MUNITIONS RULE

[Lenny Siegel <lsiegel@igc.org>]

EPA FINALIZES THE MUNITIONS RULE
(Warning: This is a Long File!)

On February 3, 1997, Carol Browner, the Administrator of the U.S. 
Environmental Protection Agency, signed the Final Military Munitions 
Rule. It will take effect in most states six months from February 12, 
the date of its publication in the Federal Register, . The 221-page 
(typewritten) rule and preamble are much more complex than many of 
us originally envisioned when Congress ordered its promulgation in 
the Federal Facilities Compliance Act of 1992.

To those people who have followed the complicated negotiations and 
exchanges of comments among EPA, the Defense Department, other 
federal agencies, state and tribal regulators, and other parties, the Final 
Rule contains no significant surprises. On some key issues, 
communities where waste munitions are treated, stored, or disposed 
will feel that EPA has undermined protection of public health and 
safety and the environment. On the other hand, many Defense 
Department officials believe that the Rule places undesirable burdens 
on their activities.

More important, the rule does not resolve one of the most important 
concerns of communities across the country: Who will determine if 
and when to clear unexploded ordnance (UXO) from impact ranges?

Nevertheless, the broader debate that was triggered or at least 
propelled by the rulemaking process is likely to bring enormous 
changes in the way that the U.S. armed services manage used or 
waste munitions. I anticipate changes in the way the Defense 
Department carries out munitions-related activities even in areas where 
EPA has found no basis for regulatory oversight.

Critics of the Munitions Rule are likely to go to court to challenge 
some of its key provisions, so portions of the rule could be delayed or 
even overturned.

In many places the rule discusses when munitions become a "solid 
waste." In practice, this nearly always means a "hazardous waste," so 
I use that term. I would also note that this is an extremely complex 
legal document, subject to interpretation, and that I am not an attorney. 
I invite readers to help clarify any points of disagreement or 
confusion. I in no way claim to cover all the details of the rule. After 
all, it took EPA more than 200 pages to formulate its position.

CLOSED RANGES

EPA punted on the issues of closed impact ranges. In the proposed 
rule, published November 8, 1995, EPA proposed to regulate 
ordnance on closed impact ranges as solid waste only until the 
Defense Department (DOD) adopted its own rule on the subject, on the 
condition that the Defense rule would meet EPA's conditions. Since, 
as expected, DOD just sent its proposed "Range Rule" to the Office of 
Management and the Budget (OMB) for Review, EPA decided to take 
no action on this issue in the Munitions Rule, and it argued that the 
Congressional mandate to define when munitions become a hazardous 
waste did not apply to this section of the rule.

On the one hand, EPA's delay can be seen as acceptance of DOD's 
right to regulate itself. This decision was reportedly made at the White 
House level, at OMB. On the other hand, it means that EPA is using 
its rulemaking as a way to influence the content of the DOD rule. EPA 
won't defer to DOD unless it is satisfied by the Final Range Rule 
language. [I will soon post a summary of the draft proposed Range 
Rule.]

STATE AUTHORITY

As I reported before, the states successfully shot down the trial 
balloon, included as an option in the proposed munitions rule, which 
would have pre-empted the states' authority to enforce more stringent 
or broader requirements. The Final Rule maintains the "standard 
Federal-State relationship embodied in other parts of the RCRA [the 
Resource Conservation and Recovery Act] program," but EPA 
encourages states to adopt the federal standards. The military 
originally argued that Balkanized regulation of waste munitions could 
hamper interstate military operations, but I don't believe that the 
Defense Department came up with any examples of irrational state 
interference.

TREATMENT AND DISPOSAL

The rule clearly states that the disposal by burial, open burning/open 
detonation, or incineration of unused munitions (except when done 
during an emergency response or during training in use of a product ) 
requires a RCRA permit. In fact, such munitions become hazardous 
solid waste when they are removed from storage for the purpose of 
treatment or disposal. Conceivably, military installations could conceal 
their intent to dispose, but I don't think they could get away with it for 
long. If large quantities of munitions are reclassified just before they 
are torched, it won't be hard to demand a change in this provision.

Considering munitions a waste when they are removed from storage is 
a step in the right direction, because the military has routinely avoided 
permit restrictions on the destruction of wastes imported from off-site 
by declaring them wastes only after arrival at the destruction site. This 
change could have disrupted the military's ongoing demilitarization 
activities, because permit changes take time and resources, even if 
eventually approved. To prevent such disruptions, a Defense disposal 
facility with an ban on receiving off-site wastes may submit - in the 
six-month period before the Final Rule takes effect - a permit 
modification to allow continued importation of wastes for disposal. 
The facility then can receive off-site wastes until the permitting agency 
determines whether or not to approve the modification. This provision 
only applies to the continued treatment of existing waste streams, not 
off-site wastes in general.

Defense facilities consider this process burdensome, but it's an 
appropriate burden. Regulatory agencies which have no problem with 
the importation of wastes would not have imposed such conditions in 
the first place.

Unused munitions that were buried or landfilled in the past are 
consider hazardous wastes subject to RCRA regulation WHEN they 
are unearthed and further managed. Furthermore, current on-range 
disposal ("recovery, collection, and subsequent burial or placement in 
a landfill") of UXO is also a RCRA-regulated activity.

As laid out earlier in the proposed rule, munitions are also solid 
wastes - and by implication hazardous wastes - when they are leaking 
or deteriorated or when declared to be solid wastes by an authorized 
military official. EPA rejected suggestions that munitions be 
considered solid wastes merely because they are listed in the 
demilitarization account (the "Orange Book") or because the United 
States has committed by treaty to their destruction.

TRAINING

As expected, EPA rejected attempts by activists to subject certain 
military training exercises to regulation under that hazardous waste 
training laws. In particular, activists opposed the unrestricted routine 
open burning/open detonation of artillery propellant. EPA declared 
that such training is the use of a product, rather than waste disposal, 
but it suggested, "to assure against sham training, regulators may 
look for the existence and use of training manuals, the presence of 
military trainees, and documentation of training activities as evidence 
of legitimate training." Furthermore, training areas may be subject to 
cleanup requirements when the training area is closed or when the ash 
presents "an imminent and substantial endangerment."

ACTIVE/INACTIVE RANGE CLEARANCE

EPA has excluded the recovery, collection, and on-range treatment or 
destruction of unexploded ordnance as part of range CLEARANCE at 
active or potentially active (defined as "inactive" but not closed) ranges 
from RCRA regulation. On the other hand, the on-range DISPOSAL 
("recovery, collection, and subsequent burial or placement in a 
landfill") of UXO at active or inactive ranges is a RCRA-regulated 
activity. For this purpose, "burial" does not mean shells or bombs that 
remain underground as a result of being dropped or fired.

Even at active/inactive ranges, debris containing explosive material as 
well as UXO shipped off-range for treatment or disposal is a 
hazardous waste subject to regulation. Thus, "used or fired munitions 
are solid wastes when they are removed from their landing spot and 
(1) either managed off-range - i.e., when transported off-range and 
stored, reclaimed, treated, or disposed of, or (2) disposed of (i.e. 
buried or landfilled) on-range."

At some large DOD ranges, managers are concerned that such 
regulation could undermine their ability to accumulate and sell scrap to 
metal recyclers. However, I think the safety advantages of regulator 
oversight outweigh the burden imposed by the additional paperwork. 
In general, the regulations and regulators encourage careful 
"scrapping."

Disassembly and other munitions recycling activities are not subject to 
regulation. However, EPA has determined in the Final Rule that the 
use of unused propellant or explosives as fertilizer is regulated under 
RCRA because it constitutes disposal, but it remains permissible. 

OFF-RANGE MUNITIONS

EPA left intact the provision in the proposed rule dealing with fired 
munitions that land off-range. In such circumstances, the failure to 
render safe and retrieve a munition makes it a hazardous waste. If 
remediation in not feasible, the range operator would be required to 
maintain a record of the event.

TRANSPORTATION AND STORAGE

EPA also proposes to conditionally exempt waste military munitions 
from RCRA transportation and storage requirements if managed in 
accordance with Department of Defense standards. These exemptions 
are controversial, because in principle they reinforce the Department's 
ability to regulate itself. It's not clear that EPA has the legal authority 
to delegate such responsibility to Defense. On the other hand, at a 
practical level, there have been few, in any serious concerns expressed 
about the military's safety record in the handling the storage of waste 
munitions.

In the rule, EPA attempts to deal with the common DOD practice of 
granting site-specific waivers and exemptions from munitions storage 
standards. Thus, any such waiver terminates the conditional 
exemption. In such cases EPA secondary containment storage 
requirements - subpart EE in the Final Rule - kick in.

Furthermore, waste chemical munitions cannot be covered by the 
conditional exemption for storage. That is, they are subject to RCRA 
storage standards. EPA says this is not because the military has been 
storing waste chemical munitions improperly. Rather, it's because 
such munitions are more like hazardous chemical wastes than other 
munitions. In fact, DOD is already storing such munitions in RCRA-
regulated units.

EPA accepted a DOD suggestion that vapor-detection and response 
systems be allowed in lieu of secondary containment for chemical 
munitions. DOD argued that chemical agents leak as vapors before 
they leak as liquids, so such detection is protective.

Significantly, the Final Rule states that "land-ban" land disposal 
restrictions do not apply to waste chemical munitions. Without such a 
clarification, those restrictions might be used to force the on-site 
destruction of chemical munitions in a manner that is unsafe and/or 
unacceptable to the surrounding community.

EMERGENCY RESPONSE

Members of the Defense Department Explosives Ordnance Disposal 
community have always been concerned that the Munitions Rule 
would subject emergency response personnel to bureaucratic 
requirements that threaten their safety and undermine their 
effectiveness, even though all parties have professed no desire to do 
so. The Final Rule once again makes that clear, but it does note, 
"DOD is still responsible for any residues that remain after an 
emergency response that involves military munitions."

CONTIGUOUS PROPERTIES

In the Final Munitions Rule, EPA changed (from the Proposed Rule) 
its approach to the movement of hazardous wastes on large properties 
divided by public rights-of-way. This provision has little to do with 
munitions; it was generally supported by all parties; and it was of 
particular interest to universities, many of which commented on the 
issue. Essentially, EPA originally proposed to modify the definition of 
"on-site" to permit and encourage the operators of such large 
properties to consolidate their hazardous wastes. However, it 
determined that changing the definition could have implications 
elsewhere, so instead the Final Rule exempts from the manifest 
requirements (under RCRA) "shipments on right-of-ways on (or 
bordering) contiguous properties under the control of the same 
person."

Copies of the Munitions Rule were printed in the February 12, 1997 
Federal Register, and it may be downloaded from EPA's Web page, 
http://www.epa.gov. Look up "rules and regulations" under OSWER, 
the Office of Solid Waste and Emergency Response.

Lenny Siegel