Munitions Response Site Prioritization Protocol, 58016-58054 [05-19696]

Agencies

• Office of the Secretary
• DEPARTMENT OF DEFENSE

[Federal Register Volume 70, Number 192 (Wednesday, October 5, 2005)]
[Rules and Regulations]
[Pages 58016-58054]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19696]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 179


Munitions Response Site Prioritization Protocol

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: The Department of Defense (hereinafter the Department) is 
promulgating the Munitions Response Site (MRS) Prioritization Protocol 
(MRSPP) (hereinafter referred to as the rule) as a rule. This rule 
implements the requirement established in section 311(b) of the 
National Defense Authorization Act for Fiscal Year 2002 for the 
Department to assign a relative priority for munitions responses to 
each location (hereinafter MRS) in the Department's inventory of 
defense sites known or suspected of containing unexploded ordnance 
(UXO), discarded military munitions (DMM), or munitions constituents 
(MC).

DATES: This rule is effective October 5, 2005.

FOR FURTHER INFORMATION CONTACT: If there are specific questions or to 
request an opportunity to review the docket for this rulemaking, please 
contact Ms. Patricia Ferrebee, Office of the Deputy Under Secretary of 
Defense (Installations & Environment) [ODUSD (I&E)], 703-571-9060. This 
final rule along with relevant background information is available on 
the World Wide Web at the Defense Environmental Network & Information 
eXchange Web site, https://www.denix.osd.mil/MMRP.

SUPPLEMENTARY INFORMATION: 

Preamble Outline

I. Authority
II. Background
III. Summary of Significant Changes to the Final Rule
IV. Response to Comments
    A. Applicability and Scope
    B. Definitions
    C. Policy
    D. Responsibilities
    E. Procedures
    1. Explosive Hazard Evaluation Module
    2. Chemical Warfare Materiel Hazard Evaluation Module
    3. Health Hazard Evaluation Module
    4. Determining the Munitions Response Site (MRS) Priority
    F. Sequencing
V. Administrative Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandates
    D. Paperwork Reduction Act
    E. National Technology Transfer and Advancement Act
    F. Environmental Justice Requirements under Executive Order 
12898
    G. Federalism Considerations under Executive Order 13132

I. Authority

    This rule is being finalized under the authority of section 311(b) 
of the National Defense Authorization Act for Fiscal Year 2002, 
codified at section 2710(b) of title 10 of the U.S. Code [10 U.S.C. 
2710(b)].

II. Background

    The Department of Defense (hereinafter the Department) developed 
the rule in consultation with states and tribes, as required by 
statute. The Department published the proposed rule in the Federal 
Register as a proposed rule on August 22, 2003, at 68 FR 50900. A 
technical correction to the proposed rule was published on September 
10, 2003, at 68 FR 53430.
    The public comment period for the proposed rule ended November 19, 
2003. Sixteen commenters submitted comments on the proposed rule. The 
preamble to this final rule consists mainly of an explanation of the 
Department's responses to these comments. Therefore, both this preamble 
and the preamble to the proposed rule should be reviewed should a 
question arise as to the meaning or intent of the final rule. Unless 
directly contradicted or superseded by this preamble to the rule or by 
the rule, the preamble to the proposed rule reflects the Department's 
intent for the rule.
    The preamble to the final rule provides a discussion of each 
proposed rule section on which comments were received. Revisions to the 
proposed rule that are simply editorial or that do not

[[Page 58017]]

reflect substantive changes are not addressed in this preamble.
    In addition to the comments on the proposed rule, the Department 
received a number of comments that addressed topics outside the scope 
of the proposed rule. These topics included: The universe of sites that 
comprise the inventory, which is established by statute; funding for 
munitions responses; comments on data quality; a proposal for training 
to educate Department personnel, regulators, and/or stakeholders; and 
implementing guidance that the Department may develop for the rule. 
These comments are not addressed in this rule. All comments the 
Department received are presented in a ``Response to Comments'' 
document, which has been placed in the docket for this rulemaking.

III. Summary of Significant Changes to the Final Rule

    The Department made a number of changes to the proposed rule that 
are reflected in this final rule. Many of these revisions pertain to 
clarification of terms and definitions based on comments received, or 
changes to reflect new statutory definitions promulgated in the 
National Defense Authorization Act for 2004 and codified at 10 U.S.C. 
101.
    The most significant change to the proposed rule pertains to the 
module that evaluates the potential health hazards associated with MC. 
The Department modified this module in response to several comments. 
This module now has seven potential outcomes (i.e., A through G) rather 
than the three potential outcomes described in the proposed rule (i.e., 
high, medium, and low). A detailed explanation of this modification is 
provided in a following section of this preamble.
    The Department has also revised the proposed rule to clarify that 
current land owners may participate in application of the rule at 
Formerly Used Defense Sites (FUDS). Another change was to clarify that 
the quality assurance panel that reviews each priority will consist of 
only Department personnel.

IV. Response to Comments

    This section contains the Department's responses to the comments 
received on the proposed rule, organized by the structure of the 
proposed and final rules.

A. Section 179.2. Applicability and Scope

    Several commenters stated that the proposed rule should be 
published as Departmental guidance and not as a federal regulation. The 
Department, however, interpreted the language in the National Defense 
Authorization Act for 2002 as a term of art invoking the requirement 
for public comment provided in the Administrative Procedures Act. The 
Department is proceeding with publishing the final rule as a federal 
regulation.
    One commenter stated that sites containing chemical warfare 
materiel (CWM) should be included as potential MRSs. The Department 
observes that the proposed rule makes clear that, if CWM is present at 
a defense site [as defined in 10 U.S.C. 2710(e)] in the form of UXO, 
DMM, or MC, that site would be an MRS and would be included in the 
inventory, and that all MRSs in the inventory are addressed under the 
rule. The Department made no change to the rule to address this 
comment.
    Another comment stated that the Department had not clearly 
explained the scope of the exclusion for ``combat operations'' under 10 
U.S.C. 2710(d)(2). This exclusion exempts from the requirement for 
inclusion in the inventory and application of the rule all locations 
where ``the presence of military munitions'' resulted ``from combat 
operations.'' The Department has not modified the rule.
    A commenter requested that the Department change the Department's 
Control classification in the Status of Property data elements 
(proposed rule, Appendix A, Tables 5 and 15) to include land or water 
bodies owned, leased, or otherwise possessed by state military 
departments. The Department declined to make this change, as the 
Department does not have jurisdiction over properties owned, leased, or 
otherwise possessed by state military departments. Such locations are 
under state jurisdiction and would not be included in the 10 U.S.C. 
2710(a) inventory.

B. Section 179.3. Definitions

    This section of the preamble addresses comments on the definitions 
in section 179.3 of the proposed rule.
    The Department has modified definitions from the proposed rule or 
included certain new definitions to make this regulation consistent 
with terms and definitions promulgated by the National Defense 
Authorization Act for Fiscal Year 2004. These terms and definitions are 
codified at 10 U.S.C. 101. Affected terms are military munitions, 
operational range, range activities, and UXO.
    The Department has also added the term ``munitions and explosives 
of concern (MEC)'' to the final rule for consistency with new 
Department policy. MEC, which is intended to distinguish specific 
categories of military munitions that may pose unique explosives safety 
risks, means UXO, as defined in 10 U.S.C. 101(e)(5); discarded military 
munitions, as defined in 10 U.S.C. 2710(e)(2); or munitions 
constituents (e.g., TNT, RDX), as defined in 10 U.S.C. 2710(e)(3), 
present in high enough concentrations to pose an explosive hazard. As 
used in the rule, this term does not create any new category of 
materials covered under the proposed rule, nor does it exclude any 
category of materials covered under the proposed rule, and is adopted 
herein simply for consistency with terminology used elsewhere within 
the Department.
    In response to a comment, the term ``chemical warfare agents'' has 
been changed to ``chemical agents.'' The definition of ``chemical 
warfare agents'' has also been changed to read: ``Chemical agent means 
a chemical compound (to include experimental compounds) that, through 
its chemical properties produces lethal or other damaging effects on 
human beings, is intended for use in military operations to kill, 
seriously injure, or incapacitate persons through its physiological 
effects. Excluded are research, development, testing and evaluation 
(RDTE) solutions; riot control agents; chemical defoliants and 
herbicides; smoke and other obscuration materials; flame and incendiary 
materials; and industrial chemicals. This definition is adopted based 
on 50 U.S.C. 1521(j)(1) in which the term ``chemical agents and 
munitions'' means ``* * * an agent or munition that, through its 
chemical properties, produces lethal or other damaging effects on human 
beings, except that such term does not include riot control agents, 
chemical herbicides, smoke, and other obscuration materials.'' This 
change makes the terminology used in the final rule consistent with the 
existing statutory definition of ``chemical agent and munition'' in 50 
U.S.C. 1521(j)(1). The Department observes that chemical agents under 
50 U.S.C. 1521(j)(1) include the V- and G-series nerve agents; H-series 
(i.e., ``mustard'' agents) and L-series (i.e., lewisite) blister 
agents; and certain industrial chemicals, including hydrogen cyanide 
(AC), cyanogen chloride (CK), or carbonyl dichloride (called phosgene 
or CG), when contained in a military munition; and does not include 
riot control agents (e.g., w-chloroacetophenone [CN] and o-
chlorobenzylidenemalononitrile [CS] tear gas); chemical defoliants and 
herbicides; smoke and other obscuration materials; flame and incendiary 
materials; and industrial chemicals that

[[Page 58018]]

are not configured as a military munition.
    The definition of ``chemical warfare materiel (CWM)'' has changed 
to reflect the adoption of the term ``chemical agent'' discussed 
previously in this rule.
    One commenter stated that although the definition of ``military 
range'' includes buffer zones with restricted access and exclusionary 
areas, exclusionary zones at some former target bombing areas are not 
well defined. While the Department realizes this may be the case at 
some former military ranges, it believes site conditions and personnel 
experience will help ensure such areas are included and provide for 
reasonable application of the rule.
    A commenter requested a change to the definition of ``MRS,'' 
maintaining that portions of a munitions response area (MRA) may not be 
part of an MRS and, therefore, would not be evaluated using this rule. 
The Department would like to clarify that, depending on site-specific 
factors, an MRA may be designated a single MRS or may be subdivided for 
the purposes of evaluation into multiple MRSs. In each and every case, 
however, once all the MRSs comprising an MRA have been evaluated 
(whether the MRA consists of a single MRS or multiple MRSs), the total 
acreage encompassed by the MRA will have been evaluated using this 
rule. Through this disciplined and documented approach, the protocol 
will ensure that an MRA's entire acreage will be addressed.
    For example, in investigating a 1,000-acre MRA, the Department may 
identify five discrete locations (e.g., MRS 1 through 5) that 
constitute 1,000 acres that require evaluation. Formal decision 
documents will be prepared for all five MRSs that document the 
Department's evaluations for the entire 1000 acres. This will ensure 
that the entire MRA acreage will be evaluated using the protocol.
    One commenter requested adding to the end of the definition of 
``MRA'': `` * * * therefore, all property within a munitions response 
area is known to require a munitions response.'' The Department 
observes that the definition of ``MRA'' already states, ``An MRA is 
comprised of one or more munitions response sites'' and the definition 
of an ``MRS'' is ``* * * a discrete location within an MRA that is 
known to require a munitions response.'' Because an MRA must comprise 
at least one MRS, the Department does not believe the definition 
requires modification as suggested by the commenter.
    In response to another comment as to whether or not the acreage of 
an MRA includes water bodies, the Department observes that the acreage 
of an MRA may extend beyond the terrestrial boundary and include water 
bodies, such as lakes, ponds, streams, and coastal areas.
    One commenter requested adding CWM, in addition to UXO, DMM, and 
MC, to the definitions of several terms, including MRA and MRS, and at 
several locations in the tables (Appendix A) of the proposed rule. The 
Department points out that the definition of ``military munitions'' 
already includes CWM; therefore, all other terms that build on the 
military munitions definition, specifically UXO and DMM, already 
include CWM.

C. Section 179.4. Policy

    One commenter noted many positive attributes to the proposed rule. 
These included affirmative statements concerning the Department's 
active solicitation of participation by and inclusion of the states, 
the tribes, and stakeholders; identifying the need for a quality 
assurance panel to promote consistency in the application of the rule; 
straightforward recognition that the same level of information will not 
be available for all sites, and that for some sites, more information 
will be required in order to realistically apply the rule; and 
weighting factors, for the most part, are well explained and easy to 
understand. These comments did not require changing the proposed rule.
    One commenter stated that the team approach to prioritization was 
too broad and implies that several people from multiple agencies, 
community groups, or tribes will need to be involved in the application 
of the rule to a specific MRS. The Department continues to believe that 
it is important to receive input and feedback from such sources in 
assigning a relative priority for response activities to each MRS and 
has not amended the proposed rule to address this comment.
    The Department received a comment recommending that a state 
regulatory agency be designated to play a major role in the munitions 
response process, and if a state agency is unable to perform in this 
capacity, the U.S. Environmental Protection Agency (U.S. EPA) should do 
so. In such situations, involvement of U.S. EPA personnel is a matter 
for U.S. EPA to decide and not the Department; however, the Department 
notes that it will use a team approach for prioritization and 
encourages these agencies to participate.
    The Department received a comment soliciting clarification on 
whether stakeholders will have input on the ``no longer required'' 
determination. An MRS will have the ``no longer required'' 
determination assigned only after the Response Complete (RC) or Remedy-
in-Place (RIP) milestone is achieved. Stakeholders are afforded 
opportunities to participate and provide input throughout the munitions 
response process, to include prior to and following these milestones; 
however, stakeholders do not have a role in determining when an MRS has 
met the requirements for achieving these milestones.

D. Section 179.5. Responsibilities

    A comment was received regarding the term ``administrative 
control'' and whether this term referred to specific Component's 
ownership responsibilities. The Department would like to clarify that 
the phrase ``under their administrative control'' reflects the 
delegation of responsibilities for munitions responses within the 
Department. This responsibility does not require the Department to have 
a current real property interest at a particular MRS.
    The Department received several comments pertaining to 
prioritization at FUDS sites. One commenter asked for clarification of 
the phrase ``under the administrative control of,'' specifically 
pertaining to how the rule will apply at a FUDS. Under 10 U.S.C. 2701, 
the Department is required to ``carry out a program of environmental 
restoration * * * at each facility or site which was under the 
jurisdiction of the Secretary * * * at the time of actions leading to 
contamination.'' Therefore, under this requirement, the Department will 
apply the rule to an MRS at a FUDS if that MRS is included in the 10 
U.S.C. 2710(a) inventory. FUDS, however, are not considered under the 
Department's control for the purposes of the Status of Property data 
elements in Appendix A, Tables 5 and 15.
    Another commenter noted that for FUDS, the property owner should be 
involved with applying the rule to any MRS at the FUDS. The Department 
agrees and has modified section 179.5 to state: ``Ensure that EPA, 
other federal agencies (as appropriate or required), state regulatory 
agencies, tribal governments, local restoration advisory boards or 
technical review committees, local community stakeholders, and the 
current property owner (if the MRS is outside Departmental control) are 
offered opportunities to participate throughout the process of 
application of the rule and in making sequencing recommendations.''
    Several commenters stated concerns pertaining to MRSs that have 
already been evaluated using the Risk

[[Page 58019]]

Assessment Code (RAC). The Department wishes to clarify that all MRSs 
in the 10 U.S.C. 2710(a) inventory will be evaluated using the rule and 
the most current information available, irrespective of whether that 
MRS has been evaluated under the RAC framework.
    One commenter inquired whether a low prioritization score means 
``no further action.'' The Department would like to clarify this is not 
the case. Prioritization scores are the first tool when defining the 
need for a munitions response.
    One commenter asked the Department to add a definition of 
``evaluation pending'' to the rule and publish procedures and time 
frames that apply to evaluation pending sites. The Department's 
response is that evaluation pending status is given to an MRS only when 
there is insufficient information to complete the evaluation using the 
rule. As soon as sufficient data are available, the MRS will be 
evaluated. Although the Department is not specifying time frames for 
addressing the MRS in evaluation pending status as part of this 
regulation, the Department will be developing specific goals to drive 
program progress.
    A commenter asked for clarification as to when the rule will be 
applied at sites where the environmental restoration process is 
considered complete. The Department responds that, as stated in the 
proposed rule, an MRS no longer requires a priority when the Department 
has achieved the RC or RIP milestones. This means that a Component or 
another entity has conducted a munitions response, all objectives set 
out in the decision document for the MRS have been achieved, and no 
further action, except for long-term management and/or five-year 
reviews, is required.
    There were many comments pertaining to the quality assurance panel 
that will review prioritization decisions, especially inquiries about 
the panel's composition and authority. The Department wishes to clarify 
that the panel will comprise Component representatives trained in 
application of the rule who were not involved in the initial scoring of 
a specific MRS being reviewed. Stakeholders participate in application 
of the rule at an MRS, but will not be part of the quality assurance 
panel. The panel is an internal management and oversight function to 
ensure consistency of the rule's application. Components are, however, 
required to provide regulators and stakeholders the opportunity to 
comment on the quality assurance panel's rationale for any changes to 
the priority originally assigned.
    One commenter proposed that the circumstances under which the rule 
shall be reapplied include when a quality assurance panel recommends a 
priority change. In response, the Department states that the panel will 
not direct a Component to reapply the rule; rather, the panel's 
decision, when adopted, will supersede the original priority assigned. 
If the panel recommends a change that results in a different priority, 
the Component will report, in the inventory data submitted to the 
ODUSD(I&E), the rationale for this change. The Component will also 
provide this rationale to the appropriate regulatory agencies and 
involved stakeholders for comment before finalizing the change.
    Another commenter expressed support for the quality assurance panel 
in ensuring uniform application of the rule, but voiced concern this 
panel may not be effective if they must review all decisions before the 
prioritization can be finalized. According to the comment, initially it 
may be more productive to require that the panel review a percentage of 
the priority decisions to ensure they can review enough data to decide 
either to support or to change the priority assigned. The Department's 
response is that absent a review of each prioritization decision, it 
cannot be stated with authority that all decisions are in fact 
representative of site conditions and that the rule has been applied in 
a consistent manner. For this reason, at least initially, the 
Department is unwilling to consider a sampling-based approach to the 
work of the quality assurance panel.
    One commenter stated that the rule's emphasis on Management Action 
Plans (MAPs) may place a strain on already limited state resources, 
especially in those states that do not already have a MAP. The 
Department responds that MAPs have been a requirement for all sites 
addressed under the Defense Environmental Restoration Program (DERP) 
for many years. If a specific site is not addressed in a MAP, that 
matter should be referred to the appropriate Component's Deputy 
Assistant Secretary with responsibility for environmental matters. 
Should such a referral not result in action, the matter should then be 
referred to the ODUSD(I&E).
    Another commenter questioned how the MAPs for several MRSs would be 
integrated with the statewide MAP being developed in the FUDS program. 
The Department would like to clarify that the statewide MAP in the FUDS 
program collectively addresses all FUDS within a state, and that a MAP 
for each individual FUDS is also required.
    Several commenters noted that conditions at an MRS are subject to 
change and such changes should be reflected in the priority. The 
Department agrees and has designed the rule to be reapplied if any 
specific factor considered in the application of the rule changes and 
if that change has the potential to affect the priority assigned.
    There were several comments pertaining to sites where 
investigations were previously conducted. In response, the Department 
affirms that an appropriate munitions response is required for each 
MRS, and that an MRS reaches the ``no longer required'' evaluation only 
when the Department has conducted a munitions response, all objectives 
set out in the decision document for the MRS have been achieved, and no 
further action, except for long-term management and/or five-year 
reviews, is required.
    One commenter questioned the Department's reasons for rescoring 
sites based on a munitions response, arguing that the result will be to 
lower scores at the MRS without making progress toward completing all 
required munitions response activities. The commenter feels that 
partial munitions responses and continual rescoring is an inefficient 
approach to the program as a whole. The commenter suggests that once an 
MRS has received a score suitable to obtain funding, the score should 
not be lowered based on a munitions response that does not 
comprehensively and completely address the hazards present at the MRS. 
The Department disagrees, and notes that an annual reevaluation of the 
priority assigned to each MRS is statutorily mandated under 10 U.S.C. 
2710(c)(1).
    In response to a comment received on the certified letter the 
Department will send to states, territories, federal agencies, and 
tribal and local governments requesting their involvement in 
prioritization, the Department will send the letter to any known 
designee specified by the organization, or in the absence of such a 
designation, to the head of the organization.

E. Section 179.6. Procedures

    This section addresses comments received on section 179.6 of the 
proposed rule and on the classification tables in Appendix A.
    One commenter recommended that the Department revise the rule so 
that all data elements are consistent using a scale of zero to five; 
the Explosive Hazard Evaluation (EHE) module,

[[Page 58020]]

Chemical Warfare Materiel Hazard Evaluation (CHE) module, and Relative 
Risk Site Evaluation (RRSE) module be combined into one module; and the 
priority assigned to a site not be influenced by the type or source of 
the hazard that may be present at the site. The Department has not 
adopted such a change. Reducing the scale from seven to five, 
eliminating the modules, and not addressing the type and source of the 
hazard will not ensure that the priority given to an MRS adequately 
reflects the hazard posed by conditions at the MRS. The Department's 
objectives for the rule are: (1) ensuring that the priority 
sufficiently reflects actual conditions and potential hazards at the 
MRS, and (2) that the tool used be straightforward and easy to use. The 
current construct achieves those objectives.
    One commenter requested clarification as to the correct procedure 
when multiple classifications apply at a given MRS. The commenter 
questioned whether the scores are cumulative within the module or if 
only the highest value is used. The Department wishes to clarify that 
the one highest value within each data element is used. For example, if 
at a specific MRS both (1) hand grenades containing an explosive 
filler, which would be categorized as sensitive under Appendix A, 
Table, and would score 30, and (2) DMM, containing a high-explosive 
filler, that have not been damaged by burning or detonation, which 
would be categorized as high explosive (unused) under Appendix A, Table 
1, and would score 15 are present, the score (30 points) for the hand 
grenades containing an explosive filler would be selected.
    Numerous comments received address both the EHE and CHE modules, 
particularly pertaining to the accessibility and receptor factors of 
these modules. Where this is the case, the comment and response appear 
under the EHE module responses for simplicity, but pertain to both 
sections.
1. Section 179.6(a). Explosive Hazard Evaluation Module
    The Department received numerous comments on the Munitions Type 
data element (Appendix A, Table 1) and modified the rule to address 
many of the comments. For example, the Department modified two 
classifications within this data element to reflect the inherent 
difference between primary and secondary explosives. Explosives are 
classified as primary or secondary based on their susceptibility to 
initiation. Primary explosives, such as lead azide, are highly 
susceptible to initiation. Secondary explosives (e.g., TNT, RDX, HMX), 
which constitute the bulk of the explosives likely to be present at an 
MRS, are formulated to be far less susceptible to initiation. To 
address these differences, the Department added to the sensitive 
classification: ``Bulk primary explosives, or mixtures of these with 
environmental media such that the mixture poses an explosive hazard.'' 
The Department also revised the Bulk high explosives, pyrotechnics or 
propellant classification to exclude primary explosives: ``Bulk 
secondary explosives, pyrotechnic compositions, or propellant (not 
contained in a munition), or mixtures of these with environmental media 
such that the mixture poses an explosive hazard.''
    Also pertaining to the Munitions Type data element, another 
commenter noted that bulk high explosives mixed with environmental 
media can be reactive as well as explosive, and the hazard threshold of 
explosive is too high and should be lowered. The commenter suggested 
adding ``or reactive'' after ``that result in the mixture being 
explosive'' in the description of ``bulk high explosives'' and 
definitions for the terms ``reactive'' and ``explosive soil.'' The 
Department chose not to make these changes because the commenter did 
define ``reactive'' in this context, and the focus of the EHE module is 
explosive hazards.
    The Department also added an additional classification to the 
Munitions Type data element to reflect the lesser risk posed by 
pyrotechnics that are unused or undamaged. The Pyrotechnic (used or 
damaged) classification is assigned a score of 20 points, while the 
Pyrotechnic (not used or damaged) classification is assigned a score of 
10 points.
    The Department modified the text of the Propellant classification 
to be consistent with the other classifications, adding ``* * * that 
have been damaged by burning or detonation'' and ``* * * that are 
deteriorated to the point of instability'' to the criteria for 
propellants that are DMM. The Department also corrected the Practice 
classification pertaining to the criteria for DMM to read: ``* * * that 
have not been damaged by burning or detonation'' and ``* * * that have 
not deteriorated to the point of instability.'' The Department also 
provided greater detail in the definition of a ``practice munition.''
    One commenter stated that all practice munitions should be 
classified together and any MRS with practice munitions should receive 
a score of 15. The commenter's position is that many practice munitions 
with sensitive fuzes have miniscule amounts of explosives, while other 
practice munitions without sensitive fuzes have a much larger explosive 
or pyrotechnic spotting charge (e.g., practice bombs). Because practice 
bombs, which receive a score of 5, account for some of the most common 
and dangerous UXO and cause many serious injuries, the commenter feels 
that practice munitions without sensitive fuzes that have explosive or 
pyrotechnic spotting charges are not classified correctly. The 
Department agrees with the commenter that practice munitions with 
explosive or pyrotechnic charges do pose an explosive hazard. When 
developing the rule, the Department defined practice munitions as those 
munitions that contain inert filler. Practice munitions with explosive 
or pyrotechnic charges are classified separately under the same data 
element and are given a value.
    One commenter identified an inconsistency pertaining to the 
Munitions Type data element in that the definition of ``small arms 
ammunition'' category used the term ``evidence'' but did not specify 
whether this included ``historical evidence'' and ``physical 
evidence,'' as is the case for ``evidence of no munitions.'' The 
Department has revised the small arms ammunitions category within the 
Munitions Type data element to state: ``All used munitions or DMM that 
are categorized as small arms ammunition. [Physical evidence or 
historical evidence that no other types of munitions (e.g., grenades, 
sub-caliber training rockets, demolition charges) were used or are 
present on the MRS is required for selection of this category.]''
    Several commenters questioned the level of investigation required 
for assessing whether physical or historical evidence indicates that no 
UXO or DMM are present and suggested that specific investigation 
requirements should be developed for different sites. The Department 
has defined both historical evidence and physical evidence in the rule. 
The personnel applying the rule at an MRS will determine the 
appropriate level of evidence. The Department will not provide 
additional detail in the final rule, but may address this situation in 
implementing guidance or training materials.
    One commenter requested clarification on the applicability of the 
proposed rule to open burning/open detonation (OB/OD) units. The 
commenter expressed concern that the rule indicates that OB/OD sites 
are excluded because they were used or permitted for disposal of 
military munitions. The Department would like to clarify that OB/OD 
units are subject

[[Page 58021]]

to prioritization under the rule only when the unit meets the 
requirements for inclusion in the 10 U.S.C. 2710(a) inventory.
    One commenter suggested specifically including quality assurance 
test ranges within the EHE module Source of Hazard data element 
(Appendix A, Table 2) as they are not currently identified. To the 
extent that a quality assurance test range is a location that is known 
or suspected of containing UXO, DMM, or MC and is included in the 
inventory required under 10 U.S.C. 2710(a), the rule would be applied 
to that location. To the extent that such a quality assurance test 
range meets the criteria of Appendix A, Table 2 (i.e., it meets the 
test for being a ``former range''), it is already included.
    One commenter did not understand why a former munitions treatment 
area or unit would receive a lower score than a former military range 
given the unknown hazard posed by munitions that have been treated by 
OB/OD. The Department's response is that the higher value assigned to 
former military ranges reflects the fact that UXO are fuzed munitions 
that have been through their firing and arming cycle. In contrast, 
munitions treated in an OB/OD unit, while potentially damaged, are not 
normally fuzed and would most likely not complete their arming 
sequence. For this reason, UXO at a former military range is considered 
to pose a greater hazard than DMM at an OB/OD site.
    In response to a comment, the Department modified the Former 
industrial operating facilities classification within the Source of 
Munitions data element to include former munitions maintenance 
facilities.
    A commenter requested the definition of ``evidence of no 
munitions'' within the Munitions Type, Source of Hazard, and Location 
of Munitions (Appendix A, Tables 1, 2, and 3) data elements be changed 
to indicate that evidence shows that no UXO or DMM were ``ever''resent. 
The Department declines to make this change as the Department does not 
want to exclude sites from this classification where evidence indicates 
that munitions were at one time present but have since been removed, 
for example, as part of normal Department operation of a military range 
while the range was in use. This situation is different from UXO or DMM 
that are removed as part of a munitions response, as described in the 
next paragraph.
    Another commenter asked about UXO that is on the surface and has 
since been removed, and UXO that is emergent from year to year, such as 
through frost heave. If munitions were found on the surface of an MRS, 
the MRS would be classified as Confirmed Surface. If investigation 
confirms that there are only subsurface munitions present, and natural 
phenomena (e.g., frost heave or tidal action) occur on the MRS, the 
second-highest category--Confirmed subsurface, active--should be 
selected.
    In response to a comment, the Department clarified the definition 
of ``on the surface'' to mean above the soil layer. UXO found in the 
tundra of Alaska, for example, is considered ``on the surface'' for the 
purposes of the rule, as the tundra is above the soil layer.
    Several commenters stated that within the Information on the 
Location of Munitions and the Information on the Location of CWM data 
elements (Appendix A, Tables 3 and 13), no water depth is specified for 
the Subsurface, physical constraint category. The Department, however, 
would like to note that in these tables, a water depth of 120 feet was 
cited as a physical constraint.
    Several commenters asked the relevance for selecting 120 feet as 
the depth for constituting a subsurface physical constraint. The 
Department selected this depth because of the limited time (less than 
15 minutes) normally allowed to scuba divers at this depth, the 
considerable effort needed to dive to and below this depth, and the 
dangers associated with such deep dives to basic scuba divers.
    Also pertaining to Appendix A, Tables 3 and 13, a commenter 
requested that the Department use caution when evaluating activities 
that are ``likely to occur'' because land use and recreational 
activities can change in ways that no one can predict. The commenter 
also noted that similar caution is needed when evaluating physical 
constraints because some constraints are barriers only if they are both 
kept in place and maintained. The Department agrees with the commenter 
that conditions may change over time. To address changes that may occur 
over time, the rule requires reevaluation and rescoring if site 
conditions change.
    Pertaining to the Ease of Access data elements (Appendix A, Tables 
4 and 14), one commenter stated that the proposed rule was unclear if 
deep-water areas without any monitoring would be scored as a complete 
or incomplete barrier. The Department's response is that if a barrier 
such as deep water is present, it is evaluated as to its effectiveness 
in preventing access to all parts of the MRS. In the specific case 
described in the comment, deep-water areas not subject to surveillance 
would be scored as Barrier to MRS access is complete, but not 
monitored.
    One commenter stated that it is inequitable that the highest score 
under the Ease of Access data element (Appendix A, Tables 4 and 14) is 
a ``10,'' indicating all areas of the MRS are accessible, whereas the 
Information on Location of Munitions and Information on Location of CWM 
data elements (Appendix A, Tables 3 and 13) have a maximum score of 20, 
and a score of 10 represents only the suspected presence of UXO or DMM. 
The Department believes the current construct is appropriate because 
the Information on Location of Munitions and Information on Location of 
CWM data elements address access to the munition or CWM, while the Ease 
of Access data elements address access to the MRS.
    Some commenters noted that some terms, such as ``barrier,'' need 
further clarification to ensure all users apply the term consistently. 
For example, people may assess differently whether a security patrol is 
a partial barrier to the MRS or not a barrier at all. Additionally, 
perceptions of a barrier may vary, as ``deep or fast-moving water'' may 
be a challenge instead of a barrier to some people. The Department 
recognizes these commenters' points but believes the definition is 
sufficient for the purposes of prioritization. Final determination as 
to what features, either natural or man-made, are barriers should be 
based on site-specific knowledge and the judgment of the personnel 
applying the rule to a specific MRS. Additionally, the Component's 
quality assurance panels will ensure consistency in the final rule's 
application.
    One commenter stated that some data elements, specifically within 
the accessibility and receptor factors, within the various modules and 
among modules, are redundant and should be consolidated. The Department 
disagrees. Each data element provides important information on its own, 
bringing data from different perspectives together to best reflect 
actual site conditions.
    Several commenters expressed concern that the receptor factors of 
the EHE and CHE modules do not capture transient populations. The 
Department points out that two of the three data elements that address 
human receptors attempt to address population, regardless of whether it 
is permanent or transient. The Population Density data elements 
(Appendix A, Tables 6 and 16) focus on permanent population as based on 
U.S. Census Bureau data within a city, town, or county. The Population 
Near Hazard data elements (Appendix A, Tables 7 and 17) are based on 
any

[[Page 58022]]

inhabited structures, whether they are permanent or temporary, that are 
routinely occupied for any portion of a day. The Type of Activities/
Structures data elements (Appendix A, Tables 8 and 18) are also 
intended to address both permanent and transient populations. The 
Department is confident that, combined, these data elements 
sufficiently address both permanent and transient populations.
    A commenter questioned the relevance of the Population Density data 
element in scoring the EHE module because, per the comment, (1) this 
number is dependent upon and controlled by the Ease of Access data 
element, and (2) by including the Population Density element, the EHE 
module score unjustifiably and unnecessarily prioritizes higher those 
MRSs that are in more densely populated areas, even when potential 
access to the MRS is precluded by barriers. The Department disagrees 
because the Population Density data element considers both the on-site 
and off-site populations surrounding an MRS. While access is a 
prerequisite for an on-site population, the effects of an event (e.g., 
an explosion) at an MRS may affect populations that are not on site. 
This is one of the reasons that several of the elements in the receptor 
factor include a swath extending up to two miles from the perimeter of 
the MRS. The same commenter also believed the Types of Activities/
Structures data elements (Appendix A, Tables 8 and 18) can be 
reasonably measured via the Population Near Hazard data elements 
(Appendix A, Tables 7 and 17), noting that including the Types of 
Activities/Structures data elements only complicates the process and 
favors MRSs in higher population areas. The Department again disagrees. 
The Department included the Types of Activities/Structures data 
elements to account for the types of activities occurring on a site, 
and the potential for those activities to bring a receptor into contact 
with UXO or DMM. It was not developed to give undue weight to high-
population areas.
    One commenter did not agree that the two-mile criterion applied to 
evaluating the Population Near Hazard data element is reasonable or 
necessary for any MRS not having the potential to create a chemical 
agent hazard that could affect inhabitants within two miles of the 
boundary. Instead, distance criteria that more reasonably consider the 
risks from the actual or suspected types of explosive hazards should be 
used. The Department disagrees because the two-mile radius considers 
not only the size of the population that may come onto the MRS, but 
also the effects that an explosion on the MRS may have to areas off the 
MRS (e.g., blast overpressure, fragment throw). While this distance may 
be less than two miles, the two-mile distance was selected as a 
conservative measure.
    One commenter stated that the Population Near Hazard data elements 
should bear greater weight than the Population Density data elements 
because the greatest hazard is to the population closest to the MRS. 
The Department, however, notes that these data elements evaluate 
different aspects of population. The Population Density data elements 
are used to assess the number of persons that could possibly access the 
MRS, while the Population Near Hazard data elements focus on the 
population (through number of structures) within a two-mile range that 
could be impacted by an unintentional explosion or CA release. The data 
elements are complementary.
    Several commenters disagreed with the Department's use of inhabited 
structures to indicate population in the Population Near Hazard and 
Types of Activities/Structures data elements as, for example, ``people 
may engage in all sorts of activities despite the absence of structures 
in the vicinity, and many of these activities would put them at 
considerably greater risk from military munitions than populations that 
are, relatively speaking, protected within structures.'' The Department 
notes the concern, but believes the rule sufficiently accounts for 
these populations. The rule relies on several indicators to assess 
potentially exposed populations. The Types of Activities/Structures 
data elements address activities conducted on the MRS, and the number 
of permanent or temporary structures present. Parks and recreational 
areas, where hikers, campers, and tourists may be present, are 
specifically included in the Types of Activities/Structures elements.
    In response to one commenter's statement that UXO may be 
encountered through nonintrusive activities such as boating and 
fishing, the Department believes that such activities are accounted for 
in the Types of Activities/Structures data elements.
    Several commenters noted that Types of Activities/Structures data 
elements seem structured to give the greatest weight to activities and 
structures involving the most people, and that warehousing, industrial, 
agricultural, and forestry activities are weighted less. Some 
commenters are concerned because these areas experience high-density 
populations and activities that penetrate the ground surface during 
working hours. The Department recognizes the commenters' concerns but 
notes that, even though agricultural and forestry activities penetrate 
the ground surface, the exposed population is typically smaller than 
commercial, residential, or recreational areas. The Department is 
balancing activity intrusiveness with the potential population that 
could be exposed to a hazard. The rule does, however, require 
reevaluation if site conditions change.
    One commenter questioned how the scoring values among modules and 
within modules were selected. The commenter specifically noted that the 
numerical weighting assigned within and among data elements seemed 
arbitrary and unnecessarily complicated. Further, there is no rationale 
for applying a score of 30 (worst case score) to certain data elements 
and a value of only 5 (worst case score) to other data elements within 
the same module. The commenter cites the Population Near Hazard data 
element as an example. Within this data element, there are six 
classifications established based on the number of inhabited structures 
within a two-mile distance of an MRS. In this data element, 1-5 
inhabited structures receives a score of only 1, while 26 or more 
inhabited structures receives a score of 5. The commenter believes that 
the score should be the same, regardless of whether a single residence 
or 26 residences were on or near the MRS. The Department disagrees with 
the commenter that all situations should be scored the same because it 
impairs differentiation and thus prioritization, which is the purpose 
of this rule. The rule-making development effort involved a series of 
meetings over a year and a half, including substantial consultation 
with states, tribes, and other federal agencies. The Department also 
tested the developing model during this time to determine if the model 
outcomes were reasonable given what was known about the trial MRSs. The 
data elements and scores as presented in the proposed rule provided the 
most rational results and distribution among the sites.
    Many commenters believe that the definition of ``ecological 
resources'' (Appendix A, Tables 9 and 19) in the rule is too limited. 
The Department does not mean to imply that less sensitive ecological 
resources are not important. For the purposes of assigning a relative 
priority to each MRS, however, the Department believes that limiting 
this definition to the most sensitive habitats is appropriate so that 
these areas are elevated in priority.

[[Page 58023]]

    Similar to the comments for ecological resources, a commenter noted 
that the definition of ``cultural resources'' used in the EHE and CHE 
modules is too narrow and the list of statutes should not be limited. 
The Department believes this definition is appropriate for the purposes 
of assigning a relative priority to each MRS.
    One commenter stated that there may be only a few MRSs that score 
high enough to be included in the highest tier of the EHE module, and 
therefore, more sites will be distributed among the lower tiers. Based 
on the testing described in the proposed rule, the Department expects 
the universe of sites to be adequately distributed among the possible 
scores. The highest hazard sites are not expected to be the most 
numerous, nor are the lowest hazard sites expected to be the most 
numerous. The Department believes this construct is appropriate.
2. Section 179.6(b). Chemical Warfare Materiel Hazard Evaluation Module
    One commenter agreed with the Department that MRSs with known or 
suspected CWM are important and deserve special attention. The 
commenter did state, however, that the potential for public exposure 
should be an important consideration when ranking such MRSs. MRSs that 
have high potential for public exposures and risk should be ranked 
higher than an MRS with CWM that has minimal opportunity for public 
exposure. The Department addressed this concern during the development 
of the rule by including data elements to factor in population density 
and public exposure. Based on the data used in the rule, an MRS with 
known or suspected CWM does not always rank higher than a site without 
CWM.
    A commenter suggested that receptors under the CHE module should be 
weighted higher than those under the EHE module because CWM pose 
hazards associated with both the explosive impact and the dispersion of 
the chemical agents. The Department believes that the rule 
appropriately accounts for the special characteristics of CWM in the 
CWM Configuration and Sources of CWM data elements (Appendix A, Tables 
11 and 12).
    One commenter asked if all CWM is considered similar in the 
severity of its effects and regardless of concentration. The 
Department's response is that the rule does not consider the 
differences in the mechanism of action (e.g., neurotransmitter 
disruption) or the toxicological properties (e.g., Lethal Dose for 50 
percent of the exposed population [LD50]). The CWM Configuration and 
Sources of CWM data elements do address the differences in the hazards 
posed by CWM (e.g., CWM with an explosive burster scores higher than 
CWM without a burster).
    One commenter felt that classifying CWM mixed with UXO lower than 
CWM under the CWM Configuration data element does not make sense. The 
commenter stated that this implies that placing some conventional UXO 
at an MRS with known or suspected CWM can reduce the hazard at that 
site. To remedy the conflict, the commenter suggested deleting the 
category CWM mixed with UXO from Appendix A, Table 11 and treating all 
MRSs containing CWM UXO or damaged CWM DMM as the highest scoring 
hazard, irrespective of the presence of conventional munitions that are 
UXO or DMM. The Department, however, believes that explosively 
configured CWM, which are designed to achieve optimal dispersion of 
their chemical agent fill, that are UXO or that are damaged DMM should 
be assigned a higher score than undamaged CWM/DMM or CWM not configured 
as a munition that are mixed with conventional munitions that are UXO. 
The Department left this classification unchanged because the 
detonation of a conventional munition that both is a UXO and mixed with 
undamaged CWM/DMM or CWM not configured as a munition is less likely to 
result in a dispersal of any chemical agent present. The Department 
believes that the classifications assigned appropriately differentiate 
between the potential chemical agent hazards presented.
    One commenter questioned why production facilities; research, 
development, testing and evaluation facilities; training facilities; 
and storage or transfer points were identified as separate categories 
with different hazard scorings within the Sources of CWM data element 
(Appendix A, Table 12). According to the commenter, the only important 
issues are: (1) The type of CWM (i.e., it must be either UXO or DMM); 
(2) its condition (damaged or undamaged); and (3) the strength of 
evidence (known or suspected CWM contamination). The commenter 
recommended deleting all other categories. The Department does not 
believe that there are only three important issues and that the other 
categories are extraneous. The Department has identified those separate 
categories under the CWM Configuration and Sources of CWM data elements 
to enable it to evaluate all known and relevant data and to assign 
appropriate priorities.
    One commenter stated that the rule does not consider CWM that has 
been managed via OB/OD activities or via on-site disposal (e.g., 
burial). The Department disagrees, and observes that while not 
specifically described as OB/OD or burial sites, these sites have in 
common that any CWM present is DMM. The CWM Configuration data element 
(Appendix A, Table 11) specifically includes CWM that are DMM, and 
addresses those differently depending on whether or not the CWM has 
been damaged (irrespective of how that damage occurred). The Sources of 
CWM data element (Appendix A, Table 12) specifically considers DMM that 
are on the surface or in the subsurface, irrespective of how the CWM 
came to be there.
    One commenter stated that it is not clear whether CWM mixed with 
UXO includes or purposely excludes explosively configured CWM. The 
Department's response is that explosively configured CWM that is either 
UXO or damaged DMM receives a score of 30 in Table 11 of Appendix A. 
The CWM mixed with UXO is used for undamaged CWM that are DMM or that 
are not configured as a munition, and that are commingled with 
conventional munitions that are UXO. These score 25.
    One commenter questioned whether the receptor factor in the CHE 
module should be the same as for the EHE, given the impact of wind 
drift on populations if a chemical agent is released. Evaluation of 
factors such as dispersion by wind current is far more complex than is 
appropriate for a prioritization tool. Such factors may, however, be 
important during a munitions response and be important considerations 
in the evaluation of remedial alternatives. The Department believes 
that the current receptor construct is sufficient for assigning each 
MRS a relative priority.
3. Section 179.6(c). Health Hazard Evaluation (HHE) Module
    The Department received a number of comments on the Relative Risk 
Site Evaluation (RRSE) module, which is intended to evaluate the health 
hazards associated with MC and any incidental nonmunitions-related 
contaminants at an MRS. The Department has revised and renamed this 
module in response to the most significant comments received on the 
proposed rule. Several commenters noted that although the EHE and CHE 
module results seemed well balanced in terms of the distribution of 
outcomes, the RRSE module appeared to score too many sites as ``high,'' 
inappropriately skewing the overall priority assigned to the MRS.

[[Page 58024]]

Specifically, it was observed that having only three outcomes (i.e., 
high, medium, and low) as provided in the RRSE module can result in 
this one module being the dominating factor in the overall priority 
assignment. In response to this significant comment, the Department 
analyzed the construct of the module and revised it so that the outcome 
in the rule has seven possible answers, increasing the ability to 
differentiate among MRSs. Accordingly, the Department believes that the 
revised module better reflects the relative evaluation of explosive, 
CWM, and MC hazards potentially present at the site. The Department has 
also changed the name of the module to the Health Hazard Evaluation 
(HHE) Module to differentiate it from the three-outcome RRSE used in 
the Department's Installation Restoration program (IRP). The Department 
will apply the HHE only to MRSs subject to this rule. The HHE module is 
intended to evaluate health hazards associated with MC at an MRS, with 
only incidental nonmunitions-related contaminants addressed under the 
MMRP.
    The RRSE will continue to be applied to sites in the IRP category 
of the DERP.
    Within the revised framework, the data and the process by which the 
data are evaluated are the same as within the RRSE; however, the 
distinction between the previous and revised frameworks lies in the 
greater number of outcomes (i.e., seven versus three). Only MRSs with 
the maximum results for the three factors (i.e., Contaminant Hazard 
Factor (CHF), Receptor Factor, and Migration Pathway Factor) are 
assigned the highest priority (i.e., Category A). In other words, only 
those MRSs with significant MC-related health hazards, an identified 
receptor, and an evident migration pathway are assigned to Category A 
for the HHE module.
    Tables 1, 2, and 3 below illustrate the derivation of the seven 
categories of the HHE. Table 1, which reproduces Table 21 of Appendix 
A, provides the three potential outcomes for each of the factors in the 
HHE. Table 2, which reproduces Table 22 of Appendix A, illustrates the 
different possible combinations of the results. The frequency in this 
table denotes the number of times each combination is used. Table 3, 
which reproduces Table 23 of Appendix A, spreads the possible 
combinations across seven categories, permitting only the most and 
least hazardous combinations in the highest and lowest categories. The 
other combinations are spread across the five remaining categories in a 
bell curve based on frequency of the combination.

                                                               Table 1.--HHE Module Rating
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Contaminant hazard factor           Receptor factor
                                                 Migration pathway factor
------------------------------------------------------------
Significant........................  High (H)..............  Identified............  High (H).............  Evident..............  High (H)
Moderate...........................  Middle (M)............  Potential.............  Middle (M)...........  Potential............  Middle (M)
Minimal............................  Low (L)...............  Limited...............  Low (L)..............  Confined.............  Low (L)
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                               Table 2.--HHE Module Rating
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Migration pathway
      Contaminant hazard factor             Receptor factor       --------------------------------------------------------------------------------------
                                                                             Evident                     Potential                     Confined
--------------------------------------------------------------------------------------------------------------------------------------------------------
Significant.........................  Identified.................  HHH                          HHM                          HHL
                                      Potential..................  HHM                          HMM                          HML
                                      Limited....................  HHL                          HML                          HLL
Moderate............................  Identified.................  HHM                          HMM                          HML
                                      Potential..................  HMM                          MMM                          MML
                                      Limited....................  HML                          MML                          MLL
Minimal.............................  Identified.................  HHL                          HML                          HLL
                                      Potential..................  HML                          MML                          MLL
                                      Limited....................  HLL                          MLL                          LLL
--------------------------------------------------------------------------------------------------------------------------------------------------------


                          Table 3.--HHE Module
------------------------------------------------------------------------
              Combination                Frequency        Category
------------------------------------------------------------------------
HHH....................................          1  A
HHM....................................          3  B
HHL....................................          3  C
HMM....................................          3  ....................
HML....................................          6  D
MMM....................................          1  ....................
HLL....................................          3  E
MML....................................          3  ....................
MLL....................................          3  F
LLL....................................          1  G
------------------------------------------------------------------------

    A commenter asked why the ecological receptors for surface water 
and sediment in the Receptor factor are limited to critical habitats 
``and other similar environments.'' The Department's response is that 
it chose to focus on locations of critical habitat as a means of 
delineating among ecological receptors. Almost all areas are habitat 
for some species, and considering all habitats equally provides no 
differentiating criteria. In response to the same commenter, the 
Department wishes to clarify that consumption of fish in contaminated 
waters is accounted for in the HHE.
    One commenter questioned the exclusion of an ecological endpoint 
during the evaluation of surface soils and requested that the 
Department consider groundwater as a minor receptor factor. The 
Department's response is that ecological receptors are not considered 
for evaluation of the surface soil since ecological standards are 
generally not available for the CHF calculation.
    Some comments were received requesting that the Department change 
the comparison value used for carcinogens from a 1 x 10-\4\ 
to a 1 x 10-\6\ value, which would make it consistent with 
some states' cleanup goals. This rule, however, is not using the 1 x 
10-\4\ value for cleanup; it is being used to assign a 
relative priority for action. The Department believes that 1 x 
10-\4\ is an appropriate value for prioritization. Further, 
changing the range will not change the relative ranking of any 
individual site, as all sites would shift equally if a different 
endpoint were used.
    One commenter stated that the Receptor Factor should not be limited 
to surface soil as receptors have the potential for exposure to 
subsurface soil during intrusive activities or after development where 
subsurface soils have been brought to the surface. The

[[Page 58025]]

Depar