes to clarify how 
facilities would assess whether safe alternatives are available in lieu 
of OB/OD. In addition, for instances where OB/OD remains the only 
treatment method for waste explosives, the Agency is proposing minimum 
technical standards for OB/OD units. The Agency is also proposing a 
framework for permitting mobile treatment units (MTUs, proposed 
definition in Sec.  264.10), which could be used as an alternative to 
OB/OD. EPA finds that these proposed changes would increase protection 
of human health and the environment by reducing the amount of waste 
explosives currently being open burned and open detonated and, where 
OB/OD remains the only available treatment method, by strengthening 
protections for OB/OD activities.

C. What is the Agency's authority for taking this action?

    These regulations are proposed principally under the authority of 
section 3004(n), and supported by authorities under sections 2002, 3004 
generally, 3005, and 3006 of the Solid Waste Disposal Act of 1965, as 
amended by the Resource Conservation and Recovery Act of 1976, as 
amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA). 
This statute is commonly referred to as ``RCRA.''

D. What are the overall economic impacts of this action?

    EPA estimated the costs and benefits of the proposed rule in a 
Regulatory Impact Analysis, which is available in the docket for this 
action. Overall, EPA estimates that the proposed rule would result in 
quantifiable annual costs of approximately $6.3 million to $28.0 
million (annualized at a discount rate of

[[Page 19953]]

seven percent). The proposed rulemaking's requirements and costs apply 
to all owners/operators conducting or seeking to conduct OB/OD of waste 
explosives under RCRA. EPA requests comment on the cost estimates and 
analysis of this proposed rulemaking. Details of this analysis and 
requests for comment are presented in the Regulatory Impact Analysis 
for the Revisions to Standards for the Open Burning/Open Detonation of 
Explosive Waste Materials Proposed Rule, available in the docket.

E. Summary of the Proposed Rule

    EPA is proposing revisions to the RCRA regulations to clarify and 
add specificity to existing requirements for owners/operators of OB/OD 
units, including how and when to apply and implement the requirements 
in the permitting process. It also proposes new procedures for the 
permitting of mobile treatment units for waste explosives and new 
technical standards for OB/OD units.
    Specifically, EPA is proposing to create new Subparts for OB/OD 
units in Parts 264 (applicable to permitted facilities) and 265 
(applicable to interim status facilities). The new Subparts would 
contain requirements that would apply to all owners/operators 
conducting or seeking to conduct OB/OD of waste explosives, including 
activities conducted as part of RCRA cleanup and closure. EPA is also 
proposing limited requirements for OB/OD emergency permits. EPA is also 
proposing an exemption from the alternative technology evaluation and 
implementation regulations for the de minimis treatment of waste 
explosives by OB/OD.
    This rulemaking proposes new provisions that would specify how and 
when owners/operators and permit authorities are to evaluate 
alternative treatment technologies for OB/OD, including specific 
information that would be required for facilities to demonstrate 
whether safe modes of treatment are available for specific waste 
streams. This rule also proposes new and revised regulatory provisions 
on timelines for implementing alternative technologies, permitting for 
alternative technologies, waste analysis/characterization, wastes 
prohibited/restricted from OB/OD, technical standards for OB/OD units, 
delay of closure applicability to OB/OD units, clarifications to 
emergency provisions, and procedures for permitting MTUs. The 
components of this proposal may be finalized, or not, independently of 
each other. In addition, EPA intends that the provisions of the rule be 
severable. In the event that any individual provision or part of the 
rule is invalidated, EPA intends that this would not render the entire 
rule invalid, and that any individual provisions that can continue to 
operate will be left in place.

II. Detailed Discussion of the Proposed Rulemaking

Background

A. Introduction to Open Burning and Open Detonation of Waste Explosives 
and This Rulemaking

What is open burning and open detonation?
    Open burning (OB), as currently defined in Sec.  260.10, means the 
combustion of any material without the following characteristics:
    1. Control of combustion air to maintain adequate temperature for 
efficient combustion,
    2. Containment of the combustion-reaction in an enclosed device to 
provide sufficient residence time and mixing for complete combustion, 
and
    3. Control of emission of the gaseous combustion products.
    Detonation, as currently defined in Sec.  265.382, is an 
``explosion in which chemical transformation passes through the 
material faster than the speed of sound.'' Because the only term 
defined in part 260 is ``open burning,'' which is related to but 
different from ``open detonation,'' EPA is proposing to add the terms 
``detonation,'' ``open detonation,'' and ``open burning/open detonation 
unit'' to the definitions in Sec.  260.10. The proposed definition for 
``open detonation'' is ``the detonation of any material without: (1) 
Containment in an enclosed device and; (2) control of the emission 
products, causing any unreacted material to be dispersed into the 
environment. OD refers to both detonation that is not covered and 
detonation that is covered by soil (buried detonation)''; and the 
proposed definition for ``open burning/open detonation unit'' is ``any 
unit used in the OB or OD treatment of waste explosives. These units 
include but are not limited to detonation pit, burn pile, burn cage, 
and burn pan units. The permitted unit boundary includes the associated 
kickout area within the facility, where dispersed metal fragments, 
unreacted explosives contaminants, and other waste items are deposited 
onto the land.'' In addition, EPA proposes to revise the definition of 
``open burning'' in Sec.  260.10 to reference the proposed definition 
of detonation and to remove the word ``gaseous'' from ``control of 
emission of the ``gaseous combustion products.'' This proposed change 
is because combustion byproducts may also be in the solid phase.
What is an OB/OD unit?
    An OB/OD unit is a unit used for the treatment of waste explosives 
by OB/OD. These units are regulated under RCRA and can include, but are 
not limited to, detonation pits, burn pits, trenches, piles, burn pans, 
tubes, and cages. OB/OD units are not enclosed units but are open such 
that the treatment byproducts are released directly into the 
environment.\1\
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    \1\ For the purpose of compliance with the Land Disposal 
Restriction (LDR) treatment standards, EPA determined that OB/OD was 
treatment, not disposal. Land disposal means placement into or on 
the land. However, EPA clarified that OB/OD constitutes land 
disposal where residuals [on the land] from the OB/OD operation 
remain a hazardous waste. Memorandum from Sylvia Lowrance, Director 
of Office of Solid Waste to Robert Duprey, EPA Region 8, Director 
Hazardous Waste Management Division, May 18, 1988, RO 13184. [Note: 
Please note that this memo pre-dates the ``Third Third'' (June 1, 
1990) and Sept 1994 Final Rules, which established LDR requirements 
for the ``explosives subcategory'' and the requirement to treat D003 
explosives prior to land disposal for ``underlying hazardous 
constituents'' as defined in Sec.  268.2, respectively.
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What are waste explosives?
    Waste explosives are solid wastes that are hazardous and 
characteristic for reactivity (D003) as defined under Sec.  
261.23(a)(6) through (8): It is capable of detonation or explosive 
reaction if it is subjected to a strong initiating source or if heated 
under confinement. It is readily capable of detonation or explosive 
decomposition or reaction at standard temperature and pressure. It is a 
forbidden explosive as defined in 49 CFR 173.54, or is a Division 1.1, 
1.2, or 1.3 explosive as defined in 49 CFR 173.50 and 173.53. Example 
explosives include but are not limited to propellants from guns, airbag 
inflators,\2\

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and rockets (``propellants''), fireworks and flares (``pyrotechnics''), 
and military and non-military munitions (``munitions'') and become 
wastes when discarded as defined in Sec. Sec.  261.2 and 266.202. 
Military munitions include bombs, warheads, grenades, mines, missiles, 
and ammunition (see Sec.  260.10 for additional types of explosives 
defined as military munitions). Waste explosives also include 
explosives-contaminated debris such as towels, liners, containers, 
gloves, socks, personal protective clothing, pipes, and soils that meet 
the Sec.  261.23(a)(6) through (8) explosives definitions quoted above.
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    \2\ While fully-assembled airbag modules contain ignitable 
propellant, EPA has said that used airbag modules that can safely 
undergo electronic deployment prior to recovery of metal are 
considered scrap metal and such deployment does not require a RCRA 
treatment permit (Regulatory Status of Automotive Airbag Inflators 
and Fully Assembled Airbag Modules, Barnes Johnson, Director, Office 
of Resource Conservation and Recovery, July 19, 2018, https://www.epa.gov/hw/regulatory-status-automotive-airbag-inflators-and-fully-assembled-airbag-modules). Therefore, electronic deployment of 
these airbag modules for metal recovery would not be subject to the 
requirements of this rulemaking. However, airbag propellent itself 
(e.g., off-spec or excess propellant), used airbag inflators, and 
used airbag modules that cannot safely undergo electronic deployment 
(such as recalled Takata airbags) are not eligible for the scrap 
metal exemption and are regulated as hazardous waste. Treatment of 
these wastes is subject to the requirements of the rule (as would 
treatment of any airbag modules that are not electronically 
deployed) if such treatment involves OB/OD.
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Contaminants That May Be Released During OB/OD
    Waste explosives, when open burned or open detonated, have the 
potential to release to the environment heavy metals, perchlorate, 
particulate matter, per- and polyfluoroalkyl substances (PFAS), 
polychlorinated biphenyls (PCBs), dioxins/furans, explosive compounds, 
and other toxic contaminants.\3\ EPA has documented specific 
contaminants that exceed action levels in environmental media at OB/OD 
units that have undergone RCRA closure. These contaminants include 
explosives (RDX, HMX, TNT, DNT, perchlorate, nitroglycerine), heavy 
metals (aluminum, arsenic, barium, cadmium, chromium, cobalt, copper, 
lead, manganese, mercury, selenium, silver, thallium, zinc), and other 
contaminants (PCBs, benzo(a)anthracene, benzo(a)pyrene, 
benzo(b)fluoranthene, bis(2-ethylhexyl)phthalate, chrysene, dioxins/
furans, dinitrobenzene (DNB), dibromoethane (EDB), endosulfan, 
ethylbenzene, fluoranthene, indeno(1,2,3-cd)pyrene, naphthalene, 
nitrates, nitrobenzene, 1,3,5-trinitrobenzene (TNB), 
xylenes).4 5 Additionally, many of these hazardous chemicals 
may exist as mixtures, and have the potential to be released 
concurrently.
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    \3\ https://www.epa.gov/fedfac/emerging-contaminants-and-federal-facility-contaminants-concern.
    \4\ Alternatives for the Demilitarization of Conventional 
Munitions, NASEM, January 2019. https://www.nap.edu/catalog/25140/alternatives-for-the-demilitarization-of-conventional-munitions.
    \5\ OB/OD Closure Case Studies, EPA, 2023, available in the 
docket for this rulemaking. Information about specific chemicals, 
including information on health and environmental impacts, can be 
found on EPA's CompTox Chemicals Dashboard https://comptox.epa.gov/dashboard/.
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Potential Environmental Impacts and Health Effects of Contaminants 
Released During OB/OD
    Incomplete treatment of waste explosives during OB/OD operations 
can result in the release of waste residuals including explosive 
kickout (i.e., the dispersal of metal fragments, unreacted explosive 
contaminants, and other waste items, onto the land) that are hazardous 
waste and/or explosive waste or contain hazardous constituents and 
contaminants which may pose a threat to human health and the 
environment, especially if not removed in a timely manner. As an 
example, OB/OD of energetic compounds, including obsolete munitions, 
pieces of ordnance and propellants, in military ranges in China 
resulted in soil deposition of various energetic compounds.\6\ Although 
OB/OD processes may vary in other countries, as well as by facilities 
within the United States, the types of environmental damages from OB/OD 
operations in other countries are illustrative of the types of 
environmental damages from OB/OD operations in the United States. 
Therefore, EPA believes this is relevant to this discussion. Substances 
released during OB/OD also have the potential to migrate into and 
contaminate the air and deposit onto soil, surface water, groundwater, 
and subsurface physical structures.\7\ Human exposure to contaminants 
of potential concern released during OB/OD may include but is not 
limited to inhalation of contaminated air, ingestion of contaminated 
food and water, and dermal absorption of contaminants. Exposure to 
these contaminants can cause adverse health effects in humans and 
animals.\8\
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    \6\ Zhang, Huijun, et al. Contamination characteristics of 
energetic compounds in soils of two different types of military 
demolition range in China, Environmental Pollution, Volume 295, 
2022, https://www.sciencedirect.com/science/article/pii/S0269749121022363.
    \7\ Information about specific chemicals, including information 
on health and environmental impacts, can be found on EPA's CompTox 
Chemicals Dashboard https://comptox.epa.gov/dashboard/.
    \8\ A description of potential environmental impacts and health 
effects from the contaminants that are released during OB/OD is 
included in the background document ``Background on Potential 
Environmental Impacts and Health Effects of Contaminants released 
during OB/OD.''
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Background of Regulatory Requirements
    Due to the potential hazards to human health and the environment 
EPA prohibited the OB, including OD, of hazardous waste in 1980 at 
interim status facilities with one exception--EPA allowed OB/OD for 
waste explosives ``which cannot safely be disposed of through other 
modes of treatment'' (45 FR 33217, May 19, 1980; Sec.  265.382).\9\ 
During that time open burning and open detonation were the only 
technologies available to treat munitions, waste explosives and bulk 
propellants; therefore, EPA acknowledged the need for the variance to 
allow open burning and open detonation of those wastes. This exception, 
or variance, from the prohibition on OB/OD was not intended to be 
indefinite. At the time, EPA also committed to monitoring development 
of new technologies.\10\ Interim status facilities refers to facilities 
that have not yet received a permit to operate but are allowed to 
continue operations by implementing the standards of part 265.
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    \9\ As finalized in 1980, Sec.  265.382 reads ``[o]pen burning 
of hazardous waste is prohibited except for the open burning and 
detonation of waste explosives. Waste explosives include waste which 
has the potential to detonate and bulk military propellants which 
cannot safely be disposed of through other modes of treatment. 
Detonation is an explosion in which chemical transformation passes 
through the material faster than the speed of sound (0.33 
kilometers/second at sea level). Owners or operators choosing to 
open burn or detonate waste explosives must do so in accordance with 
the following table and in a manner that does not threaten human 
health and the environment.''
    \10\ Final Background Document, 40 CFR part 265, subpart P 
Interim Status Standards for Hazardous Waste Facilities for Thermal 
Treatment Processes Other Than Incineration and for Open Burning. 
U.S. EPA, Office of Solid Waste, April 1980; p. 52. ``The Agency 
will be monitoring the progress of the on-going development of safe 
alternatives and may propose additional regulations at a later 
time.''
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    After establishing interim status standards for thermal treatment 
in part 265, subpart P, EPA finalized permitting standards in 1987 for 
hazardous waste management units that were not already covered in the 
regulations, including OB/OD (part 264, subpart X).\11\ In the subpart 
X rule, EPA listed OB/OD of explosive waste as an example unit covered 
under subpart X, referring to units ``as defined in Sec.  265.382'' and 
used the Sec.  265.382 definition of waste explosives to describe what 
OB/OD operations could and could not be permitted under subpart X.\12\
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    \11\ 52 FR 46964, December 10, 1987.
    \12\ 52 FR 46952, December 10, 1987.
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    The subpart X regulations further direct that permits for such 
``miscellaneous units'' must ``contain such terms and provisions as are 
necessary to protect human health and the environment'' (Sec.  
264.601), and permitting authorities generally incorporate applicable 
provisions from the existing EPA regulations. EPA stated in the 
preamble to the 1987 rule that ``[w]hen upgrading existing units or 
permitting new units, the applicable portions of part 265, subpart P 
standards (e.g., minimum safe distances) will be

[[Page 19955]]

incorporated during issuance of subpart X permits'' (emphasis 
added).\13\ Thus, EPA has long interpreted subpart X to require 
incorporating the provisions of Sec.  265.382 when permitting OB/OD 
activities.
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    \13\ In addition, shortly after publication of the subpart X 
final permitting standards, EPA confirmed that ``[a]ll thermal 
treatment is subject to part 265, subpart P; if this was not the 
case, the standards would not be the same. . . .'' Memorandum from 
Marcia E. Williams, Director of Office of Solid Waste to Robert F. 
Greaves, EPA Region 3 Acting Chief Waste Management Branch, December 
15, 1987, RO 11310.
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    RCRA section 3005(c)(1) directs EPA to issue a permit ``upon a 
determination by the Administrator (or a State, if applicable), of 
compliance by a facility'' with the standards promulgated by EPA 
applicable to owners/operators of hazardous waste treatment, storage, 
and disposal facilities (TSDFs). This means that to obtain a permit, an 
interim status facility would need to demonstrate compliance with Sec.  
265.382 before issuance of the permit. The facility must demonstrate 
that the waste ``cannot safely be disposed of through other modes of 
treatment,'' and, if there is no safe mode of treatment other than OB/
OD, the facility must conduct OB/OD ``in a manner that does not 
threaten human health or the environment.''
    Moreover, given the record concerning the release of contaminants, 
byproducts, and wastes associated with OB/OD, EPA considers that the 
incorporation of the qualified prohibition in Sec.  265.382 (i.e., an 
assessment and implementation of alternatives) as a minimum requirement 
for permitting is necessary to ensure that permitted units are more 
protective and ``operated . . . in a manner that will ensure protection 
of human health and the environment'' (Sec.  264.601). RCRA section 
3005(c) also directs the Administrator (or State), prior to issuing a 
permit, to ``consider improvements in the state of control and 
measurement technology'' in reviewing an application for a permit 
renewal. (42 U.S.C. 6925(c)(1), (3)). Accordingly, EPA expects that 
permits are and will be only issued for OB/OD units treating waste 
explosives as defined in Sec.  261.23(a)(6) through (8) and Sec.  
265.382, and that such permits will incorporate the prohibition on OB/
OD except for waste explosives ``which cannot safely be disposed of 
through other modes of treatment,'' considering the most recent 
information on available alternative technologies. EPA notes that, 
during the evaluation and implementation periods for an alternative 
technology, owners/operators may continue use of OB/OD to treat the 
subject wastes. Please also see section ``Alternative Technology and 
Continuity of Operations'' for use of OB/OD when an implemented 
alternative technology is not available.
    Also relevant are the provisions in the statute and regulations 
which provide authority for agency-initiated permit modifications. 
Under these provisions, Regional, State, and territorial RCRA programs 
may consider whether cause exists to initiate a modification of 
existing permits not currently up for renewal. RCRA section 3005(c)(3) 
stipulates the Administrator (or authorized State) can review and 
modify a permit at any time during its term. In accordance with this 
direction, Sec.  270.41(a)(2) authorizes Regional, State, and 
territorial permitting authorities to modify or revoke and reissue a 
permit based on ``information [that] was not available at the time of 
permit issuance . . . and would have justified the application of 
different permit conditions at the time of issuance.'' The two 2019 
reports (discussed in this preamble) can be considered as this type of 
information.
Overview of OB/OD and Development of Alternative Technologies
    Since 1980, approximately two thirds of all RCRA interim status/
permitted OB/OD units have ceased operating.\14\ However, as of April 
2023, there are 67 operating RCRA OB/OD facilities. Permit agencies 
have issued permits to 63 of these facilities as RCRA hazardous waste 
treatment units under part 264, subpart X. Four facilities are still 
awaiting initial permit decisions and continue to operate under interim 
status.\15\ The list of operating RCRA OB/OD facilities is included in 
the RIA of the proposed rule. This list also adds 2 corrective action 
facilities currently using OB/OD or that have plans to use OB/OD for 
treatment of recovered explosives and munitions items.
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    \14\ Munitions Demilitarization/Disposal and Environmental 
Subgroups of the Joint Ordnance Commanders Group (JOCG) report on 
the Optimization of Department of Defense Open Burning/Open 
Detonation Units. The report includes determinations of the 
criticality of each OB/OD unit, a comparative benefit analysis on 
the OB/OD units with an intent to remain open, and factors for their 
considerations to determine whether their maintained OB/OD units are 
required. This document is available in the docket for the proposed 
rule.
    \15\ The four OB/OD facilities operating under interim status 
are: (1) U.S. Army Picatinny Arsenal (New Jersey), (2) Naval Support 
Facility Indian Head Strauss Avenue (Maryland), (3) Naval Support 
Facility Indian Head Stump Neck Annex (Maryland), and (4) Los Alamos 
National Laboratory (New Mexico).
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    Given the open design of OB/OD units and their potential to release 
treatment byproducts directly into the environment, and associated 
documented contamination discussed above, OB/OD, consistent with 
existing regulatory requirements as further communicated in guidance 
issued by EPA in June 2022,\16\ can only be used where there are no 
other safe modes of treatment available.\17\ OB/OD units treating waste 
explosives are currently permitted under part 264, subpart X. Under the 
subpart X environmental performance standards, ``permits for 
miscellaneous units are to contain such terms and provisions as 
necessary to protect human health and the environment, including, but 
not limited to, as appropriate, design and operating requirements, 
detection and monitoring requirements, and requirements for responses 
to releases of hazardous waste or hazardous constituents from the 
unit'' (Sec.  264.601).
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    \16\ EPA memorandum from the Director of ORCR to the Regional 
LCRD Division Directors on ``Open Burning and Open Detonation (OB/
OD) of Waste Explosives Under the Resource Conservation and Recovery 
Act (RCRA)'' https://rcrapublic.epa.gov/files/14946.pdf.
    \17\ For more discussion on safe modes of treatment see Section 
II. D. Alternative Technology Evaluation and Implementation.
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    When EPA promulgated the 1980 exception to the prohibition to OB/OD 
for waste explosives, EPA did so because there were no alternative 
treatment technologies that could safely treat most waste explosives at 
the time. In the subsequent decades, the Department of Defense (DoD) 
has researched, developed, tested, and evaluated (RDT&E) alternative 
technologies, leading to successful implementation of several different 
alternative technologies.\18\ RDT&E efforts, in addition to continuous 
improvements in alternative technologies, have made such technologies 
increasingly available. As technology has advanced over time, 
expectations for demonstrating whether there are no safe and available 
alternatives have commensurately grown over time.
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    \18\ As described in EPA's 2019 report, many alternative 
technologies were first conceptualized, demonstrated, tested, and 
implemented by DoD (Alternative Treatment Technologies to Open 
Burning and Open Detonation of Energetic Hazardous Wastes, US EPA, 
December 2019 https://www.epa.gov/sites/production/files/2019-12/documents/final_obod_alttechreport_for_publication_dec2019_508_v2.pdf.) EPA 
also recognizes that private companies have also researched, 
demonstrated, and tested, and either implemented their alternatives 
at their facilities or made their alternatives available for 
purchase.
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    For facilities, including both Federal and private, that have 
implemented alternative technologies, a key step in the process is 
determining which of their explosive waste streams can be treated 
safely by an available alternative

[[Page 19956]]

technology. This step entails, among other considerations, an in-depth 
evaluation of the waste explosives compared to the capabilities of the 
available alternative technologies. EPA recognizes that the practice of 
evaluating and implementing alternative technologies has been taking 
place over many years despite a lack of specific details in the 
regulations for how to implement these requirements.
    The process of evaluating and implementing alternative technologies 
may require significant investment in resources and time, depending on 
the site-specific requirements. An alternative technology evaluation 
can vary widely in terms of costs based on the number of explosive 
waste streams that a facility must evaluate, as each must be evaluated 
against a range of available technologies. Similarly, alternative 
technology costs, including design, construction, operation, and 
maintenance, can be significant, and can vary widely depending upon the 
treatment needs and would be influenced by the complexity of the 
required technology and whether a combination of technologies is needed 
to treat a particular waste stream or waste streams. Costs also vary 
depending on whether a facility needs to design, construct, operate, 
and maintain its own alternative technology on-site or whether it can 
transport waste explosives off-site for treatment operated either 
commercially or by the facility's own enterprise. The use of mobile 
treatment units presents, for some waste streams, an opportunity for 
facilities to manage costs in choosing among safe alternative 
technologies. EPA notes that this proposed rule would establish new 
requirements to improve implementation of existing requirements 
established in 1980. Thus, the estimated costs of this proposal include 
the costs of the new requirements but do not include costs for the 
existing requirements to evaluate and implement safe alternative 
technologies, since they were already part of the regulatory framework.
    Timing of the process beginning with technology evaluation through 
technology implementation can also vary considerably. Timing 
considerations include requesting and securing funding, solicitation of 
vendors and award of contracts, permitting, construction, and start-up 
and testing. Federal facilities' funding requests must align with the 
three-to-five-year budgetary cycle, which means funds may not be 
available immediately. Additionally, more complex alternative 
technologies involving high-cost infrastructure may involve longer 
Congressional budgeting and appropriations processes. Conversely, EPA 
is aware of alternative technologies that have been implemented in 
relatively short timeframes of one to three years, for example in 
response actions addressed under CERCLA, and at private facilities.
    As noted, alternative treatment technologies have been developed 
and implemented over the past several decades. In 2019, EPA \19\ and 
the NASEM (see footnote 4) published separate reports describing many 
alternative technologies now available to safely treat explosive waste 
instead of using OB/OD. Both reports indicated that there appear to be 
safe available alternative technologies for many waste streams that are 
currently being open burned. With regard to waste streams that are 
currently open detonated, there are considerably fewer waste streams 
that can be treated by alternative technologies due to limited 
explosion containment capabilities (e.g., some munitions are too large, 
either in size or net explosive weight (NEW) and cannot be sized-
reduced to be safely treated in a chamber or reinforced rotary kiln). 
Use of safe alternative technologies in general represents a greater 
level of control and more complete treatment, and therefore better 
protection of human health and the environment; in addition, capturing 
and controlling emissions and releases to the environment is more 
protective compared to treatment open to the environment. Further, 
since these technologies prevent or greatly reduce the release of 
hazardous contaminants to the environment, they reduce the chances of 
exposures, improve the ability to clean close, and avoid the need for 
post-closure care. More information about closure of OB/OD facilities 
is available in EPA's OB/OD Closure Case Studies (see footnote 5).
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    \19\ Alternative Treatment Technologies to Open Burning and Open 
Detonation of Energetic Hazardous Wastes, US EPA, December 2019 
https://www.epa.gov/sites/production/files/2019-12/documents/final_obod_alttechreport_for_publication_dec2019_508_v2.pdf. ``There 
is a wide range of available alternative treatment technologies that 
can be, and have been used successfully, in place of OB/OD.''
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    Some energetic and munitions treatment with alternative 
technologies may be a multi-step process, depending on the starting 
material and its configuration. Munitions and energetics can be divided 
into four general categories: thick-case munitions, thin-case 
munitions, bulk explosives or propellants, and explosive-contaminated 
materials. The multi-step process may include case opening, energetic 
material removal, energetic material destruction, and decontamination. 
Technologies developed for the case-opening step include reverse 
assembly, fluid jet cutting, cryofracturing, femtosecond laser cutting 
or laser machining, and band sawing. For the energetic material removal 
step, some technologies that have been developed are autoclave meltout, 
induction heating meltout, washout, dry ice blasting, and ultrasonic 
separation or sonication. Technologies developed for the energetic 
material destruction step include closed detonation (controlled 
detonation chamber (CDC), static detonation chamber (SDC), detonation 
of ammunition in a vacuum integrated chamber (DAVINCH\TM\), thermal 
destruction (contained burn, rotary kiln, Decineration\TM\, and rotary 
furnace), and chemical destruction (alkaline hydrolysis, general 
atomics neutralization/alkaline hydrolysis, industrial supercritical 
water oxidation, MuniRem[supreg], Actodemil[supreg]). The 
decontamination step technologies include thermal decontamination (hot 
gas or steam decontamination, flashing furnace, Decineration\TM\, car 
bottom furnace) and chemical decontamination (MuniRem[supreg], 
Actodemil[supreg]).\20\ For Department of Defense (DoD) facilities, the 
DoD Explosives Safety Board (DDESB) approves, from an explosives safety 
standpoint, technologies applying for use within DoD.\21\ Although 
these determinations are very site-specific, in identifying potential 
alternative technologies it may be helpful to review lists \22\ of 
technologies approved from a safety standpoint by the DDESB (see 
footnote 20, pg. 11).
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    \20\ Referral to commercial products or services, and/or links 
to non-EPA sites does not imply official EPA endorsement of or 
responsibility for the opinions, ideas, data, or products presented 
at those locations, or guarantee the validity of the information 
provided.
    \21\ DDESB is the DoD organization created in 1928 by Congress 
to develop, implement, and oversee explosives safety regulations 
through the DoD Explosives Safety Program for all DoD munitions and 
munitions-related operations. The DDESB's mission is to protect 
people, the environment, and infrastructure by preventing accidents 
involving DoD ammunition and explosives (i.e., military munitions).
    \22\ EPA, December 2019, p. 30. The 2015 list of eight DDESB-
approved technologies was confirmed as current by Mr. M. Luke 
Robertson (DDESB) in an email to EMS dated July 26, 2017.
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Public Engagement on Development of the Proposed Rulemaking
    In developing this proposed rulemaking, EPA held two rounds of 
early engagement in March 2022 and December 2022 with States, 
territories, Tribes, environmental and community

[[Page 19957]]

groups, and owners/operators of operating OB/OD units (including 
Federal agencies such as DoD, Department of Energy (DOE), and the 
National Aeronautics and Space Administration) as well as other members 
of the public to solicit input on how to amend the hazardous waste 
regulations with respect to OB/OD. In general, States and territories 
were very supportive of a proposed rulemaking but concerned about 
implementation challenges. Owners and operators of OB/OD facilities, 
including Federal agencies, stressed that safety is paramount when 
evaluating alternatives and emphasized the importance of retaining the 
ability to use OB/OD for waste explosives that have no safe 
alternative. Environmental and community groups want EPA to ban OB/OD 
completely with no exceptions such as for emergencies. These groups are 
concerned with exposure to contaminants from OB/OD through inhalation 
of plumes of smoke migrating into their communities and ingestion of 
contamination deposited onto soil and leached into groundwater used for 
irrigation and drinking water. Communities are also concerned with the 
noise and vibration from OB/OD events. Summaries of these meetings are 
available in the docket for this proposed rule.\23\
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    \23\ Responses to the Environmental Protection Agency Revisions 
to the Standards for Open Burning/Open Detonation of Waste 
Explosives Discussion Topics for Virtual Meetings. Summaries from 
all engagement meetings are available in the docket for this 
rulemaking.
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B. Scope of Applicability

    EPA is proposing to create new subparts for OB/OD units in parts 
264 (applicable to permitted facilities) and 265 (applicable to interim 
status facilities). The new subparts would contain requirements that 
would apply to all owners/operators conducting or seeking to conduct 
OB/OD of waste explosives, except for those conducting explosives or 
munitions emergency responses. Applicability would encompass owners/
operators of OB/OD units used for RCRA cleanup, closure, post-closure, 
or corrective action and any persons or entities that conduct or seek 
to conduct OB/OD of waste explosives. EPA estimates that, as of April 
2023, there are 67 TSDFs with operating OB/OD units including four 
operating under interim status, and 2 corrective action facilities \24\ 
that would be subject to these proposed requirements.
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    \24\ The two corrective action facilities may or may not be 
subject to the final requirements depending upon when the activities 
are completed; they are included in the proposed rule because they 
currently use OB/OD only for corrective action.
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Emergency Provisions
    Additionally, EPA is proposing to include clarifying text and new 
regulatory reporting requirements in the subpart Y standards: Emergency 
Provisions at Sec. Sec.  264.715 and 265.715 and to revise the existing 
emergency permit regulations at Sec.  270.61.
    These clarifications and additions balance the need to ensure that 
explosives or munitions emergency responses continue to proceed as 
expeditiously as practicable by maintaining current exemptions while 
addressing the potential deleterious human health and/or environmental 
impacts of OB/OD conducted under temporary emergency permits by 
requiring that safe alternatives be evaluated and implemented, when 
practicable. In pre-proposal public engagement, some regulated entities 
raised concerns that the existing requirement to conduct alternative 
technology evaluations and implement alternatives when safe 
alternatives are identified, may result in delays to emergency 
responses. EPA believes this proposal will address that concern by 
utilizing the existing exemption from substantive RCRA requirements, 
including the need to obtain a permit, which by extension, exempts 
explosives or munitions emergency responses from the requirement to 
evaluate alternatives. At the same time, the proposal would require 
submission of specified information after the emergency response is 
complete. These proposed provisions and their rationale are discussed 
in more detail in Section II. K. Explosives or Munitions Emergency 
Provisions.
Sanitization Under Atomic Energy Act (AEA)
    In the 1997 final Military Munitions Rule (MMR), EPA codified a 
definition for ``military munitions'' which excluded nuclear weapons, 
nuclear devices, and non-nuclear components that are managed under 
DOE's nuclear weapons program, that have not undergone 
sanitization.\25\ Sanitization is an operation, required under the AEA, 
that irreversibly modifies or destroys a component or part of a 
component of a nuclear weapons system, device, trainer, or test 
assembly. It is EPA's understanding that DOE occasionally utilizes open 
burning to sanitize nuclear and non-nuclear components and parts that 
either contain explosive residues or are explosive materials 
themselves. Consistent with the MMR and the supporting legislative 
history discussed therein, EPA does not consider sanitization 
operations that utilize open burning to be within the scope of 
applicability for this proposed rule. However, EPA encourages DOE, when 
evaluating alternative technologies for its RCRA regulated explosive 
waste streams, to also consider if an alternative technology could be 
used for sanitization operations.
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    \25\ Military Munitions Rule: Hazardous Waste Identification and 
Management; Explosives Emergencies; Manifest Exemption for Transport 
of Hazardous Waste on Right-of-Ways on Contiguous Properties. See 62 
FR 6624-25, February 12, 1997.
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Relationship to CERCLA
    During pre-proposal public engagement, some participants also 
raised concerns that cleanups conducted under the CERCLA may be impeded 
by any applicable requirements to evaluate and implement alternatives 
to OB/OD. These participants sought an explicit exemption for CERCLA 
cleanups. These proposed regulations under RCRA do not grant such an 
exemption. CERCLA section 121(d) requires that on-site remedial actions 
attain or waive Federal environmental ARARs, or more stringent State 
environmental ARARs, upon completion of the remedial action. 
Substantive RCRA provisions pertaining to waste explosives have been 
evaluated as CERCLA ARARs on a site-specific basis since their 
promulgation in 1980.
De Minimis Exemption From Alternative Technology Evaluation
    EPA is proposing an exemption for generators generating up to 
15,000 lbs NEW or less of waste explosives from the requirement to 
conduct a comprehensive alternative technology evaluation provided they 
make a de minimis demonstration.
    The proposed de minimis exemption regulations would be located at 
Sec.  264.704(e) for permitted facilities and Sec.  265.704(e) for 
interim status facilities. The proposed de minimis exemption from the 
requirement to evaluate and implement alternative technologies would 
require the owner/operator to make three unique demonstrations to the 
satisfaction of the Director (discussed in this preamble). An owner/
operator that satisfactorily made such demonstrations would be exempt 
from the requirement to conduct an evaluation of alternatives to OB/OD 
as would otherwise be required under the proposed Sec.  264.707 or 
Sec.  265.707 regulations. Accordingly, the owner/operator would be 
exempt from the requirement to implement an alternative technology with 
the exception of any safe available offsite alternative

[[Page 19958]]

technology treatment options, safe treatment by an existing onsite 
alternative technology unit, or safe and available treatment by an MTU. 
The exemption would be limited to only waste explosives generated on 
site and as proposed to be defined in Sec.  260.10. Thus, the exemption 
would not exempt additional waste streams from the long-standing 
prohibition of OB/OD of hazardous wastes that did not meet the 
definition of waste explosives. As a result of the exemption being 
limited to waste explosives generated on site, it would also not create 
an incentive to ship small quantities of waste explosives to different 
facilities in order to qualify for the exemption. EPA is proposing this 
de minimis exemption for quantities of OB/OD that contribute only 
trivial contamination or potential for exposure.
    Under the proposed terms of the de minimis exemption, the owners/
operators would have to make three demonstrations, the first of which 
includes four components, to the satisfaction of the Director. The 
three demonstrations that would be required are: (1) A demonstration 
that the proposed de minimis treatment by OB/OD would contribute 
negligible contamination and potential for exposure; (2) a 
demonstration that treatment by an MTU, treatment off-site by an 
alternative technology, and treatment by an existing on-site 
alternative technology, if applicable, are not safe and available; and 
(3) a demonstration that the facility does not have any unresolved 
compliance or enforcement actions and does not have a history of 
significant noncompliance. This section first discusses the first 
demonstration and its related components being proposed for this 
exemption, before discussing the two remaining proposed demonstrations.
    The first demonstration that would be required, is a demonstration 
that the proposed de minimis treatment by OB/OD would contribute 
negligible environmental contamination and potential for exposure. This 
demonstration is essential because it is well established that a de 
minimis exemption is only appropriate in situations where the regulated 
activity represents only a ``trivial'' or de minimis deviation from the 
prescribed standard. See, e.g., Wisconsin Dept of Revenue v. William 
Wrigley Jr Co, 505 US 215, 231-232 (1992); Republic of Argentina v. 
Weltover, Inc., 504 US 607, 618 (1992); Hudson v. McMillian, 503 US 1, 
8-9 (1992); Ingraham v. Wright, 430 US 651, 674 (1977); Abbott 
Laboratories v. Portland Retail Druggists Assn., Inc., 425 US 1, 18 
(1976); Industrial Assn. of San Francisco v. United States, 268 US 64, 
84 (1925). Whether a particular activity is a de minimis deviation from 
a prescribed standard is determined with reference to the purpose of 
the standard. Wisconsin Dept. of Revenue, supra at 232. Under RCRA, 
where the relevant standard is the protection of human health and the 
environment, this means that the activity in question (here the limited 
continued OB/OD) would need to produce immaterial or negligible 
contamination or potential for exposure to qualify as ``de minimis.'' 
See 42 U.S.C. 6924.
    Whether an OB/OD activity could make this first demonstration under 
the proposed de minimis exemption would depend on a variety of site-
specific factors. The proposed regulations provide four components that 
would need to be considered as part of this first demonstration. The 
first component of this first demonstration specified in the proposed 
regulations is the quantity of waste explosives proposed to be treated 
annually by OB/OD under this de minimis exemption. EPA is sensitive to 
the environmental and public health risks associated with even small 
quantities treated by OB/OD.
    At this time, EPA has not determined the exact quantity limit that 
would present an immaterial contamination potential across all 
locations and wastes. Rather, EPA is proposing a maximum possible 
quantity of waste explosives that might qualify for a de minimis 
exemption which would also be the maximum amount of waste explosives 
the facility could generate. EPA is proposing a framework by which 
facilities generating under 15,000 lbs NEW of waste explosives annually 
would be able to apply for an exemption by making a demonstration to 
the Director's satisfaction that the OB/OD of that waste would result 
in negligible contamination and potential for exposure. Specifically, 
the proposed regulation would limit the exemption to generators 
generating up to 15,000 lbs NEW annually and specify that under no 
circumstances will the Director approve a de minimis exemption for 
waste explosives treatment by OB/OD that exceeds 15,000 lbs NEW 
annually. Of course, at any given facility, once facility-specific 
information was considered (e.g., waste types, location), the amount 
treatable by OB/OD under a de minimis provision may be significantly 
lower, or even zero. If the other facility-specific information 
suggested OB/OD of the proposed quantity of waste presented a material 
threat of pollution or potential for exposure, a de minimis exemption 
could not be approved at that facility.
    EPA considered the quantities of wastes for which facilities are 
permitted to OB/OD to inform the specification of a maximum potential 
quantity limit as part of this process. For comparison, some facilities 
are permitted to OB/OD 1,000 tons NEW of waste explosives annually. 
Additionally, EPA notes that the facilities in its closure study that 
produced significant pollution and have had trouble closing the units 
due to the contamination, all treated significantly greater quantities 
of waste by OB/OD annually.
    While EPA is proposing an annual maximum quantity of waste 
explosives that could potentially qualify under a de minimis exemption 
in terms of NEW, other quantity considerations would need to be 
considered as part of the demonstration, where relevant. For example, 
gross/total weight would be relevant in some scenarios. In particular, 
where the explosives or munitions cannot be separated from their 
packaging for treatment, it would make sense to consider the total 
weight, as the packaging would also be OB/OD'd and have its own 
associated contamination potential.
    The second component of the first demonstration is the waste 
stream(s) to be treated and their known or anticipated toxicity and 
byproducts. This component is important to consider due to the varying 
byproduct contaminants associated with the various wastes, the degree 
to which they are bioaccumulative or persistent in the environment, and 
their potential to migrate. For example, personal protective equipment 
(PPE) contaminated with explosives that meets the definition of waste 
explosive is an example of a waste stream for which a de minimis 
exemption would be particularly hard to justify. (Explosives-
contaminated PPE and other material that does not itself meet the 
definition of waste explosive would not fall under the qualified 
exception for OB/OD.) \26\ PPE is one of many combustible materials 
that can be contaminated with explosives. These combustible materials 
when open burned generate smoke plumes and large amounts of particulate 
matter. EPA does not, as a general matter, view these types of wastes 
as suitable for a de minimis exemption due to the potential threat to 
human health and the

[[Page 19959]]

environment associated with the plumes.
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    \26\ For more discussion on wastes contaminated by explosives 
see the discussion titled ``Clarification of Wastes Contaminated by 
Explosives'' in Section II. F. Permitting of Alternative 
Technologies.
---------------------------------------------------------------------------

    Similar to PPE, other combustible materials, construction/building 
debris, and noncombustible material contaminated with explosive 
materials are also poorly suited for OB, which would make a de minimis 
demonstration particularly difficult for these wastes. These wastes 
potentially generate large amounts of particulate matter, toxic 
contaminants, and smoke plumes when burned due to the nature of the 
waste matrix (paper, plastic, cotton, leather, other types of cloth, 
mops, pallets, wood, dirt, plastic, concrete, masonry, metal, etc). (As 
discussed under section F. of this preamble titled, Clarification of 
Wastes Contaminated with Explosives, treatment by OB/OD of these wastes 
would generally not be allowed due to availability of safe 
alternatives.) OB of chlorinated plastics and chlorinated materials can 
release dioxins and furans. As such, these types of waste streams would 
generally not be appropriate to OB through a de minimis exemption due 
to the potential for releases to the air of particulate matter and 
toxic contaminants and/or smoke plumes that may convey off-site and 
increase risk to receptors.
    On the other hand, there are certain waste streams that may be more 
appropriate candidates for a de minimis exemption. One such waste 
stream is research, development, testing & evaluation (RDT&E) waste. 
RDT&E wastes tend to be highly variable and are often produced in small 
quantities. As a practical matter, they are often highly sensitive and 
difficult to fully characterize, which frequently leads to OB/OD being 
selected as a treatment method. Given their small quantities, the 
difficulty associated with characterization, questionable stability, 
and the limited potential for off-site transportation of pollution, at 
least when treated via OD, they may be suitable for a de minimis 
exclusion.
    The third component of the first demonstration is the location of 
the OB/OD treatment and its potential to impact nearby receptors, 
resources, and sensitive environments. The location information would 
allow for consideration of exposure routes and potential receptors. If, 
for example, a facility was located close to population centers or near 
sensitive community resources (e.g., schools, hospitals) the potential 
for exposure to contaminants from OB/OD would be higher and the de 
minimis demonstration significantly more difficult to make. Similarly, 
proximity to sensitive or vital environmental receptors such as 
aquifers or other drinking water sources or within the 100-year 
floodplain, would heighten the threat posed by OB/OD and would make a 
de minimis demonstration more difficult--but not impossible--to 
substantiate.
    The fourth and final component that EPA is proposing must be 
considered as part of the first de minimis demonstration is permit 
conditions and/or other controls or protective measures that are in 
place and that would inform the potential for contamination onsite and 
offsite. EPA expects this would be an important criterion because 
permit conditions, or other controls and protective measures, can 
reduce the potential for pollution. For example, permit conditions 
limiting OB/OD treatment to only times with favorable atmospheric 
conditions would inform whether or not limited OB/OD under a de minimis 
exemption may be acceptable. Another example would be the extent to 
which the combustion temperature during the open burning would be 
controlled (e.g., external fuel sources) and optimized for cleaner 
burning, thus potentially resulting in fewer byproducts. EPA thus 
believes it is logical to require the owner/operator to consider 
aspects of how the proposed OB/OD would occur as part of any de minimis 
demonstration.
    As noted above, the proposed de minimis exemption requires three 
demonstrations. The first demonstration includes four components and 
was discussed above. The second required demonstration the owner/
operator would need to make in order to treat de minimis quantities of 
waste explosives by OB/OD would entail evaluating a limited suite of 
alternative technologies. The owner/operator would need to demonstrate 
that the waste explosives cannot be safely treated by an MTU or that an 
MTU is not available for the waste, that transportation off-site for 
treatment by an alternative technology is not safe or available, and, 
if applicable, that any existing available on-site alternative 
technology is unsafe for the waste in question. EPA believes it is 
important to consider this limited suite of alternative technology 
options as they, generally, could be implemented readily without a 
major investment of implementation resources. This stands in contrast 
to the resources that would be required to permit and build an onsite 
alternative technology.
    The third required demonstration the owner/operator would need to 
make in order to treat de minimis quantities of waste explosives by OB/
OD would relate to the owner/operator's compliance track record. 
Specifically, EPA is proposing to require a demonstration that the OB/
OD facility does not have any unresolved compliance or enforcement 
actions and does not have a history of significant noncompliance. EPA 
believes such a demonstration would be important, as a track record of 
compliance is often indicative of a well-managed facility that, if the 
track record is maintained, would present a lower risk of contributing 
pollution. Additionally, as discussed further in this preamble, one 
component of the first demonstration is a consideration of permit 
conditions or other controls in place that may inform the potential for 
contamination onsite and offsite. In order for those permits conditions 
and other controls to be credibly considered as pollution reducing, the 
facility would need to have a demonstrated track record of complying 
with applicable permit conditions and regulations.
    During implementation, the Director would review the de minimis 
demonstrations and would grant the exemption if the demonstrations have 
been made to the Director's satisfaction. The Director would deny the 
request for this de minimis exemption when the demonstrations required 
by the regulations cannot be satisfactorily met. In such a case, the 
facility would be required to submit an alternative technology 
evaluation. In instances where the de minimis exemption was granted, 
the OB/OD unit used to treat de minimis quantities would still need to 
meet all of the proposed and existing standards applicable to OB/OD 
units including the RCRA permitting and closure requirements.
    EPA is proposing that the de minimis demonstrations would need to 
be made on the same schedule as the owner/operator would have submitted 
alternative technology evaluations for the subject wastes under Sec.  
264.707(c) and (d) for permitted facilities or Sec.  265.707(c) and (d) 
for interim status facilities. (See Section E. Timing for Rule 
Compliance for more information on the proposed timelines for 
alternative technology evaluation submissions.) EPA proposes to link 
the timelines for submitting de minimis demonstrations to the timelines 
for submitting alternative technology evaluations for multiple reasons. 
First, this approach similarly spreads out the burden of reviewing de 
minimis demonstrations at in the same way the proposed rule would 
spread out the burden of reviewing alternative technology evaluations. 
Second, this approach should be the most efficient for the owner/
operator as they would, for the waste stream(s) in question, only

[[Page 19960]]

need to submit either an alternative technology evaluation or a de 
minimis demonstration at each submission deadline.
    Moreover, the five-year frequency proposed for alternative 
technology reevaluations is a sensible frequency for de minimis 
demonstrations. For one, one of the proposed de minimis demonstrations 
is similarly predicated on evaluating the evolution of alternative 
technologies and, as such, would logically have a similar frequency 
(e.g., the demonstration regarding the safety and availability of 
treatment by an MTU). This frequency should also allow for timely 
consideration of changes that may impact a de minimis evaluation (e.g., 
population growth in the vicinity of the OB/OD unit).
    In practice, the proposed rule would require owners/operators of 
permitted facilities seeking a de minimis exemption to submit an 
initial set of demonstrations along with the application for the next 
permit renewal or Class 2 or 3 permit modification associated with an 
OB/OD unit. For new facilities or new OB/OD units that are proposed to 
treat waste explosives, the owner/operator seeking a de minimis 
exemption would submit the demonstrations as part of the permit 
application for the new OB/OD unit. For interim status facilities 
seeking to use the de minimis exemption, the demonstrations would need 
to be submitted within one year of the effective date of the rule. For 
both permitted and interim status facilities, the de minimis 
demonstrations would need to be made every five years after the initial 
demonstrations were made in order to remain eligible for the exemption.
    EPA is also proposing that if, at any time, the continued treatment 
of waste explosives by OB/OD under the de minimis exemption would 
present a threat to human health and the environment, the owner/
operator must notify the Director within five days. EPA is proposing 
this requirement in order to ensure the de minimis exemption does not 
result in greater than negligible contamination or potential for 
exposure or otherwise present a threat to human health and the 
environment. Additionally, to further this goal, EPA is proposing that 
the Director would be able to, based on reasonable belief that the 
continued treatment of waste explosives by OB/OD under the exemption 
would present a threat to human health and the environment, request 
additional information from the owner/operator to determine if the OB/
OD activities still meet the de minimis criteria. If a determination is 
made under either of those scenarios that the continued treatment of 
waste explosives by OB/OD under the de minimis exemption would present 
a threat to human health and the environment, the exemption would be 
withdrawn and the owner/operator would be required to submit to the 
Director an alternative technology evaluation for the subject waste 
streams in accordance with proposed criteria for alternative technology 
evaluations.
    EPA requests comment on several aspects of the proposed de minimis 
exemption, including the appropriateness of the components of the 
demonstration. EPA solicits comment on whether additional 
demonstrations or additional components of the first demonstration 
should be included in de minimis exemption and how those additions 
should be applied. In particular, EPA requests comment and supporting 
data and information on whether 15,000 lbs NEW annually is an 
appropriate maximum limit that could potentially qualify under a de 
minimis exemption. Relatedly, EPA requests comment and data and 
information on what other quantity levels may be appropriate under a de 
minimis exemption. For example, EPA requests comment on the following 
questions. Could the quantities that define very small quantity 
generators \27\ be an acceptable benchmark for de minimis? Should EPA 
provide an exemption at a smaller annual limit (e.g., up to 5,000 
pounds NEW annually) without any demonstration beyond quantity, and 
require a more robust demonstration (e.g., considering location, waste 
type, etc.) for a larger category (e.g., 5,000-15,000 NEW annually)? 
Should EPA specify in regulation different maximum waste quantity 
criteria for different waste streams? For example, should EPA specify a 
unique total weight maximum quantity for explosives or munitions that 
cannot be separated from their packaging for treatment? If so, what 
might be an appropriate maximum potential quantity for such wastes? 
Should frequency of treatment by OB/OD be a consideration? Should any 
wastes or should certain waste streams be excluded from consideration 
for the de minimis exemption? Alternatively, is there no amount or type 
of waste that should be exempt from consideration of alternative 
technologies, and thus should EPA not finalize a de minimis exemption? 
Should the exemption be limited to only OD instead of OB? Should the 
exemption be limited to only military munitions or a specific waste 
stream such as rocket motors? To RDT&E wastes? Should EPA consider 
requirements for public notification and/or community engagement in 
situations where the de minimis exemption is exercised? If so, should 
these be limited to only interim status facilities given that the 
permitting process already includes such measures?
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    \27\ Very small quantity generator is a generator who generates 
less than or equal to the following amounts in a calendar month: (1) 
100 kilograms (220 lbs) of non-acute hazardous waste; and (2) 1 
kilogram (2.2 lbs) of acute hazardous waste listed in Sec.  261.31 
or Sec.  261.33(e); and (3) 100 kilograms (220 lbs) of any residue 
or contaminated soil, water, or other debris resulting from the 
cleanup of a spill, into or on any land or water, of any acute 
hazardous waste listed in Sec.  261.31 or Sec.  261.33(e).
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C. Waste Analysis and Characterization

Introduction and Description
    Under Sec.  262.11, a person who generates a solid waste must make 
an accurate hazardous waste determination at the point of generation. 
Under Sec.  270.14(b)(2), Contents of part B; General requirements, an 
application for a treatment, storage, or disposal (TSD) permit must 
contain a waste analysis plan and chemical and physical analyses of the 
hazardous waste, debris, and material to be handled at the facility. 
These analyses must contain all the information necessary to treat, 
store, or dispose of waste properly in accordance with part 264. 
Additionally, prior to any TSD activities at RCRA facilities, owners/
operators ``must obtain a detailed chemical and physical analysis of a 
representative sample of the wastes'' and develop a waste analysis plan 
under Sec.  264.13. Accurate waste analyses facilitate proper handling 
of RCRA wastes, thereby minimizing the release of contaminants, 
byproducts, and wastes associated with OB/OD and ensuring protection of 
human health and the environment. Waste analysis is also crucial for 
waste explosives in determining whether the wastes are in fact 
explosive and whether there is a safe and available alternative 
treatment that can be used in lieu of OB/OD.
    Waste streams currently treated by OB/OD are varied and potentially 
dangerous to handle, making accurate waste testing more challenging 
than for many other hazardous wastes due to safety concerns. 
Importantly, waste analysis for operating OB/OD units currently varies 
in detail and quality. Thus, EPA is proposing requirements specific to 
waste explosives which would clarify how waste analyses must be 
conducted to determine whether a safe alternative treatment is 
available for

[[Page 19961]]

that explosive waste and, if not, whether the waste is eligible for 
treatment by OB/OD.
Proposed Revisions and Supporting Rationale
    EPA proposes adding Sec.  264.706 Waste Analysis under the new 
proposed subpart Y for OB/OD units and Sec.  265.706 Waste Analysis for 
interim status OB/OD units. Owner and operators would have to comply 
with both the proposed Sec. Sec.  264.706 and 265.706 requirements in 
addition to the existing general waste analysis requirements under 
Sec.  264.13.
    Under the proposed Sec.  264.706 requirements, an owner/operator 
would be required to conduct a detailed and complete waste analysis for 
each individual explosive waste stream. In addition, the owner/operator 
would be required to review and update the waste analysis whenever 
there is a change in the waste generated and at the time of permit 
application or renewal. This is consistent with existing waste analysis 
regulations; however, Sec.  264.706 would additionally provide 
definitions, clarifications, and requirements specific to waste 
explosives. EPA would clarify that individual waste streams must be 
analyzed for each individual product or potentially explosive material; 
it would not be adequate to analyze wastes based on large groups of 
wastes, such as ``propellants,'' ``small arms,'' or ``fuzes.'' For 
example, all small caliber rounds may be grouped for the purposes of 
final treatment, but they may not be considered the same when 
conducting waste analyses. Each type of round, identified by 
manufacturing or product specifications, would be analyzed separately. 
Explosives or propellants would be separately identified by their 
individual chemical formulations, including inert binders and 
materials. Variations of propellant due to degradation and ageing would 
not have to be analyzed separately unless such degradation leads to 
significantly different handling procedures and chemical properties. 
Some waste streams consisting of debris or material contaminated with 
explosives may be combined for the purposes of the waste analysis, 
provided they are of similar type of material and contamination. For 
example, explosive-contaminated gloves and shoe booties may be 
considered the same waste stream if they are both contaminated to the 
same extent and with the same explosive. However, these materials would 
not be combined with significantly different materials, such as 
building and construction materials, for waste analysis purposes even 
if contaminated with the same explosive. For example, personal 
protective equipment should not be combined with concrete debris and 
lumber even if both are significantly contaminated with the same waste 
explosive.
    Under Sec.  264.706(a), EPA proposes that wastes may only be 
considered for treatment by OB/OD if the waste is found to be waste 
explosives. EPA proposes the definition of waste explosives in Sec.  
260.10 as ``hazardous wastes that exhibit the reactivity characteristic 
(D003) and are capable of detonation or explosive chemical reaction as 
defined in Sec.  261.23(a)(6) through (8) and include propellants, 
explosives, pyrotechnics, munitions, military munitions as defined in 
Sec.  260.10, and unexploded ordnance.'' Further analysis described in 
Sec.  264.706 is in addition to the standard requirements currently in 
the regulations. The tests described in this section are secondary to 
the determination if a waste is a waste explosive; however, the tests 
here may be a part of that determination. The primary purposes of the 
tests, descriptions, or properties that would be required in this 
section are to determine (1) if an alternative technology is available 
and (2) what specific permit or treatment conditions are needed for OB/
OD or alternative technology.
    In Sec.  264.706(b), EPA is proposing that waste analysis would 
include, for each unique waste stream, a physical description, chemical 
constituent analysis, and chemical properties analysis, unless the 
information is already known from process or generator knowledge as 
described in this section.\28\ Within each set of waste streams 
described, owners/operators might be required to conduct multiple waste 
analyses for the same type of munition or explosive. If the explosive 
is ageing, degrading, or otherwise off specification and this causes a 
difference in how the explosive must be handled and treated, then a new 
analysis would be done for each group of explosives, and they would be 
considered separate waste streams. For example, an owner/operator that 
is managing a model of rocket motors would separate a group of the same 
model rocket motors if some of them are found to be significantly older 
or degraded and the age or degradation is the reason for different 
handling or treatment procedures.
---------------------------------------------------------------------------

    \28\ There are thousands of items in the DoD inventory, and any 
individual site will have far fewer items than that. Larger, more 
complex sites may have a couple hundred items that must be analyzed. 
Depending on the analysis, these items may be combined for treatment 
purposes.
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    Physical description is most important for munitions, explosives, 
fireworks, fuzes, and other designed materials that are not bulk 
explosive or propellants. The physical description would include the 
design, dimensions, mass, main component features, and the casing 
thickness. All these considerations are important in determining if 
there is an alternative technology that could be used in lieu of OB/OD. 
Physical description of the bulk explosives, including propellants, 
would include the phase, color, mass, density, and any other physical 
characteristics determined relevant by the permitting authority. 
Physical description for explosive-contaminated debris or material 
wastes would include a description of the items and base materials that 
are contaminated, in addition to the source and type of contamination.
    Under the proposed requirements, a complete chemical analysis and 
breakdown would be required to determine the chemical constituents and 
the percent composition of each chemical in the waste stream. A Safety 
Data Sheet (SDS), if available, for each component chemical would be 
required as part of the analysis. Wastes containing multiple materials 
or components would have their chemical constituent analysis described 
separately for each material. As an example, rockets, munitions, 
fireworks, and other wastes would have their chemical constituent 
analysis for its propellant, energetic materials, casings, and metals 
listed separately. Explosive-contaminated hazardous debris and material 
wastes would not need a chemical analysis on the contaminated base 
materials (e.g., gloves), but would need a chemical constituent 
analysis on the contaminant of concern, provided the materials do not 
contain any wastes prohibited from OB/OD under Sec.  264.708(b)(11). 
The NEW for each waste stream would be included as a part of the 
chemical constituent analysis for each individual waste stream.
    In Sec.  264.706(b)(4), owners/operators would be required to 
analyze the chemical properties of the chemical constituents which are 
described above. The analysis would include measures of insensitivity 
(for impact, friction, and electrostatic discharge (ESD)), flash point, 
pH, and free liquid determination. Figure of insensitivity is the 
measure of the probability of a material to initiate or detonate in 
response to quantities of external stimuli. Impact insensitivity is 
most commonly done with a drop-weight

[[Page 19962]]

tower, friction insensitivity has several tests including the Alleghany 
Ballistic Laboratory (ABL) and Bundesanstalt f[uuml]r Materialforschung 
und -pr[uuml]fung (BAM) friction tests, and ESD insensitivity is 
measured with varying energies delivered via capacitors.\29\ The 
permitting authority may require alternative tests or analyses if the 
determination is made that particular tests are unsafe or unnecessary.
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    \29\ The drop-weight tower involves dropping a 1 kg mass 
repeatedly to determine the height which produces initiation 50% of 
the time. ABL and BAM tests use specialized sample plates and moving 
wheels to determine the initiation point in response to friction 
stimulus.
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    EPA assumes that much of the information required for its proposed 
waste analysis requirements is already likely known to owners/
operators. EPA is proposing that process knowledge and generator 
knowledge are acceptable in lieu of a detailed and complete waste 
analysis for a given material as long as it would meet the requirements 
of Sec.  264.706(d). Process knowledge would include known reactions 
when materials and reagents mix. For example, the nitration of toluene 
to form TNT would be a form of well-established chemistry and the 
presence of TNT in a material may be determined from knowledge of the 
generating process. Many chemicals found in an explosives waste stream 
would already have many of the chemical properties described above 
known. It would not be necessary to determine the impact sensitivity of 
TNT given that this is well-established in the scientific literature. 
Owners/operators may find such published chemical data from in a 
chemical manufacturer's SDS that may be used instead of site generated 
testing data.
    All details of the waste analysis, including supporting information 
such as known chemical properties of the materials or components 
thereof, would be required to be submitted to the permitting authority. 
EPA proposes that owners/operators submit these data electronically to 
ease submission. EPA acknowledges that there may be unknown information 
with respect to certain explosives wastes and that it may not be 
practicable to safely conduct testing to provide data on all relevant 
chemical properties. EPA is proposing Sec.  264.706(e) to require 
owners/operators make reasonable efforts to gather the data required in 
the proposed waste analysis regulations. Should there be any safety 
concerns with acquiring the data, the permitting authority may allow 
some sections to be submitted as incomplete if they would not 
compromise the evaluation of alternative technologies or development of 
protective permit conditions described in sections G and H.
    EPA also acknowledges there is some waste analysis information that 
may be of a sensitive or classified nature and notes that such 
information could be withheld from public disclosure and would not need 
to be referenced in the permit. The owner/operator would need to work 
with the permitting authority to determine how the data sharing and 
access can occur, including acknowledging that the minimum regulatory 
staff require access to the data and that the regulators may apply for 
and obtain adequate security clearance, if needed. The permitting 
authority is responsible for furnishing staff that can go through the 
security clearance process and obtaining and maintaining adequate 
security clearance.
Summary and Request for Comment
    EPA is requesting comment on its proposed requirements for waste 
analysis applicable to explosive wastes in Sec.  264.706. EPA is also 
requesting comment regarding how best to balance protection of 
sensitive or classified information with the duty to provide for 
meaningful public involvement through the public notice and comment 
process.

D. Alternative Technology Evaluation and Implementation

Introduction and Description
    As discussed in Section II.A. Background, this rulemaking proposes, 
among other changes and additions, to revise the existing regulation 
that established an exception to the prohibition on the OB of hazardous 
waste but that allows for the OB/OD of waste explosives when there are 
no safe modes of treatment available. The revisions are needed to 
provide clarity for the required actions, which are to conduct an 
evaluation or reevaluation of alternative technologies to OB/OD and to 
implement identified technologies; as well as to provide a process for 
demonstrating eligibility, through an alternative technology 
evaluation, for the exception to the prohibition and the associated 
timing for doing so.
    The existing regulation at Sec.  265.382 banned OB, including OD, 
of hazardous waste with one exception--OB/OD was allowed for the 
treatment of waste explosives ``which cannot safely be disposed of 
through other modes of treatment.'' This means that a facility 
utilizing OB/OD must demonstrate that there are no other safe and 
available alternatives for disposing of its waste explosives. 
Regulatory language referring to a demonstration was included in the 
1978 rule that proposed a prohibition on the OB of hazardous waste.\30\ 
However, when the regulatory language was finalized in 1980 at Sec.  
265.382, this demonstration language was not finalized because it was 
concluded that open burning of hazardous waste cannot be conducted in 
manner that is protective of human health and the environment and thus, 
there was no longer a need. It is unclear, however, why the 
demonstration language was not included in the final regulation with 
respect to OB/OD but, such a demonstration remains implicit so that 
eligibility for the use of OB/OD can be proven and a permit can be 
issued for treatment of waste explosives via OB/OD.
---------------------------------------------------------------------------

    \30\ Open burning of hazardous waste was originally proposed to 
be prohibited unless the owner/operator ``can demonstrate that 
alternative treatment and disposal methods . . . have been evaluated 
and determined to be technically or economically infeasible or that 
the transport, treatment, and disposal of such waste poses a greater 
risk to human health or the environment than open burning.'' 43 FR 
59000, December 18, 1978.
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    Further confounding implementation of alternative technologies for 
facilities operating under subpart X permits or ``OB/OD permits,'' 
there is no mention of the prohibition of OB of hazardous wastes nor 
the exception for waste explosives in the subpart X regulations at 
Sec.  264.600. However, EPA did address its expectations for permitting 
OB/OD units in the 1987 final rule for subpart X (see footnote 13). 
These expectations and supporting statutory references are restated in 
EPA's June 7, 2022, policy memorandum entitled Open Burning and Open 
Detonation (OB/OD) of Waste Explosives Under the Resource Conservation 
and Recovery Act (RCRA). To summarize from the memorandum, EPA expects 
that subpart X permits would only be issued for OB/OD units treating 
waste explosives as defined in Sec.  265.382, and that such permits 
would incorporate the prohibition on OB/OD except for waste explosives 
which cannot safely be disposed of through other modes of treatment 
(see footnote 17).
Proposed Revisions and Supporting Rationale
    EPA proposes to clarify the existing regulations to remove any 
ambiguity in implementing the requirement to demonstrate eligibility 
for continued use of OB/OD in light of the availability of safe 
alternative technologies. EPA proposes to revise the regulatory text at 
Sec.  265.382, and include new regulatory text in new subpart Y, 
Sec. Sec.  264.704 through 264.715 and Sec. Sec.  265.704 through

[[Page 19963]]

265.715, to explicitly state that OB/OD facilities must demonstrate, 
through an evaluation or reevaluation of available alternative 
treatment technologies, which, if any, of their waste streams have no 
available safe alternative treatment and, thus, can continue to qualify 
for the exception to the prohibition on OB/OD for waste explosives. In 
addition, this proposed rule provides the criteria for evaluating 
alternative technologies and the required content for documenting that 
evaluation, as well as the timeframes for conducting alternative 
technology evaluations and implementing identified alternatives. EPA 
notes that, during the evaluation and implementation periods for an 
alternative technology, owners/operators may continue use of OB/OD to 
treat the subject wastes.
    There are several reasons, discussed in this preamble, that may 
contribute to a misperception that unless EPA updated its regulations 
to state that safe alternatives are available, the requirement to 
demonstrate eligibility for OB/OD could not be implemented. It is not 
EPA's position that additional regulations must be proposed that 
explicitly state that new evaluations or reevaluations must be 
conducted to assess safe alternatives that are now available, because 
the expectation has been and remains that when technologies become 
available, they would be implemented. Nevertheless, owner/operator 
uncertainty regarding the requirements of the existing regulation has 
contributed to inconsistent application of the regulation and as a 
result fewer alternative technologies are being utilized than could be 
at this time. One of the goals of this proposed rule is to increase the 
use of alternative treatment technologies to the maximum extent 
possible by clarifying the existing regulation and providing a process 
and timeframes for demonstrating whether OB/OD facilities can continue 
to qualify for OB/OD.
Need for Clarification
    Despite the uncertainty associated with the existing regulation 
that OB/OD facilities must demonstrate eligibility for OB/OD, EPA 
recognizes that there are facilities and regulatory authorities that 
have been implementing the existing regulations as written. As of April 
2023, 24 facilities out of 67 operating facilities have conducted an 
evaluation of available alternative treatment technologies and of 
those, 13 have identified an alternative while 11 have concluded there 
are no safe alternatives available. On the other hand, 41 facilities 
have not conducted any evaluation and two facilities are not known to 
have conducted an evaluation to demonstrate eligibility. Not included 
in this count are the facilities that have operated or are operating 
alternative treatment technologies. There may be several reasons why 
implementation of the requirements has been inconsistent, ranging from 
omission of explicit demonstration language, leading to differing views 
on applicability; absence of a process for conducting the 
demonstration; or insufficient communication by EPA on the development 
and use of available alternatives over the past few decades leading to 
a ``business as usual'' approach to OB/OD.
Availability of Alternative Treatment Technology Information
    As referred to above, insufficient communication regarding 
availability of alternative technologies may be a reason why there has 
not been consistent implementation. If information is available but has 
not been previously compiled and published in a document for reference, 
novel technologies can be daunting to implement regardless of 
requirements. In recognition of this, EPA set out to collect and 
publish information that could assist OB/OD facilities in evaluating 
potential alternative technologies and that would be helpful to 
permitting authorities in facilitating facilities' transition to 
alternative technologies. EPA published a report in December 2019, 
Alternative Technologies to Open Burning and Open Detonation of 
Energetic Hazardous Wastes, (see footnote 20) that describes available 
alternative treatment technologies and identifies the extent to which 
individual technologies have been developed. It also identifies those 
that have been implemented at various locations because they are 
mature, maintainable, reliable, and have been demonstrated to be 
effective and safe for a variety of explosive waste streams. The report 
provides the formative steps for evaluating the efficacy and the pros 
and cons of the technologies for particular applications but does not 
attempt to analyze the technologies according to the many specific 
types of waste explosives each is capable of treating. Much of this 
specific information, however, is available in the NASEM January 2019 
report on alternatives, Alternatives for the Demilitarization of 
Conventional Munitions. (January 2019). In the NASEM report, the 
committee performed an analysis of the stable munitions in DoD's 
demilitarization stockpile that are treated by OB/OD or static 
fire,\31\ grouped the items by category, and listed the items that can 
be treated by an existing alternative technology. The goal of the 
analysis was to provide examples of possible alternative technologies 
for each category (see footnote 4, pgs. 81-83).
---------------------------------------------------------------------------

    \31\ Static fire is a form of open burning that is most often 
used for treatment of propellant in rocket motors. The rocket motors 
are placed either horizontally or vertically (nose down) and secured 
in a stand and an electrical charge initiates the burn. (See 
footnote 4, pg. 31.)
---------------------------------------------------------------------------

    Another resource on alternative technologies that has become 
available since the publication of EPA's and NASEM's reports is the 
International Ammunition Technical Guidelines (IATG) for 
Demilitarization, Destruction and Logistic Disposal of Conventional 
Ammunition published in March 2021 by the United Nations Office for 
Disarmament Affairs.\32\ This report provides a description of 
available alternatives and their treatment capabilities, a brief 
mention of cost considerations for alternative technologies, use of 
mobile alternative treatment technologies, and negative environmental 
impacts of OB/OD.
---------------------------------------------------------------------------

    \32\ United Nations Office for Disarmament Affairs (UNODA), IATG 
10.10:2021, 3rd Edition. https://data.unsaferguard.org/iatg/en/IATG-10.10-Demilitarization-destruction-logistic-disposal-IATG-V.3.pdf.
---------------------------------------------------------------------------

    The IATG document notes that technology exists to destroy most 
ammunition types. However, while the technologies exist, the report 
does note that implementation is primarily a logistics issue due to the 
inherent hazards and risks associated with processing operations and 
large tonnages and quantities of individual items, among other site-
specific considerations (see footnote 36, pgs. vi and 7). This is 
consistent with NASEM's finding that, with few exceptions, it appears 
that it is technically possible to apply existing alternative 
technologies to demilitarize the majority of the DODICs [DoD 
Identification Code] in the demilitarization stockpile inventory. The 
exceptions referred to are the munitions identified as unstable and 
potentially shock sensitive. A caveat that should be mentioned is that 
NASEM was unable to fully investigate whether or not existing 
alternative technologies are appropriate for every DODIC currently 
being disposed of by OB/OD, because that would require an in-depth 
technical and engineering analysis of the construction, fuzing, and 
functioning of each specific munition (see footnote 4, pg. 80). EPA 
discusses later in this section that alternative technology evaluations 
are site-specific such that each waste stream at a facility

[[Page 19964]]

must be evaluated for available alternatives.
    Also of interest, the IATG document discusses MTUs as a potentially 
effective option. As new MTUs become available, and as more entities 
seek their use, they become more practical; and with the capability to 
rent their services, they become more accessible (see footnote 36, pg. 
10 and 13). EPA recognizes that in the U.S., MTUs could provide an 
effective solution for facilities using OB/OD infrequently, that have 
smaller quantities of waste explosives requiring disposal, that have a 
need to supplement an existing alternative technology, or any 
combination of these situations. In the U.S. there are explosives 
treatment MTUs (which are in most cases owned by private companies) 
that are not widely used due to the time-consuming and resource 
intensive efforts to obtain a RCRA permit for a limited duration and 
for every location it is used. EPA is proposing a new streamlined RCRA 
permitting approach to facilitate the use of MTUs by removing some of 
the regulatory burden associated with issuing RCRA permits for these 
units (see Section II.L. Mobile Treatment Units for Waste Explosives). 
MTUs may be subject to permitting or regulation under other laws as 
well (e.g., Clean Air Act).
Environmental Impacts of OB/OD
    Although not discussed at length, the IATG document notes in 
several places the potential negative environmental impacts associated 
with OB/OD. The EPA and NASEM reports also note potential negative 
environmental impacts due to the release of treatment byproducts 
directly into the environment. There are several potential routes of 
release from OB/OD, including air emissions and ``kickout,'' that are 
challenging to sample, monitor and quantify. Many studies have 
attempted to characterize air emissions from OB/OD; such 
characterization is fundamentally difficult to do because neither OB 
nor OD have confined emissions that can be readily monitored or 
sampled, unlike an incinerator from which stack emissions can be 
monitored and sampled. OB/OD can also produce residues and ``kickout,'' 
which is the dispersal of metal fragments, unreacted explosive 
contaminants, and other waste items, onto the land; these releases are 
also difficult to measure. These challenges impart uncertainty 
regarding quantities and types of contaminants that are released into 
the air, soil, groundwater, and surface water bodies from OB/OD of 
waste explosives. This uncertainty raises concerns about negative 
impacts to human health and the environment from wastes that have the 
potential to release heavy metals, perchlorate, particulate matter, 
PFAS, dioxins/furans, explosive compounds, and other toxic and 
hazardous contaminants. (See also Section II.A Background above.)
    Studies have sampled air emissions within an inflatable 
hemispherical detonation chamber known as a ``bang box,'' and by using 
aerostat fliers or balloons and airplanes outfitted with sampling 
equipment, or samplers affixed to poles, in an attempt to capture and 
analyze emissions from open burns. More recently, studies have utilized 
unmanned aerial systems (UASs) or ``drones'' to collect air emission 
data from both OB and OD. These data are considered more representative 
than data obtained from prior methods due to the ability to move the 
drone into the plume and maintain position within the plume. Based on a 
reasonable assumption that the plume is homogeneous, and a known mass 
and composition of the waste explosive being tested, the total 
emissions can be estimated. However, despite the advances in measuring 
emissions and the improved methods for calculating total emissions, 
questions regarding the representativeness of the data remain because 
more data are needed that replicate the quantities and chemical 
composition of waste explosives that are routinely treated at OB/OD 
facilities before definitive conclusions can be made.33 34 
Ideally, future studies would include both air sampling and soil/
surface sampling so that a more complete mass balance can be achieved 
by accounting for all treatment byproducts, similar to the two studies 
discussed in the next section.
---------------------------------------------------------------------------

    \33\ ``Field determination of multipollutant, open area 
combustion source emission factors with a hexacopter unmanned aerial 
vehicle.'' J. Aurell, et al. Atmospheric Environment, 2017. https://cfpub.epa.gov/si/si_public_record_report.cfm?Lab=NRMRL&dirEntryId=339722.
    \34\ ``Characterization of Air Emissions from Open Burning at 
the Radford Army Ammunition Plant.'' J. Aurell, Brian Gullet, August 
23, 2017.
---------------------------------------------------------------------------

    EPA is aware of two studies that sampled air emissions and ground 
surface deposition from OD events. One study utilized a UAS to measure 
energetic residues from five separate uncovered detonations, using a 
block of Composition C4 explosive \35\ for each detonation, that took 
place on snow-covered ice.\36\ Snow was chosen to improve the accuracy 
and quality of the surface measurements. It not only provides a visual 
on the location and extent of residue deposition, but it also 
eliminates interference encountered when detonations are conducted on 
or under the soil, which causes soil to become entrained with the 
residues from the blast. The detonation reactions were very efficient, 
averaging 99.9993%, which means that very little explosive residue was 
generated (i.e., only 0.0007% of the C4 was unreacted). Of the total 
energetic residue that was generated and measured via air and surface 
sampling, it was found that less than 7% was in the air emissions, 
while nearly 93% was deposited on the snow. EPA notes that this 
finding, in which only a negligible percentage of explosive was 
unreacted, are not unexpected because solid chemical explosives like 
C4, when not combined with other materials, combust efficiently and 
produce much less residue than when combined with other explosives or 
munitions. A significant difference between this study and typical 
waste treatment activities is that waste explosives and munitions 
treated during OD events contain more than just the explosive donor 
charge (e.g., C4). The wastes can include metal casings and other items 
that do not undergo complete combustion and produce residues; metals 
are not combusted at all and depending upon the wastes treated, the 
dispersed metal fragments often contain unreacted explosives.
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    \35\ C4 is an explosive comprised of RDX, HMX, and plasticizer 
and is often used to initiate treatment of waste explosives and 
referred to as the donor charge.
    \36\ ``Improving post-detonation energetics residues estimations 
for the Life Cycle Environmental Assessment process for munitions.'' 
Walsh M., et al. November 15, 2017. https://www.sciencedirect.com/science/article/pii/S0045653517318490.
---------------------------------------------------------------------------

    EPA has identified only one other study that has collected 
emissions from OD. This study, which precedes the study discussed 
above, was conducted using an aerostat flyer and was comprehensive in 
that it was the first to sample emissions from OB, static fire, and OD 
and collect a limited number of soil samples to ascertain whether 
metals and energetics collected in the plume emissions were from the 
existing soil content or to the munitions.\37\ The study resulted in 
successful sampling campaigns and remains the first and only one to 
take measurements under conditions representative of routine open air 
detonations and burning of munitions. The results from detonation of 
Comp B compare well with the more recent sampling conducted during 
detonations of C4 noted above such that

[[Page 19965]]

a very small fraction was found in air emissions. The limited data from 
detonation of munitions found that the amount of the metal transferred 
to the air was between 0.3% and 22% with the majority of data 
indicating about 1% or less. However, this indicates that a 
significantly large portion of the metal emissions are deposited on the 
ground, accounting for the remaining balance in the range of 78% to 
99.7%.
---------------------------------------------------------------------------

    \37\ ``Aerostat-based sampling of emissions from open burning 
and open detonation of military ordnance.'' J. Aurell, et al. 
Journal of Hazardous Materials, 2015. https://19january2017snapshot.epa.gov/sites/production/files/2015-03/documents/9546011.pdf.
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    Both studies, while informative regarding the constituents that are 
released into the air from OD events, indicate that the balance of 
emissions from OD events are deposited on the ground surface. The 
findings from these studies correlate with EPA's findings that 
deposition from repeated OD events can cause extensive soil and 
groundwater contamination when the deposition products remain on the 
ground surface (see footnote 5 and subsequent paragraphs).
    As discussed, it is challenging to obtain air emission data from 
OB/OD events, particularly for events that would be representative of 
routine treatment, that could provide a quantitative estimate of 
potential human health and environmental impacts. Every study that has 
been referenced in this section has a common thread, which is that 
there are limited data points and that results should be verified 
through additional sampling. However, there is soil and groundwater 
data collected from OB/OD unit areas (i.e., per monitoring and 
reporting requirements of Sec.  264.601), that does provide a 
quantitative measure that can be used to estimate potential impacts to 
human health and the environment. In addition, EPA initiated a study of 
nine OB/OD facilities that have undergone, or are undergoing closure, 
to examine the assessment and cleanup procedures used to achieve 
closure at each of the nine sites (see footnote 5). Assessment 
procedures characterize the site by identifying the areas of 
contamination and the contaminants found in each environmental medium 
including soil, groundwater, surface water, and sediment. Cleanup 
procedures are the techniques and technologies used to conduct the 
cleanup. The goal of the study was to determine the extent to which the 
cleanup procedures implemented at each site have achieved clean closure 
\38\ (i.e., closure by removal or decontamination) and are protective 
of human health and the environment.
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    \38\ ``Clean closure'' in this notice refers to closure by 
removal or decontamination. During closure, facility owners/
operators must comply with the closure performance standard at Sec.  
264.111 or Sec.  265.111. According to Sec. Sec.  264.111 and 
265.111, closure must be completed in a manner that: (a) minimizes 
that need for further maintenance; (b) controls, minimizes or 
eliminates, to the extent necessary to protect human health and the 
environment, post-closure escape of hazardous waste, hazardous 
constituents, leachate, contaminated run-off, or hazardous waste 
decomposition products to ground or surface waters or to the 
atmosphere; and, (c) complies with the unit-specific closure 
requirements of part 264 or 265. Generally, two types of closure are 
allowed--closure by removal or decontamination and closure with 
waste in place. Because OB/OD is considered treatment rather than 
disposal, OB/OD facilities are required to conduct closure by 
removal or decontamination.
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    Drawing on information and data provided for the site assessment 
procedures, EPA documented the contaminants that exceed action levels 
in environmental media at closed OB/OD units.\39\ These contaminants 
include explosives (RDX, HMX, TNT, DNT, perchlorate, nitroglycerine), 
heavy metals (aluminum, arsenic, barium, cadmium, chromium, cobalt, 
copper, lead, manganese, mercury, selenium, silver, thallium, zinc), 
and other contaminants (PCBs, benzo(a)anthracene, benzo(a)pyrene, 
benzo(b)fluoranthene, bis(2-ethylhexyl)phthalate, chrysene, dioxins/
furans, DNB, EDB, endosulfan, ethylbenzene, fluoranthene, indeno(1,2,3-
cd)pyrene, naphthalene, nitrates, nitrobenzene, TNB, xylenes). In 
summary, sites that open detonated waste explosives exceeded action 
levels more often than sites that only open burned. In cases where both 
OB and OD led to an exceedance, the maximum concentration of the 
contaminant associated with OD was most often greater than the 
concentration resulting from OB (see footnote 5). Overall, this study, 
which can be found in the docket for this rulemaking, demonstrates that 
dispersal of OB/OD treatment residues into the environment contributes 
to soil and groundwater contaminant concentrations that exceed risk 
threshold levels.
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    \39\ Each site determined remediation standards based on the 
expected future use of the site, thus the action levels reported for 
each facility may vary in their representation (e.g., residential 
specific screening levels, residential and industrial Maximum 
Contaminant Levels, preliminary remediation goals, etc.).
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    In closing, it should be noted that enclosed thermal technologies 
such as incineration have been more thoroughly evaluated than OB/OD, 
due to the above-noted challenges with evaluation of OB/OD emissions 
and potential release of contaminants, byproducts, and wastes; and it 
has been determined that combustion controls and air pollution controls 
are needed to ensure protective operation of these technologies (see 
Sec. Sec.  264.340, 266.100, 270.62, 270.66, 63.1200). Due to its open 
nature, it is not possible to apply such controls to OB/OD. Thus, these 
uncontrolled emissions from OB/OD are a clear cause for concern.
Alternative Treatment Technology Evaluation Criteria and Content
    In March of 2022, EPA held a series of early engagement meetings to 
solicit feedback on revising and amending several regulatory 
requirements related to OB/OD. One of four topics that EPA presented 
for feedback was an explicit requirement to evaluate alternative 
treatment technologies and implement identified alternatives, as well 
as criteria that should be considered when evaluating alternative 
technologies. Across the individual participant groups, there were no 
objections to inclusion of an explicit regulatory requirement. 
Regarding the criteria, EPA received a variety of suggestions, but a 
common thread was that safety is the most important criterion. In 
addition to safety, suggested criteria are maturity, environmental 
protectiveness, demonstrated effectiveness, cost, overall lifecycle 
emissions and exposure, volume and characteristics of waste streams, 
commercial availability, reliability, and maintainability. One 
commenter grouped individual criteria under the umbrella of 
``viability,'' such that technologies must be consistently reliable, 
maintainable, and not have high operational costs (see footnote 23).
    EPA believes that certain criteria should be mandatory while others 
should not but could be utilized to make a business decision--for 
example, to select the best technology or technologies for the 
individual facility's needs. The criteria that EPA proposes to be 
mandatory for every technology evaluation are unchanged from the 
original criteria finalized in 1980 at Sec.  265.382, which are that 
technologies must be safe and must be available. As explained in more 
detail in this section, a safe technology accounts for potential risk 
of explosion when handling and treating waste explosives as well as 
potential risk to human health and the environment from treatment of 
munition constituents, byproducts, and wastes associated with OB/OD. 
EPA recognizes there are long-term risks and immediate risks when 
managing waste explosives. Any acute risks from explosion due to 
increased handling and storage associated with alternate technologies 
must be evaluated by an explosives safety expert as part of the 
``safe'' technology determination. Available means that a technology 
can be used, rented, leased, purchased, or custom designed and 
constructed from a qualified vendor or qualified entity

[[Page 19966]]

and has been determined through a technical evaluation, such as a 
demonstration at full-scale, to consistently perform the functions 
necessary to be effective. These factors are based upon EPA's mandate 
under RCRA to protect human health and the environment, and in 
consideration of the hazards associated with the handling, storage, 
transportation, and treatment of waste explosives. A requirement to 
implement an alternative technology cannot be met if one is not safe 
and available.
    Criteria that EPA does not believe should be included as mandatory 
criteria for evaluating whether technologies can be used are tied to 
the cost of implementing and operating alternative technologies. These 
cost-related criteria should not remove a technology from 
consideration. Ultimately, these criteria relate to a business's 
determination of a technology's suitability for its waste streams.
    Cost is a criterion given considerable weight by regulated entities 
when choosing between available treatment and disposal options that 
meet their needs and environmental compliance requirements. However, 
EPA does not believe it should be a mandatory criterion for screening 
out potential alternative technologies. The relevant standard under 
RCRA section 3004 requires that treatment technologies protect human 
health and the environment. Therefore, regulated entities must identify 
and implement technologies that meet this standard. While EPA 
recognizes regulated entities will likely consider cost and other 
practical factors in such screening, there is no need for EPA to 
identify these considerations as mandatory criteria, nor would it be 
appropriate for EPA to do so, because the regulated entity must 
ultimately demonstrate that the approach selected meets the 
protectiveness standard. Therefore, EPA has not included cost as a 
criterion that could be used to screen out potential alternative 
technologies.
    EPA restated in the 1987 final rule that OB of nonexplosive waste 
could not be conducted in a manner that was protective of human health 
and the environment, saying the Agency ``made this finding in 1980 in 
promulgating the general ban on OB of nonexplosive hazardous waste 
(Sec.  265.382) and has no new information to suggest this conclusion 
should be revised. The Agency, therefore, intends to deny any permit 
applications it receives under subpart X for such activities.'' (See 
footnote 13.)
Alternative Technology Criteria and Evaluation Contents Requirements
    The following sections present the technology criteria that EPA 
proposes to require for evaluating potential alternative treatment 
technologies, and the content believed to be necessary to allow for 
regulatory authorities to determine that the evaluation conducted by 
the facility, or on behalf of the facility, is complete and the 
conclusions provide adequate rationale. All information would be 
compiled in a report for submission to the regulatory authority for 
review and approval. The proposed regulations are located at Sec. Sec.  
264.707 and 265.707.
Alternative Technology Criteria
    For the alternative technology criteria, EPA is specifying the 
proposed criteria according to the existing requirements: safe and 
available. The only revision is that EPA is now providing clarity by 
describing how these terms are to be applied when evaluating 
alternative technologies. Safe means that a technology must be 
designed, constructed, and operated in a manner that is safe for the 
wastes to be treated and that appropriate procedures and technologies 
are used to ensure safe handling and treatment and appropriate 
safeguards for worker safety as determined by explosives specialists. 
Safe can also refer to ``protection'' of human health and the 
environment when considering a technology's treatment byproducts; 
however, protectiveness in this sense would be evaluated during the 
permitting process when the appropriate standards are developed. EPA 
discusses, in Section II. F. Permitting of Alternative Technologies, 
how the ability to monitor operations and treatment byproducts and the 
capability to treat toxic byproducts are critical factors to assure 
protectiveness. Available means that a technology can be used, rented, 
leased, purchased, or custom designed and constructed from a qualified 
vendor or any entity and has been determined through a technical 
evaluation to consistently perform the functions necessary to be 
effective. Published sources such as EPA's and NASEM's reports may also 
be consulted to help inform whether certain technologies could be 
applied.
Safe
    EPA recognizes that any technology under consideration for use must 
be safe for the wastes to be treated. Safety has been an existing 
standard since 1980, serving as one of the criteria for allowing an 
exception for waste explosives to be treated by OB/OD. In this 
rulemaking, EPA is clarifying that safety remains an important 
criterion, but is providing additional context in terms of alternative 
technologies that are now available. Given that any decision regarding 
whether a technology is safe to use is based on the degree of risk the 
entity using the technology is willing to accept, EPA is clarifying 
that safety is a mandatory criterion and proposes safety to mean that a 
technology must be designed, constructed, and operated in a manner that 
is safe for the wastes to be treated and that appropriate procedures 
and technologies are used to ensure safe handling and treatment and 
appropriate safeguards for worker safety as determined by explosives 
specialists. See proposed safety criterion at Sec. Sec.  
264.707(b)(1)(i) and 265.707(b)(1)(i).
    Safety is cited by regulated entities as an important criterion and 
the number one criterion by the DDESB for acceptability of an 
alternative treatment technology. DoD's goal is to expose the minimum 
number of people, to the minimum amount of explosives for the minimum 
period of time (see footnote 23). Both OB/OD and alternative 
technologies require explosives handling: transport to storage, 
placement in storage, removal from storage and loading for transport, 
transport to treatment site, and unloading and placement at the site. 
Additional handling may be required for alternative technologies, 
including any needed pre-treatment activities such as disassembly or 
size reduction (e.g., to reduce the physical size and NEW). Although 
most alternative technologies and pre-treatment technologies increase 
handling, highly automated processes may reduce safety risks to workers 
when compared to OB/OD (see footnote 4, pg. 25). Automated processes 
are designed according to specific waste types, and thus are more 
likely to be utilized by facilities that have large quantities of 
similar waste types that would not require frequent re-tooling and re-
programming to switch from one waste type to another. There are also 
instances when additional handling is performed in preparation for OB/
OD, for example, when projectiles contain submunitions. The 
submunitions are removed from the projectile casing by disassembly 
before treatment to prevent untreated submunitions from being dispersed 
into the environment. Thus, in some instances OB/OD may involve the 
same amount of explosive risk through handling as compared with an 
alternative technology.
    A first step in evaluating alternative technologies is determining 
which wastes are amenable to treatment by an

[[Page 19967]]

alternative technology. For waste explosives that are documented to be 
unstable and/or potentially shock sensitive and have been determined to 
be unsafe by an explosives specialist,\40\ there may be no other choice 
but to treat these wastes by OB/OD. The NASEM report acknowledges in 
several instances that OB/OD may be the only safe option for munitions 
that may detonate or deflagrate when disturbed. Thus, handling and 
transportation of these munitions should be minimized to reduce 
exposure of workers to the explosive hazard (see footnote 4, pg. 79). 
However, the NASEM report also indicated that only two munitions that 
were in the demilitarization stockpile or ``B5A account'' at that time 
had been identified to the committee by the Office of the Product 
Director for Demilitarization (PD Demil) as not suitable for 
alternative contained demilitarization due to instability. According to 
PD Demil, the 105 mm rocket-assisted projectile (quantity of 240 tons) 
and 8 in. rocket-assisted projectile (quantity of 744 tons) were 
potentially shock sensitive due to depletion of stabilizers in the 
rocket propellant (see footnote 4, pg. 78). To put this into 
perspective, of the total 430,987 tons of munitions in the total 
demilitarization stockpile as of September 30, 2017, 984 tons, or 
approximately 4%, could not be treated by an alternative technology due 
to instability. This inventory will fluctuate over time, but it is 
helpful to understand approximately how much waste may continue to 
require treatment by OB/OD. EPA does anticipate that, as more 
alternative technology evaluations are conducted at individual 
facilities as a result of this rulemaking, the number of wastes 
identified as unstable will increase as munitions waste streams are 
evaluated specifically to determine suitability for an alternative 
technology.
---------------------------------------------------------------------------

    \40\ Items can become unstable and potentially shock sensitive 
as the result of the depletion of stabilizers in the explosives or 
propellants caused by excessive age or the environment in which it 
was contained. In addition, items that are damaged can have 
unpredictable stability.
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    EPA notes that facilities engaged in RDT&E produce explosive waste 
streams that vary widely and may be difficult to characterize due to 
changes in stability resulting from testing and evaluation. The testing 
and evaluation phases subject the explosive containing items to 
physical and thermal stressors to ascertain their stability and 
performance. These activities damage the items and increase the 
sensitivity which in turn, increases the handling risks. Therefore, 
many of these wastes are not amenable to pre-treatment technologies 
(e.g., cutting, disassembly) which may be required when the NEW must be 
reduced to be treated in an alternative technology. In addition, some 
RDT&E explosive waste streams consist of novel chemical formulations 
and physical features that are intended to change the fundamental 
chemical and physical characteristics of the energetic material, which 
imparts uncertainty regarding how they will behave when treated in the 
confined conditions of an alternative technology. This also means that 
formulations with the same chemical composition may have different 
physical properties and may warrant different treatment technologies. 
However, this does not mean that RDT&E wastes cannot be treated using 
alternative technologies, nor does it mean that none of these wastes 
can be pre-treated using other methods, but the likelihood is reduced 
in comparison to the explosives contained in certain munitions or bulk 
explosives and propellants.
    According to alternative technology reviews submitted by two 
facilities that generate RDT&E waste, all of these wastes are currently 
treated by OB or OD, despite identification of potential alternatives. 
One facility stated that approximately 50% of its waste could be 
treated in a closed detonation unit. (Note: pre-treatment technologies 
were not evaluated so it is assumed that none are required or could not 
be used due to safety concerns and so 50% represents waste that can be 
directly place in a closed detonation unit).\41\ Another facility 
stated that 54% of the waste could be treated by a closed detonation 
unit.\42\ Both facilities provided reasons why an alternative 
technology would not be implemented, but the shared conclusion was that 
no one technology or combination of technologies could completely 
replace OB/OD, or that none stand out as a clear and attractive 
alternative to OB/OD. Based on EPA's proposed criteria, this is not an 
acceptable reason for not implementing identified alternatives. EPA's 
proposed criteria only requires that a technology be safe and available 
for the waste streams requiring treatment. Thus, if an alternative 
technology is identified for any of the facility's waste streams, then 
it must be implemented for those waste streams. EPA expects that in 
many cases, a facility would need to implement more than one 
technology.
---------------------------------------------------------------------------

    \41\ Evaluation of Alternative Technologies to Open Burning and 
Open Detonation of Energetic Wastes by the Naval Surface Warfare 
Center, Dahlgren Division. Appendix 2-5, Supplementary Information 
for OB/OD Alternative Treatment Methods.
    \42\ Updated OB/OD Alternatives at NAWS China Lake 2022, 
Goodman, B.T, Ph.D.; April 6, 2022.
---------------------------------------------------------------------------

    The potential for injury or loss of life or loss of equipment is 
always present when handling, storing, transporting, and treating waste 
explosives. In some respects, use of alternative technologies may 
result in no change in the potential for an accident when the wastes 
are stable, and the treatment processes are fully automated. In other 
respects, use of alternative technologies increases the potential for 
an accident, but it may continue to be within acceptable safety risk 
parameters, or it could increase beyond acceptable safety risk 
parameters. EPA believes that most stable waste explosives awaiting 
treatment have available and safe alternatives but realizes that there 
are exceptions when the stability is questionable or when munitions 
cannot be safely size-reduced. EPA also recognizes that the explosives 
specialists evaluate the safety related to the handling and treating 
waste explosives. That does not imply however, that if EPA or a 
regulatory authority questions a safety decision at any point in the 
evaluation process or final report, that the decision is being 
challenged. Rather, the information is needed to better understand and 
to build a record for the regulatory authority's decision.
Available
    Similar to the safety criterion, this is an existing requirement 
that serves as the second criterion for allowing an exception for waste 
explosives to be treated by OB/OD. EPA is clarifying that availability 
remains an important criterion for determining when an alternative 
technology must be used and is also providing more context for what it 
means to be available in recognition that there are different stages of 
development with some technologies that have been proven and 
successfully used.
    EPA is proposing that a technology be considered available if it 
can be used on-site or off-site, rented, leased, or purchased from, or 
custom designed and constructed by a qualified vendor or a qualified 
entity and has been determined through a technical evaluation to 
consistently perform the functions necessary to be effective. The term 
``qualified'' refers to national security protocols which may prohibit 
Federal agencies from conducting business with certain foreign vendors 
or entities. The term ``technical evaluation'' refers to any process or 
entity that evaluates the maturity of a technology and its likelihood 
to successfully meet operational needs.

[[Page 19968]]

This can be an evaluation process that is established, formal or 
informal, or evaluation processes developed and conducted by 
consultants and prospective vendors. See proposed available criterion 
at Sec. Sec.  264.707(b)(1)(ii) and 265.707(b)(1)(ii).
    An example of an established, formal process developed and used by 
several Federal agencies is the Technical Readiness Assessment (TRA) 
process. It was developed to reduce technical risk and uncertainty 
associated with new proposed or modified technologies to ensure that 
they have been demonstrated to work as intended (technology readiness) 
before committing to construction expenses.\43\ The TRA process 
includes a scale for measuring the maturity of a technology, referred 
to as technology readiness levels (TRLs). The TRL describes the 
maturity of a given technology relative to its development cycle, and 
assigns a corresponding number from 1 to 9, where 1 indicates that 
scientific research has begun to be translated into applied research 
and development, and 9 indicates the actual system has operated over 
the full range of expected mission conditions (see footnote 54, pgs. 9-
10, and 20).
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    \43\ Technology Readiness Assessment Guide. U.S. Department of 
Energy, DOE G 413.3-4A, pg. 2, http://www.directives.doe.gov.
---------------------------------------------------------------------------

    EPA anticipates that Federal agencies evaluating alternative 
technologies may use the established TRA process in determining whether 
the availability criterion is met. As discussed later in the 
alternative technology required content section, when technologies are 
evaluated, each individual waste stream would need to be evaluated 
against potential alternative technologies to determine if a 
technology, or a combination of technologies, is safe and available. 
Thus, for purposes of the alternative technology evaluation, the 
screening process would assign a TRL based on the maturity of the 
technology for a particular waste stream. This TRL would indicate 
whether a technology would be considered for further evaluation. It is 
important to note that the same technology can be assigned different 
TRLs depending on the waste stream to be treated. For example, a static 
detonation chamber can be assigned a TRL 9 for 50% of the facility's 
waste streams, but may be assigned a lower TRL for the remaining waste 
streams because it has not been used previously to treat those wastes 
at a fully operational level. EPA does not believe it is appropriate to 
eliminate a technology from consideration if it does not meet the TRL 
needed to be able to treat all of the facility's waste streams. Neither 
is EPA endorsing any particular level under the TRA framework as the 
one that determines the availability of a technology for purposes of 
the required technology evaluation in this proposed regulation. Rather, 
EPA is simply raising awareness and acknowledging that Federal agencies 
(and others) may find the TRA process useful in evaluating technology 
availability and in making the availability demonstration required 
under the proposed regulation.
    Other processes or options that can be used to evaluate the 
availability of a technology and its likelihood to successfully meet 
operational needs are to conduct a treatability study or to apply for a 
Research, Development, and Demonstration (RD&D) permit; see Sec.  261.4 
(e) and (f) and Sec.  270.65, respectively. The intent of treatability 
studies and RD&D permits is to promote the development of treatment 
technologies. Thus, if an owner/operator chooses to conduct either, the 
results of the study or RD&D activities would inform whether the 
alternative technology can effectively treat the waste streams tested. 
Treatability studies and RD&D permits are discussed in more detail 
under the Analysis of Alternative Technologies According to Individual 
Waste Streams section.
    As a final note on availability, published sources such as EPA's 
and NASEM's reports may also be consulted to assist with identification 
of alternative technologies that could be potentially applied. These 
reports have documented available alternative technologies that have 
been successfully demonstrated and applied to full scale 
demilitarization operations, as well as those that are under 
development or those that have not been successful for stated reasons.
Alternative Technology Evaluation Contents
    With respect to the required content to be included in the 
evaluation of technologies, EPA notes that, to date, 24 facilities have 
conducted reviews and submitted alternative technology evaluations 
which vary in depth of review, organization, and content. This is not 
unexpected because there are no national guidelines for conducting a 
review. Therefore, EPA proposes to standardize the alternative 
technology evaluation process by specifying the information to be 
included in the evaluation in the following sections. EPA believes that 
this information is necessary to guide facilities so that a complete 
review is conducted and to allow for the regulatory authority reviewing 
the evaluation to understand and determine whether the conclusions 
presented by the facility are acceptable.
Description of Facility Operations
    EPA recognizes that facilities managing and treating waste 
explosives vary in complexity of operations depending upon their 
mission. To aid in understanding the waste streams requiring treatment, 
EPA proposes that the alternative treatment technology evaluation 
describe the facility's operations in terms of how the wastes are 
generated. To do so, the owner/operator would include what the 
facility's primary purpose is: manufacturing, demilitarization, RDT&E, 
or other (describe), and the processes that generate explosive wastes. 
Also, the description would include if there are any alternative 
treatment technologies in use and identify the waste streams that are 
treated with the technology/technologies.
Characterization of Wastes
    As discussed earlier in section II.C, waste characterization and 
analyses are key to beginning the identification and evaluation of 
alternatives. The regulations require that a hazardous waste 
determination be made at the point of generation for each solid waste 
stream (Sec.  262.11(a)). One component of this determination is to 
establish if the waste exhibits the characteristic of reactivity (D003) 
according to Sec.  261.23(a)(6) through (8) and if it is capable of 
detonation or explosive chemical reaction. Only wastes determined to be 
D003 per Sec.  261.23(a)(6) through (8) and are capable of detonation 
or explosive chemical reaction can be eligible for OB/OD when it is 
concluded that there are no safe alternative treatments available. 
Thus, EPA believes that detailed information is necessary to 
demonstrate that each waste stream is D003 per Sec.  261.23(a)(6) 
through (8) and is capable of detonation or explosive chemical 
reaction, and to enable an evaluation of alternative technologies. In 
addition, an equally important purpose of waste characterization and 
analyses is to support development of permit conditions necessary for 
protective management of the waste. For example, waste characterization 
information is necessary for understanding waste compatibility which is 
then factored into permit conditions that ensure proper storage and 
handling procedures are implemented.
    As discussed above in Section II. C. Waste Characterization, EPA 
notes that wastes (e.g., PPE, building materials, metal) that are 
contaminated or

[[Page 19969]]

potentially contaminated by explosives must be characterized as well. 
The fact that these wastes are contaminated or potentially contaminated 
with explosives, could be sufficient evidence that the waste is a waste 
explosive. Should the owner/operator prefer not to test the wastes for 
reactivity, they may conservatively designate the wastes as a D003 
explosive and evaluate potential alternative technologies for treating 
it. However, if the owner/operator is proposing OB/OD as the treatment 
method for waste that is contaminated or potentially contaminated with 
explosives, they would need to provide detailed information to support 
the D003 designation and its capability to detonate in the alternative 
technology evaluation.
    To ensure that sufficient waste characterization information is 
provided, EPA believes that the following detail is necessary. 
Information about the waste configuration (e.g., bulk energetics/
propellants, small/medium/large-cased), type (e.g., bombs, projectiles, 
grenades, cartridge actuated devices (CADs)/propellant actuated devices 
(PADs), fuzes, detonators, propellants, powders), size, quantity, and 
its NEW is necessary to evaluate available alternatives for each 
explosive waste stream. EPA believes that simply grouping similar waste 
configurations together, for example as propellants, explosives, 
pyrotechnics, is far too generalized. Providing additional detail by 
identifying the physical form of an explosive as thin-cased also does 
not describe the waste sufficiently to understand why an alternative 
can or cannot be used for that particular waste stream. Therefore, EPA 
proposes that the owner/operator must identify and describe each 
explosive waste stream using waste characterization and analysis 
information according to proposed Sec.  264.706. This includes 
identification of both physical and chemical aspects of the wastes, as 
well as the donor charges (i.e., the explosive used to initiate the 
treatment of the waste explosives).
    Physical aspects should be grouped as bulk energetics or 
propellants, small-cased munitions (thin-cased), medium-cased munitions 
(thin- or thick-cased), large-cased munitions (thin- or thick-cased), 
or potentially explosive-contaminated materials; and further 
subcategorized to identify the items under each category. The following 
are the physical subcategories that EPA proposes, along with 
descriptions and examples of their contents.
     Bulk energetics and propellants include unconfined 
energetic materials.
     Small-cased munitions contain 0.5 pound or less of 
energetic material in each item. This category includes CADs, PADs, 
exploding bolts, fuzes, small projectiles, bullets, bomblets, booster 
pellets, detonators, ignitors, leads, thermal batteries, and numerous 
other small items. Casings for these items are thin.
     Medium-cased munitions contain between 0.5 and 100 pounds 
of energetic materials in each item. This category includes bomblets, 
warheads, rocket motors, medium projectiles, propellant charges tor 
projectiles, grenades, mines, flares, sectioned munitions, all-up 
missiles, and numerous other types of items. The casings for these 
items may be thin or thick.
     Large-cased munitions contain 100 pounds or more of 
energetic material in each item. This category includes bombs, rocket 
motors, warheads, large projectiles, sectioned munitions, and all-up 
missiles. The casings for these items may be thin or thick.
     Potentially explosive-contaminated materials include 
energetic-contaminated wastes, such as cotton rags, gloves, and post-
test debris; and energetic contaminated containers such as wood crates, 
cardboard boxes, velostat bags, and cellulose drums (see footnote 45, 
pgs. 2-3).
    Chemical aspects should be characterized according to the 
constituents contained in the item. For example, composite rocket motor 
contains ammonium perchlorate, aluminum, polyurethane, and 
nitroguanidine (NQ).
    For each physical grouping of items, each item in that group would 
be listed, along with the quantity, the pounds NEW of each item, the 
total pounds NEW per year for each item requiring treatment,\44\ its 
chemical content, and current method of treatment. For example, under 
large-cased munitions, one entry may be: 25 ammonium perchlorate rocket 
motors, 60 lbs NEW propellant per motor, 1,500 lbs NEW per year, 
contains ammonium perchlorate, aluminum, polyurethane, and NQ, and is 
treated by OB.
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    \44\ Pounds per year may be reported for the most recent year 
available, or when a waste stream fluctuates widely from year to 
year, it may be reported as an average over a maximum of five years.
---------------------------------------------------------------------------

    With respect to facilities whose primary function is RDT&E 
activities, EPA recognizes that these facilities may generate numerous 
different materials and unique explosive formulations that may be 
continuously changing and vary slightly from the material previously 
assessed for the existing alternative technology evaluation. EPA would 
not expect that each changed item, unless it varies significantly from 
the initially evaluated item such that it would require a permit 
modification to add it as a new waste, would need to be evaluated and 
instead could be grouped according to the similar, previous items or 
materials. Also, some of these facilities generate small amounts of 
waste explosive and conduct treatment infrequently. As discussed in 
Section B. Scope of Applicability, they would be likely to qualify for 
a de minimis exemption, for example, when the treatment method is OD.
Initial Screening of Available Alternative Technologies
    Based on the waste characterization, the next step in the process 
would be to identify and categorize alternative technologies that are 
available and potential candidates for the facility's waste streams. 
EPA proposes that the owner/operator screen the technologies for 
applicability to each explosive waste stream. For those technologies 
that do not pass the initial screening based on the mandatory criteria 
(i.e., safe and available), EPA also proposes that the basis be 
provided to aid in the understanding when, for example, the technology 
is listed in a published source as available for the waste stream, but 
the owner/operator has determined it is not. The basis could include a 
discussion of the TRL, as discussed above, that may be helpful.
Analysis of Alternative Technologies According to Individual Waste 
Streams
    After the initial screening, EPA proposes that owners/operators 
identify alternative technologies that could be used for individual 
waste streams because they have been determined to be safe and 
available and to provide more information about the technologies that 
passed the initial screening. Where applicable, this would include any 
pretreatment technologies that are required for the primary treatment 
technology (e.g., band saw required for size/NEW reduction before 
treatment in detonation chamber). For these technologies, it should be 
indicated what percentage of the facility's waste streams can be 
treated by the technology and the waste streams identified according to 
their physical characteristics: bulk energetics and propellants, small-
cased munitions, medium-cased munitions, large-cased munitions, and 
potentially explosive-contaminated materials. For an example facility, 
EPA suggests that the analysis would look like this: 80% of all waste 
streams could be treated via detonation

[[Page 19970]]

chamber and wastes to be treated in a detonation chamber include 
energetics and propellants that comprise small- and medium-cased 
munitions; or, 60% of all wastes could be treated by a burn chamber and 
wastes to be treated via burn chamber include bulk energetics and 
propellants and comprise small-cased munitions, and explosive-
contaminated materials.
    In addition to the TRA process described under the availability 
criterion, and as mentioned earlier, treatability studies and RD&D 
permits offer owners/operators additional options for determining and 
confirming which technology or technologies can treat their waste 
streams before committing to implementation.\45\ Much like the TRA 
process, treatability studies and RD&D permits may be appealing 
options, for example, when a new waste stream has unique 
characteristics that impart uncertainty regarding the capability of a 
proven technology (e.g., a confined burn chamber treating similar waste 
types at another facility) to treat it effectively and safely; or, if 
there is an emerging technology that has been successfully demonstrated 
at the pilot scale and appears to be promising for the waste stream in 
question.
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    \45\ The definition of a treatability study is one in which 
hazardous waste is subjected to a treatment process to determine: 
(1) whether the waste is amenable to the treatment process, (2) what 
pretreatment (if any) is required, (3) the optimal conditions needed 
to achieve the desired treatment, (4) the efficiency of a treatment 
process for a specific waste or wastes, or (5) the characteristics 
and volume of residuals from a particular treatment process. See 
Sec.  260.10.
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    The treatability study provisions in Sec.  261.4(e) through (f) are 
designed to promote the development of treatment technologies through 
reduction of the regulatory requirements that would otherwise apply to 
the storage, manifesting, and treatment of hazardous waste conducted by 
TSD facilities. The treatability study exemption is a conditional 
exemption separated into two parts: an analytical sample exemption to 
determine hazardous characteristics and a treatability exemption to 
determine the suitability of a treatment process. The former applies to 
collection and transportation of samples while the latter applies to 
the testing and treatment of samples. For samples undergoing 
treatability studies (i.e., the latter), the conditional exemption 
allows for the testing or treatment of samples without a RCRA permit or 
prior EPA approval, and the transportation to and from the laboratory 
or testing facility is not required to be manifested. (Note, however, 
that authorized States can be more stringent than the Federal 
requirements and thus, may require manifesting or other RCRA 
requirements outside of the conditions for exemption.) Also, MTUs can 
qualify for the treatability study exemption. To qualify for the 
exemption, the applicable conditions under Sec.  261.4(e) and (f) 
concerning collection, labeling and transportation, sample quantities 
and time limits, sample and treatment residue disposition at conclusion 
of the study, recordkeeping, and notifications, must be met.
    If an owner/operator plans to conduct a treatability study or is in 
the process of conducting one, EPA proposes that submittal of a 
description of the study and the timing for initiating and completing 
the study be required, given that the study may impact the timing or 
outcome of the alternative technology evaluation. For owners/operators 
who have conducted treatability studies, EPA proposes that 
documentation of completed treatability studies be required under this 
section of the alternative technology evaluation. Treatability study 
results would provide additional rationale in support of the owner/
operator's technology selection or elimination and communicate 
intentions and anticipated schedule.
    With regard to RD&D permits under Sec.  270.65, they are also 
designed to promote development of treatment technologies through 
reduction of the regulatory requirements. Although a permit must be 
obtained, certain RCRA requirements may, consistent with protection of 
human health and the environment, be modified or waived so that permits 
can be issued expeditiously. An advantage of an RD&D permit over 
treatability studies is that the permit can provide more flexibility in 
terms of the quantity of wastes that may be received for testing and 
the length of time needed to initiate and complete testing.
    Similar to treatability studies, if an owner/operator will apply 
for an RD&D permit or is conducting testing under one, EPA proposes 
that the information that will accompany the permit application be 
submitted, or a copy of the permit application or permit be submitted 
for this step of the alternative technology evaluation, and any 
conclusions reached if the activities have been completed. Again, by 
submitting the information, permit, or conclusions, this can provide 
rationale in support of the owner/operator's technology selection or 
elimination and communicate intentions and anticipated schedule.
    Treatability studies and RD&D permits are options that can be 
utilized separately or in conjunction with the TRA process. It would be 
a choice based on the owner/operator's circumstances and the state of 
development of a technology under consideration. For example, a 
treatability study may be preferable when the technology that will 
undergo testing and evaluation is not located at a RCRA permitted 
facility or the site where the study will be done does not generate the 
wastes needed for testing and evaluation. An RD&D permit may be 
preferred when a technology's development is still in early stages and 
more time is needed to develop and test the technology. The TRA 
process, treatability studies, and RD&D permits can serve the same 
broad purpose--to determine the effectiveness of an alternative 
technology--but differ in the sense that treatability studies and RD&D 
permits are likely to be used to further develop a technology versus 
the TRA process that is more likely to be used, in the context of this 
rulemaking, for evaluating an existing technology that has already been 
proven to work at a fully operational level for specific applications.
Identification of Selected Alternative Technology or Technologies
    Based on the information provided in the prior section, EPA 
proposes that the owner/operator would clearly indicate the technology 
or combination of technologies that is/are selected.
Potential for Off-Site Treatment Using Alternative Technologies and Use 
of MTUs
    In addition to identification and selection of alternative 
treatment technologies for implementation, EPA proposes that owners/
operators also evaluate alternative treatment options that do not 
involve implementation of permanent on-site units, namely, shipment of 
wastes off-site to a facility using alternative technologies, and MTUs 
that could be brought on-site temporarily. (See Section II. L. Mobile 
Treatment Units for Waste Explosives for more information on MTUs.) For 
this evaluation, EPA proposes that if neither off-site shipment nor use 
of an MTU on-site would be possible, the rationale to support the 
determination must be provided.
    In cases where a determination is made that the waste cannot be 
shipped off-site, EPA proposes that the rationale consist of 
documentation that either the waste is a forbidden explosive per 49 CFR 
173.54, DoD or DOE explosives safety specialists have determined that 
the waste cannot be shipped according to the DOD Explosives Hazard 
Classification Procedures (Sec.  173.56(b)), or that a Department of 
Transportation

[[Page 19971]]

(DOT) competent authority approval (i.e., EX number) \46\ or a special 
permit \47\ has been requested and denied. Documentation would need to 
consist of the denial correspondence and the tracking number assigned 
to the request for the competent authority approval or special 
permit.\48\ For decisions concerning MTUs, the rationale would be based 
on the same criteria as any other alternative technology: if it is safe 
and available. EPA believes it equally important to consider off-site 
shipment and use of MTUs as potential alternative solutions. Any waste 
streams that remain after a thorough evaluation of all possible 
alternative technology options would then likely be eligible for OB/OD.
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    \46\ Competent authority approvals are written and issued by DOT 
(and include assignment of an ``EX Number'' for the approved 
explosive material). Persons can be authorized or certified by the 
DOT to evaluate, examine, and test explosives and recommend a 
shipping description, division, and compatibility group, and submit 
to DOT for approval; however, all approvals must be issued by DOT 
and do not expire. For more information on competent authority and 
approvals, see 49 CFR 105.5 and 173.56(b). For information on 
organizations approved to examine and make recommendations on new 
explosives, see: https://www.phmsa.dot.gov/hazmat/energetic-materials-approvals/explosive-test-labs.
    \47\ Special permits (DOT-SP) authorize a variance from a 
hazardous materials regulation (HMR). Special permits may be issued 
provided the person is performing a regulated function in a way that 
achieves a safety level at least equal to the safety level required 
by regulations or is consistent with the public interest and 
regulations, if a required safety level does not exist (49 U.S.C. 
5117). Special permits are issued by DOT only and are valid for two 
years and may be renewed.
    \48\ A rejection issued due to an incomplete application (i.e., 
missing information in the request letter, laboratory 
recommendation, chemical composition) is not adequate evidence that 
a waste explosive cannot be shipped offsite. Approval status can be 
tracked at: https://www.phmsa.dot.gov/approvals-and-permits/hazmat/approvals-search.
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Identification of Individual Waste Streams Requiring OB/OD
    For any remaining waste streams that have been determined to 
require treatment by OB/OD, EPA proposes that the owner/operator 
identify each explosive waste stream for which OB/OD is the only safe 
and available treatment method and provide supporting rationale. EPA 
also proposes that the amount of NEW of each individual waste 
stream(s), what it is (i.e., per the characterization information), and 
whether it must be treated by OB or by OD be provided as well as a 
description of the characteristics which the determination is based 
upon in terms of the risk posed. For example, a cracked rocket motor 
has exposed propellant that has contributed to degradation of the 
stabilizer. As a result, the stability is questionable and therefore, 
it would not be safe to size reduce for an available alternative 
technology. EPA believes this detailed information is necessary to 
understand and substantiate a request to use OB/OD for the identified 
waste streams.
Optional Secondary Alternative Technology Criteria
    EPA has proposed the mandatory criteria for evaluating whether an 
alternative technology can be used in place of OB/OD; however, an 
owner/operator may also include a discussion of any secondary criteria 
that it finds helpful in selecting between identified available 
alternative technologies for implementation. Such criteria might 
include, for example, utility demands required to operate alternative 
technologies, costs, and throughput capacity. Again, such additional 
criteria cannot be used to dismiss a technology that has been 
identified as safe and available for a particular waste stream.
Submittal and Approval of Alternative Technology Evaluation
    EPA proposes that alternative technology evaluations be submitted 
to the regulatory authority for review and approval. The evaluation 
must be completed according to the required criteria and content. It 
must clearly indicate whether a technology or combination of 
technologies has been selected and which waste streams would be treated 
by each selected technology. For wastes that the owner/operator 
proposes to treat by OB/OD because they have determined that there is 
not a safe and available alternative technology, a detailed rationale 
according to the required criteria and content must also be included. 
If an alternative technology or technologies has/have been selected for 
implementation, the facility need not wait for agency approval of the 
alternative technology evaluation prior to beginning the process of 
implementing the technologies (i.e., submitting funding requests, 
pursuing safety approvals, and submitting a permit application or 
modification to include the alternative technology or 
technologies).\49\
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    \49\ EPA notes that the RCRA regulations require that a permit 
modification must be requested and approved prior to construction of 
a new unit.
---------------------------------------------------------------------------

    For permitting authorities reviewing alternative technology 
evaluations, the approval would not necessarily be conditioned on the 
results, but rather on the completeness of the evaluation--that is, 
whether the evaluation provides the required content and rationale. The 
content and rationale are key to illustrating how and why a 
determination is made by explosives specialists that OB/OD is the only 
safe and available treatment method for a particular waste stream. As 
noted earlier, EPA recognizes that explosives specialists are the 
authority on explosives safety. Equally important to recognize is that 
regulatory authorities are accountable to the public for their 
decisions and thus, if additional clarification is requested by the 
regulatory authority, it should not be viewed as a challenge to the 
specialists' decisions but rather as information needed to better 
understand and to build a record for the regulatory authority's 
decision.
Alternative Technologies and Continuity of Operations
    As indicated previously, EPA recognizes there will continue to be a 
need for OB/OD when there are no safe and available alternative 
technologies for specific waste streams. There may also be other 
situations when OB/OD may be needed, on a temporary basis, even though 
an alternative technology has been implemented, so that treatment 
operations may continue and critical needs can be met. Such situations 
can arise from unanticipated and prolonged maintenance and repair of an 
alternative technology, catastrophic failure of an alternative 
technology, and emergency situations impacting national security such 
as wartime activities that generate excess waste explosives requiring 
treatment. During these situations, the quantity of waste explosives 
awaiting treatment could increase beyond facilities' permitted storage 
capacity, or more critically, the timeframe for safely storing and 
handling the waste explosives could be exceeded such that the wastes 
become unstable and significantly increase the risk of explosion while 
in storage or during handling. Another potential negative outcome is if 
an explosives manufacturing facility's alternative technology is down 
for prolonged repairs, production could also be impacted if the wastes 
associated with the manufacturing process cannot be treated. Customers 
dependent on explosive ingredients and materials could be impacted in 
such a way that national security needs could not be met.
    To avoid these situations, OB/OD could be used on a temporary basis 
to treat the waste explosives that ordinarily would be processed and 
treated through the alternative technology or to treat excess waste 
explosives generated during a national emergency. There are existing 
regulatory

[[Page 19972]]

mechanisms under RCRA that can be utilized to provide continuity of 
treatment operations in these situations. For facilities that have 
permitted OB/OD units, a temporary authorization could be issued under 
Sec.  270.42(e) to increase the permitted treatment capacity and/or 
frequency of treatment or to allow for a waste that is only permitted 
for treatment in the (inoperable) alternative technology, to be treated 
by OB/OD during the temporary authorization period. The temporary 
authorization procedure was developed to allow owners/operators of 
permitted TSD facilities to conduct activities to respond promptly to 
changing conditions and improve the management of hazardous wastes. For 
more time sensitive needs, short duration needs, or when there is no 
longer permitted OB/OD capacity at a facility using alternative 
technologies, emergency permits could be issued under Sec.  270.61 as 
another option.
    For other situations that pertain to routine inspections and 
maintenance, EPA expects that the associated periods of downtime would 
have been planned for and managed so that OB/OD would only be allowed 
for unanticipated delays that prevent return of the system to its 
operational status, and only after other available options are 
considered. Thus, in the technology evaluation phase when accounting 
for needed treatment throughput, facilities could consider the option 
of implementing redundant systems--installing three static detonation 
chambers instead of two, for example--that would provide needed 
capacity during periods of downtime. Other options to consider include 
use of MTUs, shipment to another facility using alternative 
technologies, or adding storage capacity.
    EPA emphasizes that safe and available alternative technologies 
that have been implemented must always be used in place of OB/OD. 
However, EPA is also cognizant that situations arise that could 
adversely impact continuity of operations, and in turn, significantly 
increase safety risks or threaten national security. To address these 
situations, options have been presented that can be pursued to ensure 
that the needed treatment can take place.
Summary and Request for Comment
    The purpose of the above section is to propose revisions to the 
existing regulation for OB/OD to provide clarity and to include a 
process for achieving successful implementation. This is in recognition 
that there is currently inconsistency in implementation of the existing 
regulation. By providing clarity, a process, and information resources 
on available alternative technologies, a higher level of consistency 
can be achieved, which EPA expects to result in increased use of 
alternative technologies and reduction of OB/OD. EPA does not believe a 
complete ban on OB or OD is possible given that there are waste 
explosives that cannot be treated by an alternative technology due to 
the instability and potential shock sensitivity of those wastes, as 
discussed in the NASEM report (see footnote 4, p. 78), or the unique 
properties of certain waste explosives that result in unpredictable 
reactions, as discussed in the context of RDT&E wastes. At this time, 
EPA is proposing revisions to clarify eligibility for use of OB/OD for 
waste explosives and has presented the criteria and content to be 
required when evaluating alternative technologies. EPA's view is that 
if a facility utilizes the criteria and provides the required content 
and supporting rationale, the regulatory authority reviewing the 
evaluation should be able to determine its completeness and understand 
the owner/operator's conclusions. Therefore, EPA requests comment on 
the regulatory language in new Sec. Sec.  264.707 (a) and (b) and 
265.707 (a) and (b) as summarized below. The regulatory language is 
intended to make clear that if the applicant is proposing to use OB/OD 
to treat waste explosives, there must be a demonstration of 
eligibility.
    Equally necessary is the process for demonstrating eligibility 
through an evaluation of technologies. EPA requests comment on the 
criteria presented in this section. These criteria include the 
requirement that the technology be safe and available. These criteria 
are the basis for demonstrating that owners/operators may or may not 
qualify for OB/OD. Comments should center on the adequacy of the 
proposed criteria and rationale requirements, keeping in mind that the 
regulatory standard has been that OB/OD may only be used when waste 
explosives cannot be safely disposed of through other modes of 
treatment.
    Also, EPA requests comment on the adequacy and organization of the 
required content for the evaluation. This includes description of 
facility operations, characterization of wastes, initial screening of 
potential alternative technologies, identification of alternative 
technologies according to individual waste streams, identification of 
selected alternative technology or technologies, potential for off-site 
treatment using alternative technologies and use of MTUs, 
identification of individual waste streams requiring OB/OD, submittal 
and approval of the alternative technology evaluation, and continuity 
of operations. In addition, as noted, RDT&E wastes can present 
additional challenges for waste characterization and selection of 
potential alternative treatment technologies due to the variety of 
different materials and novel formulations produced during the research 
phase, and due to increased materials sensitivity from testing and 
evaluations phases and changes to the physical and chemical properties. 
EPA seeks comment on whether there is an approach that would be better 
suited for RDT&E facilities when identifying and describing individual 
explosive waste streams.

E. Timing For Rule Compliance

Introduction and Description
    At present, facilities that conduct OB or OD of waste explosives 
are required to demonstrate and periodically redemonstrate that no safe 
alternatives are available for their waste streams by conducting an 
evaluation of alternative treatment technologies. Owners and operators 
must also employ safe alternatives to the OB/OD of waste explosives 
when available. However, the timing and frequencies of these 
demonstrations are not defined by the existing regulations. Nor do the 
existing regulations specify required timelines for the implementation 
of safe alternatives. As such, there is uncertainty around the timing 
for conducting alternative technology evaluations and implementing safe 
alternative technologies. Therefore, EPA is proposing requirements for 
the timing of initial evaluations and reevaluations, and for the 
implementation of safe available alternative technologies identified. 
EPA believes the proposed requirements will help manage the workload of 
State and regional implementers, reduce uncertainty related to 
implementing the regulations, allow for advanced planning by the 
regulated community, and foster consistency in implementation.
Proposed Revisions and Supporting Rationale
    To aid in implementation of the existing regulation and especially 
as it applies to permitted units, EPA is proposing new regulations at 
Sec. Sec.  264.707 and 265.707 that would specify when alternative 
technology evaluations are required, and the time allowed for 
implementation of alternative technologies.

[[Page 19973]]

Timing of Initial Alternative Technology Evaluations and Reevaluations
    EPA is proposing regulatory text at Sec.  264.707(c) and (d) 
related to the timing of initial alternative technology evaluations and 
subsequent reevaluations. In the following paragraphs, EPA discusses 
the proposed timing for permitted and interim status OB/OD facilities 
and units, as well as potential new facilities or OB/OD units. For 
permitted facilities with OB/OD units, EPA is proposing a requirement 
at Sec.  264.707(c) that, at the next permit renewal or Class 2 or 3 
permit modification associated with an OB/OD unit, the RCRA permit 
application include an alternative technology evaluation as discussed 
in Section II.D Alternative Technology Evaluation and Implementation. 
The owner/operator of an existing OB/OD unit would be required to 
conduct the initial evaluation, or reevaluation, and submit it as part 
of the permit application submission. For new facilities or new OB/OD 
units that are proposed to treat waste explosives, the owner/operator 
would be required to prepare an alternative technology evaluation and 
submit it as part of the permit application for a new OB/OD unit.
    EPA favors an approach tied to permitting actions as, nationally, 
permits are staggered, and this would assist both regulated entities 
and permitting authorities in balancing the work and administrative 
burden of preparing and reviewing the alternative technology 
evaluations over time. Similarly, linking the timing of the evaluations 
to the permitting milestones will allow the regulated entities (many of 
which are owned or operated by Federal agencies) more time to secure 
funding and resources to conduct the evaluations.
    One drawback of this approach is that, depending on the permitting 
timelines, it could be up to ten years before a permitted facility 
managing waste explosives becomes subject to the new requirements 
specifying how to conduct alternative technology evaluations; although 
EPA ultimately considers this would be rare since permit modifications 
often occur several times over the course of a ten-year permit term. In 
addition, this downside can be mitigated by the use of permit 
modifications initiated by the permitting agency under Sec.  270.41. 
(See discussion of permit modifications in the Background of Regulatory 
Requirements component of Section II.A. Introduction to Open Burning 
and Open Detonation of Waste Explosives and this Rulemaking.) At 
facilities where the continued use of OB/OD may present a risk to human 
health and the environment, including situations where there may be an 
overburdened or disadvantaged community, the Director can consider 
whether cause exists to initiate a modification of the permits to 
incorporate the regulatory requirement to evaluate alternative 
treatment technologies. EPA believes that an agency-initiated 
modification may also be appropriate when facilities have conducted an 
alternative technology evaluation previously, but the evaluation did 
not provide complete information necessary for the permitting agency 
reviewing the evaluation to understand and determine whether the 
conclusions presented by the facility are acceptable. See Sec.  
270.41(a)(2). In addition, should EPA finalize this proposal, agency-
initiated modifications may also be appropriate to incorporate the new 
promulgated standards. See Sec.  270.41(a)(3).
    EPA is proposing at Sec.  264.707(c)(2) that permitted facilities 
that have conducted an alternative technology evaluation within the 
three-year window prior to the final rule's effective date, be able to 
use that evaluation in lieu of conducting another alternative 
technology evaluation as part of the permitting process, provided the 
evaluation meets the criteria as described in this proposal. Namely, 
the alternative technology evaluation would need to have thoroughly 
assessed all waste streams managed by the facility and meet or exceed 
the requirements for an alternative technology evaluation described in 
this proposal. EPA is including this provision to avoid requiring a new 
alternative technology evaluation immediately after a complete and 
thorough one was prepared and accepted by the regulatory authority. EPA 
anticipates this will provide additional flexibility and be perceived 
as a benefit by the regulated community. Additionally, EPA acknowledges 
that regulated entities are required now under the existing regulations 
to conduct and submit alternative technology evaluations and thus this 
provision would assist entities in compliance during the transition 
period of these regulatory changes.
    For interim status facilities or a permitted facility with interim 
status OB/OD units, EPA is proposing requirements at Sec.  
265.707(c)(1) that the owner/operator conduct an alternative technology 
evaluation within one year of the effective date of the regulations. 
EPA is proposing a one-year deadline for conducting the alternative 
technology evaluation to address the small number of interim status 
facilities as rapidly as possible. There are currently only four 
interim status facilities treating waste explosives by OB/OD. These 
facilities are operating without the protections and controls that a 
permit provides. In addition, because these facilities do not have a 
RCRA permit for their OB/OD units, they also do not have a standard 
timeframe for permit renewal or the potential for permit modification 
that would trigger an evaluation or reevaluation of alternative 
technologies, such as for the RCRA permitted OB/OD facilities. As such, 
EPA believes it is appropriate and practicable to require an evaluation 
within one year of the effective date of the rule for interim status 
facilities.
    EPA is proposing at Sec.  265.707(c)(2) that interim status 
facilities that have conducted an alternative technology evaluation 
within the three-year window prior to the final rule's effective date 
enacting the requirements, to be able to use that evaluation in lieu of 
conducting another initial alternative technology evaluation. As a 
result, the owner/operator would not need to conduct an alternative 
technology evaluation until the reevaluation (i.e., five years after 
the evaluation used in lieu of the initial evaluation). In order to do 
so, the evaluation would be required to meet certain criteria as 
described in this proposal. Namely, the alternative technology 
evaluation would need to have assessed all waste streams managed by the 
facility and meet or exceed the requirements for an alternative 
technology evaluation described in this proposal. EPA is including this 
provision to avoid requiring a new alternative technology evaluation 
immediately after a complete and thorough one was prepared and accepted 
by the regulatory authority. EPA anticipates this will provide 
additional flexibility and be perceived as a benefit by the regulated 
community. Additionally, EPA acknowledges that regulated entities are 
required now under the existing regulations to conduct and submit 
alternative technology evaluations and thus this provision would assist 
entities in compliance during the transition period of these regulatory 
changes.
    Regarding reevaluations, EPA is proposing for permitted facility 
and interim status facilities at Sec. Sec.  264.707(d) and 265.707(d), 
respectively, that the owner/operator would be required to conduct 
reevaluations at the frequency of at least every five years thereafter. 
EPA requests comment on whether a more frequent alternative technology 
reevaluation timeline would be appropriate. EPA also requests comment

[[Page 19974]]

on whether an annual certification that no new information is present 
and would warrant an off-cycle reevaluation for alternative 
technologies would be appropriate.
    One factor suggesting a reevaluation every five years may be 
sufficient is that, as noted above, under existing permitting 
authorities the Director can consider whether cause exists to initiate 
a modification of the permits to incorporate the regulatory requirement 
to evaluate alternative treatment technologies. One of the causes for 
such a modification identified in Sec.  270.41 is receipt of new 
information by the Director that was not available at the time of 
permit issuance. As such, were the Director to become aware of new 
information that would justify requiring a reevaluation sooner, the 
Director has an avenue to modify the permit to require one. Examples of 
such information that EPA expects may lead the Director to initiate 
such a modification would include: (1) The Director becomes aware that 
there is existing technology being used to treat similar waste streams 
at another facility; or (2) the availability of demonstration and test 
data for an alternative technology that indicates it may be safe and 
available for one or more of the facility's waste streams. If the 
availability of this type of information led to an off-cycle 
reevaluation being prepared, it is EPA's expectation that the 
reevaluation would be focused on the information or changes cited by 
the regulatory authority as cause for the permit modification.
    Of course, this permitting authority puts the onus on the Director. 
As such, EPA believes it makes sense to still consider and request 
comment upon other approaches. Specifically, as noted above, EPA 
requests comment on whether a more frequent alternative technology 
reevaluation timeline would be appropriate. EPA also requests comment 
on whether an annual certification that no new information is present 
and would warrant an off-cycle reevaluation for alternative 
technologies would be appropriate.
Time Allowed for Implementation of Alternative Technologies
    EPA is proposing a requirement that owners/operators that identify 
safe and available alternatives to OB/OD must prepare and submit an 
implementation schedule pertaining to the alternative(s). To effectuate 
this, EPA is proposing regulatory language for permitted facilities at 
Sec.  264.707(e) Implementation of alternative technologies, and 
analogous requirements for interim status facilities at Sec.  
265.707(e).
    The implementation schedule would be due within 180 days of the 
completion of an alternative technology evaluation and a determination 
that a safe alternative technology is available. The implementation 
schedule would need to be approved by the permitting authority and 
include the significant interim milestones. For permitted facilities, 
EPA is proposing at Sec.  264.707(e)(2) that the implementation 
schedule be incorporated by reference into the facility's RCRA permit. 
EPA expects this would occur as part of the permit action that 
triggered the requirement to conduct the alternative technology 
evaluation.
    In order for the implementation schedule to remain current and 
adapt to new developments at the facility, EPA is also proposing that 
the implementation schedule may be amended as necessary. This provision 
would also appear at Sec.  264.707(e)(3) for permitted facilities and 
Sec.  265.707(e)(2) for interim status facilities. For permitted 
facilities, EPA is proposing that changes to the implementation 
schedule would be effectuated by a Class 1 permit modification with 
prior Agency approval. The owner/operator would be required to comply 
with the schedule of implementation for the alternative technology. 
This would allow for modification of the implementation schedule in 
instances such as delays due to factors outside the control of the 
owner/operator.
    EPA is proposing that the implementation schedule include, at a 
minimum, applicable deadlines related to vendor procurement, permit 
application submissions associated with the alternative technology, 
construction start and end dates, testing of the alternative 
technology, and a deadline for beginning operations of the alternative 
technology. In specifying the milestones for inclusion in the 
enforceable schedule, EPA sought to provide some broad requirements for 
major milestones but to leave flexibility for additional detail to be 
worked out, as appropriate, on a case specific basis. EPA expects that 
permitting authorities and facility owners/operators will be in the 
best position to determine what additional milestones, if any, are 
appropriate at a given facility for a given alternative technology.
    For existing facilities with operating OB/OD units, EPA would allow 
continued OB/OD while the facility works toward implementation of an 
alternative technology. In the interim, the permit writer should 
continue to work with the owner/operator to minimize waste generation 
and reduce wastes being open burned/open detonated. Actions may 
include:
     Reducing the amount of material being contaminated with 
explosives, e.g., through segregation or diversion of wastes which 
would include accurate waste determinations/tests to confirm wastes are 
characteristic for reactivity (D003) under and have the potential to 
detonate.
     Storing wastes, when it is safe to do so and pursuant to 
RCRA regulations or temporary authorizations, until the alternative 
technology is in operation and while alternative technologies are down 
for maintenance. This may require building and authorizing additional 
safe storage capacity.
     When safe to do so, shipping wastes off-site to another 
treatment facility to be managed by an alternative technology.
     Treating wastes, via non-thermal methods (e.g., soaking, 
chemical treatment), as allowed by regulation. In general, generators 
of hazardous waste can conduct non-thermal treatment on-site in 
enclosed tanks or containers without a RCRA permit.
     Reducing the permitted amount/volume of waste that can be 
treated in the OB/OD unit until the alternative technology is in 
operation.
    The proposed approach allows flexibility in the timing for 
implementation of the alternative technology by not establishing a 
regulatory compliance date, but rather, requiring an implementation 
schedule with enforceable milestones. The primary benefit of this 
approach is the flexibility it allows regulatory authorities to tailor 
implementation schedules to facility-specific circumstances. As a 
practical matter, EPA believes flexibility is important to accommodate 
facility-specific funding and budget allocation timelines, and vendor 
availability and contracting lead times which may vary by waste stream 
and geography. For example, many of the regulated facilities are 
government facilities which may need to utilize multi-year budget 
cycles to secure funding for alternative technologies. Additionally, 
the waste streams differ widely as does the complexity of the 
alternative technology available to treat the waste streams. For 
example, a small neutralization technology may be faster and easier to 
procure and permit than a large detonation chamber or confined burn 
chamber.
    One drawback of the proposed approach is that, absent a regulatory 
deadline for implementing alternative technologies, the timeframe in 
which an alternative technology would be implemented may be prolonged.

[[Page 19975]]

However, the proposal would require that the implementation schedules 
must be approved by the permitting authority and would also be 
enforceable. As such, EPA expects compliance with the implementation 
schedules without unreasonable delays. An additional downside of the 
proposed approach would be the implementation burden associated with 
developing implementation schedules on a facility-by-facility basis. 
However, considering that alternative technology evaluations would not 
be performed at the same time if the proposed approach is finalized, 
implementation schedules also would not be due at the same time, thus 
balancing the permitting agency's workload over time.
Alternative Technology Implementation Deadline by Regulation
    A second option EPA considered, but is not proposing, was the 
establishment of a compliance date or dates in the regulations for both 
the submission of an implementation schedule with interim milestones 
and a compliance date for implementation of alternative technology. 
Under this option, EPA would establish a regulatory deadline (e.g., 60 
days from the identification of an alternative technology) for 
submission of an implementation schedule that contained interim 
milestones such as vendor procurement, which is the same as the 
proposed option. However, under an alternative option, EPA would also 
establish a deadline for completing implementation of the alternative 
technology (e.g., four years from the identification of a safe 
alternative technology). The option would also provide an avenue for 
the regulatory authority to provide extensions to owners/operators in 
instances where implementation of alternative technology by the 
established regulatory deadline would not be possible.
    This option has appeal primarily because it has the potential to 
result in a more standardized transition away from OB/OD to alternative 
technologies. Rather than negotiating individual timelines for 
implementation on a facility-specific basis, this alternative option 
would clearly communicate an expected and consistent alternative 
technology operational date which could result in a more deadline-
driven path toward implementation of alternative technologies. For 
example, the deadline established in regulation could provide Federal 
facilities an advanced opportunity to initiate budget requests and make 
other arrangements to meet that deadline. EPA notes however, that 
owners/operators should already be planning for alternative technology 
implementation because the existing regulations already require 
implementation of safe alternatives to OB/OD.
    One major downside of the option, however, is that it would fail to 
account for the variation in waste streams and complexity and number of 
alternative technologies (i.e., one facility may have several 
heterogenous wastes streams requiring treatment by multiple 
alternatives while another facility may have more limited homogeneous 
waste streams that may be handled by one alternative) which may not be 
conducive to a nationwide deadline imposed by regulation. As discussed 
above, EPA expects that funding approval, vendor procurement, 
permitting and construction timelines may vary across facilities' 
selected technologies and complexity of their waste streams. 
Additionally, the deadline by rule approach in this option would also 
potentially be disruptive to State and EPA permitting authorities' 
workload and priorities. Due to these limitations, EPA is not proposing 
this option but is requesting comment on this option. If public comment 
is supportive of this option, EPA may elect to adopt the approach in 
the final rule.
Alternative Technology Implementation Deadline by Regulation With 
Option for Modification
    A third option EPA considered is to establish a nationwide 
regulatory deadline for implementing safe available alternative 
technologies but with an avenue for that deadline to be modified were 
it determined not to be feasible. In such an option, the regulations 
would establish a deadline for implementing an alternative technology 
(e.g., five years from the identification of a safe alternative 
technology) but allow a process for the owner/operator to demonstrate 
that such a deadline was not feasible for the given technology at their 
facility. If the owner/operator were able to demonstrate to the 
satisfaction of the Director that the timeline established by 
regulations was not achievable, then the owner/operator and the 
Director would negotiate an enforceable implementation schedule much as 
described in the proposed option.
    This option has the advantage of allowing an offramp in situations 
where the nationwide deadline is not feasible and thus addresses one 
major concern with the nationwide deadline by regulation option. One 
potential disadvantage with this approach would be that preparing and 
evaluating demonstrations would entail some level of burden. If many 
facilities made such demonstrations, this option may result in the 
majority of facilities developing facility-specific schedules and, in 
effect, not offering much of a predictability or expediency advantage 
over the proposed approach. At this point, EPA cannot predict how many 
facilities would seek to make such demonstrations and the resulting 
determination. Given this uncertainty, EPA is not proposing this option 
but is requesting comment. If public comment is supportive of this 
option, EPA may adopt the approach in the final rule.
Alternative Technology Implementation Deadline by Regulation for 
Priority Facilities
    A fourth option EPA considered is to establish a regulatory 
deadline only for priority facilities while the rest of the universe 
would develop facility-specific implementation schedules. Priority 
facility identification would be based on location data (e.g., 
proximity to sensitive receptors where ongoing use of OB/OD presents 
higher potential of exposure to emissions, overburdened communities 
experiencing cumulative environmental or health stressors, areas 
vulnerable to impacts of climate change) or other factors making the 
facility of high interest (e.g., a facility treating high quantities of 
waste explosives by OB/OD). This option would represent a hybrid of the 
two options discussed above. In this option, the regulations would 
provide flexibility for most facilities and less flexibility to 
priority facilities, e.g., near sensitive receptors.
    EPA expects that environmental justice (EJ) analyses, information 
from facilities' permits, and public comment information would be 
utilized to determine priority facilities. The primary benefit would be 
that these sensitive sites would be addressed in certain, near-term 
time horizons. One downside of this option is that the prioritization 
process itself, during implementation, would require resources and 
time. Additionally, because of the lack of flexibility for priority 
facilities entailed in this option, this approach would also fail to 
account for the variation in waste streams and alternative technologies 
necessary at these facilities. As discussed above, EPA believes that 
variation may argue for facility-specific implementation timelines. 
Additionally, the deadline by rule approach in this option would also 
potentially be disruptive to State and EPA permitting authorities' 
workload and priorities. Again, EPA is not proposing this option but is 
requesting comment given the benefits and the disadvantages. For 
example, EPA seeks

[[Page 19976]]

criteria suitable for nationwide regulation that could be applied 
relatively quickly in implementation to identify a priority class of 
facilities. If public comment is supportive of this option, EPA may 
adopt the approach in the final rule.
Public Participation and Alternative Technology Evaluations
    EPA expects that the existing permitting processes would facilitate 
early and continuous public participation on the alternative technology 
evaluation and the implementation of alternative technologies. For 
permitted facilities, the permit action (e.g., permit renewal or Class 
2 or 3 modification) that triggers the need for an alternative 
technology evaluation would include a variety of public participation 
steps, such as a pre-application meeting (for Class 3 modifications or 
permit renewals), notice to the facility mailing list, public comment 
period(s), and/or public notice of intent to issue a new, modified, or 
renewed permit. Additional steps may be added to ensure meaningful 
engagement with overburdened communities. Collectively, these steps 
would allow for the public to review the alternative technology 
evaluation, the tentative determination on the availability of a safe 
alternative technology, and the proposed implementation schedule if an 
alternative technology is determined to be safe and available. For 
interim status facilities, after conducting an alternative technology 
evaluation within one year of the effective date of the rule, the 
facility would be required to submit an updated permit application. The 
revised application would reflect a determination either that a safe 
alternative technology was available or that one was not available. In 
the first instance, the owner/operator would be applying for a permit 
for an alternative technology unit. In the latter instance, the 
facility would be seeking a permit for an OB/OD unit meeting the 
proposed new subpart Y standards for OB/OD units. This permitting 
process would afford multiple opportunities for public participation as 
specified in part 124, subparts A and B. These include pre-application 
public meetings, public comment, public notice, the ability to request 
a public hearing, and an avenue for appeal of the final permit 
decision. Because the alternative technology evaluation will inform 
whether the owner/operator must submit an application for an 
alternative technology permit or an OB/OD permit, EPA encourages 
facilities and regulators to consider engaging the public early during 
the alternative technology evaluation. For example, the facility may 
set up an on-site information booth, website, or information repository 
to share background on the facility and its operations, and the 
alternative technology evaluation prepared by the owner/operator.\50\ 
In this way, public comment and input during the permitting process may 
be less likely to require submission of a revised permit application 
later in the permitting process.
---------------------------------------------------------------------------

    \50\ Please see US EPA's 2019 Resource Conservation and Recovery 
Act Public Participation Manual for more information and 
considerations related to public participation. The manual is 
available at: https://www.epa.gov/sites/default/files/2019-09/documents/final_rcra_ppm_updated.pdf.
---------------------------------------------------------------------------

Summary and Request for Comment
    This proposal includes clarifying regulatory text regarding when 
alternative technology evaluations would be prepared, and timelines for 
the implementation of alternative technologies. EPA expects that the 
proposed regulations would reduce uncertainty and increase consistency 
in implementation of the regulations. For the timing of alternative 
technology evaluations, EPA believes the proposal, by linking the 
timing to permit actions, strikes a balance between expeditiously 
evaluating the availability of safe alternatives and managing the 
timing of the evaluations in a manner that reduces administrative 
burden and best utilizes implementation resources. With respect to the 
implementation deadlines for alternative technologies, EPA is proposing 
a flexible process for facility-specific deadlines to be developed and 
amended as necessary. At the same time, the resulting enforceable 
deadlines for interim milestones and implementation of the alternative 
technology would provide greater certainty and accountability. 
Additionally, EPA described and is requesting comment on three 
alternative options. One alternative option would be to set a 
regulatory deadline applicable to all facilities in the regulations. 
The second alternative option would establish a regulatory deadline 
applicable to all facilities but provide an avenue for negotiating a 
modified timeframe as appropriate. The third alternative option would 
be to set a regulatory deadline applicable to high priority facilities 
in the regulations, while allowing facility-specific implementation 
schedules to be developed for the rest of the universe. EPA is 
requesting comment on the proposed approach as well as each of the 
alternative options and will consider the input as part of the final 
action. If public comment is supportive such that additional 
information not previously considered by EPA in analyzing the 
advantages and disadvantages is presented, EPA may adopt one of these 
alternative options in the final rule.

F. Permitting of Alternative Technologies

Introduction and Description
    Units that treat waste explosives are most often permitted 
according to the part 264, subpart X. As discussed in section II.A, 
these performance-based standards were developed to be applicable to a 
variety of waste management units, including OB/OD units, that were not 
already covered in the regulations. In adopting this approach, EPA 
concluded that it was not possible to set design and operating 
standards for all potential subpart X units, especially in the case of 
units for which there was little or no information available to allow 
for establishing technology-specific standards.
    In the final rule for miscellaneous units, including OB/OD units, 
EPA did recognize that some miscellaneous units have design features 
similar to other units already covered in the regulations but are not 
similar enough that it would be appropriate to include or classify the 
miscellaneous unit under another section of regulation or to apply 
established performance standards to certain miscellaneous units.\51\ 
For example, thermal treatment units, such as carbon regeneration 
units, use heat in the primary chamber to destroy organics in the waste 
stream (i.e., spent carbon) much the same way that incinerators do. 
However, carbon regeneration units are designed to desorb contaminants 
from carbon without damaging the carbon and are not designed to destroy 
a wide variety of hazardous wastes or materials like incinerators do. 
Thus, these units have different design features and operating 
conditions based on their purpose. It would not be practical then to 
require a carbon regeneration unit to comply with the full suite of 
incinerator standards; rather, it would be appropriate to ``borrow'' 
some of the incinerator standards and apply them to the carbon 
regeneration unit to ensure that it operates in a manner protective of 
human health and the environment. This is the basis for the requirement 
in Sec.  264.601 that directs the permitting authority to include the 
listed subparts that are appropriate for the miscellaneous unit being 
permitted.
---------------------------------------------------------------------------

    \51\ 52 FR 46950-46951, December 10, 1987.
---------------------------------------------------------------------------

    With respect to this proposed rule, there are a variety of enclosed

[[Page 19977]]

alternative technologies that can be used for treatment of waste 
explosives in which subpart X standards would be appropriate. Thus, 
this section discusses the regulatory classification of devices 
treating waste explosives, as well as a range of related topics 
including clarifications on applicable regulatory requirements for 
certain waste explosives treatment practices and proposed changes to 
the existing subpart X standards and related permitting standards to 
account for alternative technologies.
Proposed Revisions and Supporting Rationale
    In practice, units that treat waste explosives are most often 
permitted under subpart X, as described above. This includes all OB/OD 
units, as well as several types of alternative treatment technology 
units such as those that use chemical destruction and neutralization, 
and those that use thermal destruction and decontamination. However, 
thermal treatment units have been permitted according to the subpart X 
standards, while others have been permitted according to the subpart O 
and/or Clean Air Act (CAA) Hazardous Waste Combustor National Emission 
Standards for Hazardous Air Pollutants, subpart EEE standards (CAA 
subpart EEE) because they meet the definition of a unit regulated under 
these subparts. Occasionally, there are cases when the same type of 
thermal treatment unit is permitted under one set of standards in one 
State, but under a different set of standards in another State because 
the definitions are applied differently. In these cases, this 
variability can be frustrating for owners/operators that would like to 
operate the same or similar units in another State. For example, a 
State that permits a unit as an incinerator as defined in Sec.  260.10 
would be subject to both RCRA and CAA standards and permitting 
requirements, and in some instances, could have two sets of operating 
standards and emission limitations (i.e., one set in the CAA title V 
permit and a second set in the RCRA permit) that must be complied with 
where States have not adopted the integration with MACT standards 
language.\52\
---------------------------------------------------------------------------

    \52\ See Sec. Sec.  264.340(b), 266.100(b) and 270.22, and 
270.62.
---------------------------------------------------------------------------

    Although EPA recognizes that the differences in application of 
standards is not ideal, EPA is not proposing regulatory revisions at 
this time that would define the various types of thermal treatment 
units to provide more consistency in application of standards across 
the same types of thermal units for reasons discussed in the following 
section. EPA anticipates that this proposed rule would significantly 
increase the use of alternative treatment technologies, especially a 
variety of thermal units, which will require permitting according to 
subpart X or subpart O/CAA subpart EEE. EPA is interested, however, in 
hearing from commenters if it would be helpful for EPA to define the 
thermal treatment units that are available, which would provide more 
clarity when applying standards considering the following information.
Approaches To Permitting Thermal Treatment Units
    If EPA were to define the different types of thermal treatment 
units, then a unit that is designed and operated like an incinerator 
and meets the definition of an incinerator \53\ would be permitted 
according to part 264, subpart O and/or the CAA subpart EEE standards. 
The units that could be defined as incinerators treating waste 
explosives include the ammunition peculiar equipment (APE)-1236 rotary 
kiln incinerator, explosive waste incinerator (EWI), and bulk 
energetics disposal system (BEDS). The common feature of these units is 
that the wastes travel through a combustion chamber in which heat is 
applied inside the combustion chamber by a controlled flame.
---------------------------------------------------------------------------

    \53\ See Sec.  260.10.
---------------------------------------------------------------------------

    Other types of thermal treatment units like contained burn 
chambers, SDCs, CDCs, explosive destruction systems (EDS), and DAVINCH, 
are most often permitted according to subpart X, and if EPA were to 
define these types of units, EPA would not define them as incinerators, 
but rather a type of miscellaneous unit because they do not use a 
controlled flame within the treatment chamber. The units in this 
category use an electronic ignition system to initiate treatment, or 
use heat applied externally to the chamber to initiate treatment.
    Reasons for approaching thermal treatment units differently with 
respect to classification as a miscellaneous unit under subpart X 
versus an incinerator under subpart O/CAA subpart EEE relate to the 
authorized permitting authority's interpretation of applicability. 
Also, it is possible that the permitting authority may choose to take a 
more straightforward approach and regulate a unit that does not have a 
controlled flame in the treatment chamber under the full suite of 
incinerator standards, rather than regulating the unit under subpart X, 
and thus having to choose which standards should apply. However, a 
straight application of subpart O/CAA subpart EEE standards could make 
the facility's compliance complex and difficult because certain 
standards may not be practically applicable when a unit does not meet 
the definition of incinerator. To potentially avoid this type of 
situation, EPA could define the known types of thermal units that treat 
waste explosives to impart more consistency in application of 
standards. The downside to EPA's action would be that it could remove 
the flexibility that some regulatory authorities prefer when applying 
standards believed to be appropriate for the unit.
    Regardless of the subpart that a technology's permit conditions are 
derived from, they must be protective of human health and the 
environment for the selected technology. To be protective, the 
standards, for example, must assure that the technology is monitorable 
both in terms of operational controls and effluents/emissions resulting 
from treatment operations. Alternative treatment technologies are 
enclosed processes that utilize a series of process and engineering 
controls beginning with introducing the wastes into the system and 
through recovery of the treated material and byproducts. Inherent in 
the design are controls to monitor the system to ensure that explosives 
safety and treatment protocols are met as the material moves through 
the treatment process. The system should also include controls to treat 
and monitor emissions and effluents to ensure they are protective prior 
to release. Thus, operational controls and associated effluent/emission 
treatment systems must be monitorable to determine compliance with 
applicable regulations and to ensure they are protective of human 
health and the environment.
    In addition to the capability to monitor treatment byproducts, the 
technology must also be able to treat any toxic by-products to levels 
that are protective of human health and the environment before release. 
Contained alternative treatment technologies and associated pre-
treatment technologies must not release toxic by-products. For example, 
a pre-treatment technology like water jet cutting will generate a new 
waste stream--water contaminated with explosives. This waste stream 
must be characterized and treated on-site or off-site to meet 
applicable environmental standards before release into the environment. 
Another example relates to thermal treatment processes. If chlorinated 
wastes are present in the waste stream, even if they are effectively 
treated in the primary chamber, the

[[Page 19978]]

potential remains for dioxin/furan formation when the treatment gases 
are cooled after leaving the primary treatment chamber. Thus, it is 
essential that the systems are optimized to prevent dioxin/furan 
formation and that the air pollution control equipment can treat any 
dioxins/furans to required permit limits established according to the 
applicable regulatory standard (e.g., a dioxin/furan standard under 
subpart O or subpart EEE) before release.
    Again, any alternative technology must be designed and operated in 
a manner that is protective of human health and the environment. Under 
RCRA, permit writers consider the applicable regulatory limits (e.g., 
required design, operating, and emission standards) the technology's 
test results (e.g., established in literature and on a site-specific 
basis), and site-specific factors (e.g., proximity to receptors and 
volume and types of waste) when developing permit conditions. The 
resulting permit conditions ensure that the technology is protective. 
In addition, alternative treatment technologies, in all likelihood, 
will also require permits under other programs such as the CAA and CWA.
Clarification of Wastes Contaminated With Explosives
    Also related to permitting and application of appropriate 
standards, EPA is providing clarification on an issue that has 
presented challenges to regulatory classification. Over the past 
several years, EPA has learned that some facilities have been treating 
solid wastes that are minimally or potentially contaminated with 
explosives by OB in non-RCRA permitted units. This practice has been 
allowed in certain States that finalized an exception to OB for waste 
explosives under their air regulations, based on the premise that these 
materials pose an explosive hazard.\54\ The exception is nearly 
identical to RCRA; however, there is no CAA Federal equivalent to the 
State air regulation for allowing uncontrolled burning of solid waste 
that may pose an explosive hazard. Rather, individual States have 
chosen to implement the exception through their CAA State 
implementation plans.
---------------------------------------------------------------------------

    \54\ https://docs.legis.wisconsin.gov/code/admin_code/nr/400/429 
and https://publications.tnsosfiles.com/rules/1200/1200-03/1200-03-04.pdf.
---------------------------------------------------------------------------

    Facilities have argued that their wastes may contain explosives and 
may pose a safety hazard, and thus their OB is exempted from State air 
regulations as described above; and at the same time have asserted that 
these wastes are not RCRA D003 reactive waste, and thus their burning 
is not subject to RCRA regulations either. EPA does not agree that the 
above State air and RCRA-related assertions can be made concurrently 
for the same wastes. If the waste does not meet RCRA's reactive waste 
characteristic and is not a waste explosive, then it cannot be 
considered reactive and explosive for purposes of qualifying for the 
exception under State air regulations (see footnote 58). Or, in other 
words, if a waste is considered an explosive safety hazard under State 
air regulations, it must also be considered a reactive hazardous waste 
under RCRA. EPA notes that if a waste is contaminated with explosives 
that results in the waste posing a safety hazard or, if the owner/
operator has conservatively designated the waste as possibly explosive, 
then the waste is a RCRA reactive waste and must be managed under RCRA, 
including the prohibition on OB/OD unless there is no available safe 
alternative technology. EPA notes that many of the wastes at issue 
include non-combustible items such as concrete, masonry bricks, metal, 
pipes, vessels, soil, and combustible items such as cardboard, fiber 
drums, PPE, gloves, filter socks, and plastic waste. EPA finds that the 
majority of these wastes have alternative treatment technologies 
available and thus treatment by OB/OD of these waste would generally 
not be allowed. An exception could include large components associated 
with explosives manufacturing (e.g., large diameter concrete pipe, 
process equipment) that cannot safely be ``resized'' to the size 
necessary to support treatment in contained burn equipment or a 
chemical neutralization process. Cutting (either with a torch or saw) 
such items present a significant safety hazard.
    One type of thermal technology that has been proven and used widely 
for these materials is a flash furnace which uses a controlled flame in 
the treatment chamber. Flash furnaces have been permitted under both 
subpart X and subpart O/CAA subpart EEE standards. Again, the 
difference in implementation can be attributed to State preference, the 
purpose of the treatment, or EPA policy regarding controlled flame. An 
example of a flash furnace that would be suited for permitting under 
subpart X is for decontamination of non-combustibles. In this case, 
treatment via chemical neutralization unit is the primary treatment, 
and a flash furnace is the polishing treatment. The purpose of the 
flash furnace is to ensure that any trace explosives remaining after 
neutralization would be removed through heat. A polishing step like 
this may be necessary when there is uncertainty that a neutralization 
solution has reached the elbow of a pipe or small crevices of other 
materials. Because of the very small amount of explosives potentially 
present, EPA believes that application of subpart X standards is the 
appropriate choice for this type of thermal unit despite the use of a 
controlled flame in the treatment chamber, as subpart X allows for the 
development of permit conditions that are more fitting and 
implementable for this technology application.
Permitting and New Standards for Treatment of Waste Explosives
    In this rulemaking, EPA proposes to designate a new subpart Y for 
the new technical standards for OB/OD units and the new standards for 
alternative treatment technology evaluations applicable to OB/OD 
owners/operators. When issuing permits for OB/OD units, regulatory 
agencies would incorporate the new subpart Y standards, and thus, issue 
``Subpart Y permits'' once authorized for subpart Y. (See Section IV. 
State Authorization, Permitting of OB/OD Units section for further 
discussion.) For alternative treatment technologies, permits would 
continue to be issued under subpart X, with the exception of units that 
are determined to be strictly subpart O/CAA subpart EEE units. In 
designating a new subpart Y for OB/OD units, EPA proposes several 
revisions related to the permit application procedures in part 270 and 
to the facility standards in parts 264 and 265 to account for the new 
subpart Y. Some of the revisions are conforming changes while others 
are areas in which EPA believes additional clarity is needed.
Proposed Changes to 40 CFR Part 270 Subpart B--Permit Application
    EPA proposes to make several revisions to Sec.  270.23 Specific 
part B information requirements for miscellaneous units to account for 
new standards proposed in this rule for both OB/OD units and 
alternative treatment technologies. One revision that EPA proposes is 
to add a new paragraph (e) in Sec.  270.23 and redesignate existing 
paragraph (e) as (f), to specify that the part B application for units 
permitted under subpart X as an alternative to subpart Y must include 
the required evaluation of alternative technologies and a schedule to 
implement the selected alternatives. A second revision is to add 
miscellaneous subpart X ``treatment units'' to paragraph (a)(3) of 
Sec.  270.23 to specify that permit applications for treatment units, 
in addition to disposal units, must provide

[[Page 19979]]

a detailed description of the plans to comply with the post-closure 
requirement of Sec.  264.603 when they are unable to clean close. This 
addition will conform to the existing requirements of Sec.  264.603 as 
it relates to both miscellaneous disposal and treatment units. Finally, 
EPA proposes to revise the title of Sec.  270.23 to add ``OB/OD units'' 
and to include related and applicable references to the newly proposed 
subpart Y standards for OB/OD units throughout the section. Because OB/
OD units have historically been permitted as subpart X units, EPA 
believes that the OB/OD part B information requirements should remain 
in this section based on familiarity, and thus provide a clear 
direction for the information expected of permit applicants.
Proposed Changes to 40 CFR Part 264 Subpart X--Miscellaneous Units and 
40 CFR Part 265 Subpart P--Thermal Treatment
    EPA is proposing a few changes to the subparts X and P regulations. 
Specifically, EPA is proposing to amend the environmental performance 
standards in Sec.  264.601(b) and (b)(3) to include stormwater 
considerations. In Sec.  264.601(b), EPA proposes to add stormwater to 
the list of environmental media for which prevention of any releases 
that may have adverse effects on human health or the environment. In 
addition, EPA proposes to add to Sec.  264.601(b)(3) stormwater run-on 
and run-off patterns around the subpart X unit as part of the 
hydrologic characteristics of the unit. These additions are necessary 
to capture and address any impacts to stormwater management units or 
areas from contaminants contributed by subpart X units. EPA believes 
that adding consideration of stormwater impacts to the subpart X 
environmental performance standards would improve protection of human 
health and the environment.
    In addition, EPA is proposing to revise Sec.  264.603 (Post-closure 
care) to clarify that if a treatment or storage unit has contaminated 
soils or groundwater that cannot be completely removed or 
decontaminated ``at the time of certification of closure'' (rather than 
``during closure,'' which is the wording of the existing regulation), 
then that unit must also meet the environmental performance standards 
in Sec.  264.601 during post-closure care. EPA believes that this 
change more accurately reflects that there is a finite point in time in 
which the removal and decontamination actions end despite remaining 
contamination and thus, closure ends, and post-closure care begins. 
Also related to Sec.  264.603, is inclusion of similar requirements in 
the new subpart Y standards specific to post-closure for OB/OD units 
since these units would no longer be considered as miscellaneous units 
under subpart X. EPA proposes to carry over similar language with 
appropriate changes in the new Sec.  264.714. Post-closure care for OB/
OD units is particularly important when is it not possible to remove 
waste explosives and associated contaminated soils and groundwater at 
closure. As treatment units, OB/OD units are required to close in 
accordance with Sec. Sec.  264.114 and 264.603. Should the owner/
operator be unable to remove or decontaminate contaminated components, 
soils, subsoils, structures, and equipment after reasonable efforts to 
do so, these units will require monitoring, and potentially, 
remediation and removal actions, during the post-closure period.\55\
---------------------------------------------------------------------------

    \55\ An example of post-closure monitoring and removal actions 
that is likely to be indefinite is at Ft. Wingate Army Depot, NM, 
where munitions and sub-munitions are dispersed over hillsides 
making it too dangerous to attempt removal due to the steep grade. 
Due to erosion activity, the munitions continue to travel downslope 
into the arroyos where they eventually can be removed.
---------------------------------------------------------------------------

    EPA is also proposing, in part 265, subpart P, to update the 
references to the ``Assistant Administrator for Solid Waste and 
Emergency Response'' to be the ``Assistant Administrator for Land and 
Emergency Management,'' which reflects the new name for this EPA 
office.
Summary and Request for Comment
    Waste explosives have a variety of treatment options, many of which 
are classified as miscellaneous units and are permitted under subpart X 
due to their design or purpose. Certain types of thermal treatment 
units, however, have been permitted as subpart O/CAA subpart EEE units. 
In some instances, the units are clearly incinerators and in others 
they share similar aspects but not enough that the full suite of 
incinerator standards would be practical. In a few cases, there are 
identical thermal treatment units that have been permitted under one 
set of standards in one State and a different set in another State. As 
discussed, this difference can be attributed to a permitting 
authority's interpretation of applicability based on whether a unit 
meets the definition of incinerator or not. Also, permitting 
authorities may choose to take a more straightforward approach and 
regulate a unit that does not have a controlled flame in the treatment 
chamber under the full suite of incinerator standards, rather than 
choosing which standards should apply to a subpart X unit.
    EPA recognizes that the current approach to regulating thermal 
treatment units can result in inconsistencies across different States. 
Given that this proposed rule is anticipated to increase the use of 
alternative treatment technologies, and especially a variety of thermal 
units, EPA requests comment on whether EPA should develop definitions 
for the various types of thermal units discussed to provide more 
consistency when applying standards.
    EPA also discusses several proposed revisions to parts 264, 265, 
and 270 to accommodate the new standards for OB/OD units contained in 
the new subpart Y, to clarify existing language in subpart X, and to 
update the name of the EPA office in part 265. EPA views most of the 
proposed revisions as conforming changes needed to ensure that OB/OD 
units continue to be properly regulated. EPA does, however, propose to 
add stormwater as an additional medium to monitor under subpart X to 
ensure that contaminants from miscellaneous units that migrate to 
stormwater areas are also addressed. Last, EPA proposes a wording 
change in Sec.  264.603 for treatment and storage units to read ``at 
the time of certification of closure'' versus ``during closure'' since 
this more accurately reflects the point in the closure process that a 
determination is made that the closure activities will cease, and post-
closure care will begin. If commenters do not support any of the 
additions or changes noted, EPA would like to hear why.

G. Technical Standards for OB/OD Units

Introduction and Description
    As part of this proposal, EPA is proposing to explicitly describe 
the existing requirement that owners/operators of OB/OD units 
demonstrate, through comprehensive waste analysis and an alternative 
technologies evaluation, eligibility for the exemption to the 
prohibition on OB/OD established in 1980 (see section II.D). EPA finds 
that clarifying in the regulations how owners/operators would 
demonstrate eligibility for the exemption would further reduce reliance 
on OB/OD due to consistent application of the standards. However, EPA 
acknowledges that safe alternative technologies are not currently 
available for every explosive waste stream and thus there will be a 
continued need for OB/OD to treat explosive wastes which do not yet 
have an alternative safe mode of treatment.

[[Page 19980]]

    All OB/OD units are currently permitted under RCRA subpart X 
standards. As described above in Section F. Permitting of Alternative 
Technologies, due to the varied nature of miscellaneous units, subpart 
X standards are performance based and do not contain specific technical 
standards. Rather, subpart X directs permitting authorities to ensure 
permits ``contain such terms and provisions as are necessary to protect 
human health and the environment'' (Sec.  264.601). This, 
understandably, has led to some variability in permit conditions from 
different regulatory authorities with respect to OB/OD units.
    EPA is proposing a new subpart, subpart Y, to establish technical 
standards for OB/OD units. EPA anticipates this would increase 
consistency in permitting OB/OD units and provide minimum criteria for 
protecting human health and the environment.
Proposed Revisions and Supporting Rationale
    EPA is proposing, in new subpart Y, to establish technical 
standards for OB/OD units at Sec. Sec.  264.708, 264.710, and 264.712 
and in the interim status regulations in Sec. Sec.  265.708, 265.710, 
and 265.712. Many of the requirements proposed are derived from what 
most OB/OD permits currently require. In addition, feedback received 
from EPA's early engagement on the proposed rulemaking confirmed broad 
consensus among permitting authorities and regulated entities that 
these technical standards are appropriate and are, in many cases, 
already in use.
    EPA's approach in the proposed regulations is to not prescribe 
specific quantitative limits, thresholds, or values, but rather to 
propose Sec. Sec.  264.708 and 264.710 operating and monitoring 
requirements that must be considered, and included as applicable, in 
the subpart Y permit. This is to preserve the flexibility needed for 
permitting authorities to determine specific conditions on a facility- 
and waste-specific basis. The permitting authority, with input from the 
facility's permit application and received during public comment on the 
draft permit, would determine the appropriate limits for each 
requirement and issue them as conditions of the final permit. 
Specifically, EPA is proposing the following requirements for subpart Y 
OB/OD units.
    Under Sec.  264.708(a), EPA is proposing that each waste stream be 
treated by OB/OD as specified in the permit. This provision includes 
language for acceptable variation within a waste stream that is deemed 
acceptable to the permitting authority.
Operating Requirements
    Under Sec.  264.708(b), EPA is proposing that optimal parameters 
for OB/OD operation of the unit be specified to minimize the amount of 
residue and particulate matter that could cross the facility's 
boundary, for example, through movement of a plume. Restrictions on 
timing of OB/OD based on wind speed, wind direction, weather conditions 
(e.g., precipitation), humidity, cloud ceiling level, and, as 
appropriate, air pollution status may be necessary to reduce the 
potential for contaminants to migrate through the air and into 
communities, where they can deposit onto the soil and leached into 
groundwater used for irrigation and drinking water. For example, 
certain restrictions based on wind direction may be needed to reduce 
plume migration over a nearby community or water body. To ensure set 
parameters are adhered to, EPA is also proposing that owners/operators 
be required to monitor and record atmospheric conditions, as 
applicable. EPA is also proposing that limits, as appropriate, on 
frequency of OB/OD events and quantity (e.g., by weight and or NEW) be 
established per event, day, and/or year. In addition, EPA proposes 
under this section to include restrictions on timing of OB/OD events 
(e.g., limit OB/OD to daytime hours only to allow for monitoring of 
plumes or during certain times of the day to minimize disruption to 
nearby community activities). EPA proposes noise and ground vibration 
exposure limits for areas outside the facility boundary. In order to 
comply with noise and ground vibration limits, it may be necessary for 
the facility to change operations such as atmospheric restrictions, 
maximum NEW per event, or engineering controls. If the facility is 
unable to comply with noise or ground vibration limits, the unit may 
need to be relocated.
    Under Sec.  264.708(b)(6), EPA is proposing that specific design 
and operating requirements for the OB/OD unit be identified. This 
includes design specifications for the unit (e.g., pan, pit, cage) to 
include containment devices (e.g., metal lids or covers for burn pans 
or soil covers for OD units), secondary containment (e.g., liners), and 
other appropriate engineering controls (e.g., stormwater run-on and 
run-off controls). Controls and measures could include concrete pads 
with integrated curbs and sump pumps, lined drainage ditches, 
collection basins, blast barriers/shields/blankets, and berms. Routine 
operation and maintenance standards including removal of residues, 
kickout, and visible surface contamination (e.g., black soot, staining, 
ejecta) from the unit and surrounding area should be considered. 
Overall, the design and operation of the unit should prevent or 
minimize surface, subsurface, and groundwater contamination and aerial 
dispersion and release and/or migration of residues, kickout, and 
contaminants into the environment. Considerations for depth to 
groundwater and distances to surface water, property boundary, and 
sensitive receptors such as residences, schools, and daycares should 
also be considered. Surface water, as defined in Sec.  141.2, is ``all 
water which is open to the atmosphere and subject to surface runoff.'' 
This definition includes, but is not limited to, lakes, ponds, streams, 
rivers, coastal waters, reservoirs, and temporary waters from storm 
surges or similar that are affected by surface runoff. Design and 
construction of the units should take into account the potential for 
climate change impacts, such as changes to precipitation and to 
groundwater levels and flow, potential extreme weather events, and, as 
appropriate, the potential for sea-level rise. Considerations for areas 
in 100-year floodplains must also be considered under existing 
requirements in Sec.  264.18(b).
    EPA is proposing Sec.  264.708(b)(8) to require a safe distance 
plan to be included in the permit. Under Sec.  264.708(b)(9), 
facilities would have a security plan and controls to minimize public 
access to the OB/OD units. Security may be done through a variety of 
methods, one being the addition of fencing the perimeter of the unit 
including the kickout area.
Public Notice and Outreach Plan
    EPA recognizes the importance of, and is committed to, community 
involvement on a site-specific basis both during the permitting process 
and during the life of the permitted unit. Public participation plays 
an integral role in bringing government, private industry, public 
interest groups, and communities together to engage on important 
decisions about hazardous waste management facilities.\56\ Section 
7004(b) of RCRA and EPA RCRA permitting regulations, found at parts 124 
and 270, form the foundation for mandatory public participation 
activities during the permitting, renewal, and modification processes.
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    \56\ Executive Order 14096: Federal Register Revitalizing Our 
Nation's Commitment to Environmental Justice for All.
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    In addition to agency-led public participation in these permitting

[[Page 19981]]

processes, it is important for facility owners/operators to engage with 
communities directly, on an ongoing basis, to learn about citizens' 
concerns and share information; this engagement can provide 
opportunities for the public to provide valuable information and ideas 
that improve the quality of public health protection. EPA is proposing 
Sec.  264.708(b)(10) that owners/operators develop a public notice and 
outreach plan so that communities are informed of facility actions and 
can fully consider and raise issues about activities that impact 
community health. Under Sec.  264.708(b)(10), OB/OD permits would have 
to include conditions requiring a public notice and outreach plan 
including notice to the surrounding community of OB/OD activities and 
events, the method of notice distribution, method(s) for community 
members to contact the facility with questions or concerns, and the 
timeframe for any notifications. The outreach plan would not need to 
include a schedule of OB/OD activities, but it would include the method 
and frequency of notification to the surrounding communities. All 
outreach plans would include how information would be made public 
regarding contaminants emitted, released, or ejected from the OB/OD 
operations and environmental monitoring results and data (described in 
the Monitoring Requirements section and Sec.  264.710). The outreach 
plan should tailor public participation approaches to reach out 
effectively to the specific populations in the community. Examples 
include using translation or interpretation services; providing 
multilingual fact sheets and other information; partnering with 
community groups or community leaders; and using non-traditional media 
outlets for outreach.
Monitoring Requirements
    Under Sec.  264.710(a), EPA is proposing owners/operators of OB/OD 
units be required to develop plans for and conduct soil, sediment, 
surface water, stormwater, groundwater, and air monitoring, as 
appropriate per site-specific conditions. Monitoring plans would 
include plans for sampling, analysis, evaluation, reporting, and 
appropriate response actions. Monitoring plans would address the 
principal products, constituents, byproducts, and other releases to the 
environment specific to the wastes treated in the OB/OD unit that have 
the potential to migrate outside the unit boundary and adversely affect 
human health and the environment. For each monitored constituent and 
media type (soil, water, air, etc.), the monitoring plan would include 
an action level, a concentration or amount where the facility must take 
appropriate action to mitigate and manage the release of contamination, 
based on the best available science. EPA notes that many of the 
requirements set forth in this section of the proposal are already in 
effect at many facilities. Existing monitoring may be incorporated into 
the new subpart Y permit if it meets the minimum standards in the 
proposal. The purpose of this requirement is to ensure that the subpart 
Y permitted unit is protective of human health and the environment. 
Because OB/OD units are not contained and have no controls on releases, 
monitoring of environmental media is critical to ensure hazardous 
constituents are not migrating beyond the unit boundary. In addition, 
monitoring would provide for early detection of releases, and allow 
releases to be addressed in a timely manner. This section of the 
proposed regulations outlines minimum frequencies for the required 
monitoring in Sec.  264.710(a). However, in Sec.  264.710(c), EPA is 
proposing that the minimum monitoring frequencies may be reduced if the 
unit is not used frequently enough to warrant the outlined monitoring 
plans, the permit limits the OB/OD treatment activity in the unit, and 
the Director makes the determination that a reduced monitoring plan is 
acceptable for the site. Monitoring may not be required for specific 
media if there are no pathways for contaminants to reach receptors, and 
the Director makes the determination it is not needed.
    Under Sec.  264.710(a)(1), EPA proposes groundwater monitoring 
requirements, including an upgradient well for background monitoring 
and that all downgradient wells be located to detect potential releases 
of contaminants to uppermost flow zones and preferential flow paths 
(pathways allowing more rapid transport of water into soil and 
groundwater). Approved groundwater monitoring would continue until the 
unit completes RCRA closure and is under a post-closure permit as 
applicable. Such a plan would include piezometers to identify and track 
changes to groundwater direction and flow, unless the Director 
determines they are not necessary for the particular unit and facility 
due to hydrogeologic conditions. EPA is also proposing stormwater and 
surface water monitoring plans in Sec. Sec.  264.710(a)(2) and 
264.710(a)(3) respectively. Determinations and plans related to 
groundwater and stormwater should take into account the potential for 
climate change impacts, such as changes to precipitation and to 
groundwater levels and flow, potential extreme weather events, and, as 
appropriate, the potential for sea-level rise. Owners/operators would 
design and propose plans to detect any potential releases from the OB/
OD, and all monitoring would be conducted regularly according to an 
approved monitoring plan until the unit completes RCRA closure and is 
under a post-closure permit as applicable. Sediments in surface water 
would be monitored under an approved sediments sampling plan.
    Under Sec.  264.710(a)(4), EPA proposes monthly soil monitoring for 
the area around the unit. The owner/operator must test for 
contamination and contamination is found at or above the action level 
specified in the monitoring plan, the owner/operator would take 
appropriate response actions as required in the monitoring plan. One 
possible response is the periodic removal of residuals and contaminated 
soil. This soil does not include soil or environmental media used as 
engineering controls such as soil cover for detonation events, but this 
requirement includes the soil around the unit to detect potential 
releases into the environment.
    EPA is proposing air monitoring plans under Sec.  264.710(a)(5). 
Owners/operators would design and implement a plan to detect potential 
releases into the air from the OB/OD unit. At a minimum, these would 
include an upwind sampling point not impacted by other OB/OD operations 
to determine a background with ambient concentrations unless the 
facility makes the assumption there is zero background contamination. 
The testing would include at least one monitoring station as close to 
the OB/OD unit as possible downwind of the prevailing wind direction. 
It should be noted that due to the difficulties of sampling OB/OD 
emissions (described in recent studies in sampling OB emissions with 
drones \57\) and relating the results to total emissions and exposure, 
finding high levels of contaminants in air monitoring results may 
indicate a need for further investigation or controls, but sampling 
results that do not find high levels of contaminants do not provide 
conclusive proof that the OB/OD operation poses no risk.
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    \57\ Aurell, J. Field Determination of Multipollutant, Open Area 
Combustion Source Emission Factors with a Hexacopter Unmanned Aerial 
Vehicle. Atmos Environ (1994). 2017 Oct 20, 166(11): 433-440. 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6223134/.
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    In Sec.  264.710(a)(6), owners/operators must monitor air smoke 
plumes during each OB/OD event. The visual

[[Page 19982]]

monitoring must include direction, duration, extent, opacity, and 
whether the plume goes off facility.
    Under Sec.  264.710(a)(7), kickout monitoring and retrieval plans 
would be required. After each OB/OD event, owners/operators would 
monitor and record all kickout, including distance from the unit, 
description of waste, and location for all kickout that goes off the 
facility boundary. On a weekly basis, the owner/operator would retrieve 
all kickout that goes off the facility and keep a record of all such 
kickout. If a landowner refuses entry for this purpose, the facility 
would still document the ejecta and suspected location. The owner/
operator should reduce the NEW per event if the kickout regularly 
exceeds the unit or facility boundary; they may also request a permit 
modification to expand the unit boundary. These records would be 
maintained on-site for the operating life of the unit and until all 
remaining kickout is found and treated or until RCRA closure and a 
post-closure permit is issued as applicable.
Recordkeeping, Reporting, Inspection, and Training Requirements
    Under Sec.  264.712, EPA is proposing to require recordkeeping, 
reporting, inspection, and training requirements. The proposed 
requirements are supplementary to the general permitting requirements 
found in Sec. Sec.  264.15 and 264.16, subparts C and D, and Sec.  
264.73 to clarify and to add additional provisions that are applicable 
to OB/OD units. Under Sec.  264.712(a), owners/operators would be 
required to maintain records of all wastes treated by OB/OD and 
associated treatment events. This section expands the description and 
record of treated waste required in Sec.  264.73 to include chemical 
composition of energetic and inert chemicals, materials, and binders; 
physical form/dimensions/composition; description of casing; number of 
items; total weight; and NEW. Much of the information required for the 
recordkeeping would be included in the waste analysis for the waste 
stream treated with OB/OD. This information may be referenced as part 
of the facility records. These records would include a description of 
wastes treated, time and duration of treatment, atmospheric conditions 
at time of treatment, and a description of any performance issues 
(incomplete treatment, smoldering, black plumes beyond facility 
boundary, releases of ejecta or kickout from the unit boundary) and 
response actions taken (e.g., collection and reburn events).
    In Sec.  264.712(b), EPA is proposing minimum inspection schedules 
in addition to those found in Sec.  264.15. However, EPA is proposing 
that the minimum inspection frequencies may be reduced if the unit is 
not used frequently enough to warrant the outlined inspection plans, 
the permit limits the OB/OD treatment activity in the unit, and the 
Director makes the determination that a reduced inspection plan is 
acceptable for the site. The proposed requirements include inspections 
of the OB/OD unit at the end of each waste treatment day, to identify 
and remove untreated wastes, debris, shrapnel, burn residues, and other 
material, and to identify obvious damage to the treatment unit that 
would affect unit performance. EPA is also proposing monthly 
inspections to verify structural integrity of the unit, e.g., ensuring 
concrete pads remain free of cracks and breaks. The inspection schedule 
may be reduced if unit activity decreases and the facility notifies the 
Director.
    For training under Sec.  264.712(c), EPA is proposing owners/
operators must train all personnel involved in the handling and OB/OD 
treatment of the waste at least annually and document that training, 
maintaining the training records until unit closure. The proposed 
language includes requirements specific to OB/OD units, including that 
the training must be tailored to the unique nature of the explosive 
wastes treated and that the training must be updated with each new 
waste stream or whenever operations change the way treatment is 
conducted for the unit.
    EPA proposes Sec.  264.712(d), reporting requirements specific to 
owner/operators of OB/OD units. Owners/operators would be required to 
report any unit failures to the Director within seven days. Unit 
failures are any event where the unit is damaged or where treatment 
does not occur in the OB/OD unit as intended. The unit failure cause 
and the potential correction/repair for the unit must then be submitted 
to the Director within 30 days of initial failure. Annual reporting 
would consist of a summary of all documented treatment residues and 
untreated waste beyond the OB/OD area from the biannual inspection in 
Sec.  264.712(b). The owners/operators would report all unauthorized 
releases of hazardous constituents and treatment byproducts 
immediately. The Director may request records as they deem necessary.
Closure and Post-Closure Requirements
    The general requirements for closure and post-closure are under 
part 264, subpart G, Sec. Sec.  264.110 through 264.120 and part 265, 
subpart G, Sec. Sec.  265.110 through 265.121 for interim status units. 
Because EPA is proposing technical standards for OB/OD units in the new 
subpart Y, EPA is also proposing to reference the subpart G standards 
in the new subpart and include additional standards for OB/OD units in 
the new Sec. Sec.  264.714 and 265.714. The subpart G closure standards 
require that all contaminated equipment, structures, and soils must be 
properly disposed of or decontaminated. For OB/OD units, this could 
entail removal of all explosive waste and its decomposition products, 
leachate, run-off, soils, and subsoils contaminated with explosive 
wastes as well as containment system components such as liners and 
liner systems and equipment contaminated with explosive waste and/or 
leachate.
    In addition to the subpart G standards, EPA is proposing to add to 
subpart Y at Sec.  264.714 that, if after conducting removal and 
decontamination and making all reasonable efforts to remove or 
decontaminate any contaminated components, soils, subsoils, structures, 
and equipment, the owner/operator finds that not all contaminated soils 
and subsoils can be practicably removed or decontaminated, the owner/
operator must close the unit and perform post-closure care in 
accordance with the closure and post-closure requirements that apply to 
landfills at Sec.  264.310. EPA believes that this proposed regulatory 
language is needed based on the closure case study EPA conducted for 
nine OB/OD facilities (see footnote 5). The results of the study show 
that, of the nine facilities that have performed closure, most continue 
to have contamination in the soil, subsoil, and groundwater that cannot 
be removed or remediated to required action levels for the specified 
future land use. In addition, some of these facilities' closure plans 
do not include the necessary monitoring for the waste left in place. 
EPA expects that adding this language will ensure application of the 
appropriate closure standards and thus, more protective measures to be 
enacted.
    Should an OB/OD unit be closed as a landfill unit and a cover or 
cap is emplaced to prevent migration of contamination, Sec.  264.310 
requires that the integrity and effectiveness of the final cover be 
maintained during the post-closure period. EPA proposes at Sec.  
264.714(b), in addition to the requirements of Sec.  264.310, to 
require that, before any final engineered cap or vegetation cover is 
put in place, any remaining waste explosives and waste explosive 
residues concentrations be remediated to levels to ensure that the

[[Page 19983]]

explosive safety hazard is no longer present. EPA proposes this 
additional requirement based on the safety and environmental hazards 
associated with waste explosives and unexploded ordnance (UXO) when 
left in place. There have been several instances where waste explosives 
and UXO were left in place, or consolidated and buried, and covered, 
causing a range of issues from underground fires to flooding and frost 
eroding the cover and exposing the waste.\58\ As a result, EPA believes 
that waste explosives, UXO, and explosive waste residues must be 
remediated and removed to levels that no longer present an explosive 
safety hazard prior to placement of a cap or cover. However, EPA does 
believe that a cover or cap would be appropriate after removal and when 
contaminated soil has been remediated to levels that the explosives 
concentration no longer presents an explosives safety hazard and 
proposes this condition accordingly. Explosive materials left in the 
environment present unique safety hazards because the material is 
unreacted and thus, there is potential for an accidental explosion when 
disturbed. During the closure process, soils containing less than 10 
percent explosives by weight are considered to be 
unreactive.59 60 Therefore, if closure activities 
successfully remove the safety hazard as verified by testing to 
determine the explosive concentration, a cover or cap would be 
acceptable.
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    \58\ In Badger, WI, explosives and explosive residues were 
buried, and a prescribed burn ignited the residues causing an 
underground fire for 1\1/2\ days. Ft. Wainwright, AK, had flooding 
and frost, which eroded the cover, exposing munitions that the 
public accessed.
    \59\ Approaches for the Remediation of Federal Facility Sites 
Contaminated with Explosive or Radioactive Wastes; EPA Handbook, 
Office of Research and Development; EPA/625/R-93/013, September 
1993. See p.30.
    \60\ EPA Federal Facilities Forum Issue Paper: Site 
Characterization for Munitions Constituents. EPA-505-S-11-001, 
January 2012. See p. 136.
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Summary and Request for Comment
    EPA is proposing to establish technical standards specific for OB/
OD units as part of a new subpart Y. Should EPA finalize this 
rulemaking and after the effective date of the final rule, OB/OD units 
would be permitted in accordance with the new standards under subpart 
Y, rather than the subpart X performance-based standards. EPA requests 
comments on the proposed technical standards in Sec. Sec.  264.708, 
264.710, and 264.712. In addition, EPA requests comment on whether 
additional technical standards should be incorporated for OB/OD units 
and on the proposed requirements for closure and post-closure in 
addition to the subpart G standards. EPA seeks comment on the public 
notice and outreach plan requirements, including what elements will 
best support meaningful involvement. EPA also requests comment on 
whether more frequent reporting and data submission requirements would 
be appropriate and on additional requirements recordkeeping 
requirements to document movement of waste explosives between storage 
and treatment. Based on the level of support in public comments, EPA 
may include additional technical standards or other closure and post-
closure requirements in the final rulemaking.

H. Wastes Prohibited From OB/OD

Introduction and Description of Wastes To Prohibit From OB/OD
    As discussed in section II.A., OB/OD lacks controls needed for 
complete combustion and for control of emissions. EPA is thus 
particularly concerned about OB/OD treatment of waste streams that 
contain chemicals or explosive material that require very high 
temperatures for sustained periods of time to ensure adequate 
destruction and/or ensure that hazardous byproducts or products of 
incomplete combustion do not form. In addition, EPA is concerned with 
OB/OD treatment of wastes that may release particularly toxic or 
dangerous contaminants that would threaten human health and the 
environment.
    Many chemicals or wastes that are difficult or impossible to 
destroy by OB/OD and/or would pose acute threats to human health and 
the environment such as chemical, nuclear, and biological agents, are 
already restricted or prohibited from treatment by OB/OD. Most 
permitting authorities also restrict or prohibit treatment of certain 
waste streams by OB/OD in permits. However, because EPA had not 
previously promulgated specific technical standards for OB/OD units, 
the RCRA regulations remain silent on this issue. In addition, EPA is 
aware of emerging chemicals or contaminants of concern (see footnote 
3), like certain insensitive high explosive (HE) formulations, for 
which treatment by OB/OD is ineffective or could pose significant risk 
to human health and the environment through dispersal of contaminants.
Proposed Revisions and Supporting Rationale
    The wastes containing the chemicals or explosive materials 
discussed in this preamble either adversely affect or pose a threat to 
human health and the environment. This is because many of these 
chemicals have high mobility in air, soil, and groundwater resulting in 
contamination of soil, water, plants, and food, as well as direct 
exposure to humans by inhalation, ingestion, or dermal contact. Also, 
some of these chemicals can transform into more toxic compounds, 
enhance the solubility and migration capacity of other contaminant 
metals, persist in the environment, and bioaccumulate in the food 
chain. Treatment of these wastes by OB/OD can cause the dispersal of 
these chemicals into the air and onto the ground, providing a pathway 
to enter the soil, waterways, livestock, and crops.
    For these reasons, including that many RCRA permits already 
prohibit many of the chemicals and explosive items discussed, EPA is 
proposing Sec. Sec.  264.708(b)(11) and 265.708(b)(11) to prohibit 
treatment by OB/OD of chemical weapons,\61\ mixed waste containing 
depleted uranium (DU), white and red phosphorus, Picatinny Arsenal 
Explosive-21 (PAX-21), and PCBs. The proposed wastes to prohibit will 
not apply in emergency response situations.
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    \61\ In this proposal, EPA is proposing the definition in 32 CFR 
179.3: ``means generally configured as a munition containing a 
chemical compound that is intended to kill, seriously injure, or 
incapacitate a person through its physiological effects. CWM 
includes V- and G-series nerve agents or H-series (mustard) and L-
series (lewisite) blister agents in other-than-munition 
configurations; and certain industrial chemicals (e.g., hydrogen 
cyanide (AC), cyanogen chloride (CK), or carbonyl dichloride (called 
phosgene or CG)) configured as a military munition. Due to their 
hazards, prevalence, and military-unique application, chemical agent 
identification sets (CAIS) are also considered CWM. CWM does not 
include riot control devices; chemical defoliants and herbicides; 
industrial chemicals (e.g., AC, CK, or CG) not configured as a 
munition; smoke and other obscuration-producing items; flame and 
incendiary-producing items; or soil, water, debris, or other media 
contaminated with low concentrations of chemical agents where no CA 
hazards exist. For the purposes of this Protocol, CWM encompasses 
four subcategories of specific materials: (1) CWM, explosively 
configured are all munitions that contain a CA fill and any 
explosive component. Examples are M55 rockets with CA, the M23 VX 
mine, and the M360 105-mm GB artillery cartridge. (2) CWM, 
nonexplosively configured are all munitions that contain a CA fill, 
but that do not contain any explosive components. Examples are any 
chemical munition that does not contain explosive components and VX 
or mustard agent spray canisters. (3) CWM, bulk container are all 
non-munitions-configured containers of CA (e.g., a ton container) 
and CAIS K941, toxic gas set M-1 and K942, toxic gas set M-2/E11. 
(4) CAIS are military training aids containing small quantities of 
various CA and other chemicals. All forms of CAIS are scored the 
same in this rule, except CAIS K941, toxic gas set M-1; and CAIS 
K942, toxic gas set M-2/E11, which are considered forms of CWM, bulk 
container, due to the relatively large quantities of agent contained 
in those types of sets.

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[[Page 19984]]

Chemical Weapons
    Chemical weapons were produced by the United States from World War 
I to 1968. These weapons were never used in battle and are now obsolete 
and deteriorating with time. These chemical weapons are made of nerve 
agents (sarin, tabun, VX) and vesicant, or blister agents (sulfur 
mustards agents H/HD and HT, lewisite).\62\ Nerve agents are like 
organophosphate pesticides, but much more potent, and exert their 
adverse effects by interfering with the nervous system. Humans can be 
exposed to nerve agents through inhalation, ingestion, skin, or eye 
contact. Exposure to low or moderate doses of sarin can cause several 
effects including but not limited to chest tightness, cough, rapid 
breathing, confusion, and drowsiness among many other effects. Large 
doses of this agent can cause loss of consciousness, convulsions, 
paralysis, and respiratory failure possibly leading to death.\63\ 
Exposure to tabun causes adverse effects including but not limited to 
miosis, nausea, vomiting, dyspnea, and cramping. Severe effects include 
loss of consciousness, seizures, muscular twitching, floppy paralysis, 
secretions from nose and mouth, apnea, and death.\64\ VX is persistent 
in the environment and exposure to this agent has effects similar to 
those of tabun.\65\
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    \62\ History of U.S. Chemical Weapons Elimination, https://www.cdc.gov/nceh/demil/history.htm.
    \63\ Sarin: Exposure, Decontamination, Treatment, https://emergency.cdc.gov/agent/sarin/basics/facts.asp.
    \64\ Tabun (GA): Nerve Agent, https://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750004.html.
    \65\ VX: Nerve Agent, https://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750005.html.
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    Vesicants or blister agents combine with proteins and 
deoxyribonucleic acid (DNA) to cause cellular changes immediately after 
exposure. Clinical effects include skin erythema, blistering, 
pharyngitis, cough, dyspnea, conjunctivitis, burns, nausea, and 
vomiting. Other effects include but are not limited to necrosis, 
blindness, atrioventricular block, cardiac arrest, conclusions, coma, 
anemia, hemorrhage, and bone marrow suppression, among others.\66\
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    \66\ Vesicant/Blister Agent Poisoning, https://emergency.cdc.gov/agent/vesicants/tsd.asp.
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    Congress ordered the destruction of all U.S. chemical weapons in 
The DoD Authorization Act, 1986 (Pub. L. 99-145) and for that process 
to be carried out by the U.S Army in a manner to protect the 
environment, the public, and workforce.\67\ Subsequent National Defense 
Authorization Acts directed research into alternatives to incineration 
for chemical weapons, created Chemical Demilitarization Citizens' 
Advisory Commissions, and formed the Assembled Chemical Weapons 
Assessment program (ACWA).\68\ ACWA activities have continued since its 
creation, and at the time of this proposal, the Army has destroyed the 
remaining U.S. chemical weapons stockpile. The final two facilities 
that recently completed their activities were using alternative 
technologies. There are no chemical weapons being treated via OB or OD 
today. To remain consistent with current bans and practices, EPA is 
proposing to ban all chemical weapons from OB/OD.
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    \67\ Facts: Assembled Chemical Weapons Alternatives Program 
Legislation, https://www.peoacwa.army.mil/2021/03/12/facts-peo-acwa-program-legislation.
    \68\ Assembled Chemical Weapons Alternatives, https://www.peoacwa.army.mil/wp-content/uploads/ACWA_Program_Legislation_1985-2022_FINAL_21April2022.pdf.
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Mixed Waste Containing Depleted Uranium
    Mixed waste, as defined in Sec.  266.210, is waste that contains 
both RCRA hazardous waste and source, special nuclear, or byproduct 
material subject to the Atomic Energy Act of 1954. Thus, waste 
explosives (which are RCRA hazardous waste due to their reactivity 
characteristic) and which contain depleted uranium are considered mixed 
wastes under RCRA. EPA has promulgated a conditional exemption from the 
regulatory definition of hazardous waste for low-level mixed waste in 
part 266, subpart N; however, treatment by OB/OD is not eligible for 
this condition exemption. Specifically, Sec.  266.235 prohibits under 
the conditional exemption the treatment of mixed waste that cannot be 
done in a tank or container without a permit.
    Uranium ore occurs naturally in the environment and contains 
several forms of uranium known as isotopes (U-234, U-235, and U-238). 
All uranium isotopes are radioactive; however, only one of these 
isotopes, Uranium-235 (U-235),\69\ provides the fuel used to both 
produce nuclear power and in development of nuclear weapons. In nature, 
U-235 only makes up a very small part of the uranium ore. Given its 
importance for nuclear power and nuclear weapons technology, U-235 is 
often removed from the natural uranium ore and concentrated through a 
process called uranium enrichment. DU is the material left behind after 
enrichment. As with natural uranium ore, DU is radioactive.\70\ 
Radioactive contaminants can be released to the environment if 
munitions or other materials containing DU are open burned or 
detonated.
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    \69\ Uranium-235, https://comptox.epa.gov/dashboard/chemical/details/DTXSID80872929.
    \70\ Depleted Uranium, https://www.epa.gov/radtown/depleted-uranium.
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    Exposure to DU occurs through inhalation, ingestion, and skin 
contact.\71\ The most likely route of DU exposure is through 
inhalation. Burning or detonating waste containing DU does not destroy 
or treat the DU to make it less radioactive or toxic. OB/OD causes DU 
to enter the air where it is suspended in the atmosphere, eventually 
depositing on the ground and potentially migrating to surface and 
groundwater, where it poses a risk of contaminating plants and 
livestock. Ingestion of DU could then occur through the consumption of 
the contaminated livestock, vegetation, and drinking water.\72\ Skin 
contact itself is not considered a hazard, but DU can enter the body 
through open wounds. DU is toxic in humans and can cause detrimental 
health outcomes. High concentrations of uranium retained in the kidneys 
have potential to damage the organ and cause renal failure. Due to the 
radioactive nature of the waste, DU can irradiate the organs once 
inside the body. Increased cancer risk is also a concern, caused by 
exposure to radiation emitted from DU.
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    \71\ Chemical Effects of DU, https://health.mil/Military-Health-Topics/Health-Readiness/Environmental-Exposures/Depleted-Uranium/Effects-and-Exposures/Chemical-Effects.
    \72\ Depleted Uranium, https://www.iaea.org/topics/spent-fuel-management/depleted-uranium.
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    It is EPA's understanding that no OB/OD units currently treat mixed 
waste containing more than trace amounts of DU. Because of its acute 
effects to human health and the environment, EPA is proposing to 
prohibit treatment by OB/OD of mixed wastes containing more than trace 
amounts of DU.
White and Red Phosphorus
    White phosphorus \73\ is produced from rocks containing phosphate 
and used in the manufacture of munitions, pyrotechnics, explosives, 
smoke bombs, and other uses.\74\ Yellow phosphorus is another term for 
white phosphorus that contains impurities in the crystalline structure 
causing yellowing. White phosphorous is pyrophoric and ignites in 
contact with oxygen. Upon auto-ignition with air, white phosphorous can 
form a phosphoric acid residue causing further contamination and 
damage. Red phosphorus forms when

[[Page 19985]]

white phosphorus is exposed to high heat or light radiation, causing 
the crystalline structure of white phosphorus to become amorphous. Due 
to this amorphous nature, red phosphorus is more stable than white/
yellow phosphorous under standard conditions. These chemicals are waxy 
crystalline solids.\75\
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    \73\ White Phosphorus (P4), https://comptox.epa.gov/dashboard/chemical/details/DTXSID90923991.
    \74\ Phosphorus Hazard Summary, https://www.epa.gov/sites/default/files/2016-09/documents/phosphorus.pdf.
    \75\ White phosphorus, https://www.acs.org/content/acs/en/
molecule-of-the-week/archive/w/white-
phosphorus.html#:~:text=White%20phosphorus%20is%20one%20of,darkened%2
0from%20exposure%20to%20lightml.
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    Exposure routes of white and red phosphorus include absorption 
through the skin, inhalation, and ingestion. This chemical can cause 
contamination of the local air, waterways, fish, birds, and soils.\76\ 
When white phosphorus enters water with low oxygen, it may degrade to a 
highly toxic compound called phosphine. Phosphine accumulates in fish 
that live in contaminated water bodies and can also remain intact in 
deep soil at low oxygen concentrations. Phosphine is known to cause 
respiratory, neurological, and gastrointestinal effects. Some of the 
symptoms include headaches, drowsiness, vomiting, gastrointestinal 
distress, cough with fluorescent green sputum, and pulmonary irritation 
and edema, among others. Animal studies have shown that phosphine can 
cause effects to the liver, kidney and spleen, and other effects 
including paralysis, convulsions, and dyspnea.\77\
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    \76\ White Phosphorus--ToxFAQs, https://www.atsdr.cdc.gov/toxfaqs/tfacts103.pdf.
    \77\ Phosphine Hazard Summary, https://www.epa.gov/sites/default/files/2016-09/documents/phosphine.pdf.
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    White and red phosphorus can cause severe irritation, second to 
third degree burns, spasmodic blinking, increased sensitivity to light, 
and damage to the cornea upon eye contact. This substance can be 
absorbed through the skin and cause systemic effects. If inhaled, it 
can cause systemic effects, pulmonary edema, and upper respiratory 
tract irritation. Ingestion of phosphorus can cause nausea, vomiting, 
diarrhea, severe abdominal pain, burning pain in the throat along with 
intense thirst, and death may occur due to cardiovascular collapse.\78\
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    \78\ White Phosphorus: Systemic Agent, https://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750025.html.
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    Given the extreme reactivity of white and red phosphorous with 
oxygen and the severe health impacts caused by exposure, EPA is 
proposing to prohibit treatment of wastes containing white and red 
phosphorous by OB/OD.
Improved Conventional Munitions (ICMs) and Submunitions
    ICMs and cluster bombs are munitions characterized by the delivery 
of two or more antipersonnel, anti-material, or anti-armor submunitions 
(also known as bomblets) by a parent munition.\79\ ICMs and cluster 
bombs employ submunitions to affect an area with more than one target, 
such as dispersed enemy formations, ground and air defense units, and 
other mixed unit targets.\80\ OD of these types of wastes has resulted 
in sites that cannot be adequately cleaned up due to the presence of 
dangerous kickout which may be armed.\81\ This results in permanent 
restrictions on any future land use, as is the case of Fort Wingate 
Depot Activity in New Mexico.\82\ An Army policy dated March 2, 2001, 
restricted the maintenance, characterization, clearance of ranges and 
other areas known or suspected of containing ICMs and submunitions.
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    \79\ Improved Conventional Munitions and Submunitions, https://apps.dtic.mil/sti/pdfs/ADA402342.pdf.
    \80\ Improved Conventional Munitions Policy, https://csbaonline.org/uploads/documents/Improved_Conventional_Munitions_FINAL3.pdf.
    \81\ A Global Overview of Explosive Submunitions, https://www.hrw.org/sites/default/files/related_material/submunitions.pdf.
    \82\ FORT WINGATE DEPOT ACTIVITY Base Realignment & Closure 
Installation Action Plan, https://www.ftwingate.org/docs/pub/FWDA_IAP_FY07.pdf.
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    Because treatment by OB/OD causes dangerous dispersal, rather than 
destruction, of these wastes, and land unsuitable for future use, EPA 
is proposing to prohibit treatment of ICMs and submunitions by OB/OD.
Picatinny Arsenal Explosive--21 (PAX-21)
    Insensitive munitions (IM) are munitions developed to operate with 
the same performance as conventional/traditional munitions but more 
safely as they are less sensitive to external stimuli such as heat, 
shock, or impact.83 84 Insensitive high explosive (HE) 
formulations are the chemical constituents in the energetic material 
and other materials that add to the munitions insensitivity.\85\ This 
includes solid high-energy materials, energetic plasticizers which 
alter the mechanical properties to increase material flexibility, and 
polymeric binders, which bind all the chemicals together.\86\
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    \83\ Anniyappan, M., Talawar, M.B., Sinha, R.K. et al. Review on 
Advanced Energetic Materials for Insensitive Munition Formulations. 
Combust Explos Shock Waves. (2020). 56, 495-519. https://doi.org/10.1134/S0010508220050019.
    \84\ NATO Standard--Policy for Introduction Assessment of 
Insensitive Munitions (IM).
    \85\ The physical design and materials of the munition also are 
developed to be insensitive.
    \86\ Emily May Lent, Glenn Leach & Mark S. Johnson (2021), 
Development of health-based environmental screening levels for 
insensitive munitions constituents, Human and Ecological Risk 
Assessment: An International Journal, 27:6, 1543-1567, DOI: 10.1080/
10807039.2020.1859352.
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    The incomplete detonation of IM and insensitive HE formulations 
results in unreacted materials being released to the environment, 
potentially causing adverse effects to the human health and the 
environment. Detonation tests were conducted on PAX-21 as part of the 
Strategic Environmental Research and Development Program (SERDP) 
Project ER-2219 and results showed a high deposition of ammonium 
perchlorate.87 88 Insensitive high explosive formulations 
have been shown to have low sorption to soil resulting in a high 
aqueous solubility, and potential to be transported to groundwater. Due 
to the greater likelihood of dispersal, rather than destruction, by OB/
OD and the adverse health impacts associated with these insensitive HE 
formulations, EPA is proposing to prohibit treatment of munitions 
containing PAX-21 by OB/OD.
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    \87\ Characterization of Residues from the Detonation of 
Insensitive Munitions SERDP Project ER-2219, https://apps.dtic.mil/sti/pdfs/AD1053694.pdf.
    \88\ Walsh MR, Walsh ME, Ramsey, CA, Thiboutot S, Ampleman G. 
Perchlorate contamination from detonation of insensitive high-
explosive rounds. J Hazard Mater. 2013 Nov 15; 262:228-33. 
doi:10.1016/j.hazmat.2013.08.045.
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Polychlorinated Biphenyls
    PCBs are a group of compounds manufactured from 1929 until 
manufacturing was banned under the Toxic Substances Control Act (TSCA) 
of 1976 and subsequent EPA regulations in 1979 (44 FR 31514, May 31, 
1979). PCBs consist of two connected phenyl rings with a number of 
chlorine atoms; the number and location of chlorine atoms on the rings 
determine the exact chemical, physical, and toxicological properties. 
PCBs have been demonstrated to cause cancer in animals, in addition to 
many other severe health effects including adverse effects to the 
immune, reproductive, nervous, and endocrine systems.89 90
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    \89\ PCBs: Cancer Dose-Response Assessment and Application to 
Environmental Mixtures, https://www.epa.gov/sites/default/files/2015-10/documents/pcbs_cancer_dose-response_assessment_and_application_to_environmental_mixtures.pdf.
    \90\ Learn About Polychlorinated Biphenyls, https://www.epa.gov/pcbs/learn-about-polychlorinated-biphenyls-pcbs#healtheffects.
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    The Federal PCB Regulations currently prohibit the OB of PCBs under 
Sec.  761.50(a)(1), ``No person may open

[[Page 19986]]

burn PCBs. Combustion of PCBs approved under Sec.  761.60 (a) or (e), 
or otherwise allowed under part 761, is not open burning.'' This ban 
includes any activity conducted at RCRA OB/OD units as those units are 
not approved for disposal under TSCA. To be consistent with the current 
PCB regulations, EPA is proposing to include a mirror provision in the 
RCRA regulations clarifying that treatment of PCB-containing waste by 
OB/OD is prohibited.

I. Delay of Closure for OB/OD Units

Introduction and Description
    Owners or operators of permitted and interim status TSDFs must 
comply with the facility closure standards in parts 264 and 265, 
subpart G, and the specific standards applicable to the unit in which 
they are managing hazardous waste. These closure standards require all 
owners/operators to treat, remove from the unit or facility, or dispose 
of on-site all hazardous waste in accordance with the approved closure 
plan within 90 days after receiving the final volume of hazardous waste 
or non-hazardous waste, or within 90 days after approval of the closure 
plan, whichever is later (Sec. Sec.  264.113(a) and 265.113(a)). In 
addition, the owner/operator must complete partial and final closure 
activities in accordance with the approved closure plan and within 180 
days after receiving the final volume of hazardous wastes or non-
hazardous wastes (Sec. Sec.  264.113(b) and 265.113(b)).
    The closure standards at Sec. Sec.  264.113 and 265.113 allow 
additional time for closure or ``delayed closure'' if the owner/
operator can make certain demonstrations. To qualify for delayed 
closure, the owner/operator must demonstrate that either the closure 
activities will require more time than allotted by the regulation, or 
that specific conditions related to recommencing operation of the unit 
after final receipt of hazardous or non-hazardous wastes can be met. 
For the latter, the owner/operator must demonstrate that the unit (or 
facility) has capacity to receive more waste, that there is a 
reasonable likelihood that operation of the unit will recommence within 
one year, and that closure of the unit would be incompatible with 
continued operation of the site. The owner/operator must also 
demonstrate that they have taken and will continue to take all steps to 
prevent threats to human health and the environment, including 
compliance with all applicable permit requirements.
    Any hazardous waste management facility can qualify for delayed 
closure by demonstrating they meet the regulatory requirements. The 
existing regulatory requirements allow for OB/OD units to delay 
closure; however, there are some OB/OD units that are impacted by 
activities that do not include waste management. EPA believes that 
additional bases for delayed closure would be appropriate for these OB/
OD units, considering circumstances unique to them. Specifically, these 
OB/OD units include those used for actions that involve munitions that 
are used for their intended purpose. Munitions used for their intended 
purpose include those used during training exercises, weapons testing, 
and range cleanup activities (see footnote 26). For these activities, 
the OB/OD unit is no longer treating waste explosives but continues to 
be used for activities that in effect, are using the same or similar 
materials to the RCRA hazardous waste. Therefore, it would be 
impractical to clean up and close OB/OD units that are no longer 
treating waste explosives, but that continue to use products that are 
not subject to RCRA that contribute the same or similar contaminants. 
In another scenario, some OB/OD units no longer treat hazardous or 
solid wastes but continue to receive waste explosives contaminants from 
adjacent operations, such as an active OB/OD unit or an active military 
range. Again, it would be impractical to require closure of the 
inactive unit when it will continue or has the potential to continue to 
receive the same or similar contaminants. However, these scenarios are 
not specifically addressed under the existing demonstrations in Sec.  
264.113 that allow more time for closure. To address these situations, 
EPA proposes to amend the delayed closure regulations and add a new 
section specific to OB/OD units under the new subpart Y--Open Burning 
and Open Detonation Units.
Proposed Revisions and Supporting Rationale
    As noted, the current delayed closure standards do not address the 
circumstances unique to OB/OD units when they no longer receive 
hazardous or solid wastes but continue to receive contaminants from 
products or when adjacent activities continue to contaminate an 
inactive unit. Therefore, EPA proposes to include eligibility 
requirements for delayed closure of these OB/OD units in the new 
subpart Y regulations at Sec. Sec.  264.713 and 265.713 titled Closure; 
time allowed for closure for certain activities. Also, EPA proposes to 
revise Sec. Sec.  264.113(b) and 265.113(b) to cross-reference the 
newly proposed Sec. Sec.  264.713 and 265.713 to direct the reader to 
the proposed additional bases for delayed closure for these unique 
circumstances. Last, consistent with current delayed closure 
requirements, EPA reiterates that the RCRA permit must be retained for 
the OB/OD unit until closure is completed.
    As discussed above, EPA believes that additional bases for delayed 
closure would be appropriate for certain activities at OB/OD units, due 
to unique situations related to these types of units. In particular, 
explosive or energetic products may continue to be used within the 
unit, or the unit may continue to receive munitions constituents or 
explosive waste contaminants from adjacent operations. The new 
regulations in part 264, subpart Y, Sec. Sec.  264.713 and 265.713 will 
address these situations for delayed closure only for these activities 
at OB/OD units. Otherwise, OB/OD units seeking delayed closure outside 
of these situations must demonstrate eligibility according to 
Sec. Sec.  264.113 and 265.113.
    EPA proposes to establish that OB/OD units used for activities such 
as training, weapons testing, and range cleanup are eligible for 
delayed closure under the proposed new regulations at Sec. Sec.  
264.713(a)(1) and 265.713(a)(1), because the existing closure 
regulations that allow delayed closure for hazardous waste management 
facilities do not account for activities unique to these OB/OD units. 
As with any other unit that has not certified closure, the OB/OD unit 
must maintain its permit during this delayed closure period. In 
addition to the unit's existing permit conditions, EPA proposes that 
the new monitoring requirements at Sec.  264.710 be applicable 
conditions which include monitoring of soil, groundwater, stormwater, 
surface water, and air as appropriate to the location and circumstances 
of use of the unit. These robust monitoring requirements serve to 
better ensure that contaminants do not migrate beyond the unit's 
boundary during the delayed closure period. The proposed requirements 
are located in the new Sec. Sec.  264.713(a)(3) and 265.713(a)(3).
    In addition, for OB/OD units that are no longer treating hazardous 
wastes, but that are located within or adjacent to an active OB/OD unit 
or active military range, EPA also proposes to establish that these OB/
OD units are eligible for delayed closure under the new regulations. 
Again, EPA believes that this is another situation unique to OB/OD 
units, which the existing regulations do not account for. For this 
situation, EPA is proposing that a requirement be included in the new 
regulation, in addition to complying with monitoring

[[Page 19987]]

requirements in Sec.  264.710, that a demonstration be made showing the 
potential for contamination from the adjacent activities as a condition 
of eligibility for the need for delayed closure under these 
circumstances. EPA proposes that a demonstration would include 
submission of maps illustrating the boundaries of the activities that 
overlap with the inactive unit's boundary, information about the 
activities that could impact the boundary of the inactive unit, 
meteorological conditions that could cause deposition of contaminants 
within the inactive unit boundary, and lastly, that all steps to 
prevent threats to human health and the environment have been taken and 
all applicable permit requirements, or interim status requirements, are 
being complied with. The proposed requirements are located in the new 
Sec. Sec.  264.713(a)(2) and 265.713(a)(2).
    As a final note, under either of these situations, the inactive OB/
OD unit in delayed closure status may be used for emergency treatment 
if that need arises. However, that action would fall under RCRA such 
that the unit's permit conditions would be applicable to the use of the 
unit. Although the explosives or munitions being treated under the 
emergency response are exempt from most RCRA provisions, including the 
need to obtain a permit, the unit itself may still have permit 
conditions that must be met. For example, when the OB/OD location is 
used for emergency response treatment, the applicable (and perhaps 
modified) operating, monitoring, and recordkeeping permit conditions 
must be complied with. For inactive OB/OD units that no longer treat 
hazardous waste, but which may be impacted by waste explosives from 
adjacent operations, such as emergency response to munitions or an 
active military range, it may not be appropriate to require regular 
monitoring of the OB/OD unit because the location may be receiving 
munitions constituents from non-RCRA munitions activities occurring 
near the inactive OB/OD units. Thus, it may be appropriate to modify 
monitoring as appropriate to the location and circumstances of use of 
the unit. For more information on emergencies and RCRA permitting, see 
Section K. Emergency Provisions.
    In regard to the timeline for notification of closure of OB/OD 
units, the closure regulations at Sec. Sec.  264.112(d) and 265.112(d) 
do not specifically refer to OB/OD units. For the time allotted for 
notification of the expected date to begin partial and final closure of 
units, EPA proposes to modify Sec. Sec.  264.112(d)(1) and 
265.112(d)(1) by adding OB/OD units to the types of units listed. The 
current regulations specify the time at which the notification of 
partial and final closure must occur according to the type of unit. For 
surface impoundments, waste piles, land treatment or landfill units, 
notification is required at least 60 days prior to the date in which 
partial or final closure is expected to begin. For treatment or storage 
tanks, container storage, incinerator units or boilers and industrial 
furnaces, notification is required at least 45 days prior. Since OB/OD 
units are treatment units that resemble land treatment units, EPA is 
proposing to revise paragraph (d)(1) to include OB/OD units in the list 
of units that must notify at least 60 days prior.
Summary and Request for Comment
    EPA believes that certain circumstances unique to OB/OD units 
should qualify for delayed closure when they: are used for activities 
in which military munitions are used as intended--product use, or they 
continue to receive munitions constituents or explosive waste 
contaminants from the active military range the unit is located on or 
from an adjacent OB/OD unit. EPA believes that the RCRA permit would 
address potential threats to human health and the environment while 
closure is delayed. Based on the rationale provided, EPA is proposing 
to add these unique circumstances that establish conditions for when 
certain OB/OD units would also be eligible for delayed closure at 
Sec. Sec.  264.713 and 265.713 and make conforming changes to the 
existing regulations at Sec. Sec.  264.112 and 265.112, and 264.113 and 
265.113. EPA requests comment on the proposed additions for delayed 
closure and the associated timeframes for notification of beginning and 
completing closure.

J. Minimum Safe Distances for Treatment of Waste Explosives

Introduction and Description
    The 1980 final interim status standards rule included a table of 
minimum safety distances developed by DoD to protect persons in the 
open from fragmentation, flying debris, or the effects of overpressure 
(see footnote 10). This table is currently located at Sec.  265.382. 
The regulation notes that OB/OD must be conducted in accordance with 
the minimum distances specified in the table in a manner that does not 
threaten human health or the environment. Thus, the purpose of the safe 
distance table is to provide sufficient safe distance between the OB/OD 
units and the location of persons, property of others, and 
environmental receptors (e.g., water bodies, agricultural land). These 
distances are to be included in permits issued to OB/OD units as 
applicable provisions according to the 1987 final subpart X permitting 
standards rule (see footnote 13). Since codification of the table in 
1980, EPA has learned that the distances listed may be outdated and are 
now either over-protective in the case of OB or under protective in the 
case of OD. While being over-protective is still safe, the distances 
that are under protective are of concern.
Potential Revisions and Supporting Rationale
    EPA believes that minimum safe distances continue to be important 
for protection of persons in the open, property of others, and human 
health and the environment, and seeks information on whether the 
distances listed in the table are in fact inaccurate so that 
appropriate updates can be made if necessary. It is EPA's preference to 
maintain a table in the regulation since it is straightforward and can 
be readily incorporated into permits.
    The distances in the table were developed and published by DoD and 
subsequently incorporated into EPA's 1980 final interim status 
regulations. However, it appears that the method for calculating those 
distances is not the same as the method currently used by DoD, thus 
raising the possibility that the existing distances may not be 
protective. Presently, DoD calculates safe distances according to the 
Defense Explosives Safety Regulation (DESR) 6055.09.\91\ EPA's reading 
of 6055.09 is that it is intended for determining separation distances 
for siting explosives storage, handling, and treatment areas within the 
property boundaries and determining the maximum allowable amount of 
explosives to be treated at the OB/OD units. Moreover, the DESR 6055.09 
includes several pages of calculations, instructions, and references 
based on individual explosive items.
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    \91\ Defense Explosives Safety Regulation 6055.09 Edition 1, 
https://denix.osd.mil/ddes/home/home-documents/desr-6055-09/.
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    According to the DESR 6055.09 the minimum safe distances for the 
open burning will depend on the type of waste explosives being burned 
(bare, ammunition and explosives in packaging that may produce debris, 
ammunition and explosives in casings that may produce fragments, or 
static firing of motors). For waste bare explosives, minimum safe 
distances are calculated using the below quantity-distance (QD) 
formula:


[[Page 19988]]


D = K * W1/3

where ``D'' is the minimum safe distance (units of ft), ``K'' is a 
factor (also called K-factor) that is dependent upon the risk assumed 
or permitted (units of ft/lb1/3), and ``W'' is the NEW 
(units of lbs). For bare explosives the K-factor is 40. There is a 
minimum safe distance of 75 ft if the distance calculated from the QD 
formula is less than 75 ft.
    The minimum safe distance from the open burning of waste explosives 
in packaging that may produce debris will be the larger of the distance 
calculated using the QD formula or the distance calculated using the 
hazardous fragment distance (HFD) formula. The HFD is defined as the 
distance at which the density of hazardous fragments becomes 1 per 600 
square feet (ft\2\), and it can be calculated as follows:

HFD = -1133.9 + [389 * In(NEW)]

where ``ln'' is the natural logarithm. Calculated values can be found 
on the ``Structure'' column of Table V3.E3.T2. of the DESR 6055.09. 
This formula applies to NEW larger than 31 lbs up to 450 lbs. If NEW is 
31 lbs or less, the minimum safe distance is 200 ft. For example, the 
distance using the QD formula for 50 lbs of NEW is 147 ft and the 
obtained distance from the Table V3.E3.T2 of the DESR 6055.09 (or the 
distance calculation using the HFD formula) is 388 ft. Therefore, the 
minimum safe distance would be the latter, as the QD formula resulted 
in a distance less than the minimum of 200 ft and less than the 
calculated value (or obtained from the table) of 388 ft.
    The minimum safe distance from the open burning of waste explosives 
in casings that may produce fragments, and open burning of rocket 
motors will be the larger distance of the calculated using the QD 
formula or the HFD in accordance with paragraph V3.E3.1.2.1. of the 
DESR 6055.09. This paragraph outlines different studies that can be 
conducted to determine the minimum safe distances for fragments. In the 
absence of proper studies, the hazardous debris distances (HDD) from 
Table V3.E3.T11. of the DESR 6055.09 apply. This formula is based on a 
maximum credible event. The HDD is the distance at which the areal 
number density of hazardous debris becomes one per 600 square feet 
(ft\2\). The HDD can be calculated using the below formula and has a 
minimum distance of 200 ft.

HDD = -1133.9 + [389 * In(NEW)]

This formula applies to NEW larger than 31 lbs up to 450 lbs. If NEW is 
31 lbs or less, the minimum safe distance is 200 ft.
    The minimum safe distances for the open detonation of wastes 
explosives that will not produce fragments will be the larger of a 
minimum distance of 200 ft or the distance calculated using the QD 
formula with a K-factor of 328. If there are fragments produced from 
the open detonations, the minimum safe distance will be the larger of a 
minimum distance of 200 ft, the distance calculated using the QD 
formula with a K-factor of 328, or the maximum fragment distance (MFD) 
in accordance with paragraph V5.E3.2.7. of the DESR 6055.09. That is to 
say that it can be obtained from greater of the two distances given in 
Tables V5.E3.T1. or V5.E3.T2. for the MFD, or an item-specific 
calculation in accordance with DDESB Technical Paper 16.\92\ The MFD is 
defined as the calculated maximum distance to which any fragment from 
the cylindrical portion of an ammunition and explosive case is expected 
to be thrown by the design mode detonation of a single ammunition and 
explosive item. The MFD will depend on the type and diameter of the 
munition.
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    \92\ Primary Fragment Characterization Tools: A DDESB Technical 
Paper 16 Update https://ndiastorage.blob.core.usgovcloudapi.net/ndia/2018/intexpsafety/HamiltonSPaper.pdf.
---------------------------------------------------------------------------

    EPA is not proposing revisions to the table in Sec.  265.382 
because of the uncertainties surrounding how to accurately develop and 
provide minimum safe distances that can be easily referenced. However, 
to the extent that commenters can provide a workable solution, EPA may 
make regulatory changes in the final rule. EPA asks that commenters 
keep in mind that EPA is interested in methods that factor in the 
distance from the OB/OD units to persons in the open, property of 
others, and environmental receptors (e.g., water bodies, agricultural 
land) beyond the facility boundary, that would be protected. For 
example, would it be possible to calculate the distance, on a site-
specific basis, using the maximum permitted limit in NEW for the OD 
unit(s)? While this method of calculation, if feasible, would not 
result in a table of distances that all facilities could use, the 
method itself could be finalized and published for use on a site-
specific basis. Should EPA adopt the DESR 6055.09 calculations for the 
minimum safe distances? Should EPA make changes in the final rule it 
would also include the changes in the proposed part 264, subpart Y 
standards for OB/OD as well.
Summary and Request for Comment
    Through discussions with DoD, EPA has learned that the distances in 
the table at Sec.  265.382 may be either overprotective or not 
protective enough. EPA believes it is important to address 
circumstances in which its regulation may no longer be protective. It 
is EPA's preference to keep a table in the regulation similar to the 
current one because it is easy to understand and implement versus 
relying on the extensive calculations and site-specific and explosive-
specific inputs such as that required by DESR 6055.09.
    To this end, EPA would like to know whether commenters are aware of 
any methods that could be used to determine safe distances between OB/
OD units and the location of persons in the open, the property of 
others, and environmental receptors. Ideally, the method would allow 
for totals to be calculated based on maximum NEW according to OB events 
and to OD events and could be either input into a table for reference 
by facilities and regulatory agencies, or the method for calculating 
the maximum NEW could be published for use by facilities to determine 
safe distances.

K. Emergency Provisions

Introduction and Description
    The emergency provisions in RCRA, including the specific regulatory 
provisions related to an ``explosives or munitions emergency'' as 
defined in Sec.  260.10, were developed to ensure emergency situations 
are addressed in a timely manner without imposing regulatory burdens 
that would delay the response and further endanger the public, 
environment, and responding personnel. The MMR clarified that RCRA 
generator, transporter, and permit requirements do not apply to 
responses to immediate threats involving munitions or other explosives, 
or to an imminent and substantial threat to a discharge of hazardous 
waste,\93\ because RCRA requirements may impede emergency responses, 
especially by causing delays or confusion (see footnote 26, 62 FR 6622 
and 6642) herein also referred to as ``emergency response exempt from 
RCRA permitting.'' \94\ When immediate responses are determined not to 
be necessary by an explosives specialist, and the emergency responses 
can be delayed, EPA or the authorized State

[[Page 19989]]

agency may issue a temporary RCRA emergency permit under Sec.  270.61. 
Both provisions address emergency situations, but they differ based on 
the urgency of the response needed and thus, applicable requirements.
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    \93\ The MMR also established that, in addition to an immediate 
threat from military munitions and explosives, an imminent and 
substantial threat of discharge of hazardous waste is exempt from 
the same RCRA requirements, as both threats may require an immediate 
and expeditious response action. See Sec.  270.1(c)(3)(i)(B) and 
(D).
    \94\ These emergency actions, however, are not exempt from the 
RCRA corrective action and section 7003 authorities once the 
emergency is over.
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    The explosives or munitions emergency response provisions at 
Sec. Sec.  262.10(i), 263.10(e), 264.1(g)(8), 265.1(c)(11)(i)(D), and 
270.1(c)(3)(i)(D) specify the emergency as an immediate threat to human 
health, public safety, property, or the environment, from military 
munitions or other explosive devices or material, requiring an 
immediate response, as determined by an explosives or munitions 
emergency response specialist (as defined in Sec.  260.10) and are 
exempt from substantive RCRA requirements, including permits. On the 
other hand, the emergency permit provision at Sec.  270.61 applies to 
situations or events in which there is an imminent and substantial 
endangerment to human health or the environment, but an immediate 
response is not necessary. In the MMR, EPA notes that while a permit is 
not required for immediate or time critical responses, alternatively, 
an emergency permit could be issued to a non-permitted facility or to a 
permitted facility for hazardous waste not covered in a permit when an 
immediate response is not necessary (see footnote 26, 62 FR 6643). 
Another distinguishing aspect of these provisions is that emergency 
response exemption decisions are generally made independently by an 
``explosives or munitions emergency response specialist'' whereas 
actions taken in an emergency permit scenario are made in coordination 
with regulators.\95\
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    \95\ Safe Handling, Storage and Treatment of Waste Fireworks, 
https://www.epa.gov/hwpermitting/safe-handling-storage-and-treatment-waste-fireworks.
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    In the context of emergency situations, the key difference between 
an immediate or time-critical threat (i.e., an explosives and munitions 
emergency) versus short-term treatment that can be delayed under an 
emergency permit, is that an immediate threat requires that a response 
must be initiated right away. Response to an immediate threat can be 
delayed for hours or days (but not weeks or months) for practical 
considerations such as nightfall, for inclement weather to conclude, or 
to allow time for emergency response specialists to mobilize and set 
up. The explosives and munitions emergency continues until the 
explosives and munitions response specialist determines the critical 
threat is over.'' If an immediate response is not needed such that 
there is time to discuss whether a RCRA emergency permit is 
appropriate, then responders should consult with the regulatory 
authority as to how to proceed. The presumption in this case is that 
the required treatment can be addressed within a 90-day period under a 
RCRA emergency permit, or if appropriate, a traditional RCRA permit.
    Examples of situations involving an immediate threat include those 
where used munitions and explosives (i.e., those that were previously 
fired but did not function or are degraded in the environment) are 
discovered and are determined to be primed, fused, and armed; the 
status of explosive items cannot be confirmed; or the public or 
property is threatened and the munitions or explosives can be 
transported to a safer location, including to an explosive ordnance 
disposal (EOD) range, to defuse, detonate, or otherwise to abate the 
immediate threat.\96\ Immediate threats may also involve bulk 
propellants and other munitions and explosives and pyrotechnics that 
have become unstable (e.g., unused discarded military munitions that 
have been discovered, certain unstable category D propellants,\97\ and 
certain lab wastes such as aged or crystallized picric acid), and 
uncertain/unknown explosive devices (e.g., improvised explosive devices 
(IEDs).
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    \96\ See definition for Explosives or munitions emergency 
response at 40 CFR 260.10.
    \97\ Chemical stabilizers are added to propellants to slow the 
aging process. In time, the stabilizer levels will drop to a point 
where the propellant may auto-ignite and thus monitoring the 
stability level of each propellant is essential for safe storage. 
The U.S. Army classifies propellant according to the percent 
stabilizer it contains; category D has <0.20% stabilizer remaining, 
which is a level of deterioration that presents a potential safety 
hazard and are unsafe for continued storage. The propellant must be 
treated/destroyed within 60 days, which may include shipping off-
site within the 60 days for treatment/destruction. U.S. Department 
of the Army Pamphlet 742-1. Inspection of Supplies and Equipment; 
Ammunition Surveillance Procedures. November 22, 2016. https://safety.army.mil/Portals/0/Documents/ON-DUTY/EXPLOSIVESSAFETY/Standard/DA-PAM-742-1_Ammunition-Surveillance-Procedures_22Nov16.pdf?ver=2016-12-19-150215-207.
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    On the other hand, if the response can be delayed without 
significantly compromising safety or increasing the risks posed to 
life, property, health, or the environment, and to the responding 
personnel, treatment of the explosives or munitions should be discussed 
with the regulatory authority to determine if the expedited emergency 
permit provisions in Sec.  270.61 or a traditional permit according to 
Sec.  270.1 would be appropriate. Situations in which the treatment 
could be delayed include where the public or property are not 
threatened by a potential explosion (e.g., in remote areas such as some 
former ranges or where immediate action is not necessary to prevent 
explosion or exposure) (see footnote 26, 62 FR 6643). In these cases, 
there is time to consult with the regulatory authority on which type of 
RCRA permit should be required.
Proposed Revisions and Rationale
    As discussed, the explosives or munitions emergency response 
exemptions and emergency permit provisions are designed specifically to 
allow for expedient responses to immediate threats or imminent and 
substantial endangerment without creating regulatory burdens that could 
obstruct the response. EPA believes that there should be more clarity 
provided on the differences between them, as well as specifying when 
requirements for consideration of alternative treatment technologies 
would apply. Therefore, EPA proposes to require minimal reporting for 
explosives or munitions emergency responses after the emergency is 
over, so that the regulatory authority can better understand the 
circumstances that contributed to the immediate threat. With respect to 
alternative technologies and their applicability to the emergency 
provisions, EPA proposes that, as explosives or munitions responses are 
exempt from RCRA permitting, these responses would also be exempt from 
the need to evaluate whether alternatives can be used. For actions that 
are covered under an emergency permit, EPA proposes that these be 
required to consider if an alternative treatment technology can be used 
in lieu of OB/OD. EPA is also proposing revisions to the existing 
emergency permit regulations at Sec.  270.61 to underscore that the 
emergency permit duration is not to exceed 90 days but to allow for a 
one-time permit renewal only for explosives and munitions to extend the 
emergency permit for up to another 90 days for unanticipated 
circumstances.\98\ Also, if additional time is needed beyond 180 days 
to accommodate procurement and operation of an alternative technology 
for treatment at the treatment location, the Director may renew the 
permit for a total period not to exceed one year. Last, EPA proposes to 
revise the

[[Page 19990]]

definition of explosives or munitions emergency in Sec.  260.10 to 
replace ``imminent threat'' with ``immediate threat'' for consistency.
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    \98\ 40 CFR 270.61(b)(2) states that the emergency permit shall 
not exceed 90 days in duration and does not provide for any 
extensions. What is being proposed is to allow for a one-time only 
extension up to 90 days, if needed. An extension may be needed 
because, for example, the time to safely dismantle and treat items 
will take more than 90 days because of, for example, weather or 
other unanticipated delays such as time to deploy an MTU.
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Emergency Responses Exempt From RCRA Permitting
    As noted above, EPA is proposing to add a reporting requirement 
that would be triggered when the explosives or munitions emergency 
response has been completed. EPA expects that the proposed additional 
information would aid in clarity for regulators to better understand 
the circumstances that contributed to the immediate threat, as well as 
to provide more complete information that could inform future 
decisions, for example, should there be a need for remediation purposes 
or for land development activities. EPA proposes that the following 
information be documented by the explosives or munitions emergency 
response specialist: the type of explosive or munition; if it is 
primed, fused, armed, fired and did not function, or if unknown or 
uncertain; and if it has deteriorated and the stability is unknown or 
uncertain. EPA proposes that this information then would need to be 
submitted to the regulatory authority, via the environmental or 
regulatory compliance liaison at the response unit's base or facility 
of origin, within five days of concluding the response, and when 
applicable, the information includes whether an alternative was 
immediately available and safe for use given the site-specific 
situation. See proposed Sec. Sec.  264.715(a)(1) and 265.715(a)(1). 
Finally, EPA proposes to add a new paragraph (c)(3)(iv) to Sec.  
270.1(c)(3) that points to the new reporting requirements of Sec.  
264.715.
RCRA Emergency Permits
    If an emergency response is not declared as an immediate threat, 
then it would be conducted under a temporary 90-day RCRA emergency 
permit or possibly, a traditional RCRA permit. Again, the RCRA 
emergency permit provisions are structured to allow for expedient 
response by not requiring the substantive requirements that a 
traditional RCRA permit does, and can even be oral, as long as a 
written permit follows within five days. However, EPA finds that the 
emergency permit provisions are often being used for situations that do 
not conclude within the 90 days required by the regulation. EPA 
acknowledges that in some cases, emergency situations could conceivably 
require more than 90 days to conclude if a large number of additional 
explosives or munitions are unexpectedly found, or weather or other 
unanticipated delays such as time to deploy an MTU are encountered; 
these situations would be an appropriate basis for proposing a one-time 
extension of 90 days, or longer in situations where MTUs are utilized. 
But, this is different than the situation in which requests are made to 
renew emergency permits on a continuous 90-day cycle to respond to 
explosives or munitions that are continuously found/generated in the 
same location and treated on an ongoing basis. Examples of this can 
include when fireworks are regularly confiscated at a port of entry, 
when propellants, explosives, pyrotechnics (PEP) deteriorates, or when 
very small quantity generators like university laboratories have 
reactive chemicals that require ongoing disposal due to exceedance of 
the shelf life, and the stability is questionable.\99\
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    \99\ For very small quantity generators, a more appropriate, 
effective, and timely solution could be a mobile treatment unit. EPA 
has proposed an approach to allow for and facilitate the use of 
mobile treatment units in Section L. Mobile Treatment Units for 
Explosive Wastes. However, an emergency permit may be appropriate 
when the treatment activities occur infrequently, such as twice per 
year or less.
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    The regulation at Sec.  270.61(b)(2) specifies that an emergency 
permit ``shall not exceed 90 days in duration'' and does not provide 
for a renewal nor repeated renewals. Because these permits are limited 
in duration, there is an expectation that treatment under an emergency 
permit will not result in continuous treatment. By allowing for the 
continued use of OB/OD under emergency permits that provide 
significantly fewer protections than a traditional RCRA permit, when 
issued on a recurring basis, there is greater potential for 
contaminants to migrate into soil and water resources and impact human 
health and the environment.
    EPA proposes at Sec.  270.61(b)(2) to strengthen the emergency 
permit regulatory language to emphasize that the duration of the permit 
must not exceed 90 days, but also would allow for a one-time renewal, 
only for explosives and munitions, of an additional 90 days to address 
unforeseen delays or circumstances as proposed at Sec.  270.61(b)(7). 
Any treatment that requires more than 180 days to complete would not 
qualify for an emergency permit for treatment because this indicates an 
open-ended need or one that is too extensive to be concluded in 180 
days. However, EPA also anticipates that it is possible that 180 days 
may not be sufficient when accounting for the time it may take to 
procure and operate an MTU. Therefore, EPA is proposing that if 
additional time is needed beyond 180 days to accommodate procurement 
and operation of an alternative technology for treatment at the 
treatment location, the Director may renew the permit for a total 
period not to exceed one year. As discussed in detail in the below 
section an evaluation of alternatives to OB/OD is proposed to be 
required for emergency permits.
    Last, because there is some question regarding whether a treatment 
activity is eligible for an emergency permit as described above, EPA 
proposes that, in addition to the information proposed to be included 
for explosives or munitions emergency responses exempt from RCRA 
permitting, the following additional information be included for 
treatment of explosives or munitions conducted under an emergency 
permit: the anticipated frequency and quantity of generation and the 
expected timeframe from discovery or generation to achieving final 
treatment. See proposed Sec. Sec.  264.715(b)(1) and 265.715(b)(1). EPA 
believes that this information is necessary to assess and confirm 
whether an emergency permit is appropriate or a traditional RCRA permit 
should be required.
Emergency Permits and Alternative Treatment Technologies
    Consistent with the primary purpose of this proposed rule, which is 
to clarify that there must be an evaluation of safe and available 
alternatives before new OB/OD can be initiated under a RCRA permit, EPA 
proposes that treatment of explosives or munitions conducted under an 
emergency permit (i.e., do not require an immediate response and thus 
are not RCRA exempt) be subject to the requirement to evaluate whether 
there are alternatives, but according to less prescriptive 
requirements, before OB/OD can be used.
    Specifically, EPA proposes that the evaluation of alternatives for 
these activities need only (1) address whether an existing alternative 
technology is available that can safely treat the waste, and (2) 
include the rationale for the treatment method selected if an 
alternative technology cannot be used (see proposed Sec. Sec.  
264.715(b)(1) and 265.715(b)(1)). For these activities, inherent in the 
determination that an alternative technology or MTU is safe and 
available is that it can be deployed in a reasonable amount of time 
given the site-specific situation.
    Regarding timing for submission of the required information, EPA 
notes that the process to obtain approval for emergency permits is very 
streamlined (i.e., can be oral but must be followed

[[Page 19991]]

in five days by a written permit). For consistency, EPA proposes that 
the evaluation of technologies be submitted to the regulatory authority 
within five (5) days of the permit application. If treatment using OB/
OD has begun, upon identification of an alternative, the OB/OD must 
cease when the alternative technology has been deployed according to 
proposed Sec.  264.715(b)(4), and consistent with Sec.  270.61(b)(4), 
and a new permit application would be submitted per Sec.  270.61(a).
    Because explosives or munitions emergency responses are exempt from 
RCRA permitting (and other substantive RCRA requirements), these 
responses, by extension, would also be exempt from requirements to 
conduct an alternative technology evaluation. However, EPA does propose 
to require documentation of whether there was a safe alternative 
immediately available for explosives or munitions emergency responses, 
which is located at Sec. Sec.  264.715(a)(1)(v) and 265.715(a)(1)(v). 
This proposed rule does not require an evaluation for the reasons 
discussed, however, EPA believes it important to highlight historical 
site-specific uses of alternatives when people, property, or the 
environment have been threatened. In these limited and very site-
specific cases, alternative technologies were the safer and available 
method. Thus, under similar future scenarios, alternative technologies 
could conceivably be considered by the explosives and munitions 
emergency response specialist.
    Site-specific cases when MTUs (e.g., mobile contained burn, 
contained detonation, or chemical treatment units) were used for 
certain explosive waste streams during emergency situations include 
Camp Minden, LA; Pier 91 in Seattle, Washington; and American 
University Experimental Station (AUES), Spring Valley, Washington, DC. 
Additionally, in another case at Massachusetts Military Reservation, an 
emergency that was initially determined to be exempt from RCRA 
permitting, was evaluated and it was subsequently determined that an 
MTU could be used to treat the munitions. In each of these emergency 
situations, an alternative technology was used in place of OB/OD to 
better protect public safety, property, and/or the environment.
    Although a hypothetical example, a case in which EPA could 
anticipate an alternative technology evaluation to be conducted is when 
there are potentially significant quantities of munitions and UXO that 
will be removed and treated. EPA is aware of many former training 
ranges where buried munitions and UXO remain that have yet to be 
addressed. If there are potentially significant quantities to be 
removed during future cleanup activities, for example, based on 
knowledge of the area and use or confirmed through a geophysical 
investigation, EPA would expect that an alternative technology 
evaluation be performed accordingly. In these situations, it is 
reasonable to conduct the evaluation because at the time the decision 
is made to investigate, there is time to do the evaluation, there are 
potentially alternatives, and with appropriate planning, there is time 
to implement a selected alternative(s). EPA notes however, that such 
cleanup activities are most likely to be conducted under CERCLA. In 
such a case, the CERCLA program has its own processes and requirements 
that would apply to the evaluation of potential ARARs and remedial 
alternatives.
    EPA presents these examples to illustrate how, in limited cases, 
emergencies, occasionally including those that are determined to be 
explosives or munitions emergency responses exempt from RCRA 
permitting, can nonetheless utilize alternative technologies in place 
of OB/OD. EPA also recognizes that it does not make practical sense to 
impose a requirement (i.e., an evaluation of safe and available 
alternative technologies as described in Section II.D. Alternative 
Treatment Technologies) that would delay the emergency response and 
further endanger the emergency response specialists or the public. At 
the same time, MTUs as alternative technologies to OB/OD have been 
utilized for explosives or munitions emergency responses pre-dating 
this proposed rulemaking, indicating that there are limited, site-
specific cases in which deploying them was reasonable for the response.
    There are documented uses of MTUs beyond the cases referred to 
above, and there are several vendors that provide enclosed units that 
have been proven safe and effective for emergency responses. Through 
this rulemaking, as discussed in the next section, EPA intends to 
facilitate the use of MTUs by reducing and removing implementation 
barriers and as a result, MTUs should become more widely available, 
lending to more expedient and routine use. Last, EPA notes that if an 
MTU is determined to be safe and available for the site-specific 
conditions, whether for explosives or munitions emergency responses 
exempt from RCRA permitting or treatment conducted under an emergency 
permit, the MTU itself would not require a permit to operate. See 
Section L. Mobile Treatment Units for Waste Explosives for additional 
information regarding the proposed MTU permit approach.
Summary and Request for Comment
    The RCRA regulations differentiate between explosives or munitions 
emergency responses and treatment activities conducted under an 
emergency permit based on how quickly a response is required. An 
explosives or munitions emergency requires an immediate response and is 
exempt from RCRA TSD standards (Sec. Sec.  262.10(i), 263.10(e), 
264.1(g)(8) and 265.1(c)(11)) and permit requirements (Sec.  
270.1(c)(3)). When immediate responses are determined to not be 
necessary by an explosives specialist, the treatment is subject to a 
RCRA emergency permit or potentially, a traditional RCRA permit (Sec.  
270.61 or Sec.  270.1, respectively).
    To better ensure that emergency responses and treatment actions are 
conducted under the appropriate provisions of RCRA, EPA is proposing to 
add new regulatory language to the new parts 264 and 265, subpart Y 
standards at Sec. Sec.  264.715 and 265.715, revise the existing 
regulations at Sec.  270.61 Emergency permits, revise the definition of 
explosives or munitions emergency in Sec.  260.10, and add a new 
paragraph (c)(3)(iv) to the exclusion for explosives or munitions 
emergency responses in Sec.  270.1(c)(3) that points to the new parts 
264 and 265, subpart Y standards of Sec. Sec.  264.715 and 265.715 for 
the new reporting requirements.
    For the new subpart Y standards, EPA requests comment on the 
proposed inclusion of information that would need to be documented and 
submitted for the explosives or munitions found or generated after an 
explosives or munitions emergency response is completed. EPA also 
requests comment on the proposed requirement that additional 
descriptive information for the explosives or munitions found or 
generated be submitted for treatment conducted under an emergency 
permit to better distinguish between these treatment activities and 
those that can be addressed under a traditional RCRA permit.
    With respect to treatment activities for explosives or munitions 
that require a RCRA emergency permit, the timing for submittal of 
information is proposed to be the same as the five-day requirement in 
Sec.  270.61(b)(1) for emergency permits. EPA requests comment on 
whether this five-day deadline is reasonable for treatment that require 
a RCRA emergency permit.
    Regarding revisions to the emergency permit provisions at Sec.  
270.61, EPA proposes to clarify the duration of the permit to be only 
90 days by removing

[[Page 19992]]

``shall'' and replacing with ``must.'' Consistent with this revision, 
EPA proposes to revise all places in paragraph (b) that use the term 
``shall'' to be clear in meaning by removing ``shall'' and replacing 
with ``must.'' EPA also proposes to add a new paragraph (b)(7) that 
would allow for a one-time only extension, only for explosives and 
munitions, for an additional 90-day period, and to allow for renewal of 
the permit for a total period not to exceed one year to account for 
procurement and use of an alternative technology. EPA requests comment 
on the appropriateness of these clarifications and additions.
    Finally, with respect to alternative treatment technologies and how 
this proposed rule intersects with the emergency provisions, EPA 
discusses the need to only document and report whether there was a safe 
alternative immediately available for explosives or munitions emergency 
responses that are exempt from RCRA permitting, and to consider whether 
an alternative technology is available that can safely treat the waste 
within a reasonable time for treatment that requires an emergency 
permit. EPA requests comment on the merits of not requiring an 
intensive evaluation of alternatives for treatment conducted under a 
RCRA emergency permit, but rather the more simplified consideration of 
available existing MTU alternatives as proposed at Sec. Sec.  
264.715(b) and 265.715(b), based on the known prior uses of contained 
technologies such as detonation chambers, contained burn, and chemical 
treatment MTUs for certain explosive waste streams.

L. Mobile Treatment Units for Waste Explosives

Introduction and Description
    EPA is proposing regulations and a framework for the RCRA 
permitting and operation of MTUs that treat waste explosives. MTUs 
would be considered themselves facilities and be issued a permit by the 
Agency (EPA) in a unique two-stage process that enables the MTU owner/
operator to treat waste explosives on-site where they are generated.
    EPA believes MTUs are an important component of the proposed 
regulations and would offer a solution to some of the challenges 
associated with the management and treatment of waste explosives. 
First, MTUs could reduce the need for OB/OD in the near term, 
potentially providing alternative technology treatment services sooner 
than permitting and constructing a permanent on-site unit. In addition, 
because the use of MTUs to treat waste explosives could be less costly 
than building, maintaining, and operating alternative technologies, 
MTUs could decrease reliance on OB/OD. The benefits would be 
particularly keen for stationary TSD facilities that do not treat waste 
explosives routinely or only treat very small quantities of self-
generated wastes. Lastly, MTUs could offer an additional compliance 
option beyond off-site shipment and building an alternative technology 
unit, and thereby provide additional regulatory flexibility. These 
kinds of benefits could be realized in cleanup activities as well as in 
the treatment of as-generated waste. As cleanup programs evaluate 
potential remedies and treatment technologies as part of the cleanup 
process, the availability of relatively low-cost permitted alternative 
technology for some waste streams could reduce the overall use of OB/
OD.
    This may be particularly true in situations where the treatment is 
episodic and/or of short duration. For example, law enforcement 
authorities episodically conduct OB/OD of confiscated ammunition, 
fireworks, and other explosives.\100\ Because the need for OB/OD is 
only episodic, MTUs are likely to provide an alternative. In addition, 
some waste explosives for which safe alternatives exist may not be safe 
to transport off-site to a facility using an alternative technology. 
For example, forbidden explosives are not eligible to receive a DOT 
competent authority approval (i.e., an EX number issued by DOT to allow 
transport) and therefore, cannot be shipped off-site (see 49 CFR 
173.54). Or, in cases where obtaining a DOT EX number may not be timely 
or long-distance transport is not preferred due to increased risk for 
an accident, MTUs could provide a solution. EPA is aware of at least 
one scenario in which a mobile detonation chamber was brought in to 
treat waste explosives as part of a response rather than ship the waste 
explosives to an off-site treatment location.\101\ Mobile treatment 
units could bring alternative technology to these locations thereby 
mitigating the transportation safety concern.
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    \100\ See Letter from National Bomb Squad Advisory Board to EPA 
Administrator Scott Pruitt dated March 28, 2017, in which the 
National Bomb Squad Advisory Board notes that public safety bomb 
squads and other explosive specialists routinely destroy large 
quantities of seized illegal fireworks, other explosives, and 
pyrotechnics. The letter identified OB/OD as the preferred method.
    \101\ EPA was also informed during public outreach that shipping 
eligibility has in some cases been an impediment to off-site 
shipment of waste explosives for treatment by an alternative 
technology. See the Summary of Meeting with Owners and Operators of 
Open Burning/Open Detonation Facilities: Revisions to Standards for 
the Open Burning/Open Detonation of Waste Explosives from March 15, 
2022, and March 31, 2022, available in the docket to this 
rulemaking.
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    At present, the RCRA regulations require that owners/operators of 
MTUs obtain a RCRA permit for treatment from the permitting authority 
at each site where it will operate. Furthermore, every time the unit 
moves across State lines, a new permit with potentially unique State-
specific requirements would need to be issued. EPA recognizes that the 
RCRA permit process is time and resource intensive and thus, not very 
conducive to meeting the needs of facilities that only require a short-
term and/or infrequent treatment option. EPA previously proposed 
regulatory amendments to create a framework to enable streamlined 
permitting of MTUs to facilitate their use in the RCRA program.\102\ 
However, that proposal, which was significantly broader than the 
changes being proposed, was never finalized. The proposal was not 
finalized primarily because it would not have materially reduced the 
permitting burden vis-[agrave]-vis issuing facility-specific permits at 
each location an MTU would be used. Mindful of the shortcomings of that 
approach, EPA is proposing a different approach. One key difference in 
the MTU permitting approach being proposed is the scope. Specifically, 
EPA is proposing a framework for MTUs solely to treat waste explosives, 
rather than all hazardous wastes as in the 1987 proposal. Additionally, 
EPA has endeavored to create a more standardized two-stage permitting 
process than that employed in the previous proposal.
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    \102\ 52 FR 20914, June 3, 1987.
---------------------------------------------------------------------------

    This proposal would establish a framework for the permitting of 
MTUs that includes requirements related to public participation, 
recordkeeping and reporting, contingency planning, closure, operation 
and design standards, and permit terms. The current RCRA subtitle C 
regulatory structure developed for permitting and regulating hazardous 
waste TSDFs, including the corrective action requirements, was 
developed to address stationary facilities. Given the mobile nature of 
these units, EPA believes it makes sense to adapt the permitting 
framework, including public participation requirements as applied to 
them. EPA also believes that the corrective action requirements of 
Sec.  264.101 do not apply to MTUs. This proposal intends to provide an 
additional compliance option for waste explosives management and 
treatment, while maintaining a robust permitting framework. The 
proposed approach for waste explosive

[[Page 19993]]

MTUs is described in more depth in the following sections.
Proposed Approach and Supporting Rationale
    EPA is proposing a two-stage permitting process for MTUs. In the 
first stage, EPA would issue a nationwide conditional approval to the 
MTU owner/operator. The issuance of the nationwide conditional approval 
to the owner/operator of an MTU would enable the owner/operator to 
subsequently during the duration of their conditional approval receive 
a RCRA permit, after a second expedited process, that would authorize 
treatment at individual job sites. While the conditional approval is a 
prerequisite to obtaining a permit to treat waste explosives, it does 
not authorize the MTU to treat the waste. In other words, the 
conditional approval would allow an owner/operator of an MTU to apply 
for a location-specific permit, but in the absence of a location 
specific permit, it would not authorize the owner/operator to treat 
waste explosives.
    In the second stage, a location-specific RCRA permit authorizing 
treatment of waste explosives would be issued location-by-location 
(e.g., for specific jobs) once public notice requirements and other 
requirements specific to that location are satisfied. To avoid an 
unnecessarily duplicative two-stage process, EPA intends that the vast 
majority of the permitting workload would be associated with the 
nationwide conditional approval that would accompany the MTU to each 
job site.
    EPA is proposing new or amended regulatory text in several areas in 
order to create a standardized framework for the permitting and 
regulation of MTUs. Key components of the framework include: State 
authorization, permitting, public notice, recordkeeping and reporting, 
contingency planning, closure, operation and design standards, and 
permit terms. These key components are discussed in greater detail in 
the following sections, which are organized by describing first the 
permitting process and second, the permit modification process.
Permitting
    EPA is proposing a two-stage permitting process for MTUs under a 
new part 270, subpart K. The proposed framework would create a new 
special form of an individual RCRA permit enabling MTUs to treat waste 
explosives. Because the applicable provisions being proposed for MTUs 
cite to a variety of other RCRA subparts, EPA believes a new section, 
under subpart F, provides the most transparent mechanism for 
incorporating these provisions, and would also provide for ease of 
reference. EPA has codified other special forms of permits under 
subpart F, such as permits by rule, emergency permits, and remedial 
action plans (RAPs).
    In the first stage of the permitting process, EPA would issue a 
nationwide conditional approval to the MTU owner/operator that would 
accompany the unit to every job site and would contain the bulk of the 
permit terms and conditions [requirements] applicable to the unit. In 
the second stage, the location-specific RCRA permit authorizing 
treatment of waste explosives at a specific site would be issued by 
EPA. Prior to issuance of the location specific permit, EPA would 
provide public notice as required by section 7004(b) and would 
establish any other requirements specific to that location.
    In the following sections, EPA discusses three key aspects of the 
proposed permitting process: the proposed procedures to obtain a 
permit, the proposed application content requirements, and the 
conditions EPA is proposing to be required in all RCRA permits for 
MTUs. These aspects are each discussed twice. First, each is discussed 
in the context of the first stage of the proposed MTU permitting 
process--the issuance of the nationwide conditional approval. Second, 
these aspects are each discussed again in the context of the second 
stage of the proposed permitting process--the location-specific RCRA 
permit for an MTU to treat waste explosives.
    Before discussing the permitting procedures however, EPA notes that 
this proposed permitting approach would not apply to MTUs used for 
emergency responses or emergency treatment involving waste explosives. 
When MTUs are brought to a location to respond to an emergency, the 
RCRA emergency permit provisions at Sec.  270.61 and emergency 
exemption provisions at Sec. Sec.  264.1(g)(8)(i)(D), 265.1(c)(11), and 
270.1(c)(3)(D) would supersede the two-stage permitting process 
proposed in this rule. This is because the RCRA emergency provisions 
were developed to ensure emergency situations are addressed in a timely 
manner without imposing regulatory burdens that would delay the 
response and further endanger the public, environment, and responding 
personnel. To require that an MTU that was brought in to treat 
recovered explosives during an emergency response revise its nationwide 
conditional approval and obtain a final permit for the job site could 
significantly delay initiation of the response.
Procedural Process Applicable to Issuance of Nationwide Conditional 
Approvals
    As discussed above, the nationwide conditional approval would be 
issued under the processes described in part 270, subpart K at the 
newly proposed Sec.  270.332. The proposed process for obtaining a 
nationwide conditional approval described in Sec.  270.332 is very 
similar to the process established for obtaining RAPs in part 270, 
subpart H. The regulations governing issuance of RAPs include a variety 
of procedural steps and processes to provide for consistent and fair 
treatment of applications, and opportunity for public participation, 
and that ensure the RAPs are protective. In addition, the process for 
RAP issuance does not heavily rely on part 124 procedures, which EPA 
believes are not well suited to issuing permits for MTUs. The part 124 
regulations were developed for facilities being permitted in a single 
stage permitting process. EPA believes more flexibility is necessary to 
craft a two-stage process for MTUs to accommodate the mobile nature of 
the units and the relatively short time horizons in which they will be 
operating at any one site. Additionally, the part 124 regulations 
include some features that are less practical for MTUs. For example, 
under part 124, the Director cannot begin processing an application 
until the owner/operator has fully complied with the permit application 
requirements. This does not fit the envisioned two-stage permitting 
process for MTUs. In light of these considerations, EPA modeled the 
proposed approach for issuing conditional approvals (the first stage of 
the MTU permitting process) and for issuing location-specific permits 
(the second stage) after the RAP regulations. EPA, at the same time, 
worked to ensure the proposed approach provides meaningful public 
participation opportunities. Discussion on public participation during 
the MTU permitting process is located in the section titled ``Public 
Notice and Input.''
    The proposed procedural steps for issuing a nationwide conditional 
approval include: (1) application signature and submission, (2) a 
tentative finding by EPA on the application's completeness and 
consistency with the applicable regulatory standards, (3) preparation 
of a draft conditional approval or notice of intent to deny; (4) public 
notice and comment; and (5) final determination of the nationwide 
conditional approval. Finally, the

[[Page 19994]]

proposed regulations include an appeal process for final decisions.
Application Contents for Nationwide Conditional Approvals
    Applications for an MTU conditional approval would be required to 
contain the information in the newly proposed Sec.  270.333. Under the 
proposal, the applicant for a nationwide conditional approval would be 
required to submit to EPA all of the information required in part A 
permit applications at Sec.  270.13 except for the information required 
by Sec.  270.13(b), (f), and (l). EPA is proposing to not require 
submission of the facility location information, Tribal land 
information, and topographical map required by Sec.  270.13(b), (f) and 
(l) during this initial stage. Instead, with the exception of the 
topographical map required by Sec.  270.13(l), EPA is proposing that 
the location-specific information in these three sections would be 
submitted during the location-specific second stage of the permitting 
process. EPA, in this proposal, is not requiring the topographical map 
required by Sec.  270.13(l) as part of a traditional RCRA permit 
application for MTUs given their mobile nature. MTUs will operate for 
only short periods of time in any location and must ``clean close'' 
after every treatment activity (see Section II.L. Closure and Financial 
Requirements for more information on the proposed closure requirements 
for MTUs). As such, EPA believes the preparation of a topographical map 
for each location at which an MTU may operate would be unnecessary and 
overly burdensome.
    Additionally, EPA is proposing that the application for a 
conditional approval must include enough information to demonstrate 
that design and operation of the MTU will comply with applicable 
requirements of part 264 as specified by a new paragraph (k) at Sec.  
264.1. The part 264 standards represent minimum national standards 
which define the acceptable management of hazardous waste at permitted 
facilities and apply to all facilities which are permitted to treat, 
store, or dispose of hazardous waste. As discussed in this preamble 
section, a tailored set of the part 264 requirements would apply to 
MTUs. EPA is proposing this information to include preparedness and 
prevention information, a contingency plan (which would be updated in 
the second stage with specifics on arrangements made with local 
authorities for each job site), closure plans, and information on the 
types of waste explosives the unit may treat, among other information. 
This information is important as it would serve, in part, as the basis 
for determinations that the proposed design and operating standards of 
the unit meet the applicable regulatory standards.
    Some of the unit specific information that would be required as 
part of an application for an MTU nationwide conditional approval 
includes information currently required in part B applications for 
subpart X at Sec.  270.23(a), (d), and (f).\103\ As discussed in 
``Design and Operating Standards for MTUs,'' EPA believes that design 
and operating standards developed under subpart X are appropriate for 
MTUs. This information includes a detailed description of the unit, 
including physical characteristics, materials of construction, and 
dimensions of the unit. Additionally, the unit specific standards would 
also include detailed plans and engineering reports describing how the 
unit will be designed, constructed, operated, maintained, monitored, 
inspected, and closed to comply with the requirements of Sec.  264.601 
and the applicable requirements of Sec.  264.602. For an MTU, EPA 
expects this information would include information on how the unit will 
be transported to ensure the unit's treatment efficacy and integrity 
are maintained. This information is proposed to be required as it helps 
ensure that the unit's operations will be safe and protective by way of 
achieving the performance standards required for miscellaneous units.
---------------------------------------------------------------------------

    \103\ Note that, currently, there is no Sec.  270.23(f). 
However, as a result of this proposal, current Sec.  270.23(e) would 
be redesignated as Sec.  270.23(f).
---------------------------------------------------------------------------

    Second, the part B application information required for subpart X 
units would require the applicant for a nationwide conditional approval 
to also submit a report on a demonstration of the effectiveness of the 
treatment based on laboratory or field data, including information on 
emissions from the unit. This information is important to assist the 
permit writer in determining the efficacy of the proposed treatment 
technology. Lastly, EPA is proposing to require that the application 
include the additional information required for subpart X units 
determined by EPA to be necessary to evaluate compliance of the unit 
with the environmental performance standards of Sec.  264.601 for 
ensuring protection of human health and the environment, consistent 
with Sec.  270.23(e).
    In the case of an applicant seeking a nationwide conditional 
approval for multiple identical MTUs, the applicant would also be 
required to submit a certification from a registered professional 
engineer that the units are identical. In this way, multiple identical 
units would be able to go through the nationwide conditional approval 
application process concurrently utilizing one application package. 
This could further streamline the permitting process for owners/
operators seeking to own or operate a fleet of identical MTUs.
    EPA anticipates this stage of the permitting process (i.e., 
obtaining a conditional nationwide approval) would comprise the vast 
majority of the effort required for an MTU to obtain a RCRA permit. 
Relevant location-specific information and demonstrations would be 
submitted and made as part of the second stage of the permitting 
process.
Conditions for Nationwide Conditional Approvals
    Under this proposal, the information and conditions that would need 
to be in the nationwide conditional approval are identified in Sec.  
270.334. EPA expects that nationwide conditional approvals issued to 
owners/operators of MTUs would include all unit design and operating 
standards applicable to MTUs. A major component of those unit design 
and operating standards would be those requirements found in part 264. 
In addition to the design and operating requirements, the nationwide 
conditional approval would also include terms related to closure 
(interim and final), financial assurance, contingency and emergency 
planning, and recordkeeping and reporting requirements. The proposed 
applicable part 264 standards are discussed in more detail in a 
preamble section titled ``Applicable Part 264 Standards''. As noted 
earlier, EPA is proposing a new paragraph at Sec.  264.1(k) that 
describes the part 264 standards applicable to MTUs. These standards 
and conditions would be required to be included in the draft nationwide 
conditional approval prepared by EPA for public notice and comment. 
While these conditions would be included in the nationwide conditional 
approval, some of the location-specific information required to comply 
with these conditions would not be required until the second (location-
specific) phase of the MTU permitting process. For example, it is not 
reasonable to request information related to arrangements with local 
authorities required by Sec.  264.37 during the nationwide conditional 
approval process when the specific locations of operation are unknown.
    It is worth noting that the applicable part 264 requirements 
include certain subpart X requirements. These would require, among 
other things, that the conditional approval contain such terms

[[Page 19995]]

and conditions as necessary to protect human health and the 
environment, including, but not limited to, as appropriate, design and 
operating requirements, detection and monitoring requirements, and 
requirements for responses to releases of hazardous waste or hazardous 
constituents from units covered by the conditional approval. This 
requirement would address unit-specific issues that may arise and 
require unique permit terms to facilitate the safe and protective 
operation of the unit in question. This type of authority is available 
for subpart X units in traditional RCRA permits and has been a valuable 
tool for addressing unit-specific matters. The authority to require, 
via permit conditions, a response to releases from the unit is a 
valuable addition to the proposed MTU permitting process. EPA believes 
it is important for the owner/operator of an MTU that experiences a 
release to be responsible for responding to the release. As such, EPA 
is proposing at Sec.  264.1(k) that nationwide conditional approvals 
must include requirements for responses to releases of hazardous waste 
or hazardous constituents from the unit. EPA expects such releases 
would be rare but believes the owner/operator of the MTU should address 
those releases. This requirement, combined with the proposed closure 
and financial assurance requirements for MTUs (see Section II.L. 
Closure and Financial Requirements), should provide strong protections 
against contamination remaining after treatment and closure concludes.
    In addition to the part 264 requirements, the nationwide 
conditional approval would also need to include the terms and 
conditions applicable to all RCRA permits and the recordkeeping and 
reporting requirements at Sec. Sec.  270.30 and 270.31, respectively. 
These include basic obligations, good housekeeping, and recordkeeping 
requirements that, much like stationary facilities, would be necessary 
to ensure permitted MTU operations are protective of human health and 
the environment. Relatedly, EPA is proposing that the nationwide 
conditional approval include a notification requirement that the owner/
operator of an MTU must notify EPA each time an MTU treats waste 
explosives at a location. This notification would need to include the 
start and end dates of treatment and the quantity of wastes treated. 
The conditional approval would also be required to contain terms and 
conditions for modifying, revoking and reissuing, and terminating the 
MTU permit (including the conditional approval), as provided in 
Sec. Sec.  270.40 through 270.43. Relatedly, EPA is proposing 
amendments to Sec.  270.42 to address how permit modifications 
requested by the owner/operator would work for MTUs. Specifically, EPA 
is proposing that all modifications to a permit for an MTU would be 
required to adhere to the process for Class I permit modifications in 
Sec.  270.42(a) and would require the prior written approval of the 
Director.
Procedural Process Applicable to Issuance of Location-Specific Permits
    Under this proposal, the second stage of the MTU permitting 
process--the location-specific permit--would also be governed by the 
processes described in part 270, subpart K at the newly proposed Sec.  
270.335. As with the procedures for the nationwide conditional 
approval, EPA modeled the permitting process for the location-specific 
permit after that established for RAPs in part 270, subpart H. This 
process would be followed at all locations at which an MTU intended to 
operate, including instances where the MTU intended to treat waste 
explosives at another (stationary) permitted TSDF. In the case of an 
MTU being permitted to treat waste explosives at a permitted TSDF, the 
owner/operators of the stationary TSDF would not need to modify their 
permit or sign onto the MTU's permit. As such, the obligations and the 
responsibilities of the respective owner/operators in the two permits 
would be distinct.
    The proposed regulations include a variety of procedural steps and 
processes to provide for consistent and fair treatment of applications 
for MTU location-specific permits, as well as opportunity for public 
participation. The proposed procedural steps for issuing the location-
specific permit include: (1) Application signature and submission, (2) 
a tentative finding by the EPA on the application's completeness and 
consistency with the applicable regulatory standards, (3) preparation 
of a draft location-specific permit or notice of intent to deny; (4) 
public notice and comment; and (5) final determination of the location-
specific permit. Finally, the proposed regulations include an appeals 
process for final decisions.
    During this second stage of the permitting process, public notice 
of a draft location-specific permit would include newspaper and radio 
and notice to relevant local and State government offices. These public 
notice steps would be undertaken no less than 45 days before operations 
are intended to begin. During this time, EPA would post the draft 
location-specific permit, along with the nationwide conditional 
approval, on its website. If during that 45-day period, EPA receives 
notice of opposition to the EPA's intention to issue a location-
specific permit or a request for a hearing, EPA would hold a public 
hearing. Following the public notice period, EPA would issue its final 
determination of its location-specific permit. More discussion on 
public participation during the MTU permitting process is located in 
the section titled ``Public Notice and Input.''
Application Contents for Location-Specific Permits
    At newly created Sec.  270.336, EPA is proposing specific 
information that would need to be submitted by an applicant during the 
second stage of the permitting process for an MTU--the location-
specific permit. This information includes the nationwide conditional 
approval that would have already been issued by EPA and select 
location-specific information typically required in a RCRA permit 
application that would not have been required during the nationwide 
conditional approval stage.
    The submission of a valid nationwide conditional approval would be 
the foundation for the information submission requirements during the 
location-specific stage of the proposed permitting process. The 
nationwide conditional approval would contain all of the nationwide 
operational and design standards specific to that MTU plus other 
various requirements including closure (interim and final), financial 
assurance, and recordkeeping and reporting. In most cases, this 
document, which would be incorporated into the location-specific 
permit, if issued, would comprise the bulk of the terms and conditions 
that would apply to the unit. At this stage of the process some of 
those conditions could be refined, as necessary, to address location-
specific issues.
    At this stage, EPA is proposing to require some limited location-
specific information such as location information (name, address, 
longitude and latitude, and Tribal land status) for the proposed site 
at which the applicant is seeking a permit to operate. This information 
is required by Sec.  270.13(b) and (f) for traditional RCRA permits as 
well. In addition, EPA would require information about the requested 
start date of operation, expected duration of activities, and what 
types and volumes of wastes would be treated. EPA is also proposing to 
require information demonstrating compliance with

[[Page 19996]]

Sec.  264.37--arrangement with local authorities. This information is 
important to document that the owner/operator has attempted to contact 
and make arrangements with local authorities (e.g., fire departments, 
emergency responders, hospitals) to familiarize the authorities with 
the MTU's operations and the wastes to be treated and make any 
necessary arrangements. Relatedly, EPA is proposing to require an 
updated contingency plan that includes the information required by 
Sec.  264.52(c) reflecting the arrangements with local authorities. 
While the contingency plan is required to be submitted during the 
nationwide conditional approval stage, information in the plan related 
to arrangements with local authorities would be required at this stage.
    EPA is also proposing to require evidence of an arrangement between 
the original generator of the waste explosives and the MTU owner/
operator as to who will take the actions required to comply with the 
applicable part 262 regulations related to any hazardous waste 
generated by the MTU's operations. As discussed in more detail in the 
Mobile Treatment Units as Generators section below, when a mobile 
treatment unit is operating on the site of a generator or another TSDF, 
EPA considers the original generator of hazardous waste and the owner/
operator of the mobile treatment unit to be co-generators of the 
treatment residuals and both parties are subject to the RCRA generator 
regulations in part 262. However, this does not mean that both 
generators must satisfy each regulatory requirement individually. When 
two or more parties contribute to the generation of a hazardous waste, 
as is the case in the generation of treatment residuals from a mobile 
treatment unit, these requirements are satisfied if one of the parties 
assumes and performs the duties of the generator on behalf of both 
parties. Thus, to assure awareness of and compliance with these 
provisions, it will be important for the owner/operator of the MTU and 
the original generator of the hazardous waste to work out who will take 
responsibility for compliance with these part 262 requirements. Such 
evidence might include a contract specifying which party would comply 
with the requirements. EPA is proposing this information be submitted 
as part of the location-specific RCRA permit stage at Sec.  270.336.
    Finally, EPA is proposing to require the submission of information 
specific to the location determined by EPA to be necessary for 
evaluation of compliance of the unit with the environmental performance 
standards of Sec.  264.601. EPA believes this information would be 
important for informing potential permit conditions necessary to allow 
for safe and protective operation of the unit at the specific location 
in question. This information could also shape whether issuing a permit 
is appropriate for the subject unit at the location in question. As 
noted in the discussion of the nationwide conditional approval 
application contents, information necessary to evaluate compliance with 
the Sec.  264.601 environmental performance standards was also required 
as part of the nationwide conditional approval application. It is EPA's 
expectation that most of the unit design and operation standards 
necessary to ensure compliance with the environmental performance 
standard in Sec.  264.601 will be developed during the nationwide 
conditional approval stage. However, relevant information about the 
location and site, and the specific wastes to be treated, could not 
practically be submitted during the nationwide conditional approval 
application process. As such, EPA is proposing an analogous requirement 
as part of the location-specific RCRA permit application. Examples of 
the type of information EPA expects the Director may request would 
include information demonstrating that the unit's proposed operation 
does not present a threat of releases that may impact neighboring 
property or receptors.
Required Conditions for Location-Specific RCRA MTU Permits
    At newly created Sec.  270.337, EPA is proposing regulations that 
would specify the required conditions in a location-specific permit. 
Specifically, the regulations would require three categories of 
conditions. First, the location-specific RCRA permit must, by reference 
or explicitly, include the information and terms and conditions in the 
nationwide conditional approval issued in accordance with Sec.  
270.332. As discussed above, the nationwide conditional approval would 
include all the nationwide unit design and operating standards. As 
such, it is essential that these standards be included in the location-
specific permit issued to the owner/operator to treat waste explosives 
at a specific location.
    Secondly, the location-specific permit issued to an MTU must 
include the location-specific information required by Sec.  270.13(b) 
that must be submitted as part of the permit application. This 
information simply identifies the location of the proposed MTU 
treatment operations. Additionally, it would be required to contain 
specifications on the types and quantities of wastes permitted to be 
treated at the site as well as the dates of operation. These 
specifications would be derived from the information that is proposed 
to be required to be submitted as part of the permit application.
    Finally, the RCRA permit would be required to include any 
additional terms or conditions, including revisions to the nationwide 
conditional approval, that EPA determines are necessary to achieve the 
environmental performance standard in Sec.  264.601 and the applicable 
monitoring, analysis, inspection, response, and reporting requirements 
of Sec.  264.602. The environmental performance standard in Sec.  
264.601 requires terms and provisions necessary to protect human health 
and the environment, including, but not limited to, as appropriate, 
design and operating requirements, detection and monitoring 
requirements, and requirements for responses to releases of hazardous 
waste or hazardous constituents from the unit. EPA is proposing to 
include this provision to accommodate unit and location-specific issues 
that may arise and require unique permit terms to facilitate the safe 
and protective operation of the unit in question. This type of 
authority is available for subpart X units in traditional RCRA permits 
and has been a valuable tool for addressing unit-specific matters. EPA 
expects that some permit terms and provisions necessary to achieve the 
environmental performance standard for subpart X units would be 
developed on a nationwide basis and included in the nationwide 
conditional approval. This second (location-specific permit) stage 
would also provide an opportunity to revise terms and conditions in the 
conditional approval in order to account for location-specific 
considerations, or otherwise update the terms and conditions. For 
example, the location-specific permit would include operating 
conditions tailored as necessary to ensure effective and protective 
treatment of the specific waste streams at a job site.
    Finally, and as described in the Conditions for Nationwide 
Conditional Approval section above, the environmental performance 
standard also provides the authority to require, via permit conditions, 
a response to releases from any units covered by the location-specific 
permit. For MTUs, EPA believes an obligation to respond to releases 
should be included in every MTU permit (via the nationwide conditional 
approval) and has proposed that requirement in Sec.  264.1(k).

[[Page 19997]]

Appeals and Public Comment During MTU Permit Issuance Process
    In the above sections, EPA described a proposed two-stage approach 
to developing and issuing MTU permits that includes appeals processes 
and opportunities for public comment. One challenge associated with 
developing the permitting process for MTUs was providing both ample 
opportunity for public input and appeal of the conditions in the 
nationwide conditional approval and the location-specific permit, and a 
predictable and timely permitting process. To illustrate how this 
balance may play out under the proposed approach, below is an example. 
EPA requests comment on whether this approach achieves an appropriate 
balance or whether refinements might be beneficial.
    The first step of the proposed approach would involve an MTU 
applying for a nationwide conditional approval. This application would 
be required to include the information specified in the newly proposed 
Sec.  270.333, such as information about the MTU's design and proposed 
operation in accordance with the applicable regulatory standards in the 
newly proposed Sec.  264.1(k). EPA would review the application to 
determine whether it included the required information and whether the 
proposed design and operating standards meet the regulatory criteria. 
If EPA determines the application is complete and the proposed design 
of the MTU and the proposed operating standards meet the requirements, 
the Agency would prepare a draft nationwide conditional approval. If 
EPA determines the application is not complete the Agency would request 
additional information from the applicant. If the applicant fails to 
remedy the deficiencies, EPA would prepare a notice of intent to deny 
the nationwide conditional approval. By contrast, if EPA determines 
that the proposed design and operating standards do not meet the 
applicable regulatory requirements, the Agency can either issue a 
notice of intent to deny the conditional approval or can propose a 
draft conditional approval that contains the terms and conditions EPA 
determines to be necessary.
    During the nationwide conditional approval stage, the draft 
nationwide conditional approval or notice of intent to deny the 
nationwide conditional approval would be made available for public 
comment along with the administrative record that formed the basis of 
the action. At this point the applicant, or any other interested party, 
could raise comments criticizing the proposed decisions. For example, 
the applicant may submit a comment opposing a term EPA proposed to 
include in the nationwide conditional approval, based on a 
determination by EPA that the condition was necessary to protect human 
health and the environment, as required by Sec.  264.601. 
Alternatively, a commenter could raise concern that the applicant had 
failed to demonstrate that the MTU meets one or more of the performance 
standards in Sec.  264.1(k). A commenter could not however, comment on 
whether one of the performance standards listed in Sec.  264.1(k) is 
appropriate, as that issue would have been resolved by the final rule. 
A challenge on that basis may only be brought in a challenge to the 
final rule. EPA would consider and respond to all significant comments 
received before making a final decision on the nationwide conditional 
approval.
    If EPA denies the nationwide conditional approval, such a decision 
could be appealed as described in newly proposed Sec.  270.332(i). By 
contrast, a decision to issue the nationwide conditional approval could 
not be appealed at that time; this is because, as noted below, there 
would be an opportunity to comment again upon the terms in the 
nationwide conditional approval as part of the process to issue a 
location-specific RCRA permit before the MTU would be allowed to 
operate under the conditions described in the nationwide conditional 
approval. Once EPA issues a decision on a location specific RCRA 
permit, issues raised during either of the two comment periods could 
form the basis for an appeal. For example, if the applicant had raised 
concern that a particular condition EPA had included in the nationwide 
conditional approval pursuant to Sec.  264.601 was not necessary to 
protect human health and the environment, the applicant could only 
appeal that decision once the location specific RCRA permit was issued 
for the MTU.
    During the second stage of the MTU permitting process, the 
applicant would apply for a location-specific permit by submitting both 
the nationwide conditional approval previously issued and the rest of 
the information required by Sec.  270.336. Similar to the first stage, 
EPA would review the application for completeness and to ensure the 
proposed design and operating standards meet the applicable regulatory 
standards. If EPA believes there are deficiencies, the Agency may 
request additional information from the applicant or otherwise request 
the deficiencies to be remedied. EPA would then either prepare a draft 
location-specific permit or a notice of intent to deny. In either case, 
the draft document and the administrative record supporting the 
decision would be publicly noticed and made available for public 
comment. During this time, the applicant or other parties may comment 
on the Agency's proposed decision or any of the specific terms and 
conditions in the draft location-specific permit, were one prepared.
    As noted previously, an applicant, or any other party, at this 
stage, may submit a comment on a term in the draft location-specific 
permit regardless of whether they had previously offered the comment 
during the nationwide conditional approval stage. This also means that 
it is possible that a party (e.g., a local community group) might 
comment for the first time on a term in the location-specific permit 
incorporated by reference to the nationwide conditional approval. This 
is because a local community group may not be aware of the specific 
applicant's MTU permit application until it reached the location-
specific stage. EPA recognizes that parties potentially commenting 
twice on the same condition and opening the same conditions up to 
multiple rounds of comment may not be the most streamlined approach. 
However, EPA believes this approach provides due process and robust 
public participation while still providing a principled and predictable 
permitting process.
    EPA would consider and respond to all significant comments received 
upon the proposed location-specific permit or decision to deny the 
location-specific permit. EPA would revise the proposal as appropriate 
based on the public comment received prior to issuance. Both an EPA 
decision to issue a location-specific permit and a decision to deny the 
permit, could be appealed as described in newly proposed Sec.  
270.335(i). As mentioned above, EPA requests comment on the appeals 
processes provided by the proposed MTU permitting approach.
Permit Modifications
    As noted above in the discussion of the conditions that EPA is 
proposing to require to be included in nationwide conditional approval, 
EPA is also proposing to require that the nationwide conditional 
approval include terms and conditions for modifying, revoking and 
reissuing, and terminating the location-specific RCRA MTU permit in 
accordance with Sec. Sec.  270.41 through 270.43. Over the proposed 
five-year term of the permit, EPA anticipates there may be a need to 
modify it to account for changes, for example, when

[[Page 19998]]

the unit returns to the same location for additional treatment events, 
but the waste stream to be treated has changed.
    In consideration of the potential for changes that would need to be 
made to the location-specific RCRA permit before the MTU could 
recommence operations when it returns, EPA is proposing that any 
modifications to the permit would be a Class 1 modification with prior 
Agency approval. To effect this, EPA also proposes to include a new 
line entry to appendix I of Sec.  270.42 specific to MTUs. A Class 1 
modification with prior approval allows for the owner/operator to make 
changes as needed provided that: the permitting agency is notified, all 
persons on the mailing list are notified, and the change is approved by 
the permitting agency. EPA believes that the Class 1 with prior Agency 
approval is appropriate for MTUs because these units will all have 
already undergone prior testing to establish protective design and 
operating standards. Thus, any subsequent changes to the design and 
operating parameters to address changes in the waste stream and ensure 
the parameters remain protective, could be incorporated into the permit 
using the Class 1 with prior approval modification procedure. In the 
event that there may be a significant change that could affect the 
MTU's performance, such as a design change to the MTU (e.g., 
modification of the air pollution control system) or the waste stream 
is proposed to have an increased NEW that may be at the capacity limits 
of the MTU (e.g., the unit previously only treated wastes at 75% of the 
NEW design limit), it would be at the discretion of the Agency to 
require a Class 2 or Class 3 modification procedure.
Public Participation
    As described above, EPA is proposing a framework for permitting 
MTUs which would include public notice at two different stages. Under 
the proposed framework, the public would have the opportunity to 
participate in the permitting process during both the issuance of the 
national conditional approval and, again, during the issuance of the 
location-specific permit.
    During the national conditional approval process, EPA would publish 
notice of a draft nationwide conditional approval in the Federal 
Register for public comment and allow at least 30 days for public 
comment. During that time, the draft nationwide conditional approval 
and administrative record would be available online for examination. In 
addition, EPA would also notify the public of the opportunity to 
comment via email to a list of interested entities the Agency would 
maintain. EPA expects this list would include environmental and 
community groups, Tribes, Federal and State regulators, and industry 
representatives. At this time, EPA would also encourage applicants to 
consider notifying communities in which they expect to apply for a 
location-specific permit. Such early engagement with communities could 
streamline the location-specific permitting stage.
    The draft nationwide conditional approval available for public 
comment would contain the unit design and operating conditions among 
other applicable part 264 and part 270 conditions. EPA would review and 
consider public comments received prior to responding to comments and 
would notify the applicant and any commenters of changes from the draft 
to the final conditional approval as a result of the public comments.
    During the location-specific permit process (after the final 
nationwide conditional approval has been issued), EPA is proposing that 
for each location (job site) at which the owner/operator of an MTU 
would be operating, EPA would provide public notice to the surrounding 
community. Specifically, EPA would publish notice in a major local 
newspaper and broadcast over radio the intent to issue the location-
specific permit that would allow the MTU to operate at the site.\104\ 
Additionally, EPA would issue notices to each unit of local government 
having jurisdiction over the area in which the MTU is proposed to 
operate and to the applicable State agency. In contrast to the first 
stage, EPA would not publish notice in the Federal Register. Under the 
proposed approach, EPA would provide public notice and opportunity for 
comment no less than 45 days before operations are intended to begin. 
During this time, EPA would post the draft location-specific permit on 
its website along with the background information from the notices.
---------------------------------------------------------------------------

    \104\ Note that the Permitting Updates Rule is considering 
proposed regulatory changes related to major local newspaper and 
radio broadcast requirements.
---------------------------------------------------------------------------

    If during that 45-day period, EPA receives notice of opposition to 
the EPA's intent to issue a location-specific permit or a request for a 
hearing, EPA would hold a public hearing. In the event a public hearing 
is held, the hearing would serve as an opportunity for the public to 
provide oral and written comments. EPA would consider and respond to 
any comments received in making its decision on the location-specific 
permit. If during that 45-day period, EPA does not receive any notice 
of opposition, significant adverse comment, or request for a hearing, 
the location-specific permit will commence in force on the date in the 
permit.
    EPA believes public notice of a location-specific permit is an 
important component of the proposed MTU permitting process as it would 
provide awareness of RCRA activities within a specific community, with 
the opportunity to request a public hearing or oppose certain 
conditions, including conditions from the nationwide conditional 
approval. It would also provide an opportunity to ensure the notice 
meets the needs of the community, for example, providing notice in 
languages other than English and/or translation services for a 
community in which some members have limited English proficiency, or 
identifying additional avenues of providing notification to potentially 
interested community members, such as through social media or community 
organizations. EPA expects local communities would generally be 
interested in MTUs in that they would provide an alternative treatment 
method to OB/OD in their community. Additionally, this stage of public 
notice may help inform whether any location-specific conditions in the 
permit (e.g., specific siting restrictions, hours of operation, etc.) 
should be revised.
    EPA believes the public participation approach proposed for MTUs 
treating waste explosives strikes an appropriate balance between 
providing for adequate public notice while ensuring the permitting 
process would not be so onerous that it dissuades companies from 
providing valuable alternative treatment services in lieu of OB/OD.
State Authorization
    Because of the need for national consistency related to permitting 
of units that cross State boundaries, EPA is proposing the Agency would 
not authorize States for permitting of MTUs and is requesting comment 
on whether States should be authorized. See section IV for more 
discussion about state authorization and MTUs.
Corrective Action (40 CFR 264.101)
    Section 264.101 requires that permits include conditions for 
facility-wide corrective action to address releases of hazardous waste 
and hazardous constituents from solid waste management units. For 
purposes of corrective action, EPA regulations at Sec.  260.10 define 
``facility'' as all contiguous land under the control of the owner/
operator. In developing this proposed rule, EPA considered the

[[Page 19999]]

applicability of that definition to MTUs. EPA particularly considered 
the relationship between the MTU and the multiple parcels of land on 
which it might operate over its lifetime.
    After considering the applicability of the definition of facility 
to MTUs, EPA believes that MTUs are unique among TSD units because they 
are mobile and operate for short periods of time at multiple locations 
and can thus be defined as facilities unto themselves. EPA is thus 
proposing that the ``facility'' subject to the requirement to obtain an 
MTU permit be limited to the MTU unit, and not include the land on 
which it operates. Because an MTU facility would not include the land 
on which it operates, an MTU operating at a RCRA TSDF would not become 
part of the TSDF and thus would not become subject to facility-wide 
corrective action obligations at that TSDF. An MTU operating at a site 
would not cause the land at that site to become a TSDF and incur 
resulting corrective action obligations. EPA is proposing this approach 
for several reasons.
    Under this proposed rule, units qualifying for special MTU permits 
would be allowed to remain at a particular site only 180 days and would 
be required to clean close before leaving the site. Thus, as MTUs are 
defined in this proposal, they would not be associated with any 
particular parcel of land for the life of the unit or even for extended 
periods of time, but with multiple parcels of land for short periods of 
time, and because they clean close, could not contribute to corrective 
action obligations associated with the land on which they operate.
    Further, a large part of EPA's goal in this proposal is to create 
incentives for the permitting and use of MTUs. Much of the benefit MTUs 
provide is derived from the fact that they move from location to 
location, minimizing the risks associated with transporting explosive 
hazardous waste. And owners/operators of MTUs are unlikely to choose to 
operate on multiple parcels if they were to become responsible for 
facility-wide corrective action at each. Thus, EPA believes that the 
proposed approach creates incentives that maximize the environmental 
benefits associated with MTUs.
    Additionally, to assure protection of human health and the 
environment, EPA is narrowly defining MTUs by proposing strict limits 
on the duration of operation at any one location and an affirmative 
``clean closure'' requirement for those units. The MTU would be 
permitted to operate and/or remain at any location for a maximum of 180 
days at a time and be required to achieve clean closure standards, 
including addressing any releases from the unit before it leaves the 
location. Furthermore, EPA is proposing at 264.1(k) to modify the 
incorporated part 264, subpart X standards, in order to specify that 
all MTU permits contain requirements for responses to releases of 
hazardous waste or hazardous constituents from the unit. Of course, 
failure of the MTU owner/operator to adhere to the time limits and 
closure requirements would result in the unit failing to remain an MTU 
as defined in the regulations. In such instances, the MTU would cease 
to be a unique facility. In such a situation, an MTU operating at a 
RCRA TSD would become a part of the facility at which it was operating 
and would be subject to applicable requirements including facility-wide 
corrective action requirements; where an MTU was operating at a non-TSD 
site, the site would become a TSD and all owners/operators would become 
subject to TSD requirements, including the requirement for facility-
wide corrective action.
Applicable Part 264 Standards
    Thus far, EPA has focused on how the public notification and 
permitting procedures of Parts 124 and 270, respectively, could be 
adapted for MTUs. Equally important is consideration of applicable 
technical standards in part 264 that would specify what must be 
included in the permit as conditions for the protection of human health 
and the environment. In the following sections, EPA discusses its 
proposal for which part 264 standards are necessary and appropriate, 
and thus should apply, for MTUs.
General Facility Standards
    General Facility standards in part 264, subpart B apply to all 
owners/operators of RCRA TSDs, with some exceptions, and cover a 
variety of good housekeeping requirements, including recordkeeping, 
personnel training, and safety requirements. EPA is proposing to apply 
several subpart B requirements to MTUs: Sec. Sec.  264.11, 264.13, 
264.16, and 264.17.
    Because MTUs would be treating RCRA hazardous waste, it is 
important that all activities conducted by the MTU owner/operator be 
tracked throughout its operational life. Thus, each MTU would be 
required to obtain an EPA Identification number. For general waste 
analysis, the regulation specifies that before an owner/operator 
treats, stores, or disposes or any hazardous wastes, a detailed 
chemical and physical analysis of a representative sample of the wastes 
be performed. The MTU owner/operator would be required to obtain the 
waste analysis, per the Sec.  264.13 requirements, from the facility or 
entity requiring the services of the MTU.\105\
---------------------------------------------------------------------------

    \105\ When MTUs are procured for emergency treatment, the waste 
analysis would be limited to the procedures proposed in the new 
regulation at Sec.  264.715(c) and (d).
---------------------------------------------------------------------------

    The personnel training requirements in Sec.  264.16 establish 
standards for personnel training and requirements for maintaining 
records of such training. EPA believes these requirements would be 
appropriate for the personnel operating MTUs. Specifically, the 
personnel operating the MTU should have the pertinent training related 
to the safe management and treatment of waste explosives for their 
unit. EPA expects that the personnel at the facilities and sites at 
which the MTU would operate would already have applicable training and, 
in the case the MTU was operating at a TSDF, would already be required 
to meet the personnel training requirements in subpart B. That being 
said, the operators of the MTU itself should also have the appropriate 
training as required by Sec.  264.16 as such training would be 
important to ensuring the unit's safe and protective operations.
    As noted above, EPA is also proposing that the general requirements 
for ignitable, reactive, or incompatible wastes at Sec.  264.17 of 
subpart B would apply to MTUs. This section requires owners/operators 
to take precautions to prevent accidental ignition or reaction of 
ignitable or reactive waste. The requirements specify certain waste 
management practices (e.g., separating ignitable and reactive wastes 
from sources of heat, flame, etc.) but also allow flexibility for site-
specific practices to be employed to prevent accidental ignition or 
reaction of the wastes. Since MTUs would be managing waste explosives, 
EPA believes these requirements are appropriate for MTUs.
    The remainder of this subpart's standards are either covered in 
more specificity by other part 264 standards, as discussed and applied 
below, or are entirely related to activities outside the scope of 
responsibilities for owners/operators of MTUs. For the applicable 
requirements of this subpart, references to Sec. Sec.  264.11, 264.13, 
264.16, and 264.17, general requirements for ignitable, reactive, or 
incompatible wastes are included in the proposed new paragraph (k) of 
Sec.  264.1. All proposed requirements would be included in the 
conditional nationwide approval.
Preparedness and Prevention
    The regulations of subpart C Preparedness and Prevention are

[[Page 20000]]

applicable to every RCRA TSD facility and are designed to prevent or 
minimize releases of hazardous waste or hazardous waste constituents to 
air, soil, or surface water that could threaten human health or the 
environment. These regulations are written to address overall facility 
design and operations to minimize the possibility of releases and 
ensure that the necessary equipment is available for responding to 
emergencies and for requesting emergency response services. EPA 
believes that these regulations are important and applicable to MTUs. 
Therefore, EPA proposes to incorporate elements of subpart C into a new 
paragraph at Sec.  264.1(k).
    Required equipment for an MTU would be transported with the unit 
and include items such as fire extinguishers, spill control, and 
decontamination equipment that must be periodically tested and 
maintained. Also, communication devices would be required for personnel 
operating the unit that will ensure access to emergency responders. 
Finally, prior to beginning operations, notifications would be required 
to be made to local authorities and emergency responders to ensure 
awareness of the MTU's operations at the facility or location.
    All proposed requirements, with exception of notification to local 
authorities and emergency responders (Sec.  264.37), would be included 
in the conditional nationwide approval. When the location for the MTU 
is determined, permit conditions with the notification information 
would be developed as part of the location-specific permit stage.
Contingency Plan and Emergency Procedures
    Owners and operators of RCRA TSD facilities are required to develop 
contingency plans and emergency procedures under subpart D to minimize 
hazards to human health or the environment from fires, explosions, or 
any unplanned sudden or non-sudden release of hazardous waste or 
hazardous waste constituents to air, soil, or surface water (see Sec.  
264.51). EPA recognizes that all of the requirements in this subpart 
are essential for MTUs and therefore, proposes to incorporate the 
regulations of subpart D into the new paragraph at Sec.  264.1(k) 
(discussed in the above section) to clearly define the applicable 
requirements for MTUs.
    EPA notes that there are unit-specific and some location-specific 
aspects that would need to be addressed. For the unit-specific aspects, 
these would be addressed in the nationwide conditional approval and 
include Sec. Sec.  264.50 through 264.56, with exception of Sec.  
264.52(c) which is location-specific. Paragraph (c) would be addressed 
later during drafting of the location-specific permit.
Manifest System, Recordkeeping and Reporting
    Another set of existing requirements that EPA considered for 
potential applicability to MTUs is the part 264, subpart E. Part 264, 
subpart E includes requirements to ensure that hazardous waste is 
accounted for and properly managed by tracking, through manifests and 
maintenance of its operating record, its transportation, and other 
aspects of its management. EPA is proposing that only a subset of the 
requirements in this section would apply to MTUs. Specifically, EPA is 
proposing that the use of manifest system requirements at Sec.  
264.71(c), operating record requirements at Sec.  264.73, the 
availability, retention, and disposition of records requirements at 
Sec.  264.74, and the biennial report requirements at Sec.  264.75 
would apply to MTUs. As with the other part 264 subparts, EPA is 
proposing to prescribe which components of subpart E would apply to 
MTUs in the new paragraph (k) at Sec.  264.1.
    As noted above, EPA is proposing that an MTU owner/operator be 
required to keep a written operating record that would accompany the 
unit to every location in which it operates and to maintain the 
operating record throughout the operational life of the unit until 
final closure. The contents of the operating record would include 
identification and quantities of the wastes treated, the location of 
the treatment, the operational period for each location at which the 
MTU operates, any malfunctions of the unit or incidents encountered, 
and the responses taken to address them, routine equipment inspections, 
and monitoring and testing data. EPA proposes to include references to 
Sec. Sec.  264.73 through 264.75, and Sec.  264.77 (i.e., excluding the 
unmanifested waste report provisions under Sec.  264.76), in the new 
paragraph (k). Additionally, because MTUs are unique treatment units by 
way of their mobility, limited waste streams, and short duration of 
operation, EPA is providing additional context on the information needs 
and procedures to achieve compliance with the applicable subpart E 
requirements.
    Regarding the wastes to be treated and the quantities, this 
information would be made available through the waste characterization 
information from the facility at which the MTU would operate or 
emergency response personnel procuring the services of the MTU. The 
location of the treatment would include the name of the facility, where 
applicable, the address the MTU will be located, and a map with the 
longitude and latitude coordinates for the MTU location and a depiction 
of the MTU treatment area boundaries. Regarding the operational period, 
this would include the dates upon which the MTU arrives and departs, as 
well as when treatment operations begin (i.e., wastes fed to the unit, 
including start-up and testing) and cease (i.e., last waste fed to the 
unit before interim closure). Any malfunctions of the unit and its 
associated equipment that result in unplanned releases of emissions, 
effluents, or contaminants to the environment, accidental spills, and/
or any incidents that require implementation of the contingency plan 
would be required to be documented in the operating record. Inspections 
of the unit and associated equipment to detect leaks, spills, and 
fugitive emissions would be documented in the operating record. 
Finally, all testing conducted in preparation for treatment at each 
site, as well as monitoring data any time waste is being processed, 
would be documented in the operating record.
    For any facility or unit that treats hazardous waste, it is 
important to identify what the recordkeeping and reporting requirements 
are so that all wastes can continue to be accounted for. EPA believes 
that requiring the proposed contents to be included in the operating 
record would provide a detailed accounting of the wastes to be treated 
by the MTU, as well as ensure that the unit operates in a manner that 
is protective of human health and the environment. Because the 
operating record is unit specific and contains unit-specific 
information and data, it would be developed initially for inclusion in 
the nationwide conditional approval and referenced or incorporated into 
the location-specific permits. All other applicable requirements of 
subpart E would also be unit specific and be part of the nationwide 
conditional approval.
    One portion of the requirements in part 264, subpart E that would 
not apply to MTUs is the manifest requirements at Sec. Sec.  264.71, 
264.72, and 264.77, with the exception of Sec.  264.71(c), discussed 
later in this section. EPA does not believe the part 264, subpart E 
manifest requirements that apply to the receipt and storage of wastes 
would be necessary for MTUs because MTUs, as defined by this proposal, 
would provide a temporary treatment service on the site of permanent 
facilities and would not transport, receive, or store the wastes to be 
treated. As described in the ``Closure and Financial Requirements'' 
section below, EPA is proposing interim closure measures for MTUs that 
would

[[Page 20001]]

require decontamination of the unit at the end of each job prior to 
leaving the location. As such, the MTU would not transport hazardous 
waste. Additionally, because the MTU would travel to generator or TSD 
facilities to treat waste explosives, the MTU would also not receive 
shipments of wastes from off-site. In light of this, EPA does not 
believe it is necessary to apply the subpart E manifest requirements 
applicable to receiving wastes and storing wastes to MTUs. Of course, 
the RCRA manifest and transportation requirements in Parts 262 (and 
referenced in 264.72(c)) and 263, respectively, would apply in the 
event the MTU was not properly closed (i.e., still contained hazardous 
waste) and was transported off-site, and when the MTU generates waste 
and ships it offsite, as discussed below.
Mobile Treatment Units as Generators
    As with other hazardous waste treatment units, when a mobile 
treatment unit generates treatment residuals such as air pollution 
control residues, spent activated carbon, and/or bottom ash, this new 
waste would be considered a new point of generation. The derived-from 
rule in Sec.  261.3(c) applies to determining which hazardous waste 
codes apply to those treatment residuals. When hazardous waste 
treatment units generate treatment residuals, the generator of those 
hazardous waste treatment residuals becomes subject to part 262 for the 
waste that they generate.\106\ This includes, but is not limited to, 
making an accurate hazardous waste determination, management standards 
and labeling for the accumulation unit (e.g., container or tank), 
getting the waste off site in accordance with the appropriate 
accumulation time limits, manifesting when shipping the hazardous waste 
off site, etc.
---------------------------------------------------------------------------

    \106\ See Hazardous Waste Generator Improvements Final Rule, 81 
FR 85732; November 28, 2016, page 85762.
---------------------------------------------------------------------------

    When a mobile treatment unit is operating on the site of a 
generator or another TSDF, EPA considers the original generator of 
hazardous waste and the owner/operator of the mobile treatment unit to 
be co-generators of the treatment residuals and both parties are 
subject to the RCRA generator regulations in part 262. However, this 
does not mean that both generators must satisfy each regulatory 
requirement individually. When two or more parties contribute to the 
generation of a hazardous waste, as is the case in the generation of 
treatment residuals from a mobile treatment unit, these requirements 
are satisfied if one of the parties assumes and performs the duties of 
the generator on behalf of both parties. Thus, to assure compliance 
with these provisions, it will be important for the owner/operator of 
the MTU and the original generator of the hazardous waste to work out 
who will take responsibility for compliance with these part 262 
requirements. As noted in the discussion of the Application Contents 
for Location-Specific Permits, EPA is proposing to require the MTU 
permit applicant submit evidence of an arrangement between the original 
generator of the waste explosives and the MTU owner/operator as to who 
will take the actions required to comply with the applicable part 262 
regulations related to any hazardous waste generated by the MTU's 
operations. In any event, EPA reserves the right to enforce against any 
and all persons who fit the definition of ``generator'' in a particular 
case if the requirements of part 262 are not adequately met.\107\
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    \107\ See 45 FR 72024; October 30, 1980, page 72026. Also see 
RCRA Online memos 12515, 12706, and 13280.
---------------------------------------------------------------------------

Closure and Financial Requirements
    All RCRA TSD facilities must comply with the closure standards in 
parts 264 and 265, subpart G, and the specific closure standards 
applicable to the units in which they are managing hazardous waste. As 
noted throughout this proposed permitting framework, MTUs are a unique 
subset of treatment units. This poses challenges too for closure and 
financial requirements. With regard to closure, MTUs do not fit neatly 
within the existing closure standards construct because the units only 
operate for a limited duration before they move on to the next location 
and begin treating hazardous wastes again. MTUs should not trigger 
application of the closure standards until after their final use and 
decommissioning. Rather, during the operational life of the unit, as it 
moves between locations, a temporary or ``interim'' closure would be 
appropriate. This would require that any hazardous constituents are 
removed from the unit and properly managed in preparation for transport 
of the MTU and use at another location. Thus, EPA proposes closure 
requirements for MTUs that include an interim closure as well as select 
final closure requirements. EPA notes that, whether conducting interim 
closure or final closure, because MTUs are treatment units, they must 
clean close under either closure scenario in accordance with Sec.  
264.114 and the MTU specific requirements at Sec.  264.1(k)(5). In 
other words, an MTU cannot leave behind contamination that did not 
already exist.
    Clean closure for MTUs is particularly important considering that 
MTUs are mobile and limited to 180 days of operation at one location. 
As a public policy matter, requiring the owner/operator of the MTU to 
be responsible for clean closing the MTU including any contamination in 
the treatment area is most appropriate. This requirement best aligns 
the costs of closure with the party profiting from the operation of the 
MTU. Additionally, it should also limit the risk to the property owners 
contracting with MTUs. Finally, EPA expects that clean closure will be 
readily achievable by MTUs due to the controlled and contained nature 
of the treatment employed and the short operating periods. If the MTU 
owner/operator fails to clean close, the MTU would cease to be an MTU 
as defined by this proposal and would be a TSD unit. In that case the 
MTU owner/operator (as well as the owner/operator of the property at 
which the MTU was operating) would be liable for corrective action.
    For the interim closure requirements, EPA envisions that when the 
treatment concludes at each location, the MTU owner/operator would be 
required to close in a manner that completely decontaminates the MTU 
and removes any contaminated environmental media, residuals or debris 
resulting from the MTU's operation.\108\ Residues associated with the 
unit include any present on the surfaces and within the unit and its 
ancillary equipment such as air pollution control equipment, tanks, 
containers, piping, as well as other wastes generated by the unit such 
as spent activated carbon, bottom ash, fly ash, and water or fluids. In 
regard to the operational footprint of an MTU, this would be the area 
that surrounds the unit that became contaminated should an accidental 
spill occur or in which treatment residues could be inadvertently 
deposited. The residues, wastes, and contaminated media from spill 
cleanup would be considered newly generated wastes which the MTU owner/
operator would be responsible for determining if they are hazardous 
wastes and managing them accordingly (see Manifest System, 
Recordkeeping and Reporting section above for generator and manifesting 
responsibilities). To affect interim closure requirements, EPA proposes 
to include them with the final closure

[[Page 20002]]

requirements in the new paragraph (k) of Sec.  264.1.
---------------------------------------------------------------------------

    \108\ Note that the MTU owner/operator would be responsible for 
verifying that all hazardous residues are removed from the unit, and 
if necessary, obtaining applicable DOT approvals prior to 
transporting the unit.
---------------------------------------------------------------------------

    For the final closure requirements, which in contrast to the 
interim closure would include final disposition of the MTU itself, EPA 
believes that the closure performance standards in subpart G are 
applicable but is proposing an explicit obligation to clean close the 
MTU. As discussed, the existing closure regulations do not accommodate 
the mobile nature of MTUs. So, in addition to developing interim 
closure requirements for MTUs, EPA is proposing to adopt a more limited 
set of subpart G closure requirements for inclusion in the new 
paragraph (k) to serve as the final closure requirements. This would 
encompass Sec. Sec.  264.111 through 264.115. Also, as with interim 
closure, final closure must also adhere to the clean closure 
requirements. Specifically, the MTU would be required to close in a 
manner that completely decontaminates the MTU and removes any 
contaminated environmental media, residuals or debris resulting from 
the MTU's operation. EPA solicits comment on the proposed closure 
requirements.
    Interrelated with closure is financial assurance. The financial 
requirements located in part 264, subpart H require that all TSDFs 
demonstrate that they will have the financial resources to properly 
close the facility or unit when its operational life is over and have 
third-party liability coverage for sudden and nonsudden accidental 
releases. Similar to the closure requirements, only certain 
requirements in subpart H would be relevant to MTUs. For example, 
financial assurance for post closure care would not be applicable 
because the proposed rule requires MTUs to clean close at the end of 
their operational life. Similarly, nonsudden accidental third-party 
liability coverage would not be relevant as MTUs would not be permitted 
as surface impoundments, landfills, land treatment facilities, or 
disposal miscellaneous units. Therefore, EPA proposes at Sec.  264.1(k) 
that a more limited set of the requirements in subpart H be applicable 
to MTUs. The applicable requirements EPA believes would ensure that the 
MTU owner/operator has adequate financial resources to close the unit 
as well as have third-party liability coverage for sudden accidental 
releases include Sec. Sec.  264.140, 264.141, 264.142, 264.143, 
264.147, 264.148, and 264.151.
    EPA expects in implementation that some of the prescribed wording 
in Sec.  264.151 for financial assurance mechanisms may need to be 
refined to accommodate the mobile nature of MTUs. For example, EPA 
anticipates that references to Regional Administrator may need to be 
replaced with a comparable official at EPA Headquarters given the 
potential for these units to travel across EPA Regions. Additionally, 
the Sec.  264.151 instrument language requires, in certain places, the 
insertion of facility location information that would not be logical 
for mobile units. To accommodate these necessary variations, and others 
that may arise, EPA is proposing that variations to the required 
instrument wording in Sec.  264.151 of subpart H necessary to 
effectuate the financial assurance requirement for mobile units would 
be acceptable. Of course, the Director would need to approve all 
variations, and these variations would be limited only to those 
necessary to accommodate mobile units.
Design and Operating Standards for MTUs
    As discussed in section II. F. of this proposed rule, Permitting of 
Alternative Technologies, alternatives for treating waste explosives 
include thermal and chemical treatment and neutralization technologies. 
These technologies are predominantly permitted according to the subpart 
X standards located at Sec.  264.601 with exception of a few 
alternatives that have been permitted as incinerators under the subpart 
O Incinerator and/or the CAA Hazardous Waste Combustor National 
Emission Standards for Hazardous Air Pollutants, subpart EEE standards 
because their design more closely meets the definition of incinerator. 
EPA also discussed in the permitting section that EPA's preferred 
permitting approach for thermal treatment units is under subpart X 
unless the unit uses a controlled flame in the treatment chamber.
    With regard to MTUs, these units also can include thermal and 
chemical treatment and neutralization technologies. Although EPA's 
information is limited on MTUs that have been used for waste 
explosives, those that EPA are aware of are thermal technologies that 
have been issued subpart X permits, issued RCRA emergency permits, or 
have been exempt from RCRA permitting when used for legitimate 
recycling or used in response to a time sensitive emergency. For the 
information that EPA does have on mobile thermal technologies, none 
have used controlled flame inside the treatment chamber. Instead, they 
have either heated the treatment chamber externally using either 
propane or electrical conductivity or used donor charges to detonate 
and treat the explosives. EPA believes that design and operating 
standards developed according to subpart X would be appropriate for 
MTUs because they provide flexibility for units of different design and 
because it is unlikely that an MTU would utilize a controlled flame in 
the treatment chamber. However, in the event it would, EPA can still 
apply the incinerator standards via the subpart X standards. Therefore, 
EPA is proposing to apply the subpart X standards at Sec.  264.601 and 
the part B unit specific information for miscellaneous units of Sec.  
270.23(a), (d), and (f) when developing the nationwide conditional 
approval, and Sec.  270.23(f), again, when developing the location-
specific permit.
    Relatedly, when developing the design and operating conditions for 
treatment units, it is important to both consider the waste's 
characteristics and the unit's capability to effectively treat the 
wastes to meet the appliable emission or effluent standards. This is 
accomplished via a testing phase that uses wastes representative of 
those to be treated by the unit and the results are measured and 
compared to the standards. For MTUs, EPA discusses above that the 
nationwide conditional approval would contain the design and operating 
standards that would be applicable for each location that the unit 
operates at. EPA recognizes that each location will have waste streams 
that vary and thus, the design and operating standards established for 
the MTU at a prior location may not be appropriate for the wastes at 
the next location. To account for differences between locations, final 
design and operating standards, based on the location-specific wastes, 
would be incorporated into the final location-specific RCRA permit 
issued to the MTU to begin operation.
Nationwide Conditional Approval Term Limit
    Permits for RCRA TSD facilities are valid for a period of up to ten 
years, upon which time they must be renewed for the facility to 
continue to operate. Because the nationwide conditional approval would 
contain conditions much like a permit--it would contain the unit 
specific information covering the design and operating requirements--
EPA is proposing that it also have a term limit. Due to the mobility 
and multi-use nature of MTUs, EPA believes that a five-year limit would 
be more appropriate than a ten-year limit. A renewal every five years 
would ensure that the nationwide conditional approval is reviewed at 
intervals sufficient to address any significant changes, for example, a 
replacement of the treatment chamber, which may obviate the need for 
permit

[[Page 20003]]

modifications during the five-year permit term.
    EPA is requesting comment on the proposed nationwide conditional 
approval term of five years. Specifically, EPA requests comment on 
whether a ten-year term would be appropriate. A ten-year term for the 
nationwide conditional approval would allow the owners/operators of 
MTUs to provide a greater number of treatment services under the same 
nationwide conditional approval and may result in greater availability 
of MTUs and a lower cost of services. However, as noted above, the 
longer term of the nationwide conditional approval would result in less 
frequent scrutiny of the terms and conditions in the nationwide 
conditional approval. In such a scenario, the location-specific permit 
issuance process may become more cumbersome if there is a perceived 
need to re-examine the nationwide conditional approval for needed 
updates. EPA is not proposing a ten-year nationwide conditional 
approval term and is instead proposing a five-year term. However, if 
the public comment is sufficiently supportive of the idea of a ten-year 
nationwide conditional approval term, EPA could finalize a ten-year 
term.
Limitation on Duration of Location-Specific Permit and Operation at Job 
Site
    Additional aspects of the location-specific permit that are 
important to consider are the term limits of the location-specific 
permit and the maximum allowable duration of operation at the location 
in which an MTU will operate. EPA is proposing that the location-
specific permit could be issued for a term of no greater than five 
years. Similar to the discussion of the duration of the nationwide 
conditional approval, EPA believes a five-year term limit is 
appropriate for MTUs. However, EPA is proposing that the permit would 
restrict the duration of operation at a location to 180 consecutive 
days before which the unit must complete interim closure. EPA envisions 
that MTUs would provide a treatment solution on an as-needed basis for 
waste explosives that can be safely treated by an alternative 
technology. As such, EPA does not anticipate that MTUs would need to 
remain at any one location for extended periods of time and proposes to 
limit the amount of operational time at a job site not to exceed 180 
days. EPA is proposing that the operational time at a job site would be 
calculated as the number of calendar days between the date of initial 
start-up of the unit at a location and the date at which interim 
closure is completed.
    Facilities that may seek to use MTUs are likely to be those that 
generate small quantities of waste explosives that require treatment a 
few times per year (e.g., 5-10 treatment events annually) or that 
prefer not to invest in additional permanent alternatives for small 
waste streams. Also, explosives or munitions emergency response 
specialists may seek, or may be required, to use MTUs as an alternative 
to OB/OD when the emergency response action does not pose an immediate 
threat. Thus, EPA does not anticipate that MTUs would need to remain at 
a location for extended periods since the volume of waste requiring 
treatment should not be significant in any scenario. A time limitation 
of 180 days would also be consistent with the proposed total amount of 
time an emergency response could be conducted under a RCRA emergency 
permit (for more information on proposed changes, see Section K. 
Emergency Provisions). EPA believes that establishing a limit on the 
duration would ensure that the units do not become semi-permanent or 
permanent fixtures that would be more appropriately regulated as a unit 
of the facility or the entity requiring treatment. In such a scenario, 
likewise under the CAA, the unit would become a stationary source 
triggering application of relevant standards.
    While EPA is proposing to limit the duration of operation in the 
location-specific permit to 180 days at any time, the proposed approach 
would allow the MTU to later return to the same location without being 
reissued the same location-specific permit. In effect, for the duration 
of an MTU location-specific permit, the MTU would be able to return to 
the location to provide multiple treatment services provided that the 
MTU never exceeds the proposed 180 consecutive operational day limit at 
the location and that the wastes do not vary significantly from prior 
treatment events. In the scenario that the wastes varied significantly 
and could no longer be treated under the terms of the existing permit, 
the MTU owner/operator could request a modification to the permit (see 
the section titled Permit Modifications above for more information on 
how MTU permits would be modified). EPA expects that this will allow 
for more efficient deployment of the MTU for recurring treatment work 
at a location while ensuring the protective conditions of the location-
specific permit are applied and that the MTU does not start to resemble 
a permanent unit.
    To effectuate these proposed limitations, EPA is proposing language 
in both in the definitions of MTU nationwide conditional approval, and 
MTU location specific permit in Sec.  260.10 and also in the proposed 
RCRA MTU permit conditions at Sec.  270.337.

Alternative Approaches for MTUs

One-Stage RCRA MTU Permit
    As discussed above, EPA is proposing a two-stage permitting process 
for MTUs treating waste explosives. EPA is proposing a two-stage 
process in order to separate the nationwide procedures (e.g., 
development of the nationwide design and operating standards, public 
comment on draft nationwide conditional approval) from the location-
specific procedures (e.g., development location-specific permit 
conditions, public notice). In this way, EPA believes that location-
specific permits can be issued relatively quickly by incorporating the 
nationwide conditional approval previously issued. Additionally, a 
distinct location-specific stage provides certain benefits. First, it 
allows for the development of permit conditions that may be necessary 
for the protective operation of an MTU at a given location with given 
waste streams. Secondly, it provides for targeted public notice of the 
intent to issue a permit.
    Under RCRA, before issuing a permit, the Director must cause to be 
published in major local newspapers of general circulation and 
broadcast over local radio stations notice of the agency's intention to 
issue the permit. Additionally, the Director must transmit in writing 
notice of the agency's intention to issue the permit to each unit of 
local government having jurisdiction over the area in which the 
facility is proposed to be located and to each State agency having any 
authority under State law with respect to the construction or operation 
of such facility. EPA expects that satisfying these public notice 
obligations, and providing meaningful opportunity for community 
participation, may be more efficiently done on a location-by-location 
basis. As such, EPA is proposing a two-stage process, in part, to allow 
for a location-specific stage where this public outreach can occur.
    However, EPA is requesting comment on a variation to the proposed 
option, under which EPA would permit MTUs in a single stage. Under such 
an approach, the technical part 264 standards applicable to an MTU 
would be largely unchanged, but the key procedural steps involved in 
issuing an MTU permit would be collapsed into one stage. The result 
would be a permit

[[Page 20004]]

that could allow for the MTU to operate at multiple locations under one 
permit. The primary appeal of this variation is that it may allow for 
more readily dispatchable MTUs that, over the duration of their permit, 
could operate at multiple locations with fewer procedural steps.
    EPA sees two potential shortcomings of this variation. First, in 
order to satisfy the public notice requirements required by RCRA, the 
MTU owner/operator would have to identify the areas and regions in 
which they expect and/or seek to operate in advance. Relatedly, the 
public notice requirements would presumably be more burdensome. 
However, this additional burden may be more than offset by the 
flexibility provided by a permit allowing an MTU to operate in multiple 
locations. Prior to issuance of a permit allowing them to operate in 
the specified areas, the public notice requirements would have to be 
satisfied in all of those areas. For example, this would require radio 
and newspaper notice on applicable local radio stations and in 
applicable newspapers of general circulation. If the MTU sought a 
permit to operate in several States, this would presumably require 
significantly more newspaper and local radio notifications be provided. 
Additionally, the notice would need to be provided to each unit of 
local government having jurisdiction over the areas in which the MTU is 
proposed to be located and to each State agency having any authority 
under State law with respect to the construction or operation of such 
an MTU. Finally, EPA would need to hold an informal public hearing if 
one is requested.\109\
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    \109\ Presumably, such a public hearing could be held virtually 
and thus cover multiple population centers.
---------------------------------------------------------------------------

    A second potential shortcoming would be a lack of an opportunity to 
develop permit conditions tailored to location and waste-specific 
considerations. In practice, this may be addressed by more 
comprehensive permit conditions. For example, the permit could set 
operating parameters for each of the potential waste types the unit may 
treat. The permit could also be required to include maximum limits or 
standards that would be protective in nearly all conceivable scenarios. 
The permit, much like in the proposed approach, would also be subject 
to environmental performance standards applicable across all locations. 
At a minimum, EPA expects developing the permit conditions that ensure 
protectiveness for a greater range of scenarios may mean more stringent 
standards would be applied than may be necessary at any given location. 
This potential for additional permitting burden may be offset, however, 
by the flexibility afforded by a permit allowing the MTU to treat waste 
explosives in more than one location.
    If such an approach were implemented, EPA expects the permitting 
procedures would, similarly to the proposed approach, be derived from 
those required during the issuance of RAPs. Of course, to accommodate a 
one-stage process, EPA expects some other refinements and changes to 
the proposed approach (beyond those discussed above) would likely be 
necessary to accommodate a one-stage permitting process. For one, the 
Agency would also likely modify the permit modification regulations to 
specify an avenue whereby additional operating locations could be added 
to the scope of a permit. Such a modification would include, among 
other things, the public notice requirements that would be required 
were a permit issued de novo to the MTU. An additional variation from 
the proposed approach, separate from any amendment to the permit 
modification regulations, may include additional advance notification 
requirements, for example, submitted to EPA and posted on the MTU's 
company website, related to where the MTU intends to treat hazardous 
waste and the volumes and types of wastes to be treated. Such 
information would be important for EPA and community awareness.
    Finally, EPA would consider requiring that the MTU owner/operator, 
not EPA, undertake the public notice requirements under such an 
approach. During the issuance of a traditional RCRA permit to a 
stationary facility, EPA or the authorized State undertake the post-
application public notice efforts. However, given the MTU would have 
the best knowledge regarding the communities in which it intends to 
operate during the permit term, EPA believes it could be more 
appropriate for the owner/operator to satisfy public notification 
requirements. Additionally, such an arrangement may serve as a check to 
owners/operators applying for permits allowing the MTU to treat waste 
explosives in a more extensive geographical area than, in all 
likelihood, would be necessary. While EPA is not proposing this 
approach to permitting MTUs, EPA requests comment on the approach. If 
public comment is supportive, EPA may finalize such an approach.
Permit by Rule--40 CFR Part 270 Subpart F, New Addition to 40 CFR 
270.60
    In developing an approach to encourage use of MTUs for waste 
explosives, EPA has so far focused on the RCRA permit process and how 
it could support more expeditious implementation of MTUs that would be 
more protective of human health and the environment than OB/OD. As 
discussed, MTUs could provide an on-demand treatment solution for 
facilities and entities that otherwise would need to invest in a 
permanent alternative or that cannot ship wastes off-site to another 
facility using alternative technologies. MTUs could also reduce wastes 
treated by OB/OD while a permanent alternative is pursued. While EPA is 
proposing a permitting approach that the Agency finds practical for 
MTUs, EPA recognizes that there are other alternative approaches that 
could also be considered for MTUs which could be more expeditious and 
further increase the use of MTUs. One of these alternatives considered 
but not proposed by EPA is a permit by rule.
    Under RCRA, permits by rule exist at Sec.  270.60 for certain 
classes of facilities conditioned on meeting regulatory-specified 
requirements. These are special forms of permits sometimes granted to 
facilities with permits for activities under other environmental laws. 
The RCRA regulations currently provide permits by rule for ocean 
disposal barges or vessels, injection wells, and publicly owned 
treatment works provided they meet certain criteria. EPA considered 
whether MTUs could reasonably operate under a permit by rule. MTUs not 
present a unique waste treatment solution, outside of a traditional TSD 
facility, for a specific subset of hazardous waste--waste explosives 
and may be amenable to a permit by rule. In addition, as noted above in 
the permitting framework discussions, many of the part 264 and 270 
regulations cannot be directly referenced or incorporated because they 
were developed with fixed or permanent facilities in mind. MTUs require 
a tailored set of requirements under parts 264 and 270 because they are 
not traditional, permanent facilities.
    EPA envisions an alternative to the proposed permitting approach 
whereby MTUs treating waste explosives would be granted a RCRA permit 
by rule, conditioned upon meeting specified requirements of part 264. 
EPA believes MTUs that comply with design and operating standards 
specified in part 264 would provide a more environmentally protective 
solution

[[Page 20005]]

than continued use of OB/OD. Similar to the proposed permitting 
approach, MTUs would be limited to 180 consecutive days of operation in 
any one location to ensure they do not become a stationary or permanent 
facility. An additional condition of the permit by rule could be a 
requirement to conduct certain public outreach steps prior to operating 
at any location. These steps could be the same public notice 
requirements required prior to issuance of a permit (e.g., notice via 
newspaper and radio). A permit by rule would also allow for quicker 
implementation of MTUs and divert more wastes from OB/OD sooner. Thus, 
EPA has considered whether MTUs are another instance in which a permit 
by rule would be appropriate for consideration.
    With respect to the conditions of the permit by rule that would 
need to be complied with to provide the necessary protections to human 
health and the environment, EPA envisions that under a permit by rule 
approach, select design and operating standards from part 264 would be 
adopted as conditions. As discussed earlier in the Design and Operating 
Standards section of the proposed permitting approach, the design and 
operating standards would be determined according to the part 264, 
subpart X standards for Miscellaneous Units. In addition, under this 
approach, the same unit-specific and location-specific part 264 
requirements presented above in the proposed permitting approach would 
be appropriate to apply as conditions that must also be required to be 
met to have a permit by rule.
    In the Design and Operating Standards section, EPA discusses each 
of the part 264 subparts that would constitute the unit specific 
applicable requirements. For example, under this approach (granting 
MTUs a permit by rule), MTU owners/operators would be required to 
develop a contingency plan that describes the actions to be taken by 
the MTU operators in response to fires, explosions, or any unplanned 
sudden or non-sudden releases. For each of the part 264 subparts (i.e., 
subparts B through E, G, H, and X) that EPA identified as appropriate 
for MTUs under the proposed permitting approach, EPA would, under this 
alternative, apply those standards as the conditions that MTUs must 
meet to receive a permit by rule. The applicable conditions for the 
permit by rule would be in a new paragraph in Sec.  270.60.
    As noted above, a major benefit of a permit by rule approach is 
that it would allow for the most expedient implementation of MTUs and 
divert more wastes from OB/OD sooner. However, EPA has identified 
significant disadvantages with this approach. First, it would not 
afford the public or the State regulatory authority an opportunity to 
review and provide input on site-specific design and operating 
conditions to better ensure protectiveness. Second, it would be 
extremely challenging for EPA to develop and finalize design and 
operating standards that would be applicable to the wide variety of 
MTUs that may be used under this exemption, ranging from closed 
detonation and thermal destruction technologies to chemical destruction 
technologies such as supercritical water oxidation to unknown future 
technologies. (See discussion in Overview of OB/OD and Development of 
Alternative Technologies.)
    A variation of this permit by rule that could address some of the 
disadvantages mentioned, could be to require as a condition of the 
permit by rule that the MTU owner/operator apply for and receive a 
nationwide conditional approval and comply with the terms and 
conditions in the approval. As presented in the proposed permitting 
approach above, the nationwide conditional approval would include the 
MTU design and operating standards for the specific type of unit, and 
conditions related to closure (interim and final), financial assurance, 
contingency and emergency planning, and recordkeeping and reporting 
requirements. Additionally, the nationwide conditional approval process 
would provide an opportunity for public comment on the draft approval 
before it would be finalized/approved by the regulatory authority and 
the unit could begin operations.
    Although this option contains enhanced protections and opportunity 
for public and regulatory input prior to operations beginning, the 
nationwide conditional approval does not consider location-specific 
information such as identification of the location of the proposed MTU 
treatment operations, specifications on the types and quantities of 
wastes allowed to be treated at the location, operational conditions 
tailored to the specific wastes, or the dates of operation. Also, it 
lacks the additional opportunity for public participation at the local 
level that would be associated with issuance of a RCRA permit. For the 
above reasons, EPA has decided not to propose the permit by rule 
alternative. However, EPA is requesting comment on this variation on 
the permit by rule (i.e., that incorporates a nationwide conditional 
approval), particularly with regard to how EPA could potentially 
address some of the identified gaps, for example by adding more 
conditions to the nationwide conditional approval. If public comment on 
this approach is supportive and constructive, EPA may finalize this 
approach.
Use of Existing Special Forms of Permits and Temporary Authorization 
Procedures
    Other possible approaches for MTUs that could facilitate their use 
include relying on existing special permit procedures such as research, 
development, and demonstration (RD&D) permits under Sec.  270.65 and 
temporary authorizations under Sec.  270.42(e).
RD&D Permits
    RD&D permits are intended to be used to evaluate feasibility of an 
innovative and experimental technology. In the case of MTUs, there are 
units that have been demonstrated and successfully used to treat waste 
explosives that would not be considered innovative or experimental and 
thus, would not qualify for an RD&D permit. EPA believes, however, that 
RD&D permits could be appropriate for an individual MTU under certain 
circumstances. Explosive wastes encompass a wide variety of items, some 
of which currently do not have an alternative technology that can 
safely or effectively treat them. A new experimental technology could 
be designed to address some of these challenging explosive waste 
streams, and thus qualify for an RD&D permit when brought to a location 
to demonstrate its capability.
    The goal of RD&D projects is to determine whether they can provide 
a reliable treatment solution without the risk of investment in 
significant resources that could result in losses if a technology is 
not successful.\110\ In addition, RD&D projects are short-term by their 
nature, since the results are intended to be applied to processes or 
units that could operate on a permanent basis in the future. HSWA added 
RCRA section 3005(g)(3) to allow EPA to issue RD&D permits for the 
purpose of promoting development of innovative and experimental 
hazardous waste treatment technologies and processes, provided that 
permit standards for such activities have not already been established 
by EPA.\111\ Because of the

[[Page 20006]]

emphasis on technological advancements and the shorter duration of RD&D 
projects, the requirements for obtaining RD&D permits are less rigorous 
than traditional RCRA permits. That is, certain part 124 and part 270 
requirements may be waived to expedite the issuance of RD&D permits, 
but standards deemed necessary to protect human health and the 
environment are required to be maintained (Sec.  270.65(a)(2) and (3)).
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    \110\ EPA is aware of one RD&D permit that was issued by EPA 
Region 7 to Iowa Army Ammunition Plant specifically for testing and 
ensuring that the alternative treatment technology would be capable 
of safely treating waste explosives prior to its full commissioning.
    \111\ MTUs would be classified as part 264, subpart X. Subpart X 
provides performance-based standards for a variety of units. Thus, 
EPA does not interpret this to mean that MTUs have existing permit 
standards that are applicable to every type of MTU. MTU permits will 
be comprised of appropriate part 264 design and operating standards 
developed on a site-specific basis.
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    Based on the requirements for, and the intent of RD&D permits, EPA 
believes that these permits could be appropriate in certain cases and 
could provide a more streamlined permit solution than either a 
traditional RCRA permit or EPA's proposed two-stage permitting 
approach. One potential drawback, however, of RD&D permits is that 
because they are intended to evaluate the feasibility of an innovative 
and experimental technology, the permit would be limited to a one-time 
use covering the RD&D period of the MTU at the specified location. EPA 
anticipates that if an MTU successfully completes the RD&D activity, it 
would likely be contracted to return for future treatment. In this 
case, a subsequent RD&D permit would not be an available option if the 
same MTU returns that was previously and successfully demonstrated. A 
different permitting mechanism or procedure would be required to enable 
the treatment, unless perhaps there is a novel waste stream to be 
treated that the unit has not previously been demonstrated for.
Temporary Authorizations
    Another potential alternative for operation of MTUs at TSDFs 
involves use of temporary authorizations. The temporary authorization 
procedure at Sec.  270.42(e) was developed to allow owners/operators of 
permitted TSD facilities to conduct activities to respond promptly to 
changing conditions and are intended to improve the management of 
hazardous wastes. As further explained in the preamble for the final 
rule promulgating temporary authorization regulations, the temporary 
authorization is expected to be useful in the following two situations: 
(1) To address a one-time or short-term activity (up to 180 days) at a 
permitted facility; or (2) to allow a permitted facility to initiate a 
necessary activity while its permit modification request is undergoing 
the Class 2 or 3 review process.\112\ For MTUs, EPA sees merit in both 
situations. In the first, the primary purpose of MTUs is to provide 
short-term treatment activities in which a full modification process 
could unnecessarily delay a more protective treatment option and 
discourage its implementation. For the second, MTUs would be providing 
a more environmentally protective solution when compared to the current 
treatment method of OB/OD, and the sooner it could begin the necessary 
treatment activity while a modification is under review, the better for 
the environment and for any nearby communities. EPA believes that 
temporary authorizations for the use of MTUs would be appropriate 
because they would provide a short-term treatment solution and improve 
hazardous waste management.
---------------------------------------------------------------------------

    \112\ 53 FR 37912, September 28, 1988.
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    Temporary authorizations are limited to permitted facilities; 
however, EPA anticipates that permitted facilities would account for 
the majority of MTU use. Temporary authorizations may be obtained for 
activities that traditionally fall under the Class 2 or Class 3 permit 
modification procedures and must meet the corresponding criteria as 
described in Sec.  270.42(e)(2)(i). EPA believes that MTUs can meet the 
specified criteria for both Class 2 and Class 3 procedures. Also, the 
regulation requires that temporary authorizations be issued for a 
limited period of no more than 180 days. If the work cannot be 
completed within the 180 days, a temporary authorization may be re-
issued but a permittee must also request a Class 2 or Class 3 permit 
modification for the covered activity. This timing is consistent with 
EPA's proposal under the permitting option to limit the duration of 
operation at any one location, which EPA believes is necessary to 
ensure that the MTU does not become a permanent facility and would 
require a traditional RCRA permit. In addition, it may make sense then 
for permitted facilities that would like to use an MTU on a recurring 
basis (e.g., for example, more than once per year) to submit a Class 2 
or Class 3 permit modification request along with the temporary 
authorization for ease of future operation at the facility.
    While EPA sees the benefits of a temporary authorization to include 
a streamlined and expeditious approach for facilitating use of more 
environmentally protective treatment via MTUs, EPA also notes that 
temporary authorizations can be issued without prior public notice and 
comment. The permittee, however, must still send a notice about the 
temporary authorization to the facility mailing list per Sec.  
124.10(c)(1)(ix). Again, because of the benefits MTUs offer over OB/OD 
and given that the units must still comply with relevant part 264 
operating standards, EPA anticipates that there would be public support 
for MTUs and use of the temporary authorizations on a one-time, short-
duration basis. Also, it should be noted that if, subsequent to or 
without a temporary authorization request, when a facility requests a 
Class 2 or 3 modification for longer-term or recurring MTU operation, 
public notice and comment would be provided as part of these 
modification processes.
Summary and Request for Comment
    MTUs offer many potential environmental and economic benefits as a 
controlled and more protective alternative to OB/OD. In this proposal, 
EPA has endeavored to create a framework to facilitate the safe, 
effective, and efficient use of MTUs to treat waste explosives as an 
alternative to OB/OD. Specifically, EPA has proposed a two-stage 
permitting approach and has presented three alternative approaches for 
MTUs. The alternative approaches include a one-stage RCRA MTU permit, a 
non-permitting approach, and the use of two existing permit-based 
approaches which could be used in combination with the proposed 
permitting approach or on their own in certain cases. In developing 
each approach, EPA has strived to identify and construct them to 
facilitate use of MTUs as an alternative to OB/OD, and to provide 
sufficient regulatory oversight of the operation of MTUs.
    EPA has presented several approaches for permitting MTUs for waste 
explosives and is interested in commenter feedback generally on the 
preference for one approach versus another, but also on specific 
aspects of each approach. With respect to EPA's proposed two-stage 
permitting process, EPA seeks comment on the proposed framework in 
which EPA would issue a nationwide conditional approval to the MTU 
owner/operator that would accompany the unit to every job site and 
would reflect the bulk of the permitting requirements applicable to the 
unit, followed by the EPA-issued location-specific RCRA permit 
authorizing treatment of waste explosives (i.e., for a specific job 
site). Specifically, EPA would like feedback on the procedural 
processes proposed for both stages, for example, the completeness 
finding and public participation requirements and the application 
contents including the applicable part 264 and part 270 requirements. 
In addition, EPA would like to know if commenters agree with

[[Page 20007]]

the proposed time limitations for the nationwide conditional approval, 
the location-specific RCRA permit, and the operational time limits. 
Overall, EPA is interested in whether commenters believe this proposed 
approach to standardize a permit process, via a special form of permit 
specific to MTUs would be helpful in promoting the use of MTUs.
    Regarding the alternative approaches, EPA presents a variation of 
the proposed two-stage permitting approach which essentially collapses 
all of the requirements into one-stage. Under this alternative one-
stage RCRA MTU permit, the technical part 264 standards applicable to 
an MTU would be largely unchanged and the result would be a permit that 
could allow for the MTU to operate at multiple locations with fewer 
procedural steps. EPA recognizes that there are potential challenges 
with this approach particularly in regard to public notice requirements 
for the various locations at which the MTU could operate, and to 
developing permit conditions tailored to location and waste-specific 
considerations. In light of these shortcomings, EPA discusses potential 
avenues to mitigate them and thus, requests comment on whether this 
one-stage permit approach would be desirable, and if commenters agree 
with the mitigating solutions discussed.
    EPA also discussed and described a permit by rule approach to 
permitting MTUs based on compliance with specified standards. For this 
alternative approach, EPA requests that commenters indicate if they 
agree with the approach generally, and specifically with the applicable 
part 264 standards which would be the same as those proposed for the 
nationwide conditional approval. In addition, given the disadvantages 
with the permit by rule approach discussed, EPA suggests that a 
requirement could be added to obtain a nationwide conditional approval. 
EPA requests comment on this variation to add a nationwide conditional 
approval and whether certain location-specific requirements should be 
added to the nationwide conditional approval to provide further 
protections.
    Last, EPA discussed how existing RCRA permit procedures could be 
applied to MTUs in certain circumstances. While there would not be any 
changes needed for RD&D permits or the temporary authorization 
procedures to accommodate MTUs, EPA requests comment on the merits of 
using these existing procedures for MTUs where applicable.

III. State Authorization

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer their own hazardous waste programs in lieu of the Federal 
program within the State. Following authorization, EPA retains 
enforcement authority under sections 3008, 3013, and 7003 of RCRA, 
although authorized States have primary enforcement responsibility. The 
standards and requirements for State authorization are found at part 
271.
    After a State receives initial authorization, new Federal 
requirements and prohibitions promulgated under RCRA authority existing 
prior to the 1984 HSWA do not apply in that State until the State 
adopts and receives authorization for equivalent State requirements. In 
contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was 
added by HSWA, new requirements and prohibitions imposed under HSWA 
authority take effect in authorized States at the same time that they 
take effect in unauthorized States. As such, EPA carries out the HSWA 
requirements and prohibitions in authorized States, including the 
issuance of new permits implementing those requirements, until EPA 
authorizes the State to do so.
    Authorized States are required to modify their programs only when 
EPA enacts Federal requirements that are more stringent or broader in 
scope than existing Federal requirements. Under RCRA section 3009, 
States may impose standards more stringent than those in the Federal 
program (see also Sec.  271.1(i)). Therefore, authorized States are not 
required to adopt new Federal regulations that are considered less 
stringent than previous Federal regulations or that narrow the scope of 
the RCRA program.
Effect on State Authorization
    This proposed rule would be promulgated primarily pursuant to 
section 3004(n) of RCRA, a provision added by HSWA. RCRA section 
3004(n) directs the Agency to develop standards to control air 
emissions at hazardous waste TSDFs as may be necessary to protect human 
health and the environment. These proposed revisions would reduce OB/OD 
of waste explosives through strengthened requirements that narrow 
facility eligibility to treat by OB/OD. Specifically, this proposal 
would increase control of air emissions through greater adoption and 
use of alternative technologies, and the increased control of air 
emissions is EPA's principal objective in this proposal. The Agency is 
proposing to add the requirements to table 1 in Sec.  271.1(j) 
accordingly.
    In addition, this proposed rule would be more stringent than the 
existing Federal regulations. This is because the proposed rule would 
establish new (1) requirements for the content and timing of 
alternative technology evaluations and implementation of safe 
alternatives; (2) technical standards for OB/OD units, including 
prohibition of certain wastes from treatment by OB/OD; (3) requirements 
for emergency responses subject to emergency permits to consider 
alternatives to OB/OD; (4) requirements for delay of closure as 
applicable to OB/OD units including continuation of permits until clean 
closure is completed; and (5) standardized MTU permitting procedures 
which include a two-stage permitting process with national and local 
public notice, five-year permit term, and limits on operating duration 
of the unit at any one location.
    Because this proposed rule would be implemented under HSWA 
authority and is more stringent than the existing Federal requirements, 
the proposed rule would take effect in authorized States at the same 
time it takes effect in unauthorized States. All permits issued after 
the effective date would incorporate the appropriate standards. The 
proposed standards would apply to interim status facilities on the 
effective date of the standards.
    Interim status facility owners/operators who have submitted part B 
applications but have not received their final permits as of the 
effective date of the standards would be required to modify their part 
B applications to incorporate the part 264 and 270 requirements of the 
final rule into their applications. For permitted facilities, the new 
standards would not apply until the facility's permit is modified or 
renewed. When new regulations are promulgated after the issuance of a 
permit, EPA or authorized States may reopen the permit to incorporate 
the new requirements as stated in Sec.  270.41.
    With respect to State authorization, this proposal: (1) Would, 
under proposed part 264, subpart Y, establish new technical standards 
for OB/OD units, which authorized States already have authority to 
permit; and (2) would for the first time establish national procedures 
for permitting of mobile treatment units that would cross State 
borders. In light of these circumstances, EPA describes how State 
implementation of the proposed rule would work in authorized States.

[[Page 20008]]

Permitting of OB/OD Units
    In 1987, the Agency promulgated the part 264, subpart X 
miscellaneous unit standards. In that 1987 rule, the Agency stated that 
OB/OD units are one example of a miscellaneous unit that could be 
permitted under those standards. Thus, authorized States currently have 
authority to permit OB/OD units under the existing part 264, subpart X 
standards.
    With respect to implementing the proposed part 264, subpart Y 
standards for OB/OD units and new provisions related to emergency 
responses exempt from RCRA permitting and for emergency permits, 
authorized States would continue to implement their programs rather 
than EPA taking separate actions under Federal authority, provided 
authorized State permits are as stringent as the new requirements.
    EPA is proposing new technical standards for OB/OD units under a 
new subpart Y in part 264. Because the proposed subpart Y technical 
standards would be imposed under HSWA authority and are more stringent 
than the existing Federal program, these technical standards would take 
effect in authorized States at the same time as unauthorized States.
    States that are authorized to implement part 264, subpart X 
standards may already have authority for requirements similar to those 
in this proposed rule. Specifically, subpart X standards already 
require permits to contain such terms and provisions as necessary to 
protect human health and the environment, including permit terms and 
requirements of various other unit standards in part 264 and 
requirements in part 270. This is further underscored by the fact that 
many OB/OD permits issued by States already contain conditions 
consistent with many of the subpart Y standards EPA is proposing. 
Authorized States would continue to administer and enforce these 
standards under subpart X, provided permits issued after the effective 
date of the final rule include permit terms and conditions that are 
equivalent to the proposed subpart Y standards. This permit 
administration could continue until the authorized State adopts and 
becomes authorized for subpart Y as required under RCRA. States would 
also continue to administer and enforce RCRA emergency permits in the 
same manner; authorized States already have authority under Sec.  
270.61(b)(6) to incorporate other applicable requirements, such as 
those similar to requirements proposed.
    While this State permit administration would continue as described 
above, EPA would also have an obligation to ensure the regulations 
promulgated under HSWA authority are implemented in all States after 
the effective date of the final rule. To satisfy this obligation, EPA 
would review and provide comments on draft permits provided by 
authorized States to ensure the requirements are implemented. Should an 
authorized State issue a final permit that fails to include the newly 
promulgated HSWA requirements, EPA would have the authority to issue a 
joint permit with the State to include those requirements.
Permitting of Mobile Treatment Units
    With respect to permitting MTUs for waste explosives, EPA would not 
authorize states to permit MTUs, although it may consider doing so at 
some point in the future.
    MTUs are unique in that they would be permitted to treat waste 
explosives at multiple locations including, potentially, in multiple 
States. As described above in this proposal, MTUs could serve as an 
important and cost-effective alternative to OB/OD for facilities that 
generate small or infrequent amounts of waste explosives. EPA proposes 
standardized permitting procedures that include a nationwide 
conditional approval and a location-by-location specific permit for 
MTUs.
    Because of the need for national consistency related to permitting 
of units that cross State boundaries, EPA would not authorize States to 
permit MTUs under this rulemaking. There are several reasons for this. 
First, EPA's proposed permitting process for MTUs consists of a 
nationwide conditional approval, which, because of its national 
impacts, could only be implemented by EPA as national authority. 
Second, EPA is proposing that the nationwide conditional approval could 
be modified as part of each location-specific permit, and EPA believes 
it would reduce administrative burden if the modifications as part of 
each permit were considered by the same authority (EPA) that issued the 
nationwide conditional approval. EPA is concerned that, should the 
barriers to obtaining an MTU permit be too high, it would effectively 
remove this option as an alternative, thereby delaying the benefits of 
reduced air emissions from treatment of explosive hazardous waste. 
Third, EPA is not expecting there to be a large number of MTUs that 
would be permitted to treat waste explosives. Consolidating the 
expertise and process with one permitting authority would be more 
efficient. Fourth, EPA expects the Agency would gain valuable 
experience and information from review of MTU permit applications that 
may affect future OB/OD or MTU rulemakings. EPA could consider, after 
some time in implementing the MTU permitting program, whether 
authorization of states for certain aspects of the program could make 
sense in the future.
    EPA requests comment on two alternative approaches to State 
authorization specific to permitting MTUs. The first alternative 
approach would be to allow States to be authorized to issue the 
location-specific permits (with EPA issuing nationwide conditional 
approvals). Under such an approach, EPA would issue nationwide 
conditional approvals to MTUs as described in the proposed approach, 
and then EPA or the State, if authorized, would issue the location-
specific RCRA permit to the MTU. This approach has the benefit of 
leveraging the experience and expertise in RCRA permitting that exists 
in the States; however, it may result an in a less efficient approach 
to permitting MTUs. As noted above, because each issuance of a 
location-specific permit is an opportunity to modify conditions of the 
EPA-issued nationwide conditional approval, EPA believes it would 
reduce administrative burden if both the nationwide conditional 
approval and location-specific permit were considered by the same 
authority (EPA). Moreover, the approach could result in inconsistencies 
in the location-specific permitting approaches and requirements state-
to-state, that may add greater uncertainty into the permitting process. 
Finally, the financial assurance requirements for MTUs would either 
need to be restructured or an MTU may need to make separate financial 
assurance demonstrations in each State in which they seek to operate. 
EPA would, under this approach, still issue nationwide conditional 
approvals and location-specific permits to allow MTUs to operate in 
States until States become authorized.
    The second alternative approach would be to allow States to become 
authorized to issue both statewide conditional approvals (in lieu of 
EPA issuing a nationwide conditional approval) and also location-
specific permits in their State. EPA would, under this approach, still 
issue nationwide conditional approvals and location-specific permits to 
allow MTUs to operate in States until States become authorized. Similar 
to the first alternative, this approach also has the benefit of 
leveraging the experience and expertise in RCRA permitting that exists 
in the States. This approach would also

[[Page 20009]]

allow the same authority that issued the conditional approval to issue 
the location-specific permit resulting in some efficiency. However, 
this approach would require MTUs to obtain a statewide conditional 
approval in each State they sought to operate as well as a nationwide 
conditional approval to operate in unauthorized States. In some large 
States, this may not be as consequential, however, given that there are 
only 67 TSDFs with operating OB/OD units (and 2 corrective action 
facilities), EPA believes this approach may be significantly more 
administratively burdensome nationwide. EPA notes that this approach is 
most similar to the 1987 proposed approach for RCRA MTUs that was never 
finalized due to the administrative burden it entailed.
    While EPA is not proposing either of these two approaches, EPA is 
requesting comment on the approaches and may finalize either of the 
options. Additionally, should EPA consider finalizing one of the two 
alternative approaches, EPA is requesting comment on whether it should 
provide an option for States to become authorized to permit MTUs. For 
example, if EPA did finalize an alternative to allow States to become 
authorized for MTUs, some authorized States could choose not to become 
authorized thereby allowing EPA to permit MTUs within their State. Were 
either of these approaches to be finalized, most of the proposed 
approach (e.g., the technical standards applicable to MTUs, permitting 
procedures) would remain intact. However, EPA expects the financial 
assurance requirements would need to be restructured to reflect the 
fact that the MTU may be issued RCRA permits from multiple permitting 
authorities. This may entail requiring the owner/operator to make 
multiple financial assurance demonstrations.

B. Summary and Request for Comment

    EPA proposes that this rule would take effect in authorized States 
at the same time it takes effect in unauthorized States. Interim status 
facility owners/operators would be required to modify their part B 
applications to incorporate the Parts 264 and 270 requirements of the 
final rule into their permit applications. With respect to implementing 
the proposed part 264, subpart Y standards for OB/OD units and new 
provisions related to emergency responses exempt from RCRA permitting 
and for emergency permits, State permit administration would continue 
as described above, provided authorized State permits are as stringent 
as the new requirements. Additionally, under EPA's proposed approach, 
EPA would not authorize States to permit MTUs for the reasons stated 
above.
    EPA requests comment on how it should implement the proposed rules 
in authorized States, including both on its proposed approach and 
alternative approaches with respect to authorizing States to permit 
MTUs.

IV. Statutory and Executive Order (E.O.) Reviews

    Additional information about these statutes and EOs can be found at 
https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a ``significant regulatory action'' as defined in 
Executive Order 12866, as amended by Executive Order 14094. 
Accordingly, EPA submitted this action to the Office of Management and 
Budget (OMB) for Executive Order 12866 review. Documentation of any 
changes made in response to the Executive Order 12866 review is 
available in the docket. The EPA prepared an economic analysis of the 
potential impacts associated with this action. This analysis, 
``Regulatory Impact Analysis for the Revisions to Standards for the 
Open Burning/Open Detonation of Explosive Waste Materials Proposed 
Rule,'' and is also available in the docket.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to the OMB under the PRA. The Information 
Collection Request (ICR) document that the EPA prepared has been 
assigned EPA ICR number 2769.01. You can find a copy of the ICR in the 
docket for this proposed rule, and it is briefly summarized here.
    This proposed rule imposes new information collection requirements 
on the facilities subject to the proposed rule's new operating, 
monitoring, and reporting requirements. The new provisions would 
specify how and when owners/operators and permit authorities are to 
evaluate alternative treatment technologies for OB/OD, including 
specific information that would be required for facilities to 
demonstrate whether safe alternative modes of treatment are available 
for specific waste streams.
    EPA must obtain sufficient information to assess whether safe 
alternatives are available in lieu of OB/OD. In addition, for instances 
where OB/OD remains the only treatment method for waste explosives, the 
Agency requires sufficient information to ensure that permitting 
requirements are being met and properly implemented. The goal of the 
reporting requirements is to support improved protection of human 
health and the environment by reducing the amount of waste explosives 
currently being open burned and open detonated and, where OB/OD remains 
the only available treatment method, by strengthening protections for 
OB/OD activities. EPA will use the collected information to ensure that 
alternatives to OB/OD of waste explosives are being identified and 
implemented, when possible, confirm permitting requirements are being 
met, and monitor any potential harms to human health and the 
environment.
    Respondents/affected entities: Entities potentially affected by 
this action are private sector and State, Local, or Tribal governments.
    Respondent's obligation to respond: Mandatory (RCRA section 3004).
    Estimated number of respondents: 24.
    Frequency of response: Every five years or as specified in permit.
    Total estimated burden: 27,557 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $2,763,449, includes $207,600 annualized 
capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates and any suggested methods for 
minimizing respondent burden to the EPA using the docket identified at 
the beginning of this proposed rule. The EPA will respond to any ICR-
related comments in the final rule. You may also send your ICR-related 
comments to OMB's Office of Information and Regulatory Affairs using 
the interface at www.reginfo.gov/public/do/PRAMain. Find this 
particular information collection by selecting ``Currently under 
Review--Open for Public Comments'' or by using the search function. OMB 
must receive comments no later than May 20, 2024.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities

[[Page 20010]]

under the RFA. The small entities subject to the requirements of this 
action are small businesses from the following NAICS code industries: 
Other Basic Inorganic Chemical Manufacturing; All Other Basic Organic 
Chemical Manufacturing; Explosives Manufacturing; All Other 
Miscellaneous Chemical Product and Preparation Manufacturing; 
Ammunition (except Small Arms) Manufacturing; Search, Detection, 
Navigation, Guidance, Aeronautical, and Nautical System and Instrument 
Manufacturing; and Marketing Research and Public Opinion Polling. The 
Agency has determined that eight small entities (12% of the universe) 
may experience an impact of 0.02% and 0.7% of revenues. Details of this 
analysis are presented in the Regulatory Impact Analysis for the 
Revisions to Standards for the Open Burning/Open Detonation of 
Explosive Waste Materials Proposed Rule.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any State, 
local or Tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action has Tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
Tribal governments, nor preempt Tribal law. Some facilities affected by 
this law are near federally recognized Tribes.
    The EPA invited Tribes located near OB/OD facilities to consult 
with EPA on the proposed rulemaking under the EPA Policy on 
Consultation and Coordination with Indian Tribes so they would have 
opportunity to provide meaningful and timely input into its 
development. One Tribe formally consulted with EPA on this proposed 
rule; a summary of that consultation is provided in the docket of this 
proposed rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 directs Federal agencies to include an 
evaluation of the health and safety effects of the planned regulation 
on children in Federal health and safety standards and explain why the 
regulation is preferable to potentially effective and reasonably 
feasible alternatives. This action is not subject to E.O. 13045 because 
it is not a significant regulatory action under section 3(f)(1) of 
Executive Order 12866, and because the EPA does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. However, EPA's Policy on Children's 
Health applies to this action.\113\ EPA finds that this proposal, 
through clarifying a previously promulgated Federal standard, would 
improve protection of human health, including children's health, in 
communities located near OB/OD facilities.
---------------------------------------------------------------------------

    \113\ https://www.epa.gov/system/files/documents/2021-10/2021-policy-on-childrens-health.pdf.
---------------------------------------------------------------------------

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. The scope of this rulemaking does not 
impact the supply, distribution or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking involves environmental monitoring or measurement. 
Consistent with the Agency's Performance Based Measurement System 
(PBMS), the EPA proposes not to require the use of specific, prescribed 
analytic methods. Rather, the Agency plans to allow the use of any 
method that meets the prescribed performance criteria. The PBMS 
approach is intended to be more flexible and cost-effective for the 
regulated community; it is also intended to encourage innovation in 
analytical technology and improved data quality. The EPA is not 
precluding the use of any method, whether it constitutes a voluntary 
consensus standard or not, as long as it meets the performance criteria 
specified.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096 Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    The EPA believes that the human health or environmental conditions 
that exist prior to this action result in or have the potential to 
result in disproportionate and adverse human health or environmental 
effects on communities with environmental justice concerns. The 
demographic analysis in the Regulatory Impact Analysis for the 
Revisions to Standards for the Open Burning/Open Detonation of 
Explosive Waste Materials Proposed Rule, indicates that, in aggregate, 
current conditions may disproportionately impact potentially vulnerable 
communities near operating OB/OD facilities. Some demographic and 
socioeconomic indicators are higher than national averages in the above 
analyses.
    The EPA believes that this action is likely to reduce existing 
disproportionate and adverse effects on communities with environmental 
justice concerns. More frequent alternative technology reevaluations 
and new technical permitting standards may accelerate the 
identification and implementation of cleaner, safer alternative 
technologies.
    The EPA additionally identified and addressed EJ concerns by 
conducting informational webinars. EPA recognizes that communities are 
concerned about emissions of contaminants from OB/OD. The treatment of 
waste explosives conducted in the open can expose communities to 
hazardous substances through air emissions and deposition onto the 
ground that can contaminate the soil, surface water, sediments, and 
groundwater. Leading up to, and during development of this proposed 
rulemaking, EPA has taken actions to involve communities. During 
several separate webinars, communities were invited to provide their 
input on proposed changes to the existing OB/OD regulations that would 
help strengthen the existing regulations, as well as clarify when 
facilities are eligible to conduct OB/OD.\114\
---------------------------------------------------------------------------

    \114\ Tribal coordination and consultation materials and webinar 
meeting summaries are in the docket for this rulemaking, Docket ID 
No. EPA-HQ-OLEM-2021-0397 (http://www.regulations.gov).
---------------------------------------------------------------------------

    First, EPA held an informational webinar on February 23, 2022, for 
Tribes located near OB/OD facilities, in support of EPA's consultation 
and coordination regarding the proposed

[[Page 20011]]

rulemaking.\115\ EPA identified four OB/OD facilities located in close 
proximity to or on Tribal lands and presented information about the 
proposed rule to assist Tribes in determining whether they would like 
to formally consult with EPA. One Tribe subsequently requested formal 
consultation with EPA, which occurred on March 28, 2022. During this 
consultation, the Choctaw Nation of Oklahoma raised several concerns 
ranging from air emissions, contaminants spread through ``kickout'' of 
unreacted waste explosives, ground vibration causing structural damage 
to residences, and impairment of local water bodies. EPA provided 
responses to the Choctaw Nation of Oklahoma during the consultation 
meeting and committed to coordination with other program areas in EPA, 
as well as the State permitting agency, to address their concerns. In 
addition, EPA has considered ways in which the OB/OD regulations could 
be improved via this proposed rulemaking and has included new 
provisions and clarifications of existing requirements to strengthen 
the regulations.
---------------------------------------------------------------------------

    \115\ EPA Policy on Consultation and Coordination with Indian 
Tribes. https://www.epa.gov/tribal/forms/consultation-and-coordination-tribes.
---------------------------------------------------------------------------

    Second, EPA held an informational webinar on March 10, 2022, for 
interested communities and environmental groups (see footnote 24). This 
early engagement sought input for EPA to consider prior to development 
of the proposed rulemaking. Representatives from a variety of community 
and environmental groups and one Tribe were in attendance:

 Louisiana Environmental Action Network
 Center for Progressive Reform
 Tulane Law School
 Public citizens
 Earthjustice
 Citizens for Safe Water Around Badger
 Prutehi Litekyan/Save Ritidian
 California Communities Against Toxics
 Central Louisiana Coalition for a Clean and Healthy 
Environment
 Vidas Viequenses Valen
 Concerned Citizens for Nuclear Safety
 San Ildefonso Pueblo

    Topics addressed included:
     Alternative treatment technologies and adding an explicit 
regulatory requirement to evaluate available alternative treatment 
technologies and to implement identified alternatives in place of OB/
OD.
     Scope of applicability for who the rule should include/
exclude.
     Timing for rule compliance to determine how soon the new/
revised requirements should go into effect.
     New technical standards for OB/OD units to better control 
emissions and contamination.
    As a result of this webinar, EPA heard accounts of how communities 
located near OB/OD facilities are negatively impacted by air emissions 
and noise and vibration impacts from the treatment events. In addition, 
some community and environmental members indicated environmental 
justice concerns for certain locations.
    Last, EPA held an informational public webinar on December 5, 2022, 
which was open to all groups, to provide opportunity for public input 
during the drafting phase of the proposed rule. This webinar presented 
the same topics as the March 10, 2022, webinar, with more specific 
approaches under consideration by EPA. Community and environmental 
members, and several Tribes provided additional input related to their 
concerns. Input provided to EPA included establishing in the rule: 
prohibition OB/OD of certain wastes, provisions for air monitoring in 
communities, and requirements for better communication between the OB/
OD facilities and the communities.
    Through the webinars, EPA gained valuable insight and information 
from community and environmental groups that led to the incorporation 
of additional proposed requirements to further strengthen OB/OD 
regulatory requirements.

List of Subjects in 40 CFR Parts 124, 260, 264, 265, 270, and 271

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Confidential business information, Hazardous 
materials transportation, Hazardous waste, Indians-lands, Insurance, 
Intergovernmental relations, Packaging and containers, Penalties, 
Reporting and recordkeeping requirements, Security measures, Surety 
bonds, Water pollution control, Water supply.

Michael S. Regan,
Administrator.

    For the reasons set forth in the preamble, the EPA proposes to 
amend 40 CFR parts 124, 260, 264, 265, 270, and 271 as follows:

PART 124--PROCEDURES FOR DECISIONMAKING

0
1. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean 
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et 
seq.

Subpart A--General Program Requirements

0
2. Amend Sec.  124.1 by revising paragraph (a) to read as follows:


Sec.  124.1  Purpose and scope.

    (a) This part contains EPA procedures for issuing, modifying, 
revoking and reissuing, or terminating all RCRA, UIC, PSD and NPDES 
``permits'' (including ``sludge-only'' permits issued pursuant to Sec.  
122.1(b)(2) of this chapter. The latter kinds of permits are governed 
by part 270 of this chapter. RCRA interim status and UIC authorization 
by rule are not ``permits'' and are covered by specific provisions in 
parts 144, subpart C and 270 of this chapter. This part also does not 
apply to permits issued, modified, revoked and reissued or terminated 
by the U.S. Army Corps of Engineers. Those procedures are specified in 
33 CFR parts 320 through 327. This part also does not apply to the 
issuance of RCRA permits for Mobile Treatment Units except as specified 
in part 270, subpart K of this chapter. The procedures of this part 
also apply to denial of a permit for the active life of a RCRA 
hazardous waste management facility or unit under Sec.  270.29 of this 
chapter.
* * * * *

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
3. The authority citation for part 260 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927,6930, 6934, 6935, 
6937, 6938, 6939, 6939(g), and 6974.

Subpart B--Definitions

0
4. Amend Sec.  260.10 by:
0
a. Adding the definitions in alphabetical order for ``Detonation'',
0
b. Revising the definition for ``Explosives or munitions emergency'';
0
c. Adding the definitions in alphabetical order for ``Mobile treatment 
unit or MTU'', ``MTU location-specific permit'', ``MTU nationwide 
conditional approval'';
0
d. Removing the definition for ``Open burning''; and
0
e. Adding the definitions in alphabetical order for ``Open burning 
(OB)'', ``Open burning/open detonation (OB/OD) unit'', ``Open 
detonation'', and ``Waste explosives''.
    The additions and revision read as follows:

[[Page 20012]]

Sec.  260.10  Definitions.

* * * * *
    Detonation means the explosive process in which chemical 
transformation passes through the material faster than the speed of 
sound (0.33 kilometers/second at sea level).
    Explosives or munitions emergency means a situation involving the 
suspected or detected presence of unexploded ordnance (UXO), damaged or 
deteriorated explosives or munitions, an improvised explosive device 
(IED), other potentially explosive material or device, or other 
potentially harmful military chemical munitions or device, that creates 
an actual or potential immediate threat to human health, including 
safety, or the environment, including property, as determined by an 
explosives or munitions emergency response specialist. Such situations 
may require immediate and expeditious action by an explosives or 
munitions emergency response specialist to control, mitigate, or 
eliminate the threat.
* * * * *
    Mobile treatment unit or MTU means a facility comprised of a device 
and any ancillary equipment that is designed and used to treat waste 
explosives on a temporary basis and be transported for use at multiple 
locations. An MTU may not operate at a location for more than 180 
consecutive days at any time. For the purposes of calculation, days of 
consecutive operation begins with the date on which start-up of the 
unit occurs and concludes with the date on which interim closure is 
completed and includes every calendar day in between those dates. An 
MTU unit must satisfy the closure requirements at Sec.  264.1(k)(5) of 
this chapter. A unit that operates at a location for more than 180 
consecutive days at any time and/or does not satisfy the closure 
requirement in Sec.  264.1(k)(5) of this chapter at any site is not a 
mobile treatment unit.
    MTU location-specific permit means the RCRA permit issued to an MTU 
seeking to treat waste explosives under part 270, subpart K of this 
chapter. To qualify as an MTU location-specific permit, the permit 
shall have a term length of five years or less and also restrict 
operation of the MTU at any location to 180 consecutive days or less. 
For the purposes of calculation, days of consecutive operation begins 
with the date on which start-up of the unit occurs and concludes with 
the date on which interim closure is completed and includes every 
calendar day in between those dates.
    MTU nationwide conditional approval means the nationwide 
conditional approval, with a term of five years, issued to an MTU 
seeking to treat waste explosives under part 270, subpart K of this 
chapter.
* * * * *
    Open burning (OB) means the combustion of any material without the 
following:
    (1) Control of combustion air to maintain adequate temperature for 
efficient combustion,
    (2) Containment of the combustion-reaction in an enclosed device to 
provide sufficient residence time and mixing for complete combustion, 
and
    (3) Control of emission of the combustion products.
    (4) (See also ``Incineration,'' ``Thermal treatment,'' and 
``Detonation.'')
    Open burning/open detonation (OB/OD) unit is any unit used in the 
OB or OD treatment of waste explosives. These units include but are not 
limited to detonation pit, burn pile, burn cage, burn trenches, and 
burn pan units. The permitted unit boundary includes the associated 
kickout area within the facility, where dispersed metal fragments, 
unreacted explosives contaminants, and other waste items are deposited 
onto the land from the operation of the OB/OD unit.
    Open detonation (OD) means the detonation of any material without 
containment in an enclosed device and control of the emission products, 
causing any unreacted material to be dispersed into the environment. OD 
refers to both detonation that is not covered and detonation that is 
covered by soil (buried detonation).
* * * * *
    Waste explosives are hazardous wastes that exhibit the reactivity 
characteristic (D003) and are capable of detonation or explosive 
chemical reaction as defined in Sec.  261.23(a)(6) through (8) of this 
chapter and include propellants, explosives, pyrotechnics, munitions, 
military munitions as defined in this section, and unexploded ordnance.
* * * * *

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
5. The authority citation for part 264 continues to read as follows:

    Authority: 42 U.S.C 6905, 6912(a), 6924, 6925, and 6939g.

Subpart A--General

0
6. Amend Sec.  264.1 by adding paragraph (k) to read as follows:


Sec.  264.1  Purpose, scope, and applicability.

* * * * *
    (k) The requirements of this part do not apply to Mobile Treatment 
Units as defined in Sec.  260.10 of this chapter that have been 
permitted to treat waste explosives under subpart K of part 270 of this 
chapter, except as provided below. An owner/operator of an MTU must 
comply with:
    (1) Sections 264.11, 264.13, 264.16, and 264.17 of subpart B of 
this part;
    (2) Subpart C of this part;
    (3) Subpart D of this part;
    (4) Sections 264.70, 274.71(c), 264.73, 264.74, 264.75, and 264.77 
of subpart E of this part;
    (5) Sections 264.111 through 264.115 of subpart G of this part 
except that:
    (i) The MTU must close in a manner that completely decontaminates 
the MTU and removes any contaminated environmental media, residuals or 
debris resulting from the MTU's operation; and
    (ii) The MTU, after completing treatment at each location must 
conduct an interim closure in a manner specified in an interim closure 
plan referenced in the nationwide conditional approval that completely 
decontaminates the MTU and removes any contaminated media, residuals or 
debris resulting from the MTU's operation;
    (6) Sections 264.140 through 264.143, 264.147, 264.148, and 264.151 
of subpart H of this part. The Director may accept or require 
variations to the required instrument wording in Sec.  264.151 of 
subpart H of this part necessary to effectuate the financial assurance 
requirement for mobile units;
    (7) Subpart X of this part except that the nationwide conditional 
approval issued must include requirements for responses to releases of 
hazardous waste or hazardous constituents from the unit. Additionally, 
for the purposes of complying with Sec.  264.602 of subpart X of this 
part, references to Sec. Sec.  264.15, 264.76, and 264.101 are not 
applicable for MTUs; and
    (8) Section 264.706 of subpart Y of this part.

Subpart G--Closure and Post-Closure

0
7. Amend Sec.  264.111 by revising paragraph (c) to read as follows:


Sec.  264.111  Closure performance standard.

* * * * *
    (c) Complies with the closure requirements of this part, including, 
but not limited to, the requirements of Sec. Sec.  264.178, 264.197, 
264.228, 264.258, 264.280, 264.310, 264.351, 264.601 through 264.603, 
264.713, and 264.1102.
0
8. Amend Sec.  264.112 by revising paragraph (d)(1) to read as follows:

[[Page 20013]]

Sec.  264.112  Closure plan; amendment of plan.

* * * * *
    (d) * * *
    (1) The owner/operator must notify the Director in writing at least 
60 days prior to the date on which he expects to begin closure of a 
surface impoundment, waste pile, land treatment or landfill unit, open 
burn or open detonation unit, or final closure of a facility with such 
a unit. The owner/operator must notify the Director in writing at least 
45 days prior to the date on which he expects to begin final closure of 
a facility with only treatment or storage tanks, container storage, or 
incinerator units to be closed. The owner/operator must notify the 
Director in writing at least 45 days prior to the date on which he 
expects to begin partial or final closure of a boiler or industrial 
furnace, whichever is earlier.
* * * * *
0
9. Amend Sec.  264.113 by revising paragraph (b) introductory text to 
read as follows:


Sec.  264.113  Closure; time allowed for closure.

* * * * *
    (b) Except as provided in Sec.  264.713, the owner/operator must 
complete partial and final closure activities in accordance with the 
approved closure plan and within 180 days after receiving the final 
volume of hazardous wastes, or the final volume of non-hazardous wastes 
if the owner/operator complies with all applicable requirements in 
paragraphs (d) and (e) of this section, at the hazardous waste 
management unit or facility. The Director may approve an extension to 
the closure period if the owner/operator complies with all applicable 
requirements for requesting a modification to the permit and 
demonstrates that:
* * * * *

Subpart X--Miscellaneous Units

0
10. Amend Sec.  264.601 by revising paragraph (b) introductory text and 
paragraph (b)(3) to read as follows:


Sec.  264.601  Environmental performance standards.

* * * * *
    (b) Prevention of any releases that may have adverse effects on 
human health or the environment due to migration of waste constituents 
in stormwater, surface water, or wetlands or on the soil surface 
considering:
* * * * *
    (3) The hydrologic characteristics of the unit and the surrounding 
area, including the topography of the land around the unit, and the 
stormwater run-on and run-off patterns around the unit;
* * * * *
0
11. Revise Sec.  264.603 to read as follows:


Sec.  264.603  Post-closure care.

    A miscellaneous unit that is a disposal unit must be maintained in 
a manner that complies with Sec.  264.601 during the post-closure care 
period. In addition, if a treatment or storage unit has contaminated 
soils or groundwater that cannot be completely removed or 
decontaminated at the time of certification of closure, then that unit 
must also meet the requirements of Sec.  264.601 during post-closure 
care. The post-closure plan under Sec.  264.118 must specify the 
procedures that will be used to satisfy this requirement.
0
12. Amend part 264 by adding subpart Y to read as follows:

Subpart Y--Open Burning and Open Detonation Units

Sec.
264.704 Applicability.
264.705 Definitions applicable to this subpart.
264.706 Waste analysis.
264.707 Alternative technology evaluation and implementation.
264.708 Operating requirements.
264.710 Monitoring requirements.
264.712 Recordkeeping, inspections, training, and reporting 
requirements.
264.713 Closure; time allowed for closure for certain activities.
264.714 Closure and post-closure care.
264.715 Emergency provisions.


Sec.  264.704  Applicability.

    (a) Open burning and open detonation of hazardous waste is 
prohibited except for the open burning and/or open detonation of waste 
explosives (as those terms are defined in Sec.  260.10 of this chapter) 
that cannot be safely treated or disposed of through other modes.
    (b) To be eligible to open burn or open detonate waste explosives, 
owners/operators must submit documentation of waste analysis required 
under Sec.  264.706 and an alternative technology evaluation required 
under Sec.  264.707(b)(3) to the Director in accordance with the time 
frames established under Sec.  264.707(c). During the evaluation period 
for the alternative technology and during the implementation period for 
the alternative technology, the owner/operator can continue the use of 
OB/OD as a treatment method for the subject wastes. If the owner/
operator is eligible to open burn or open detonate any waste 
explosives, they must conduct the open burning or open detonation in 
accordance with Sec. Sec.  264.708 and 264.710 and in a manner that is 
protective of human health and the environment.
    (c) The requirements of this subpart apply to owners/operators that 
treat or intend to treat waste explosives in open burning and open 
detonation (OB/OD) units as defined in Sec.  260.10 of this chapter, 
except as Sec.  264.1 provides otherwise.
    (d) Explosives and munitions emergency responses as defined in 
Sec.  260.10 of this chapter are exempt from the requirements of this 
subpart, except as indicated in Sec.  264.715(a).
    (e) De minimis quantities.
    (1) Owners and operators of a facility that generates up to 15,000 
lbs NEW of waste explosives annually may treat by OB/OD up to the 
amount of waste explosives generated without complying with Sec.  
264.707 provided that they make, to the Director's satisfaction, the 
demonstrations in paragraphs (e)(1)(i) through (iii) of this section.
    (i) A demonstration that the proposed de minimis treatment by OB/OD 
would contribute negligible contamination and potential for exposure. 
This demonstration must address, at a minimum, the following 
components:
    (A) The quantity of generated waste explosives proposed to be 
treated annually by OB/OD under this de minimis exemption. Under no 
circumstances will the Director approve a de minimis exemption for 
waste explosives treatment by OB/OD that exceeds 15,000 lbs NEW 
annually.
    (B) The waste stream(s) to be treated and their known or 
anticipated toxicity and byproducts from OB/OD treatment.
    (C) The location of the OB/OD treatment and potential to impact 
nearby receptors, resources, and sensitive environments.
    (D) Permit conditions and other controls that are in place and 
would inform the potential for contamination onsite and offsite.
    (ii) A demonstration that treatment by an MTU, treatment off-site 
by an alternative technology, and treatment by an existing on-site 
alternative technology, if applicable, are not safe and available.
    (iii) A demonstration that the facility does not have any 
unresolved compliance or enforcement actions and does not have a 
history of significant noncompliance.
    (2) The Director shall deny the request for this de minimis 
exemption when the demonstrations required by (e)(1)(i) through (iii) 
of this section cannot be satisfactorily met.
    (3) To remain eligible for the exemption from the requirements of 
Sec.  264.707, the owner/operator must

[[Page 20014]]

submit this demonstration on the same schedule as they would have 
submitted alternative technology evaluations for the subject wastes 
under Sec.  264.707(c) and (d).
    (4) If at any time, the continued treatment of waste explosives by 
OB/OD under this exemption would present a threat to human health and 
the environment, the owner/operator must notify the Director within 
five days.
    (5) The Director may, based on reasonable belief that the continued 
treatment of waste explosives by OB/OD under this exemption would 
present a threat to human health and the environment, request 
additional information from the owner/operator to determine if the OB/
OD activities still meet the de minimis criteria of paragraph (e)(1) of 
this section.
    (6) If a determination is made under paragraph (e)(4) or (5) of 
this section that the continued treatment of waste explosives by OB/OD 
under this exemption would present a threat to human health and the 
environment, the exemption will be withdrawn. If the exemption is 
withdrawn, Sec.  264.707 becomes applicable and the owner/operator must 
submit to the Director an alternative technology evaluation for the 
subject waste streams in accordance with Sec.  264.707 within one year.


Sec.  264.705  Definitions applicable to this subpart.

    The following definitions apply to this subpart:
    Chemical weapon means a Chemical Warfare Materiel (CWM) as defined 
in 32 CFR 179.3.
    Debris means solid material exceeding a 60 mm particle size that is 
intended for treatment or disposal and that is: a manufactured object; 
or plant or animal matter; or natural geologic material.
    Hazardous debris means debris (e.g., wood, plastic, concrete, 
personal protective equipment) that contains a hazardous waste listed 
in subpart D of part 261 of this chapter, or that exhibits a 
characteristic of hazardous waste identified in subpart C of part 261 
of this chapter. Any deliberate mixing of hazardous waste with debris 
or hazardous debris with other debris that changes its treatment 
classification (i.e., from waste to hazardous debris) is not allowed 
under the dilution prohibition in Sec.  268.3 of this chapter.
    Insensitive munition means a munition that reliably fulfills its 
performance, readiness and operational requirements on demand and that 
minimizes the probability of inadvertent initiation and severity of 
subsequent collateral damage to weapon platforms, logistic systems and 
personnel when subjected to specified accidental and combat threats.
    Surface water means all water which is open to the atmosphere and 
subject to surface runoff.


Sec.  264.706  Waste analysis.

    (a) Owners or operators that seek to use OB and/or OD (OB/OD) for 
treatment of waste explosive as defined in Sec.  260.10 of this chapter 
must conduct and provide to the Director a detailed physical and 
chemical waste analysis for each explosive waste per Sec.  270.14(b)(2) 
and (3) of this chapter, Sec.  264.13, and the requirements in this 
section.
    (b) Documentation of waste analysis must include:
    (1) Identification of each waste stream. Identify each waste stream 
by name and type. Munitions, explosive wastes, and explosive-
contaminated waste materials of the same specifications, design, and 
purpose may be grouped together. Propellants may only be considered a 
single waste stream if the propellant has the same mixtures and 
compounds, are from the same manufacturing process and has the same 
degradation status and tolerances, based in part on lot/batch and 
expiration date. Similarly, if the owners/operators must handle or 
treat any explosive differently due to degradation or being off-
specification for that explosive, a new waste analysis must be done for 
each batch of munition that has degraded or is off-specification. 
Explosives-contaminated hazardous debris or material may be grouped 
together if containing the same explosive contaminant and the debris or 
material is of similar composition.
    (2) Physical description. For each waste stream, a physical 
description of the waste. For munitions, or any material that is not 
bulk explosive waste, waste analysis must include design, dimensions, 
mass, main component features, and casing thickness. For bulk explosive 
wastes, energetics, and propellants, waste analysis must describe at a 
minimum the phase, color, packaging, mass, and density. Explosives-
contaminated hazardous debris or material must include a physical 
description of all debris/material in the waste stream.
    (3) Chemical constituent analysis. For each waste stream, a 
complete description of the chemical constituents and average percent 
composition, and an assessment of potential contaminants. Safety Data 
Sheet (SDS) for each chemical constituent must accompany this analysis 
(where available). Munitions and multi-component wastes must have 
chemical constituent analysis for each component of the waste. For 
example, the casing component should be analyzed separately from the 
filler and energetic component. Hazardous debris or material must 
include an analysis for all contaminants. The debris or material (e.g., 
wood, plastic, concrete, personal protective equipment) may be excluded 
from the chemical analysis unless there is potential it includes wastes 
listed under Sec.  264.708(b)(11) or the Director determines an 
analysis of debris or material is needed. The chemical constituent 
analysis must include the NEW for each waste stream.
    (4) Chemical properties analysis. For each waste stream, a 
description of the explosive properties of each mixture or component. 
At a minimum, the properties must include insensitivity (to impact, 
friction, and electrostatic discharge), flash point, pH, and free 
liquid determination. For each waste stream, all test methods, test 
results, and documentation of analyses conducted to comply with this 
section must be included.
    (c) The owner/operator may use pre-determined information or 
knowledge of a specific waste stream or constituent in lieu of 
conducting chemical and physical analysis. The information must still 
be submitted as part of the waste analysis, and the source of that 
information must be clearly marked. Where applicable, the alternate 
source of information must be included. Acceptable sources of 
information for each waste or waste stream include the following:
    (1) Process knowledge when raw materials and reagents are combined 
and react in a known manner.
    (2) Generator knowledge and manufacturer published specifications 
of chemicals or components.
    (d) The Director may request further information, as needed, to 
substantiate the determination that explosive wastes exhibit the 
characteristic of reactivity under Sec.  261.23 of this chapter or 
cannot be treated by another safe mode of treatment or to substantiate 
conditions established by an explosives safety specialist to safely 
treat, store, or dispose the waste properly in accordance with this 
part.
    (e) Owners or operators must submit all components of the waste 
analysis to the Director electronically. If there are information 
sensitivity concerns (information may include, but is not limited to: 
confidential business information, controlled unclassified information, 
and classified information), the owner/operator must make reasonable 
accommodations for the Director to have access to the

[[Page 20015]]

information contained in a waste analysis unless prohibited by 
applicable Federal law or regulation, including prohibition or 
restriction for national security reasons. This information may be 
withheld from the public and summarily referenced in the waste analysis 
as part of the public RCRA permit application without disclosing 
sensitive information.
    (f) The Director may accept a waste analysis without all prescribed 
analysis as described in this section if there are safety concerns that 
cannot be mitigated/prevented in conducting the analysis, there is no 
process or generator knowledge applicable, and the owners/operators 
provide information describing the safety concerns related to testing.


Sec.  264.707  Alternative technology evaluation and implementation.

    (a) Requirement for an alternative technology evaluation. Owners or 
operators that seek to use OB and/or OD (OB/OD) for treatment of waste 
explosives as defined in Sec.  260.10 of this chapter must demonstrate 
through an evaluation that there are no safe and available alternative 
treatment technologies, except as Sec.  264.704 provides otherwise, 
according to the requirements of this section. During the evaluation 
period for the alternative technology and during the implementation 
period for the alternative technology, the owner/operator may continue 
the use of OB/OD as a treatment method for the subject wastes.
    (b) Criteria and contents of alterative technology evaluation. The 
demonstration must be an evaluation of alternative treatment 
technologies for each waste explosive stream requiring treatment. The 
evaluation must be conducted using the following specified criteria and 
the evaluation report must include the following specified content:
    (1) Criteria that each technology must be evaluated against are:
    (i) Safe. Technology must be determined to be safe for the specific 
waste explosives by an explosives or munitions specialist; designed, 
constructed, and operated in a manner that is safe and protective of 
human health and the environment; and uses appropriate procedures and 
technologies to ensure safe handling and treatment, as determined by an 
explosives or munitions specialist; and
    (ii) Available. Technology is available when it can be used on-site 
or off-site, rented, leased, or purchased from a qualified vendor or 
entity, or custom designed and constructed by a qualified vendor or 
entity and has been determined through a technical evaluation, such as 
a demonstration at full-scale, to consistently perform the functions 
necessary to be effective.
    (2) Evaluation content must include:
    (i) A description of the facility operations that generate waste 
explosives and of any alternative treatment technologies in use and the 
waste streams treated;
    (ii) A characterization of the waste explosives according to both 
the physical and chemical aspects as required under Sec.  264.706;
    (iii) An initial screening of available alternative treatment 
technologies according to the criteria in paragraph (b)(1) of this 
section for each explosive waste stream and the rationale to support 
removal of technologies from further consideration;
    (A) If an owner/operator plans to conduct a treatability study in 
accordance with Sec.  264.1(e) and/or (f), a description of the 
proposed study and the timing for conducting study must be submitted to 
the Director.
    (B) If an owner/operator is in the process of conducting or has 
conducted a treatability study in accordance with Sec.  264.1(e) and/or 
(f), documentation of the study, including anticipated timing for 
completion or the completion date, and any conclusions reached, must be 
submitted to the Director.
    (C) If an owner/operator plans to apply for a research, 
development, and demonstration (RD&D) permit under Sec.  270.65 of this 
chapter, all available information that will accompany a permit 
application, including anticipated timing for initiating and completing 
the RD&D activities, must be submitted to the Director.
    (D) If an owner/operator is conducting RD&D activities under a 
Sec.  270.65 permit, or has concluded RD&D activities, a copy of the 
permit or any conclusions reached after conclusion of the RD&D 
activities, must be submitted to the Director.
    (iv) An analysis of alternative treatment technologies that pass 
the initial screening for each explosive waste stream to include any 
pre-treatment technologies and the waste streams and the percentage of 
the waste streams capable of being treated by the technologies;
    (v) Identification of selected alternative treatment technology or 
combination of technologies;
    (vi) Evaluation of off-site and mobile unit treatment options using 
alternative treatment technologies.
    (A) For waste streams that cannot be shipped off-site, 
documentation must be submitted indicating that the waste explosive is 
a forbidden explosive, DoD or DOE explosives safety specialists have 
determined that the waste cannot be shipped according to the DoD 
Explosives Hazard Classification Procedures, or a Department of 
Transportation competent authority approval or special permit has been 
requested and denied. For the Department of Transportation permit 
denial, documentation must include the denial correspondence and the 
tracking number assigned to the request for a competent authority 
approval or special permit.
    (B) For the mobile treatment unit alternative technology 
evaluation, it must be conducted according to the criteria in paragraph 
(b)(1) of this section and accompanied by a rationale when a decision 
is made to not use a mobile treatment unit.
    (vii) Identification of each explosive waste stream proposed for 
treatment by OB/OD and its:
    (A) Net explosive weight;
    (B) Physical and chemical aspects according to Sec.  264.706(b)(1);
    (C) Treatment method as either OB or OD; and
    (D) Rationale for OB/OD.
    (3) A complete evaluation must be submitted, as a written report, 
to the Director for approval in accordance with the time frames 
established under paragraph (c) of this section.
    (4) The Director shall approve the evaluation after a completeness 
determination is made. An evaluation is complete when:
    (i) Every component of the required content according to (b)(2) of 
this section is fully addressed; and
    (ii) The rationale, where required by (b)(2) of this section, is 
provided to support the decisions.
    (c) Timing of initial alternative technology evaluations. (1) The 
initial alternative technology evaluation must be prepared and 
submitted to the Director as part of the next permit application 
supporting any of the following permit actions.
    (i) Application for a new OB/OD unit;
    (ii) Renewal application of an existing OB/OD unit;
    (iii) Permit application for an interim status OB/OB unit; or
    (iv) Class 2 or Class 3 permit modification associated with an OB/
OD unit.
    (2) An owner/operator that conducted an alternative technology 
evaluation within three years prior to [EFFECTIVE DATE OF THE FINAL 
RULE] may use that evaluation in lieu of conducting another alternative 
technology evaluation provided that:
    (i) The alternative technology evaluation assessed all waste 
streams

[[Page 20016]]

currently or proposed to be treated by OB/OD by the facility; and
    (ii) The alternative technology evaluation meets or exceeds the 
requirements for an alternative technology evaluation at Sec.  
264.707(b).
    (d) Timing of alternative technology reevaluations. To continue OB/
OD, the owner/operator must conduct an alternative technology 
reevaluation every five years following the initial alternative 
technology evaluation.
    (e) Implementation of alternative technologies. (1) Within 180 days 
of the completion of an alternative technology evaluation and a 
determination that a safe alternative technology is available, the 
owner/operator must submit a schedule for implementation of the 
identified safe alternative technology. The schedule must include all 
significant milestones including:
    (i) Vendor procurement;
    (ii) Submittal of a permit application to add the alternative 
technology unit;
    (iii) Construction start and completion dates, if applicable;
    (iv) Testing and results of testing of the alternative technology; 
and
    (v) Operation of the alternative technology.
    (2) The schedule of implementation must be incorporated by 
reference into the facility's RCRA permit.
    (3) Thereafter, the schedule for implementation may be amended 
through a Class 1 permit modification with prior Director approval as 
provided by Sec.  270.42 of this chapter.
    (4) The owner/operator must comply with the schedule of 
implementation of the alternative technology.


Sec.  264.708  Operating requirements.

    (a) The owner/operator of an OB/OD unit may only treat waste 
explosives as specified and according to the conditions of the permit.
    (b) An OB/OD unit must be located, designed, constructed, operated, 
maintained, and closed in a manner that will ensure protection of human 
health and the environment. The permit must contain any conditions 
necessary to protect human health and the environment. Permit 
conditions and terms for OB/OD units must be established that are 
specific to the unit and type of explosive waste and which address the 
following parameters:
    (1) Meteorological conditions. Allowable wind conditions including 
a minimum and maximum speed and direction; acceptable minimum and 
maximum air temperature; acceptable minimum and maximum humidity; 
restrictions on OB/OD activities in the event of precipitation or a 
high probability of precipitation; acceptable cloud conditions 
including overall cloud cover and cloud ceiling height; and, as 
appropriate, restriction on OB/OD for different air pollution statuses 
(e.g., air quality index).
    (2) Explosive waste processing limits. Limits on duration of OB/OD 
events; maximum net explosive weight per OB/OD event, day, and year.
    (3) Noise and ground vibration control. Threshold levels and 
mitigation measures to minimize noise and ground vibration that affects 
areas outside the facility boundary. Controls or changes in operating 
parameters or unit design may be necessary to comply with this 
provision. If measures to control noise and ground vibration are not 
possible, the unit may need to be relocated.
    (4) Removal of excess material. Requirements to remove excess 
material (such as foils and casings) if it is possible to do so safely.
    (5) Timing of OB/OD events. Requirements on time of day for OB/OD 
events and duration of events. OB/OD should only occur during daylight 
hours and should not be allowed to continue after dark.
    (6) Engineering controls and measures. Appropriate engineering 
controls and measures to prevent/minimize surface, subsurface, and 
groundwater contamination and aerial dispersion and release and/or 
migration of residues, kickout and contaminants into the environment 
and off-site. Engineering controls include surface water/storm water 
run-on and run-off controls, concrete pads with integrated curbs and 
sump pumps, lined drainage ditches, collection basins, blast barriers/
shields/blankets, berms, metal cages, metal lids or covers for burn 
pans, soil covers for OD, and routine operation and maintenance 
measures including removal of residues, kickout, and visible surface 
contamination (e.g., black soot, staining, ejecta) from the unit and 
surrounding area.
    (7) Location. Location considerations including depth to 
groundwater, distance to surface water, distance to the property 
boundary, and distance to the nearest residence, school, or daycare; 
and location considerations for units in 100-year floodplains as 
required under Sec.  264.18(b).
    (8) Safe distance. Safe distance plan including safe distance 
calculation. The safe distances calculation must include to the 
property boundary and to the nearest public access point. If the waste 
stream does not have known safe distances, or the waste 
characterization is unavailable due to safety concerns, a plan for 
determining the safe distance must be included.
    (9) Security. Security plan and controls to ensure unauthorized 
access by the public to the OB/OD units including surrounding kickout 
area is minimized.
    (10) Public notice and outreach plan. Public notice and outreach 
plan must include notice to the surrounding community of OB/OD 
activities and events, method of notice distribution, required content 
of the notice, method(s) for community members to contact the facility 
with questions or concerns, and timeframe for notifications. The 
content of the plan must include how information will be made available 
to the public regarding contaminants emitted or released from OB/OD 
operations, environmental monitoring data/results, and, if applicable, 
locations of off-site contamination including kickout and groundwater 
contamination.
    (11) Prohibited wastes. Owners or operators must not treat by OB/OD 
any of the following wastes:
    (i) Mixed wastes containing more than trace amounts of depleted 
uranium (DU);
    (ii) White and red phosphorus;
    (iii) Picatinny Arsenal Explosive 21 (PAX-21);
    (iv) Any materials containing polychlorinated biphenyls (PCBs) as 
defined in Sec.  761.3 of this chapter;
    (v) Munitions characterized by the delivery of two or more 
antipersonnel, anti-material, or anti-armor submunitions (also known as 
bomblets) by a parent munition, such as improved conventional munitions 
(ICMs) or cluster bombs;
    (vi) Chemical weapons as defined in Sec.  264.705; and
    (vii) Any other wastes the Director determines should be banned 
from OB/OD as necessary to protect human health and the environment.


Sec.  264.710  Monitoring requirements.

    (a) Owners/operators of OB/OD units must develop monitoring plans 
for groundwater, soil and residues, air, kickout, storm water, and if 
present, surface water and sediments, and submit these plans to the 
Director for approval under Sec.  270.23 of this chapter. The Director 
must make the determination whether the proposed monitoring plans are 
sufficient for the specific facility and include the approved 
monitoring plans for the permit. In all cases where the owner/operator 
proposes that a specific media monitoring is not needed, the rationale 
for such proposal must be included in the monitoring plan. Owners/
operators must implement the monitoring plans to monitor for releases 
and contamination

[[Page 20017]]

from the OB/OD units including the surrounding kickout areas as 
specified in paragraphs (a)(1) through (6) of this section. The 
monitoring must test for any potential constituents related to the 
treatment of the wastes by OB/OD including any combustion products and 
byproducts, that have the potential to adversely affect human health 
and the environment. For all media types, monitoring frequencies may be 
reduced from the minimum monitoring outlined in paragraphs (a)(1) 
through (7) of this section, if the permit limits the OB/OD treatment 
activity in the unit to ensure that the unit is not used frequently 
enough to warrant the monitoring frequency outlined in paragraphs 
(a)(1) through (7) of this section, and the Director makes the 
determination that a reduced monitoring plan is acceptable for the 
site. For each monitored constituent and environmental media type, the 
monitoring plans must include an action level, a concentration or 
amount where the owner/operator must take action to mitigate and manage 
the release of the constituent based on best available science. The 
plans must also include analysis and evaluation of the data, procedures 
for notifications to the Director, and all appropriate response 
actions. The monitoring must include:
    (1) Groundwater monitoring to detect any potential releases from 
the OB/OD units. Groundwater monitoring must include at least one 
upgradient background well in addition to downgradient wells. Wells 
must be located and screened to detect potential releases of 
contaminants to the uppermost flow zones and any preferential flow 
paths (subsurface pathways that allow more rapid transport of water and 
solutes in the soil and groundwater). Groundwater monitoring must 
include routine depth to water. Nested piezometers where needed to 
chart groundwater flow and measurements to identify and track any 
fluctuations in the direction of groundwater flow are required, unless 
the Director determines they are not needed due to hydrogeologic 
conditions. Sampling and testing must be conducted in accordance with 
an approved RCRA groundwater monitoring plan at least until the unit 
completes RCRA closure (soils and groundwater) and is under a post-
closure permit as applicable. If, based on site-specific conditions, 
there is no pathway for constituents to enter groundwater from OB/OD, 
the Director may determine that groundwater monitoring is not 
necessary.
    (2) Stormwater monitoring to detect any potential releases. 
Stormwater monitoring must be conducted in accordance with an approved 
RCRA stormwater monitoring plan until the unit completes RCRA closure 
and is under a post-closure permit as applicable.
    (3) Surface water monitoring of nearby surface water bodies to 
detect potential releases from the OB/OD unit. Surface water monitoring 
must be conducted in accordance with an approved RCRA surface water 
monitoring plan until the unit completes RCRA closure and is under a 
post-closure permit as applicable. Sediments in the surface water must 
be monitored according to the sediments sampling plan. If, based on 
site-specific conditions, there is no pathway for constituents to enter 
surface water from OB/OD, the Director may determine that surface water 
monitoring is not necessary.
    (4) Soil must be monitored monthly around the unit (e.g., burn 
pans, cages, piles, and detonation sites) to detect potential releases 
into the environment. This soil does not include any soil or 
environmental media used as engineering control such as soil cover for 
detonation events.
    (5) Air monitoring to detect potential releases from the OB/OD 
unit. Air monitoring is required downwind of the OB/OD unit and at or 
near the facility boundary. Downwind monitoring must be located in the 
direction most likely to be downwind at the time of OB/OD. If there is 
no single most likely direction, multiple downwind monitoring locations 
may be needed. The direction must be determined in accordance with 
Sec.  264.708(b)(1). At least one air monitoring station must be 
located downwind of the OB/OD unit and as close to the unit as 
possible, in accordance with an approved air monitoring plan. Air 
monitoring must be conducted upwind of the facility, where they would 
not be impacted by facility operations including any other open burning 
or open detonation (e.g., OB/OD conducted related to product testing or 
training or explosives or munitions activities), to establish 
background or ambient concentrations unless the owner/operator makes 
the assumption there is zero background contamination. If, based on 
site-specific conditions, the owner/operator can demonstrate that air 
monitoring is not necessary to protect human health and the 
environment, the Director may determine that air monitoring is not 
necessary.
    (6) Air smoke plumes must be visually monitored and recorded (e.g., 
in a log) during each OB/OD event: the direction, duration, extent, and 
opacity of smoke plumes, and whether the plume goes off facility.
    (7) Kickout must be visually monitored and recorded after each OB/
OD event conducted at the OB/OD unit. The operator/operator must 
monitor and record the following information: the extent (distance from 
OB/OD unit), description, and location of all kickout that goes off 
facility. On a weekly basis, the owner/operator must find, retrieve, 
and treat all kickout that goes off-site unless the landowner refuses 
entry for this purpose. The owner/operator must maintain an electronic 
record on-site for any kickout that is known to migrate off-site but 
not found during the operating life of the unit, and this record must 
be maintained on-site until all remaining kickout is found and treated, 
such as during closure of the unit. If kickout is regularly discovered 
or found outside the unit boundary, the owner/operator should reduce 
the NEW per event or request a permit modification to adjust the unit 
boundary.
    (b) Monitoring, testing, analytical data, inspections, response, 
and reporting procedures and frequencies must ensure compliance with 
Sec. Sec.  264.15, 264.33, 264.75, 264.76, 264.77, and 264.101 as well 
as meet any additional requirements needed to protect human health and 
the environment as specified in the permit.


Sec.  264.712  Recordkeeping, inspections, training, and reporting 
requirements.

    All facilities must comply with Sec. Sec.  264.15, 264.16, subparts 
C and D, and 264.73. The contents of this section clarify and add 
additional provisions applicable to OB/OD units.
    (a) The owner/operator is required to keep electronic records of 
all OB/OD unit activity. This information must be maintained in the 
operating record and accessible on-site five (5) years after closure of 
the entire Resource Conservation and Recovery Act (RCRA) facility in 
the event of clean closure. If an OB/OD unit enters post-closure, the 
records must be maintained through the entire post-closure period. The 
records must contain the following for each treatment event:
    (1) A detailed description of each waste stream treated in each 
unit including the type, chemical composition, and percentage of 
energetic and inert chemicals, materials, and binders; physical form/
dimensions/composition; description of casing if any; number/amount of 
items; total weight; and net explosive weight (NEW). The waste analysis 
of the waste stream may be referenced if the waste analysis includes 
this information.

[[Page 20018]]

    (2) Time and date of OB/OD treatment.
    (3) A record of the atmospheric conditions at the time of treatment 
to document compliance with the criteria set forth in the permit.
    (4) A detailed description of any non-conformance issues or events, 
including incomplete treatment that required collection and re-
treatment of partially treated waste; periods of smoldering or 
incomplete combustion; black smoke plumes migrating beyond the facility 
boundary, releases of ejecta or kickout from the unit boundary or 
facility boundary. Details of actions taken to remedy the non-
conformance issues or events. Actions taken to prevent non-conformance 
issues or events in the future.
    (b) The owner/operator of any OB/OD units must conduct regular 
inspections as specified in the permit. A schedule and example 
inspection sheet must be included in the permit application. The 
schedule and example inspection sheet must account for the maximum OB/
OD operations NEW and frequency limits set forth in the permit 
application. The permit may have any additional inspection requirements 
to remain protective of human health and the environment as determined 
by the Director. All inspection records and recordkeeping must be kept 
electronically and must be accessible on-site for at least five (5) 
years. At a minimum, the inspection schedule must include the schedule 
outlined by paragraphs (b)(1) and (2) of this section unless the unit 
is used for treatment less than the frequency specified in paragraphs 
(b)(1) and (2) of this section, the owner/operator notifies the 
Director of the reduction in unit monitoring and the rationale based on 
site-specific conditions:
    (1) Inspections after the last treatment event per day to look for 
untreated waste, debris, shrapnel, burn residues, and obvious damage to 
the treatment unit that would affect unit performance.
    (2) Monthly inspections to verify the structural integrity of any 
structures built or used to treat hazardous waste. If any problems 
affecting performance or protectiveness of the unit are found, they 
must be fixed before the unit is used for any treatment activity.
    (c) The owner/operator must design and administer personnel 
training in accordance with Sec.  264.16. All personnel involved in the 
handling, treatment, or management of hazardous waste must attend 
training tailored to the OB/OD unit and the explosive wastes treated. 
Training must be updated whenever there is a new waste stream and 
whenever operations change the way treatment is conducted for the unit. 
This information must be maintained in the electronic operating record 
until closure of the facility.
    (d) The owner/operator must report the following to the Director 
electronically:
    (1) Any unit failure event where the unit is damaged, or treatment 
does not occur in the OB/OD unit as intended by the permit seven (7) 
days of the initial failure. The unit failure cause and potential 
correction for the unit must be submitted within 30 days of the initial 
failure.
    (2) An annual summary report of all documented untreated waste 
beyond the OB/OD unit from the kickout monitoring described in Sec.  
264.712(c)(6).
    (3) All hazardous constituents and treatment byproducts in the air, 
soil, groundwater, or surface water at or above the levels set forth in 
the monitoring plan. All findings must be reported immediately.
    (4) Any records requested by the Director.


Sec.  264.713  Closure; time allowed for closure for certain 
activities.

    Open burn and open detonation units are subject to the requirements 
of Sec.  264.113, except when the units are used for activities in 
which military munitions are used as intended or the units have the 
potential to be impacted by munitions constituents or explosive waste 
contaminants from adjacent activities. When used for these activities, 
the owner/operator must demonstrate that:
    (a) The following activities will occur or are occurring:
    (1) The open burn or open detonation unit is used for activities in 
which military munitions are used as intended; or
    (2) The open burn or open detonation unit has the potential to be 
impacted by munitions constituents or explosive waste contaminants from 
the active military range the unit is located on or from adjacent open 
burn or open detonation units. The owner/operator must demonstrate that 
contaminants from the active range or adjacent operating units have the 
potential to contribute contaminants within the inactive unit boundary. 
This demonstration must be made by providing:
    (i) Maps showing all impacted open burn and open detonation units, 
kickout areas, and their boundaries and the locations of the activities 
that will occur or are occurring; and
    (ii) A description of all activities that will contribute 
contaminants;
    (iii) Meteorological conditions that may cause deposition of 
contaminants within the inactive unit boundary; and
    (b) Has taken and will continue to take all steps to prevent 
releases and threats to human health and the environment from the 
unclosed but not operating OB/OD unit, including compliance with all 
applicable permit requirements. Monitoring requirements of Sec.  
264.710 may be modified in the permit as appropriate to the location 
and circumstances of use of the unit, until closure activities have 
been completed for the units requesting delayed closure under the 
listed circumstances in paragraph (a) of this section.


Sec.  264.714  Closure and post-closure care.

    OB/OD units must comply with the closure requirements of subpart G 
of part 264 except as specified in Sec.  264.713. In addition:
    (a) If after removing or decontaminating all residues and making 
all reasonable efforts to remove or decontaminate any contaminated 
components, soils, subsoils, structures, and equipment, the owner/
operator finds that not all contaminated soils and subsoils can be 
practicably removed or decontaminated, the owner/operator must close 
the unit and perform post-closure care in accordance with the closure 
and post-closure requirements that apply to landfills at Sec.  264.310.
    (b) If an OB/OD unit is closed as a landfill, any remaining waste 
explosives and residues must be remediated to levels such that the 
explosives concentration in the soil and subsoils no longer present an 
explosive safety hazard as confirmed by testing before a cap or cover 
may be put in place.


Sec.  264.715  Emergency provisions.

    (a) Emergency responses. An explosives or munitions emergency 
response, as defined in Sec.  260.10 of this chapter, is exempt from 
RCRA treatment, storage, and disposal standards and permit requirements 
pursuant to Sec. Sec.  262.10(i), 263.10(e), 264.1(g)(8), 265.1(c)(11), 
and 270.1(c)(3) of this chapter, including the requirement to conduct 
an alternative treatment technology evaluation per Sec.  264.704, 
during a response. After the explosives or munitions emergency response 
specialist declares that the emergency response is complete,
    (1) The response unit's base or facility of origin, based on 
information from an explosives or munitions emergency response 
specialist must submit the following information to the Director within 
five (5) days:

[[Page 20019]]

    (i) The type of explosive or munition and its size and quantity;
    (ii) Whether it is armed, primed, fused, had been fired and/or did 
not function, or if undeterminable, as applicable to the item type;
    (iii) The condition and its stability, as applicable to the item 
type;
    (iv) The location of discovery or generation and location and 
description of the storage area; and if applicable,
    (v) Whether an alternative technology was immediately available and 
safe for use given the site-specific situation.
    (b) Emergency permits. When an explosives or munitions emergency 
response as defined in Sec.  260.10 of this chapter is not required, 
but temporary treatment of explosives or munitions is needed to address 
an imminent and substantial endangerment to human health and the 
environment, an emergency permit under Sec.  270.61 of this chapter is 
required.
    (1) The response unit's base or facility of origin, based on 
information from an explosives or munitions emergency response 
specialist must provide documentation to support a decision by the 
Director to issue an emergency permit under Sec.  270.61 of this 
chapter. This documentation must include the following information:
    (i) All information required by paragraphs (a)(1)(i) through (iv) 
of this section;
    (ii) The anticipated or actual frequency and quantity of generation 
of explosive material;
    (iii) The expected timeframe from discovery or generation to final 
treatment;
    (iv) A list of existing available alternative technologies that are 
known to treat the waste explosive identified in paragraph (b)(1)(i) of 
this section and which can either be brought to the location for use or 
to which the wastes can be transported; and,
    (v) Rationale to support a determination that no safe alternative 
technology is available for use within a reasonable time given the 
site-specific situation, or that the wastes cannot be shipped off-site.
    (2) Documentation required in Sec.  264.715(b)(1) must be submitted 
to the Director within five (5) days of beginning treatment and must be 
incorporated into the emergency permit.
    (3) If the Director determines, based on the documentation 
submitted, that the treatment activity does not qualify for an 
emergency permit, then the treatment must cease until a permit 
application with an alternative technology evaluation is received 
pursuant to Sec.  270.10 of this chapter and in accordance with the 
applicable standards in subpart Y of this part.
    (4) Treatment by OB/OD must cease if and when an alternative 
technology is selected and implemented, in accordance with the revised 
emergency permit.

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
13. The authority for part 265 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936, 6937, and 6939g.

0
14. Amend Sec.  265.111 by revising paragraph (c) to read as follows:


Sec.  265.111  Closure performance standard.

* * * * *
    (c) Complies with the closure requirements of this subpart, 
including, but not limited to, the requirements of Sec. Sec.  265.197, 
265.228, 265.258, 265.280, 265.310, 265.351, 265.381, 265.404, 265.713, 
and 265.1102.
* * * * *
0
15. Amend Sec.  265.112 by revising paragraph (d)(1) to read as 
follows:


Sec.  265.112  Closure plan; amendment of plan.

* * * * *
    (d) * * *
    (1) The owner/operator must submit the closure plan to the Director 
at least 180 days prior to the date on which he expects to begin 
closure of the first surface impoundment, waste pile, land treatment or 
landfill unit, or open burn or open detonation unit, or final closure 
if it involves such a unit, whichever is earlier. The owner/operator 
must submit the closure plan to the Director at least 45 days prior to 
the date on which he expects to begin partial or final closure of a 
boiler or industrial furnace. The owner/operator must submit the 
closure plan to the Director at least 45 days prior to the date on 
which he expects to begin final closure of a facility with only tanks, 
container storage, or incinerator units. Owners or operators with 
approved closure plans must notify the Director in writing at least 60 
days prior to the date on which he expects to begin closure of a 
surface impoundment, waste pile, landfill, land treatment unit, open 
burn or open detonation unit or final closure of a facility involving 
such a unit. Owners or operators with approved closure plans must 
notify the Director in writing at least 45 days prior to the date on 
which he expects to begin partial or final closure of a boiler or 
industrial furnace. Owners or operators with approved closure plans 
must notify the Director in writing at least 45 days prior to the date 
on which he expects to begin final closure of a facility with only 
tanks, container storage, or incinerator units.
* * * * *
0
16. Amend Sec.  265.113 by revising paragraph (b) introductory text to 
read as follows:


Sec.  265.113  Closure; time allowed for closure.

* * * * *
    (b) Except as provided in Sec.  265.713, the owner/operator must 
complete partial and final closure activities in accordance with the 
approved closure plan and within 180 days after receiving the final 
volume of hazardous wastes, or the final volume of nonhazardous wastes 
if the owner/operator complies with all applicable requirements in 
paragraphs (d) and (e) of this section, at the hazardous waste 
management unit or facility, or 180 days after approval of the closure 
plan, if that is later. The Director may approve an extension to the 
closure period if the owner/operator demonstrates that:
* * * * *

Subpart P--Thermal Treatment

0
17. Revise Sec.  265.382 to read as follows:


Sec.  265.382  Open burning and open detonation; waste explosives.

    Open burning and open detonation of hazardous waste is prohibited 
except for the open burning and/or open detonation of waste explosives 
(as those terms defined in Sec.  260.10 of this chapter) cannot be 
safely treated through other modes of treatment. Owners or operators 
choosing to open burn or detonate waste explosives must do so in 
accordance with subpart Y of this part and in accordance with the 
following table:

------------------------------------------------------------------------
                                            Minimum distance from open
     Pounds of waste explosives or         burning or detonation to the
              propellants                       property of others
------------------------------------------------------------------------
0 to 100...............................  204 meters (670 feet).
101 to 1,000...........................  380 meters (1,250 feet).
1,001 to 10,000........................  530 meters (1,730 feet).
10,001 to 30,000.......................  690 meters (2,260 feet).
------------------------------------------------------------------------

0
18. Revise Sec.  265.383 to read as follows:


Sec.  265.383   Interim status thermal treatment devices burning 
particular hazardous waste.

    (a) Owners or operators of thermal treatment devices subject to 
this subpart may burn EPA Hazardous Wastes FO20, FO21, FO22, FO23, 
FO26, or FO27 if

[[Page 20020]]

they receive a certification from the Assistant Administrator for Land 
and Emergency Management that they can meet the performance standards 
of subpart O of part 264 of this chapter when they burn these wastes.
    (b) The following standards and procedures will be used in 
determining whether to certify a thermal treatment unit:
    (1) The owner/operator will submit an application to the Assistant 
Administrator for Land and Emergency Management containing the 
applicable information in Sec. Sec.  270.19 and 270.62 of this chapter 
demonstrating that the thermal treatment unit can meet the performance 
standard in subpart O of part 264 of this chapter when they burn these 
wastes.
    (2) The Assistant Administrator for Land and Emergency Management 
will issue a tentative decision as to whether the thermal treatment 
unit can meet the performance standards in subpart O of part 264 of 
this chapter. Notification of this tentative decision will be provided 
by newspaper advertisement and radio broadcast in the jurisdiction 
where the thermal treatment device is located. The Assistant 
Administrator for Land and Emergency Management will accept comment on 
the tentative decision for 60 days. The Assistant Administrator for 
Solid Waste and Emergency Response also may hold a public hearing upon 
request or at his discretion.
    (3) After the close of the public comment period, the Assistant 
Administrator for Land and Emergency Management will issue a decision 
whether or not to certify the thermal treatment unit.
0
19. Amend part 265 by adding subpart Y to read as follows:

Subpart Y--Open Burning and Open Detonation Units

Sec.
265.704 Applicability.
265.705 Definitions applicable to this subpart.
265.706 Waste analysis.
265.707 Alternative technology evaluation and implementation.
265.708 Operating requirements.
265.710 Monitoring requirements.
265.712 Recordkeeping, inspections, training, and reporting 
requirements.
265.713 Closure; time allowed for closure for certain activities.
265.714 Closure and post-closure care.
265.715 Emergency provisions.


Sec.  265.704  Applicability.

    (a) Open burning and open detonation of hazardous waste is 
prohibited except for the open burning and open detonation of waste 
explosives as defined in Sec.  260.10 of this chapter and which cannot 
be safely treated of through other modes of treatment.
    (b) To be eligible to open burn or open detonate waste explosives, 
owners/operators must submit documentation of waste analysis required 
under Sec.  265.706 and an alternative technology evaluation required 
under Sec.  265.707(b)(3) to the Director in accordance with the time 
frames established under Sec.  265.707(c). During the evaluation period 
for the alternative technology and during the implementation period for 
the alternative technology, the owner/operator can continue the use of 
OB/OD as a treatment method for the subject wastes. If the owner/
operator is eligible to open burn or open detonate any waste 
explosives, they must conduct the open burning or open detonation in 
accordance with Sec. Sec.  265.708 and 265.710 and in a manner that is 
protective of human health and the environment.
    (c) The requirements of this subpart apply to owners/operators that 
treat or intend to treat waste explosives in open burning and open 
detonation (OB/OD) units as defined in Sec.  260.10 of this chapter, 
except as Sec.  265.1 provides otherwise.
    (d) Explosives and munitions emergency responses as defined in 
Sec.  260.10 of this chapter are exempt from the requirements of this 
subpart, except as indicated in Sec.  265.715(a).
    (e) De minimis quantities.
    (1) Owners and operators of a facility that generates up to 15,000 
lbs NEW of waste explosives annually may treat by OB/OD up to the 
amount of waste explosives generated without complying with Sec.  
265.707 provided that they make, to the Director's satisfaction, the 
demonstrations in paragraphs (e)(1)(i) through (iii) of this section.
    (i) A demonstration that the proposed de minimis treatment by OB/OD 
would contribute negligible contamination and potential for exposure. 
This demonstration must consider, at a minimum, the following criteria:
    (A) The quantity of waste explosives proposed to be treated 
annually by OB/OD under this de minimis exemption. Under no 
circumstances will the Director approve a de minimis exemption for 
waste explosives treatment by OB/OD that exceeds 15,000 lbs NEW 
annually.
    (B) The waste stream(s) to be treated and their known or 
anticipated toxicity and byproducts from OB/OD treatment.
    (C) The location of the OB/OD treatment and potential to impact 
nearby receptors, resources, and sensitive environments.
    (D) Controls and other protective measures that are in place and 
would inform the potential for contamination onsite and offsite.
    (ii) A demonstration that treatment by an MTU, treatment off-site 
by an alternative technology, and treatment by an existing on-site 
alternative technology, if applicable, is not safe and available.
    (iii) A demonstration that the facility does not have any 
unresolved compliance or enforcement actions and does not have a 
history of significant noncompliance.
    (2) The Director shall deny the request for this de minimis 
exemption when the demonstrations required by (e)(1)(i) through (iii) 
of this section cannot be satisfactorily met.
    (3) To remain eligible for the exemption from the requirements of 
Sec.  265.707, the owner/operator must submit this demonstration on the 
same schedule as they would have submitted alternative technology 
evaluations for the subject wastes under Sec.  265.707(c) and (d).
    (4) If at any time, the continued treatment of waste explosives by 
OB/OD under this exemption would present a threat to human health and 
the environment, the owner/operator must notify the Director within 
five days.
    (5) The Director may, based on reasonable belief that the continued 
treatment of waste explosives by OB/OD under this exemption would 
present a threat to human health and the environment, request 
additional information from the owner/operator to determine if the OB/
OD activities still meet the de minimis criteria of paragraph (e)(1) of 
this section.
    (6) If a determination is made under paragraph (e)(4) or (5) of 
this section that the continued treatment of waste explosives by OB/OD 
under this exemption would present a threat to human health and the 
environment, the exemption will be withdrawn. If the exemption is 
withdrawn, Sec.  265.707 becomes applicable and the owner/operator must 
submit to the Director an alternative technology evaluation for the 
subject waste streams in accordance with Sec.  265.707 within one year.


Sec.  265.705  Definitions applicable to this subpart.

    The following definitions apply to this subpart.
    Chemical weapon means a Chemical Warfare Materiel (CWM) as defined 
in 32 CFR 179.3.
    Debris means solid material exceeding a 60 mm particle size that is 
intended for treatment or disposal and that is: A manufactured object; 
or plant or animal matter; or natural geologic material.

[[Page 20021]]

    Hazardous debris means debris (e.g., wood, plastic, concrete, 
personal protective equipment) that contains a hazardous waste listed 
in subpart D of part 261 of this chapter, or that exhibits a 
characteristic of hazardous waste identified in subpart C of part 261 
of this chapter. Any deliberate mixing of hazardous waste with debris 
or hazardous debris with other debris that changes its treatment 
classification (i.e., from waste to hazardous debris) is not allowed 
under the dilution prohibition in Sec.  268.3 of this chapter.
    Insensitive munition means a munition that reliably fulfills its 
performance, readiness and operational requirements on demand and that 
minimizes the probability of inadvertent initiation and severity of 
subsequent collateral damage to weapon platforms, logistic systems and 
personnel when subjected to specified accidental and combat threats.
    Surface water means all water which is open to the atmosphere and 
subject to surface runoff.


Sec.  265.706  Waste analysis.

    (a) Owners or operators that seek to use OB and/or OD (OB/OD) for 
treatment of waste explosive as defined in Sec.  260.10 of this chapter 
must conduct and provide to the Director a detailed physical and 
chemical waste analysis for each explosive waste per Sec. Sec.  
270.14(b)(2) and (3) of this chapter, 265.13, and the requirements in 
this section.
    (b) Documentation of waste analysis must include:
    (1) Identification of each waste stream. Identify each waste stream 
by name and type. Munitions, explosive wastes, and explosive-
contaminated waste materials of the same specifications, design, and 
purpose may be grouped together. Propellants may only be considered a 
single waste stream if the propellant has the same mixtures and 
compounds, are from the same manufacturing process and has the same 
degradation status and tolerances, based in part on lot/batch and 
expiration date. Similarly, if the owners/operators must handle or 
treat any explosive differently due to degradation or being off-
specification for that explosive, a new waste analysis must be done for 
each batch of munition that has degraded or is off-specification. 
Explosives-contaminated hazardous debris or material may be grouped 
together if containing the same explosive contaminant and the debris or 
material is of similar composition.
    (2) Physical description. For each waste stream, a physical 
description of the waste. For munitions, or any material that is not 
bulk explosive waste, waste analysis must include design, dimensions, 
mass, main component features, and casing thickness. For bulk explosive 
wastes, energetics, and propellants, waste analysis must describe at a 
minimum the phase, color, packaging, mass, and density. Explosives-
contaminated hazardous debris or material must include a physical 
description of all debris or material in the waste stream.
    (3) Chemical constituent analysis. For each waste stream, a 
complete description of the chemical constituents and average percent 
composition, and an assessment of potential contaminants. Safety Data 
Sheet (SDS) for each chemical constituent must accompany this analysis 
(where available). Munitions and multi-component wastes must have 
chemical constituent analysis for each component of the waste. For 
example, the casing component should be analyzed separately from the 
filler and energetic component. Hazardous debris or material must 
include an analysis for all contaminants. The debris or material (e.g., 
wood, plastic, concrete, personal protective equipment) may be excluded 
from the chemical analysis unless there is potential it includes wastes 
listed under Sec.  265.708(b)(11) or the Director determines an 
analysis of debris or material is needed. The chemical constituent 
analysis must include the net explosive weight (NEW) for each waste 
stream.
    (4) Chemical properties analysis. For each waste stream, a 
description of the explosive properties of each mixture or component. 
At a minimum, the properties must include insensitivity (to impact, 
friction, and electrostatic discharge), flash point, pH, and free 
liquid determination. For each waste stream, all test methods, test 
results, and documentation of analyses conducted to comply with this 
section must be included.
    (c) The owner/operator may use pre-determined information or 
knowledge of a specific waste stream or constituent in lieu of 
conducting chemical and physical analysis. The information must still 
be included as part of the waste analysis, and the source of that 
information must be clearly marked. Where applicable, the alternate 
source of information must be included. Acceptable sources of 
information for each waste or waste stream include the following:
    (1) Process knowledge when raw materials and reagents are combined 
and react in a known manner.
    (2) Generator knowledge and manufacturer published specifications 
of chemicals or components.
    (d) The Director may request further information, as needed, to 
substantiate the determination of explosive wastes as having 
characteristic for reactivity under Sec.  261.23 of this chapter or 
cannot be treated by another safe mode of treatment, or to substantiate 
conditions established by an explosives safety specialist to safely 
treat, store, or dispose the waste properly in accordance with this 
part.
    (e) Owners or operators must submit all components of the waste 
analysis to the Director electronically. If there are information 
sensitivity concerns (information may include, but is not limited to: 
confidential business information, controlled unclassified information, 
and classified information), the owner/operator must make reasonable 
accommodations for the Director to have access to the information 
contained in a waste analysis unless prohibited by applicable Federal 
law or regulation, including prohibition or restriction for national 
security reasons. This information may be withheld from the public and 
summarily referenced in the waste analysis as part of the public 
proposed site plan without disclosing sensitive information.
    (f) The Director may accept a waste analysis without all prescribed 
analysis as described in this section if there are safety concerns that 
cannot be mitigated/prevented in conducting the analysis, there is no 
process or generator knowledge applicable, and the owners/operators 
provide information describing the safety concerns related to testing.


Sec.  265.707  Alternative technology evaluation and implementation.

    (a) Requirement for an alternative technology evaluation. Owners or 
operators that seek to use OB and/or OD (OB/OD) for treatment of waste 
explosives as defined in Sec.  260.10 of this chapter must demonstrate 
through an evaluation that there are no safe and available alternative 
treatment technologies, except as Sec.  265.704 provides otherwise, 
according to the requirements of this section. During the evaluation 
period for the alternative technology and during the implementation 
period for the alternative technology, the owner/operator may continue 
the use of OB/OD as a treatment method for the subject wastes.
    (b) Criteria and contents of alterative technology evaluation. The 
demonstration must be an evaluation of

[[Page 20022]]

alternative treatment technologies for each waste explosive stream 
requiring treatment. The evaluation must be conducted using the 
following specified criteria and the evaluation report must include the 
following specified content:
    (1) Criteria that each technology must be evaluated against are:
    (i) Safe. Technology must be determined to be safe for the specific 
waste explosives by an explosives or munitions specialist, designed, 
constructed, and operated in a manner that is safe and protective of 
human health and the environment, and uses appropriate procedures and 
technologies to ensure safe handling and treatment, as determined by an 
explosives or munitions specialist; and
    (ii) Available. Technology is available when it can be used on-site 
or off-site, rented, leased, or purchased from a qualified vendor or 
entity, or custom designed and constructed by a qualified vendor or 
entity and has been determined through a technical evaluation, such as 
a demonstration at full-scale, to consistently perform the functions 
necessary to be effective.
    (2) Evaluation content must include:
    (i) A description of the facility operations that generate waste 
explosives and of any alternative treatment technologies in use and the 
waste streams treated;
    (ii) A characterization of the waste explosives according to both 
the physical and chemical aspects as required under Sec.  265.706;
    (iii) An initial screening of available alternative treatment 
technologies according to the criteria in paragraph (b)(1) of this 
section;
    (iv) An analysis on of alternative treatment technologies that pass 
the initial screening for each explosive waste stream;
    (A) If an owner/operator plans to conduct a treatability study in 
accordance with Sec.  264.1(e) and/or (f) of this chapter, a 
description of the proposed study and the timing for conducting study 
must be provided.
    (B) If an owner/operator is in the process of conducting or has 
conducted a treatability study in accordance with Sec.  264.1(e) and/or 
(f) of this chapter, documentation of the study, including anticipated 
timing for completion or the completion date, and any conclusions 
reached, must be provided.
    (C) If an owner/operator plans to apply for a research, 
development, and demonstration (RD&D) permit under Sec.  270.65 of this 
chapter, all available information that will accompany a permit 
application, including anticipated timing for initiating and completing 
the RD&D activities, must be submitted to the Director.
    (D) If an owner/operator is conducting RD&D activities under Sec.  
270.65 permit, or has concluded RD&D activities, a copy of the permit 
or any conclusions reached after conclusion of the RD&D activities, 
must be submitted to the Director.
    (v) Identification of selected alternative treatment technologies;
    (vi) Evaluation of off-site and mobile unit treatment options using 
alternative treatment technologies.
    (A) For waste streams that cannot be shipped off-site, 
documentation must be submitted indicating that the waste explosive is 
a forbidden explosive, DoD or DOE explosives safety specialists have 
determined that the waste cannot be shipped according to the DOD 
Explosives Hazard Classification Procedures, or a Department of 
Transportation competent authority approval or special permit has been 
requested and denied. For the Department of Transportation permit 
denial, documentation must include the denial correspondence and the 
tracking number assigned to the request for a competent authority 
approval or special permit.
    (B) For the mobile treatment unit alternative technology 
evaluation, it must be conducted according to the criteria in paragraph 
(b)(1) of this section and accompanied by a rationale when a decision 
is made to not use a mobile treatment unit.
    (vii) Identification of each explosive waste stream proposed for 
treatment by OB/OD and its:
    (A) Net explosive weight;
    (B) Physical and chemical aspects according to Sec.  265.706(b)(1); 
and
    (C) Treatment method as either OB or OD.
    (3) A complete evaluation must be submitted, as a written report, 
to the Director for approval in accordance with the time frames 
established under Sec.  265.707(c).
    (4) The Director shall approve the evaluation after a completeness 
determination is made. An evaluation is complete when:
    (i) Every component of the required content according to paragraph 
(b)(2) of this section is fully addressed; and
    (ii) The rationale, where required by paragraph (b)(2) of this 
section, is provided to support the decisions.
    (c) Timing of initial alternative technology evaluations and permit 
applications. (1) The initial alternative technology evaluation must be 
prepared and submitted by [ONE YEAR AFTER THE EFFECTIVE DATE OF THE 
FINAL RULE].
    (2) An owner/operator that conducted an alternative technology 
evaluation within three years prior to [EFFECTIVE DATE OF THE FINAL 
RULE] may use that evaluation in lieu of conducting another alternative 
technology evaluation provided that:
    (i) That alternative technology evaluation assessed all waste 
streams currently or proposed to be treated by OB/OD by the facility; 
and
    (ii) That alternative technology evaluation meets or exceeds the 
requirements for an alternative technology evaluation at Sec.  
265.707(b).
    (3) Owners and operators who have previously submitted their part B 
permit applications for an OB/OD unit and who have not received their 
final permit as of [EFFECTIVE DATE OF THE FINAL RULE] would be required 
to modify their part B permit applications to incorporate the 
requirements of the final rule in parts 264, subpart Y of this chapter 
and/or apply for a permit for an alternative technology unit. A 
modified OB/OD unit permit application is due within one year of 
submitting the alternative technology evaluation or de minimis 
demonstration under Sec.  265.704(e). The application for an 
alternative technology unit must be submitted in accordance with the 
schedule developed under paragraph (e) of this section.
    (d) Timing of alternative technology reevaluations. To continue OB/
OD, the owner/operator must conduct an alternative technology 
reevaluation every five years following the initial alternative 
technology evaluation.
    (e) Implementation of alternative technologies. (1) Within 180 days 
of the completion of an alternative technology evaluation and a 
determination that a safe alternative technology is available, the 
owner/operator must complete a schedule for implementation of the 
identified safe alternative technology. The schedule must include all 
significant milestones including:
    (i) Vendor procurement;
    (ii) Submittal of a permit application to add the alternative 
technology unit;
    (iii) Construction start and completion dates, if applicable;
    (iv) Testing and results of testing of the alternative technology; 
and
    (v) Operation of the alternative technology.
    (2) The schedule of implementation must be incorporated by 
reference into the facility's hazardous waste management plan.
    (3) Thereafter, the schedule for implementation may be amended upon 
mutual written agreement of the owner/operator and the Director.

[[Page 20023]]

    (4) The owner/operator must comply with the schedule of 
implementation of the alternative technology.


Sec.  265.708  Operating requirements.

    (a) The owner/operator may only treat waste explosives as specified 
and according to the conditions of the operating plan.
    (b) An OB/OD unit must be located, designed, constructed, operated, 
maintained, and closed in a manner that will ensure protection of human 
health and the environment. The plan must contain any conditions 
necessary to protect human health and the environment. Plan conditions 
and terms for OB/OD units must be established that are specific to the 
unit and type of explosive waste and which address the following 
parameters:
    (1) Meteorological conditions. Allowable wind conditions including 
a minimum and maximum speed and direction; acceptable minimum and 
maximum air temperature; acceptable minimum and maximum humidity; 
restrictions on OB/OD activities in the event of precipitation or a 
high probability of precipitation; acceptable cloud conditions 
including overall cloud cover and cloud ceiling height; and, as 
appropriate, restriction on OB/OD for different air pollution statuses 
(e.g., air quality index).
    (2) Explosive waste processing limits. Limits on duration of OB/OD 
events; maximum net explosive weight per OB/OD event, day, and year.
    (3) Noise and ground vibration control. Threshold levels and 
mitigation measures to minimize noise and ground vibration that affects 
areas outside the facility boundary. Controls or changes in operating 
parameters or unit design may be necessary to comply with this 
provision. If measures to control noise and ground vibration are not 
possible, the unit may need to be relocated.
    (4) Removal of excess material. Requirements to remove excess 
material (such as foils and casings) if it is possible to do so safely.
    (5) Timing of OB/OD events. Requirements on time of day for OB/OD 
events and duration of events. OB/OD should only occur during daylight 
hours and should not be allowed to continue after dark.
    (6) Engineering controls and measures. Appropriate engineering 
controls and measures to prevent/minimize surface, subsurface, and 
groundwater contamination and aerial dispersion and release and/or 
migration of residues, kickout and contaminants into the environment 
and off-site. Engineering controls include surface water/storm water 
run-on and run-off controls, concrete pads with integrated curbs and 
sump pumps, lined drainage ditches, collection basins, blast barriers/
shields/blankets, berms, metal cages, metal lids or covers for burn 
pans, soil covers for OD, and routine operation and maintenance 
measures including removal of residues, kickout, and visible surface 
contamination (e.g., black soot, staining, ejecta) from the unit and 
surrounding area.
    (7) Location. Location considerations including depth to 
groundwater, distance to surface water, distance to the property 
boundary, and distance to the nearest residence, school, or daycare; 
and location considerations for units in 100-year floodplains as 
required under Sec.  265.18(b).
    (8) Safe distance. Safe distance plan including safe distance 
calculation. The safe distances calculation must include to the 
property boundary and to the nearest public access point. If the waste 
stream does not have known safe distances, or the waste 
characterization is unavailable due to safety concerns, a plan for 
determining the safe distance must be included.
    (9) Security. Security plan and controls to ensure unauthorized 
access by the public to the OB/OD units including surrounding kickout 
area is minimized.
    (10) Public notice and outreach plan. Public notice and outreach 
plan must include notice to the surrounding community of OB/OD 
activities and events, method of notice distribution, required content 
of the notice, method(s) for community members to contact the facility 
with questions or concerns, and timeframe for notifications. The 
content of the plan must include how information will be made available 
to the public regarding contaminants emitted or released from OB/OD 
operations, environmental monitoring data/results, and, in applicable, 
locations of off-site contamination including kickout and groundwater 
contamination.
    (11) Prohibited wastes. Owners or operators must not treat by OB/OD 
any of the following wastes:
    (i) Mixed wastes containing more than trace amounts of depleted 
uranium (DU);
    (ii) White and red phosphorus;
    (iii) Picatinny Arsenal Explosive 21 (PAX-21);
    (iv) Any materials containing polychlorinated biphenyls (PCBs) as 
defined in Sec.  761.3 of this chapter;
    (v) Munitions characterized by the delivery of two or more 
antipersonnel, anti-material, or anti-armor submunitions (also known as 
bomblets) by a parent munition, such as improved conventional munitions 
(ICMs) or cluster bombs; and
    (vi) Chemical weapons as defined in Sec.  265.705.


Sec.  265.710  Monitoring requirements.

    (a) Owners/operators of OB/OD units must develop monitoring plans 
for groundwater, soil and residues, air, kickout, storm water, and if 
present, surface water and sediments, and submit these plans to the 
Director. The Director must make the determination whether the proposed 
monitoring plans are sufficient for the specific facility. In all cases 
where the owner/operator proposes that a specific media monitoring is 
not needed, the rationale for such proposal must be included in the 
monitoring plan. Owners/operators must implement the monitoring plans 
to monitor for releases and contamination from the OB/OD units 
including the surrounding kickout areas as specified in paragraphs 
(a)(1) through (6) of this section. The monitoring must test for any 
potential constituents related to the treatment of the wastes by OB/OD 
including any potential products and byproducts, that have the 
potential to adversely affect human health and the environment. For all 
media types, monitoring frequencies may be reduced from the minimum 
monitoring outlined in paragraphs (a)(1) through (7) of this section, 
if the unit is not used frequently enough to warrant the monitoring 
frequency outlined in paragraphs (a)(1) through (7) of this section, 
and the Director makes the determination that a reduced monitoring plan 
is acceptable for the site. For each monitored constituent and 
environmental media type, the monitoring plans must include an action 
level, a concentration or amount where the owner/operator must take 
action to mitigate and manage the release of the constituent based on 
best available science. The plan must also include analysis and 
evaluation of the data, procedures for notifications to the Director, 
and all appropriate response actions. The monitoring must include:
    (1) Groundwater monitoring to detect any potential releases from 
the OB/OD units. Groundwater monitoring must include at least one 
upgradient background well in addition to downgradient wells. Wells 
must be located and screened to detect potential releases of 
contaminants to the uppermost flow zones and any preferential flow 
paths (subsurface pathways that allow more rapid transport of water and 
solutes in the soil and groundwater). Groundwater monitoring must 
include routine depth to water. Nested piezometers where needed to 
chart groundwater flow and

[[Page 20024]]

measurements to identify and track any fluctuations in the direction of 
groundwater flow are required, unless the Director determines they are 
not needed due to hydrogeologic conditions. Sampling and testing must 
be conducted in accordance with an approved RCRA groundwater monitoring 
plan at least until the unit completes RCRA closure (soils and 
groundwater) and is under an approved post-closure plan as applicable. 
If, based on site-specific conditions, there is no pathway for 
constituents to enter groundwater from OB/OD, the Director may 
determine that groundwater monitoring is not necessary.
    (2) Stormwater monitoring to detect any potential releases. 
Stormwater monitoring must be conducted in accordance with an approved 
RCRA stormwater monitoring plan until the unit completes RCRA closure 
and is under an approved post-closure plan as applicable.
    (3) Surface water monitoring of nearby surface water bodies to 
detect potential releases from the OB/OD unit. Surface water monitoring 
must be conducted in accordance with an approved RCRA surface water 
monitoring plan until the unit completes RCRA closure and is under an 
approved post-closure plan as applicable. Sediments in the surface 
water must be monitored according to the sediments sampling plan. If, 
based on site-specific conditions, there is no pathway for constituents 
to enter surface water from OB/OD, the Director may determine that 
surface water monitoring is not necessary.
    (4) Soil must be monitored monthly around the unit (e.g., burn 
pans, cages, piles, and detonation sites) to detect potential releases 
into the environment. This soil does not include any soil or 
environmental media used as engineering control such as soil cover for 
detonation events.
    (5) Air monitoring to detect potential releases from the OB/OD 
unit. Air monitoring is required downwind of the OB/OD unit and at or 
near the facility boundary. Downwind monitoring must be located in the 
direction most likely to be downwind at the time of OB/OD. If there is 
no single most likely direction, multiple downwind monitoring locations 
may be needed. The direction must be determined in accordance with 
Sec.  265.708(b)(1) of this subpart. At least one air monitoring 
station must be located downwind of the OB/OD unit and as close to the 
unit as possible, in accordance with an approved air monitoring plan. 
Air monitoring must be conducted upwind of the facility, where they 
would not be impacted by facility operations including any other open 
burning or open detonation (e.g., OB/OD conducted related to product 
testing or training or explosives or munitions activities), to 
establish background or ambient concentrations unless the owner/
operator makes the assumption there is zero background contamination. 
If, based on site-specific conditions, the owner/operator can 
demonstrate that air monitoring is not necessary to protect human 
health and the environment, the Director may determine that air 
monitoring is not necessary.
    (6) Air smoke plumes must be visually monitored and recorded (e.g., 
in a log) during each OB/OD event: the direction, duration, extent, and 
opacity of smoke plumes, and whether the plume goes off facility.
    (7) Kickout must be visually monitored and recorded after each OB/
OD event conducted at the OB/OD unit. The operator/operator must 
monitor and record the following information: the extent (distance from 
OB/OD unit), description, and location of all kickout that goes off 
facility. On a weekly basis, the owner/operator must find, retrieve, 
and treat all kickout that goes off-site unless the landowner refuses 
entry for this purpose. The owner/operator must maintain an electronic 
record on-site for any kickout that is known to migrate off-site but 
not found during the operating life of the unit, and this record must 
be maintained on-site until all remaining kickout is found and treated, 
such as during closure of the unit. If kickout is regularly discovered 
or found outside the unit boundary, the owner/operator should reduce 
the NEW per event or revise the unit boundary in the management plan.
    (b) Monitoring, testing, analytical data, inspections, response, 
and reporting procedures and frequencies must ensure compliance with 
Sec. Sec.  265.15, 265.33, 265.75, 265.76, and 265.77 as well as meet 
any additional requirements needed to protect human health and the 
environment as specified in the site operating plan.


Sec.  265.712   Recordkeeping, inspections, training, and reporting 
requirements.

    All facilities must comply with Sec. Sec.  265.15, 265.16, subparts 
C and D, and 265.73. The contents of this section clarify and add 
additional provisions applicable to OB/OD units.
    (a) The owner/operator is required to keep electronic records of 
all OB or OD unit activity. This information must be maintained in the 
operating record and accessible on-site five (5) years after closure of 
the entire RCRA facility in the event of clean closure. If an OB/OD 
unit enters post-closure, the records must be maintained through the 
entire post-closure period. The records must contain the following for 
each treatment event:
    (1) A detailed description of each waste stream treated in each 
unit including the type, chemical composition, and percentage of 
energetic and inert chemicals, materials, and binders; physical form/
dimensions/composition; description of casing if any; number/amount of 
items; total weight; and net explosive weight (NEW). The waste analysis 
of the waste stream may be referenced if the waste analysis includes 
this information.
    (2) Time and date of OB/OD treatment.
    (3) A record of the atmospheric conditions at the time of treatment 
to document compliance with the criteria set forth in the operating 
plan.
    (4) A detailed description of any non-conformance issues or events, 
including incomplete treatment that required collection and re-
treatment of partially treated waste; periods of smoldering or 
incomplete combustion; black smoke plumes migrating beyond the facility 
boundary, releases of ejecta or kickout from the unit boundary or 
facility boundary. Details of actions taken to remedy the non-
conformance issues or events. Actions taken to prevent non-conformance 
issues or events in the future.
    (b) The owner/operator of any OB/OD units must conduct regular 
inspections as specified in the permit. A schedule and example 
inspection sheet must be included in the permit application. The 
schedule and example inspection sheet must account for the maximum OB/
OD operations NEW and frequency limits set forth in the permit 
application. The plan may have any additional inspection requirements 
to remain protective of human health and the environment as necessary. 
All inspection records and recordkeeping must be kept electronically 
and must be accessible on-site for at least five (5) years. At a 
minimum, the inspection schedule must include the schedule outlined by 
paragraphs (b)(1) and (2) of this section unless the unit is used for 
treatment less than the frequency specified in paragraphs (b)(1) and 
(2) of this section, the owner/operator notifies the Director of the 
reduction in unit monitoring and the rationale based on site-specific 
conditions:
    (1) Inspections after the last treatment event per day to look for 
untreated waste, debris, shrapnel, burn residues, and obvious damage to 
the treatment unit that would affect unit performance.

[[Page 20025]]

    (2) Monthly inspections to verify the structural integrity of any 
structures built or used to treat hazardous waste. If any problems 
affecting performance or protectiveness of the unit are found, they 
must be fixed before the unit is used for any treatment activity.
    (c) The owner/operator must design and administer personnel 
training in accordance with Sec.  265.16. All personnel involved in the 
handling, treatment, or management of hazardous waste must attend 
training tailored to the OB/OD unit and the explosive wastes treated. 
Training must be updated whenever there is a new waste stream and 
whenever operations change the way treatment is conducted for the unit. 
This information must be maintained in the electronic operating record 
until closure of the facility.
    (d) The owner/operator must report the following to the Director 
electronically:
    (1) Any unit failure event where the unit is damaged or treatment 
does not occur in the OB/OD unit as intended by the plan seven (7) days 
of the initial failure. The unit failure cause and potential correction 
for the unit must be submitted within 30 days of the initial failure.
    (2) An annual summary report of all documented untreated waste 
beyond the OB/OD unit from the kickout monitoring described in Sec.  
265.712(c)(6).
    (3) All hazardous constituents and treatment byproducts in the air, 
soil, groundwater, or surface water at or above the levels set forth in 
the monitoring plan. All findings must be reported immediately.
    (4) Any records requested by the Director.


Sec.  265.713  Closure; time allowed for closure for certain 
activities.

    Open burn and open detonation units are subject to the requirements 
of Sec.  265.113, except when the units are used for activities in 
which military munitions are used as intended or the units have the 
potential to be impacted by munitions constituents or explosive waste 
contaminants from adjacent activities. When used for these activities, 
the owner/operator must demonstrate that:
    (a) The following activities will occur or are occurring:
    (1) The open burn or open detonation unit is used for activities in 
which military munitions are used as intended; or
    (2) The open burn or open detonation unit has the potential to be 
impacted by munitions constituents or explosive waste contaminants from 
the active military range the unit is located on or from adjacent open 
burn or open detonation units. The owner/operator must demonstrate that 
contaminants from the active range or adjacent operating units have the 
potential to contribute contaminants within the inactive unit boundary. 
This demonstration must be made by providing:
    (i) Maps showing all impacted open burn and open detonation units, 
kickout areas, and their boundaries and the locations of the activities 
that will occur or are occurring; and
    (ii) A description of all activities that will contribute 
contaminants;
    (iii) Meteorological conditions that may cause deposition of 
contaminants within the inactive unit boundary; and
    (b) Has taken and will continue to take all steps to prevent 
releases and threats to human health and the environment from the 
unclosed but not operating OB/OD unit, including compliance with all 
applicable interim status requirements. Monitoring requirements of 
Sec.  265.710 may be modified as appropriate to the location and 
circumstances for use of the unit, until closure activities have been 
completed for the units requesting delayed closure under the listed 
circumstances in paragraph (a) of this section.


Sec.  265.714  Closure and post-closure care.

    OB/OD units must comply with the closure requirements of subpart G 
of this part except as specified in Sec.  265.713. In addition:
    (a) If after removing or decontaminating all residues and making 
all reasonable efforts to remove or decontaminate any contaminated 
components, soils, subsoils, structures, and equipment, the owner/
operator finds that not all contaminated soils and subsoils can be 
practicably removed or decontaminated, the owner/operator must close 
the unit and perform post-closure care in accordance with the closure 
and post-closure requirements that apply to landfills at Sec.  265.310.
    (b) If an OB/OD unit is closed as a landfill, any remaining waste 
explosives and residues must be remediated to levels such that the 
explosives concentration in the soil and subsoils no longer present an 
explosive safety hazard as confirmed by testing before a cap or cover 
may be put in place.


Sec.  265.715  Emergency provisions.

    (a) Emergency responses. An explosives or munitions emergency 
response, as defined in Sec.  260.10 of this chapter, is exempt from 
RCRA treatment, storage, and disposal standards and requirements 
pursuant to Sec. Sec.  262.10(i), 263.10(e), 264.1(g)(8), 265.1(c)(11), 
and 270.1(c)(3) of this chapter, including the requirement to conduct 
an alternative technology evaluation per Sec.  265.704, during a 
response. After the explosives or munitions emergency response 
specialist declares that the emergency response is complete,
    (1) The response unit's base or facility of origin, based on 
information from an explosives or munitions emergency response 
specialist, must submit the following information to the Director 
within five (5) days:
    (i) The type of explosive or munition and its size and quantity;
    (ii) Whether it is armed, primed, fused, had been fired and/or did 
not function, or if undeterminable, as applicable to the item type;
    (iii) The condition and its stability, as applicable to the item 
type;
    (iv) The location of discovery or generation and location and 
description of the storage area; and if applicable,
    (v) Whether an alternative technology was immediately available and 
safe for use given the site-specific situation.
    (b) Emergency permits. When an explosives or munitions emergency 
response as defined in Sec.  260.10 of this chapter is not required but 
temporary treatment of explosives or munitions is needed to address an 
imminent and substantial endangerment to human health and the 
environment, an emergency permit under Sec.  270.61 of this chapter is 
required.
    (1) The response unit's base or facility of origin, based on 
information from an explosives or munitions emergency response 
specialist must provide documentation to support a decision by the 
Director to issue an emergency permit under Sec.  270.61 of this 
chapter. This documentation must include the following information:
    (i) All information required by paragraphs (a)(1)(i) through (iv) 
of this section;
    (ii) The anticipated or actual frequency and quantity of generation 
of explosive material;
    (iii) The expected timeframe from discovery or generation to final 
treatment;
    (iv) A list of existing available alternative technologies that are 
known to treat the waste explosive identified in paragraph (b)(1)(i) of 
this section and which can either be brought to the location for use or 
to which the wastes can be transported; and,
    (v) Rationale to support a determination that no safe alternative 
technology is available for use within a reasonable time given the 
site-specific

[[Page 20026]]

situation, or that the explosive material cannot be shipped off-site.
    (2) Documentation required in Sec.  265.715(b)(1) must be submitted 
to the Director within five (5) days of beginning treatment and must be 
incorporated into the emergency permit.
    (3) If the Director determines, based on the documentation 
submitted, that the treatment activity does not qualify for an 
emergency permit, then the treatment must cease until a permit 
application with an alternative technology evaluation is received 
pursuant to Sec.  270.10 of this chapter and in accordance with the 
applicable standards in subpart Y of this part.
    (4) Treatment by OB/OD must cease if and when an alternative 
technology is selected and implemented, in accordance with the revised 
emergency permit.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

0
20. The authority citation for part 270 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

Subpart A--General Information

0
21. Amend Sec.  270.1 by adding paragraph (c)(3)(iv) to read as 
follows:


Sec.  270.1  Purpose and scope of these regulations.

    (c) * * *
    (3) * * *
    (iv) Any person who responds to an explosives or munitions 
emergency must also comply with the reporting requirements of Sec.  
264.715(a)(1) or Sec.  265.715(a)(1) of this chapter.

Subpart B--Permit Application

0
22. Amend Sec.  270.10 by adding paragraph (a)(7) to read as follows:


Sec.  270.10  General application requirements.

    (a) * * *
    (7) If you are seeking a permit for a Mobile Treatment Unit to 
treat waste explosives, the procedures for application and issuance are 
found in subpart K of this part.
* * * * *
0
23. Amend Sec.  270.23 by:
0
a. Revising the section heading, the introductory text, paragraphs 
(a)(2) and (3) and (b);
0
b. Redesignating paragraph (e) as paragraph (f); and
0
c. Adding a new paragraph (e).
    The revisions and addition to read as follows:


Sec.  270.23  Specific part B information requirements for 
miscellaneous and open burn and open detonation units.

    Except as otherwise provided in Sec.  264.600 of this chapter, 
owners/operators of facilities that treat, store, or dispose of 
hazardous waste in miscellaneous units and open burn and open 
detonation units must provide the following additional information:
    (a) * * *
    (2) Detailed plans and engineering reports describing how the unit 
will be located, designed, constructed, operated, maintained, 
monitored, inspected, and closed to comply with the requirements of 
Sec. Sec.  264.601 and 264.602 of this chapter for miscellaneous units, 
or Sec. Sec.  264.708, 264.709, and 264.712 of this chapter for OB/OD 
units; and
    (3) For disposal units and treatment units that cannot clean close, 
a detailed description of the plans to comply with the post-closure 
requirements of Sec.  264.603 of this chapter for miscellaneous units 
or Sec.  264.714 of this chapter for OB/OD units.
    (b) Detailed hydrologic, geologic, and meteorologic assessments and 
land-use maps for the region surrounding the site that address and 
ensure compliance of the unit with each factor in the environmental 
performance standards of Sec.  264.601 of this chapter for 
miscellaneous units or technical standards of Sec. Sec.  264.708, 
264.709, and 264.712 of this chapter for OB/OD units. If the applicant 
can demonstrate that he does not violate the environmental performance 
standards of Sec.  264.601 of this chapter for miscellaneous units or 
technical standards of Sec. Sec.  264.708, 264.709, and 264.712 of this 
chapter for OB/OD units and the Director agrees with such 
demonstration, preliminary hydrologic, geologic, and meteorologic 
assessments will suffice.
* * * * *
    (e) For owners/operators of OB/OD units regulated under subpart Y 
of this part that identified alternatives to OB/OD, the required 
evaluation of alternative technologies, a schedule to implement the 
selected alternatives to be permitted under subpart X of this part.
* * * * *

Subpart D--Changes to Permit

0
23. Amend Sec.  270.42 by:
0
a. Adding paragraph (l); and
0
b. In Appendix 1 to Sec.  270.42, adding the entry ``P. Mobile 
Treatment Units'' to the end of the appendix.
    The additions read as follows:


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

* * * * *
    (l) Modification of RCRA Mobile Treatment Unit (MTU) Permits 
treating waste explosives. All modifications to a permit for an MTU 
treating waste explosives shall adhere to the process for Class I 
permit modifications in Sec.  270.42(a) and shall require the prior 
written approval of the Director.

Appendix 1 to Sec.  270.42--Classification of Permit Modification

------------------------------------------------------------------------
                      Modifications                            Class
------------------------------------------------------------------------
 
                              * * * * * * *
P. Mobile Treatment Units:
    1. All modifications to a permit for an MTU treating           \1\ 1
     waste explosives issued in accordance with subpart
     K of this part.....................................
Q. Open Burning and Open Detonation Units:
    1. Changes to alternative technology implementation            \1\ 1
     schedule pursuant to Sec.   264.707(e)(3)..........
------------------------------------------------------------------------

Subpart F--Special Forms of Permits

0
24. Amend Sec.  270.61 by revising paragraph (b) to read as follows:


Sec.  270.61   Emergency permits.

* * * * *
    (b) This emergency permit:
    (1) May be oral or written. If oral, it must be followed in five 
days by a written emergency permit;
    (2) Must not exceed 90 days in duration;
    (3) Must clearly specify the hazardous wastes to be received, and 
the manner and location of their treatment, storage, or disposal;
    (4) May be terminated by the Director at any time without process 
if he or she determines that termination is appropriate to protect 
human health and the environment;

[[Page 20027]]

    (5) Must be accompanied by a public notice published under Sec.  
124.10(b) of this chapter including:
    (i) Name and address of the office granting the emergency 
authorization;
    (ii) Name and location of the permitted HWM facility;
    (iii) A brief description of the wastes involved;
    (iv) A brief description of the action authorized and reasons for 
authorizing it; and
    (v) Duration of the emergency permit; and
    (6) Must incorporate, to the extent possible and not inconsistent 
with the emergency situation, all applicable requirements of this part 
and parts 264 and 266 of this chapter, including for emergencies 
involving explosives and munitions an evaluation and implementation of 
alternative technologies to OB/OD as required by Sec.  
264.715(b)(1)(iv) and (v) of this chapter.
    (7) In the case of an emergency situation that includes explosives 
and munitions, the permit may be renewed one time, for an additional 90 
days, at the discretion of the Director. If additional time is needed 
to accommodate procurement and operation of an alternative technology 
for treatment at the response location, the Director may renew the 
permit for a total period not to exceed one year.
* * * * *
0
25. Add Sec.  270.69 to read as follows:


Sec.  270.69  Mobile Treatment Unit (MTU) permits.

    Mobile Treatment Units permits are special forms of permits that 
are regulated under subpart K of this part.
0
26. Amend part 270 by adding subpart K to read as follows:

Subpart K--RCRA Permits for Mobile Treatment Units (MTUs) To Treat 
Waste Explosives

Sec.
270.330 Applicability.
270.331 Obtaining an MTU permit to treat only waste explosives.
270.332 Application process for a nationwide conditional approval.
270.333 Application contents for a nationwide conditional approval.
270.334 Nationwide conditional approval conditions.
270.335 Application process for a RCRA MTU permit.
270.336 Application contents for a RCRA MTU permit.
270.337 RCRA MTU permit conditions.


Sec.  270.330  Applicability.

    (a) An owner/operator of an MTU, or group of identical MTUs, as 
defined in Sec.  260.10 of this chapter, may obtain a RCRA MTU permit 
to treat only waste explosives as defined in Sec.  260.10 of this 
chapter, by adhering to the procedures in this subpart.
    (b) The owner/operator of an MTU, or group of identical MTUs, may 
not treat waste explosives until they have obtained a RCRA MTU permit 
as described in this subpart.
    (c) This subpart does not apply to MTUs seeking to treat non-
explosive hazardous wastes or to MTUs seeking to treat explosive 
hazardous waste in response to an emergency under Sec. Sec.  
264.1(g)(8)(i)(D), 265.1(c)(11)(i)(D), 270.1(c)(3)(D), and 270.61 of 
this chapter.


Sec.  270.331  Obtaining an MTU permit to treat only waste explosives.

    An owner/operator of an MTU, or group of identical MTUs, seeking to 
treat waste explosives must first apply for and obtain a nationwide 
conditional approval in accordance with Sec. Sec.  270.332 through 
270.334. Upon receiving a nationwide conditional approval, the owner/
operator is eligible to apply for a RCRA MTU permit in accordance with 
Sec. Sec.  270.335 through 270.337 for each location at which the unit, 
or group of identical units, will treat waste explosives (location-
specific permit).


Sec.  270.332  Application process for a nationwide conditional 
approval.

    (a) An owner/operator of an MTU seeking a nationwide conditional 
approval to treat waste explosives must complete an application, sign 
it, and submit it to the Director according to the requirements in this 
section.
    (b) Both the owner and the operator must sign the nationwide 
conditional approval application and any required reports according to 
Sec.  270.11(a) through (c). In the application, both the owner and the 
operator must also make the certification required under Sec.  
270.11(d)(1).
    (c) The application for a nationwide conditional approval must 
include all information required by Sec.  270.333.
    (d) If the Director tentatively finds that the application for a 
nationwide conditional approval includes all of the information 
required by Sec.  270.333 and that the proposed design and operating 
standards meet the applicable regulatory standards in Sec.  264.1(k) of 
this chapter, the Director will make a tentative decision to approve 
the nationwide conditional approval application. The Director will then 
prepare a draft nationwide conditional approval and provide an 
opportunity for public comment, in accordance with paragraph (g) of 
this section, before making a final decision on the nationwide 
conditional approval application.
    (e) If the Director finds that the nationwide conditional approval 
application does not include all of the information required by Sec.  
270.333 or the proposed design and operating standards do not meet the 
applicable regulatory standards in Sec.  264.1(k) of this chapter, the 
Director may request additional information from the applicant or ask 
the applicant to correct deficiencies in their application. If the 
applicant fails or refuses to provide any additional information the 
Director requests, or to correct any deficiencies in the nationwide 
conditional approval application, the Director may make a tentative 
decision to deny the nationwide conditional approval application. After 
making this tentative decision, the Director will prepare a notice of 
intent to deny the nationwide conditional approval application 
(``notice of intent to deny'') and provide an opportunity for public 
comment, in accordance with paragraph (g) of this section, before 
making a final decision on the nationwide conditional approval 
application. The Director may deny the nationwide conditional approval 
application either in its entirety or in part.
    (f) The Director must also:
    (1) Prepare a statement of basis that briefly describes the 
derivation of the conditions of the draft nationwide conditional 
approval and the reasons for them, or the rationale for the notice of 
intent to deny;
    (2) Compile an administrative record, including:
    (i) The nationwide conditional approval application, and any 
supporting data furnished by the applicant;
    (ii) The draft nationwide conditional approval or notice of intent 
to deny;
    (iii) The statement of basis and all documents cited therein 
(material readily available online or published material that is 
generally available need not be physically included with the rest of 
the record, as long as it is specifically referred to in the statement 
of basis);
    (iv) Any other documents that support the decision to approve or 
deny the nationwide conditional approval; and
    (v) A copy of the final nationwide conditional approval or notice 
of intent to deny, once issued.
    (3) Make information contained in the administrative record 
available for review by the public.
    (g) Prior to making a final determination, the Director must:
    (1) Provide notice of the draft nationwide conditional approval or 
notice of intent to deny and the location

[[Page 20028]]

of the administrative record in the Federal Register to provide at 
least 30 days for public comment and make the draft available online.
    (h)(1) The Director must consider and respond to any significant 
comments raised during the public comment period and may revise the 
draft nationwide conditional approval or notice of intent to deny based 
on those comments, as appropriate.
    (2) If the Director determines that the nationwide conditional 
approval includes the information and terms and conditions required in 
Sec.  270.334, then the Director will issue a final decision approving 
the nationwide conditional approval and, in writing, notify the 
applicant and all commenters (who provided contact information) on the 
draft nationwide conditional approval that the nationwide conditional 
approval application has been approved.
    (3) If the Director determines that the nationwide conditional 
approval does not include the information and terms and conditions 
required in Sec.  270.334, then the Director will issue a final 
decision denying the nationwide conditional approval and, in writing, 
notify the applicant and all commenters (who provided contact 
information) on the draft nationwide conditional approval that the 
nationwide conditional approval application has been denied.
    (4) If the Director's final decision is that the tentative decision 
to deny the conditional approval application was incorrect, the 
Director will withdraw the notice of intent to deny and proceed to 
prepare a draft nationwide conditional approval, according to the 
requirements in this subpart.
    (5) When the Director issues the final nationwide conditional 
approval decision, the Director must include reference to the 
procedures for appealing the decision under Sec.  270.332(i).
    (i)(1) Any commenter on the draft conditional approval or notice of 
intent to deny, may appeal the Director's decision to deny the 
conditional approval application to EPA's Environmental Appeals Board 
in accordance with Sec.  124.19 of this chapter. Any person who did not 
file comments on the draft conditional approval or denial, may petition 
for administrative review only with respect to any changes from the 
draft to the final conditional approval decision. Appeals of 
conditional approvals may be made to the same extent as for final 
permit decisions under Sec.  124.15 of this chapter (or a decision 
under Sec.  270.29 to deny a permit for the active life of a RCRA 
hazardous waste management facility or unit).
    (2) This appeal is a prerequisite to seeking judicial review of 
these EPA actions.


Sec.  270.333  Application contents for a nationwide conditional 
approval.

    (a) The application for a nationwide conditional approval for an 
MTU, or group of identical MTUs, must include the information required 
by Sec.  270.13 except that the information required by Sec.  
270.13(b), (f) and (l) is not required.
    (b) The application for a nationwide conditional approval for an 
MTU, or group of identical MTUs, must include sufficient information to 
demonstrate that design and operation of the MTU will ensure compliance 
with applicable requirements of part 264 of this chapter as specified 
by Sec.  264.1(k). However, the following information is not required 
until the location-specific permit stage of the permitting process:
    (1) The information on arrangements with local authorities required 
by Sec.  264.37 of this chapter; and
    (2) The information regarding arrangements with local authorities 
required to be in the MTU's contingency plan as per Sec.  264.52(c) of 
this chapter;
    (c) The application for a nationwide conditional approval for an 
MTU, or group of identical MTUs, must include the information required 
by Sec.  270.23(a), (d) and (f);
    (d) If the application for a nationwide conditional approval 
relates to a group of identical MTUs, the application must include a 
certification from a registered professional engineer that the units 
are identical; and
    (e) For the purposes of complying with this section, references in 
Sec. Sec.  270.13, 270.14, and 270.23 to ``permit'' should be read as 
``nationwide conditional approval.''


Sec.  270.334  Nationwide conditional approval conditions.

    If the Director prepares a nationwide conditional approval, it must 
include the:
    (a) Information required under Sec.  270.13(a), (d), (e), (i), and 
(j);
    (b) The following terms and conditions:
    (1) Terms and conditions necessary to ensure that the operating 
requirements specified in the nationwide conditional approval comply 
with the applicable part 264 of this chapter standards as described in 
Sec.  264.1(k).
    (2) Terms and conditions in Sec. Sec.  270.30 and 270.31;
    (3) A requirement to notify EPA each time an MTU treats waste 
explosives at a location, including the start and end dates of 
treatment and the quantity of wastes treated; and
    (4) Terms and conditions for modifying, revoking and reissuing, and 
terminating the MTU nationwide conditional approval in accordance with 
Sec. Sec.  270.41 through 270.43.


Sec.  270.335  Application process for a RCRA MTU permit.

    (a) An owner/operator of an MTU seeking a permit to treat only 
waste explosives as defined in Sec.  260.10 of this chapter, must 
complete an application, sign it, and submit it to the Director 
according to the requirements in this section.
    (b) Both the owner and the operator must sign the permit 
application and any required reports according to Sec.  270.11(a) 
through (c). In the application, both the owner and the operator must 
also make the certification required under Sec.  270.11(d)(1).
    (c) The application for a permit must include all information 
required by Sec.  270.336.
    (d) If the Director tentatively finds that the application for a 
permit includes all of the information required by Sec.  270.336 and 
that the proposed design and operating standards meet the applicable 
regulatory standards of Sec.  264.1(k) of this chapter and Sec. Sec.  
270.30 through 270.32, the Director will make a tentative decision to 
approve the permit application. The Director will then prepare a draft 
permit and provide an opportunity for public comment, in accordance 
with paragraph (g) of this section, before making a final decision on 
the permit application.
    (e) If the Director tentatively finds that the permit application 
does not include all of the information required by Sec.  270.336 or 
the proposed design and operating standards do not meet the applicable 
regulatory standards of Sec.  264.1(k) of this chapter and Sec. Sec.  
270.30 through 270.32, the Director may request additional information 
from the applicant or ask the applicant to correct deficiencies in 
their application. If the applicant fails or refuses to provide any 
additional information the Director requests, or to correct any 
deficiencies in the permit application, the Director may make a 
tentative decision to deny the permit application. After making this 
tentative decision, the Director will prepare a notice of intent to 
deny the permit application (``notice of intent to deny'') and provide 
an opportunity for comment, in accordance with paragraph (g) of this 
section, before making a final decision on the permit application. The 
Director may deny the permit

[[Page 20029]]

application either in its entirety or in part.
    (f) The Director must also:
    (1) Prepare a statement of basis that briefly describes the 
derivation of the conditions of the draft permit and the reasons for 
them, or the rationale for the notice of intent to deny;
    (2) Compile an administrative record, including:
    (i) The permit application and the nationwide conditional approval, 
and any supporting data furnished by the applicant;
    (ii) The draft permit or notice of intent to deny;
    (iii) The statement of basis and all documents cited therein 
(material readily available online or published material that is 
generally available need not be physically included with the rest of 
the record, as long as it is specifically referred to in the statement 
of basis);
    (iv) Any other documents that support the decision to approve or 
deny the permit; and
    (v) A copy of the final permit or notice of intent to deny, once 
issued.
    (3) Make information contained in the administrative record 
available for review by the public.
    (g)(1) Prior to making a final determination, the Director must:
    (i) Send notice to the applicant of their intention to approve or 
deny the permit application, and send the applicant a copy of the 
statement of basis;
    (ii) Publish a notice of their intention to approve or deny the 
permit application in a major local newspaper of general circulation;
    (iii) Broadcast their intention to approve or deny the permit 
application over a local radio station; and
    (iv) Send a notice of their intention to approve or deny the permit 
application to each unit of local government having jurisdiction over 
the area in which the site is located, and to each State agency having 
any authority under State law with respect to any construction or 
operations at the site.
    (2) The notice required by paragraph (g)(1) of this section must 
provide an opportunity for the public to submit written comments on the 
draft permit or notice of intent to deny within at least 45 days.
    (3) The notice required by paragraph (g)(1) of this section must 
include:
    (i) The name and address of the office processing the permit 
application;
    (ii) The name and address of the permit applicant, and if 
different, the site at which the permit would allow the treatment of 
waste explosives;
    (iii) A brief description and expected duration of the activity the 
permit will regulate;
    (iv) The name, address, and telephone number of a person, as well 
as an email address, from whom interested persons may obtain further 
information, including copies of the draft permit or notice of intent 
to deny, statement of basis, and the permit application;
    (v) A brief description of the comment procedures in this section, 
and any other procedures by which the public may participate in the 
permit decision;
    (vi) If a hearing is scheduled, the date, time, location, and 
purpose of the hearing;
    (vii) If a hearing is not scheduled, a statement of procedures to 
request a hearing;
    (viii) The location of the administrative record; and
    (iv) Any additional information the Director considers necessary or 
proper.
    (4) If, within the comment period, the Director receives written 
notice of opposition to their intention to approve or deny the permit 
application and a request for a hearing, the Director must hold an 
informal public hearing to discuss issues relating to the approval or 
denial of the application. The Director may also determine on their own 
initiative that an informal hearing is appropriate. The hearing must 
include an opportunity for any person to present written or oral 
comments. Whenever possible, the Director must schedule this hearing at 
a location convenient to the nearest population center to the site 
where waste explosives would be treated and give notice according to 
the requirements in paragraph (g)(1) of this section. This notice must, 
at a minimum, include the information required by paragraph (g)(3) of 
this section and:
    (i) Reference to the date of any previous public notices relating 
to the permit application;
    (ii) The date, time, and place of the hearing; and
    (iii) A brief description of the nature and purpose of the hearing, 
including the applicable rules and procedures.
    (h)(1) The Director must consider and respond to any significant 
comments raised during the public comment period, or during any hearing 
on the draft permit or notice of intent to deny and may revise the 
draft permit based on those comments, as appropriate.
    (2) If the Director determines that the permit includes the 
information and terms and conditions required in Sec.  270.337, then 
the Director will issue a final decision approving the permit and, in 
writing, notify the applicant and all commenters (who provided contact 
information) on the draft permit that the permit application has been 
approved.
    (3) If the Director determines that the permit does not include the 
information and terms and conditions required in Sec.  270.337, then 
the Director will issue a final decision denying the permit and, in 
writing, notify the applicant and all commenters (who provided contact 
information) on the draft permit that the permit application has been 
denied.
    (4) If the Director's final decision is that the tentative decision 
to deny the permit application was incorrect, the Director will 
withdraw the notice of intent to deny and proceed to prepare a draft 
permit, according to the requirements in this subpart.
    (5) When the Director issues the final permit decision, the 
Director must refer to the procedures for appealing the decision under 
Sec.  270.335(i).
    (i)(1) Any commenter on the draft permit or notice of intent to 
deny, may appeal the Director's final decision to approve or deny the 
permit application to EPA's Environmental Appeals Board under Sec.  
124.19 of this chapter. Any person who did not file comments on the 
draft permit, may petition for administrative review only to the extent 
of the changes from the draft to the final permit decision. Appeals of 
permits may be made to the same extent as for final permit decisions 
under Sec.  124.15 of this chapter (or a decision under Sec.  270.29 to 
deny a permit for the active life of a RCRA hazardous waste management 
facility or unit).
    (2) This appeal is a prerequisite to seeking judicial review of 
these EPA actions.


Sec.  270.336  Application contents for a RCRA MTU permit.

    (a) The application for a RCRA MTU permit for an MTU, or group of 
identical MTUs, must include:
    (1) The nationwide conditional approval issued in accordance with 
Sec.  270.332;
    (2) The information required in Sec.  270.13(b) and (f);
    (3) The proposed start date of operation, expected duration of 
activities, and the proposed types and volumes of wastes to be treated; 
specification of the types and quantities of wastes to be treated at 
the site as well as the dates of operation of the MTU. The dates of 
operation must account for any time necessary to comply with the 
interim closure requirement of the MTU, and the start and end dates 
must be less than 180 days apart.
    (4) The information required by Sec.  270.23(f);
    (5) Information demonstrating compliance with Sec.  264.37 
regarding arrangements with local authorities;

[[Page 20030]]

    (6) An updated contingency plan required by subpart D of part 264 
of this chapter including the information required by Sec.  264.52(c) 
reflecting the arrangements with local authorities; and
    (7) Evidence of an arrangement between the original generator of 
the waste explosives and the MTU owner/operator as to who will take the 
actions required to comply with the applicable part 262 of this chapter 
regulations related to any hazardous waste generated by the MTU's 
operations.


Sec.  270.337  RCRA MTU permit conditions.

    If the Director prepares a draft permit, it must include the:
    (a) Information and terms and conditions in the nationwide 
conditional approval issued in accordance with Sec.  270.332;
    (b) The proposed MTU location of operation information required by 
Sec.  270.13(b);
    (c) Specification of the types and quantities of wastes to be 
treated at the site as well as a permit term not to exceed five years 
and a limit on the consecutive days of operation of the MTU at the 
subject location consistent with definition of an MTU location-specific 
permit in Sec.  260.10 of this chapter; and
    (d) Any additional terms or conditions, including revisions to the 
conditional approval, that the Director determines are necessary to 
achieve the environmental performance standard in Sec.  264.601 of this 
chapter and the applicable monitoring, analysis, inspection, response, 
and reporting requirements of Sec.  264.602 of this chapter.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

0
27. The authority for part 271 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6926, and 6939g.

0
28. Amend Sec.  271.1 by:
0
a. Revising paragraph (h); and
0
b. In table 1 to paragraph (j), adding an entry for ``Revisions to 
Standards for the Open Burning/Open Detonation of Waste Explosives'' in 
chronological order by promulgation date.
    The revision and addition read as follows:

Subpart A--Requirements for Final Authorization


Sec.  271.1  Purpose and scope.

* * * * *
    (h) Partial State programs are not allowed for programs operating 
under RCRA final authorization. However, in many cases States will lack 
authority to regulate activities on Indian lands. This lack of 
authority does not impair a State's ability to obtain full program 
approval in accordance with this subpart, i.e., inability of a State to 
regulate activities on Indian lands does not constitute a partial 
program. EPA will administer the program on Indian lands if the State 
does not seek this authority. Additionally, this paragraph does not 
apply to the authority to issue nationwide conditional approvals and 
RCRA permits to Mobile Treatment Units (MTUs) treating waste explosives 
under subpart K of part 270 of this chapter.
* * * * *
    (j) * * *

                                            Table 1 to Paragraph (j)
----------------------------------------------------------------------------------------------------------------
                                                            Federal Register
       Promulgation date          Title of regulation          reference                  Effective date
----------------------------------------------------------------------------------------------------------------
[Month, XX, XXXX].............  Revisions to Standards  [XXXX].................  [Month, XX, XXXX.]
                                 for the Open Burning/
                                 Open Detonation of
                                 Waste Explosives.
----------------------------------------------------------------------------------------------------------------

* * * * *
0
29. Amend Sec.  271.3 by adding paragraph (b)(5) to read as follows:


Sec.  271.3  Availability of final authorization.

* * * * *
    (b) * * *
    (5) Any requirement applicable to the permitting of Mobile 
Treatment Units to treat waste explosives:
    (i) Shall take effect in each State having a finally authorized 
State program on the same date as such requirement takes effect in 
other States;
    (ii) Shall supersede any less stringent or inconsistent provision 
of a State program, and
    (iii) Shall be carried out by the Administrator in an authorized 
State except where, pursuant to section 3006(b) of RCRA, the State has 
received final authorization to carry out the requirement in lieu of 
the Administrator.

[FR Doc. 2024-05088 Filed 3-19-24; 8:45 am]
BILLING CODE 6560-50-P