Revisions to Standards for the Open Burning/Open Detonation of Waste Explosives, 19952-20030 [2024-05088]
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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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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
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SUMMARY:
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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:
gerhard.sasha@epa.gov, phone number:
(202) 566–0346) or Paul Diss (email
address: diss.paul@epa.gov, 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
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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 § 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
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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
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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 § 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 combustionreaction 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
§ 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
§ 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 § 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
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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
What are waste explosives?
Waste explosives are solid wastes that
are hazardous and characteristic for
reactivity (D003) as defined under
§ 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
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 § 268.2, respectively.
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-andfully-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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and rockets (‘‘propellants’’), fireworks
and flares (‘‘pyrotechnics’’), and
military and non-military munitions
(‘‘munitions’’) and become wastes when
discarded as defined in §§ 261.2 and
266.202. Military munitions include
bombs, warheads, grenades, mines,
missiles, and ammunition (see § 260.10
for additional types of explosives
defined as military munitions). Waste
explosives also include explosivescontaminated debris such as towels,
liners, containers, gloves, socks,
personal protective clothing, pipes, and
soils that meet the § 261.23(a)(6)
through (8) explosives definitions
quoted above.
Contaminants That May Be Released
During OB/OD
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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(2ethylhexyl)phthalate, chrysene, dioxins/
furans, dinitrobenzene (DNB),
dibromoethane (EDB), endosulfan,
ethylbenzene, fluoranthene,
indeno(1,2,3-cd)pyrene, naphthalene,
nitrates, nitrobenzene, 1,3,5trinitrobenzene (TNB), xylenes).4 5
Additionally, many of these hazardous
chemicals may exist as mixtures, and
have the potential to be released
concurrently.
3 https://www.epa.gov/fedfac/emergingcontaminants-and-federal-facility-contaminantsconcern.
4 Alternatives for the Demilitarization of
Conventional Munitions, NASEM, January 2019.
https://www.nap.edu/catalog/25140/alternativesfor-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
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
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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disposed of through other modes of
treatment’’ (45 FR 33217, May 19, 1980;
§ 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.
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 § 265.382’’ and
used the § 265.382 definition of waste
explosives to describe what OB/OD
operations could and could not be
permitted under subpart X.12
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’’ (§ 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
9 As finalized in 1980, § 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 ongoing development of safe alternatives and may
propose additional regulations at a later time.’’
11 52 FR 46964, December 10, 1987.
12 52 FR 46952, December 10, 1987.
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incorporated during issuance of subpart
X permits’’ (emphasis added).13 Thus,
EPA has long interpreted subpart X to
require incorporating the provisions of
§ 265.382 when permitting OB/OD
activities.
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 § 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 § 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’’ (§ 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
§ 261.23(a)(6) through (8) and § 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
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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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,
§ 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.
Given the open design of OB/OD units
and their potential to release treatment
byproducts directly into the
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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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’’ (§ 264.601).
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.
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
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.
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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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
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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).
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, thincase munitions, bulk explosives or
propellants, and explosivecontaminated materials. The multi-step
process may include case opening,
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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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 (DAVINCHTM), thermal
destruction (contained burn, rotary kiln,
DecinerationTM, and rotary furnace),
and chemical destruction (alkaline
hydrolysis, general atomics
neutralization/alkaline hydrolysis,
industrial supercritical water oxidation,
MuniRem®, Actodemil®). The
decontamination step technologies
include thermal decontamination (hot
gas or steam decontamination, flashing
furnace, DecinerationTM, car bottom
furnace) and chemical decontamination
(MuniRem®, Actodemil®).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).
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
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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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
B. Scope of Applicability
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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
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.
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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be subject to these proposed
requirements.
Emergency Provisions
Additionally, EPA is proposing to
include clarifying text and new
regulatory reporting requirements in the
subpart Y standards: Emergency
Provisions at §§ 264.715 and 265.715
and to revise the existing emergency
permit regulations at § 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
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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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.
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
§ 264.704(e) for permitted facilities and
§ 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 § 264.707 or § 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
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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 § 260.10.
Thus, the exemption would not exempt
additional waste streams from the longstanding 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);
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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
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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
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.
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environment associated with the
plumes.
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
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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,
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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 § 264.707(c)
and (d) for permitted facilities or
§ 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
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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
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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
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 § 261.31 or § 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 § 261.31 or § 261.33(e).
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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?
C. Waste Analysis and Characterization
Introduction and Description
Under § 262.11, a person who
generates a solid waste must make an
accurate hazardous waste determination
at the point of generation. Under
§ 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 § 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
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that explosive waste and, if not, whether
the waste is eligible for treatment by
OB/OD.
Proposed Revisions and Supporting
Rationale
EPA proposes adding § 264.706 Waste
Analysis under the new proposed
subpart Y for OB/OD units and
§ 265.706 Waste Analysis for interim
status OB/OD units. Owner and
operators would have to comply with
both the proposed §§ 264.706 and
265.706 requirements in addition to the
existing general waste analysis
requirements under § 264.13.
Under the proposed § 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, § 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
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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 § 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 § 260.10 as ‘‘hazardous
wastes that exhibit the reactivity
characteristic (D003) and are capable of
detonation or explosive chemical
reaction as defined in § 261.23(a)(6)
through (8) and include propellants,
explosives, pyrotechnics, munitions,
military munitions as defined in
§ 260.10, and unexploded ordnance.’’
Further analysis described in § 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 § 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
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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the reason for different handling or
treatment procedures.
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. Explosivecontaminated 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
§ 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 § 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
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tower, friction insensitivity has several
tests including the Alleghany Ballistic
Laboratory (ABL) and Bundesanstalt fu¨r
Materialforschung und -pru¨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.
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
§ 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 wellestablished 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
§ 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
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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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 § 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 § 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
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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
§ 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.
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 § 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
§ 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
§ 265.382, and include new regulatory
text in new subpart Y, §§ 264.704
through 264.715 and §§ 265.704 through
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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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
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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
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19963
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).
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.
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
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.)
32 United Nations Office for Disarmament Affairs
(UNODA), IATG 10.10:2021, 3rd Edition. https://
data.unsaferguard.org/iatg/en/IATG-10.10Demilitarization-destruction-logistic-disposal-IATGV.3.pdf.
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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
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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.
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 snowcovered ice.36 Snow was chosen to
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.
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
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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.
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
Assessment process for munitions.’’ Walsh M., et al.
November 15, 2017. https://www.science
direct.com/science/article/pii/S0045653517318490.
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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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%.
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 § 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
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 § 264.111 or
§ 265.111. According to §§ 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
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or decontamination) and are protective
of human health and the environment.
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(2ethylhexyl)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.
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 §§ 264.340, 266.100,
270.62, 270.66, 63.1200). Due to its open
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.
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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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
§ 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
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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 costrelated 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 (§ 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.)
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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
§§ 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
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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
§§ 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 reprogramming 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
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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.
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
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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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
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.
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facility would need to implement more
than one technology.
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.
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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 §§ 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).
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
43 Technology Readiness Assessment Guide. U.S.
Department of Energy, DOE G 413.3–4A, pg. 2,
https://www.directives.doe.gov.
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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
§ 261.4 (e) and (f) and § 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
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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 (§ 262.11(a)). One component of
this determination is to establish if the
waste exhibits the characteristic of
reactivity (D003) according to
§ 261.23(a)(6) through (8) and if it is
capable of detonation or explosive
chemical reaction. Only wastes
determined to be D003 per § 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 § 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
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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 § 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, smallcased munitions (thin-cased), mediumcased munitions (thin- or thick-cased),
large-cased munitions (thin- or thickcased), or potentially explosivecontaminated 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.
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• 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 energeticcontaminated 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.
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
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.
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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 explosivecontaminated materials. For an example
facility, EPA suggests that the analysis
would look like this: 80% of all waste
streams could be treated via detonation
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chamber and wastes to be treated in a
detonation chamber include energetics
and propellants that comprise smalland 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 smallcased munitions, and explosivecontaminated 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.
The treatability study provisions in
§ 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
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 § 260.10.
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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 § 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
§ 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
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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 onsite 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 (§ 173.56(b)),
or that a Department of Transportation
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(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
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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
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-materialsapprovals/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.
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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
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
49 EPA notes that the RCRA regulations require
that a permit modification must be requested and
approved prior to construction of a new unit.
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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
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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 § 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 § 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
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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
§§ 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
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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 §§ 264.707
and 265.707 that would specify when
alternative technology evaluations are
required, and the time allowed for
implementation of alternative
technologies.
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Timing of Initial Alternative Technology
Evaluations and Reevaluations
EPA is proposing regulatory text at
§ 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
§ 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 § 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
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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 § 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
§ 270.41(a)(3).
EPA is proposing at § 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 § 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
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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 § 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 §§ 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
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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 § 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 § 264.707(e) Implementation
of alternative technologies, and
analogous requirements for interim
status facilities at § 265.707(e).
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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
§ 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
§ 264.707(e)(3) for permitted facilities
and § 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
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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 onsite 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.
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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 facilityby-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
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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
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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
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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 preapplication 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
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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.
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 facilityspecific 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
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.
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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
§ 264.601 that directs the permitting
authority to include the listed subparts
that are appropriate for the
miscellaneous unit being permitted.
With respect to this proposed rule,
there are a variety of enclosed
51 52
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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 § 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
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
52 See §§ 264.340(b), 266.100(b) and 270.22, and
270.62.
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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.
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
53 See
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19977
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 offsite 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
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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 sitespecific 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.
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
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.
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their burning is not subject to RCRA
regulations either. EPA does not agree
that the above State air and RCRArelated 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
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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 § 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 § 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
§ 270.23 to specify that permit
applications for treatment units, in
addition to disposal units, must provide
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a detailed description of the plans to
comply with the post-closure
requirement of § 264.603 when they are
unable to clean close. This addition will
conform to the existing requirements of
§ 264.603 as it relates to both
miscellaneous disposal and treatment
units. Finally, EPA proposes to revise
the title of § 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 § 264.601(b) and (b)(3) to
include stormwater considerations. In
§ 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
§ 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 § 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 § 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,
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and post-closure care begins. Also
related to § 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
§ 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
§§ 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
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,
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.
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19979
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 § 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.
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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’’ (§ 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 §§ 264.708, 264.710, and
264.712 and in the interim status
regulations in §§ 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 §§ 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 wastespecific 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 § 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
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stream that is deemed acceptable to the
permitting authority.
Operating Requirements
Under § 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 § 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
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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 § 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 100year floodplains must also be
considered under existing requirements
in § 264.18(b).
EPA is proposing § 264.708(b)(8) to
require a safe distance plan to be
included in the permit. Under
§ 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.
In addition to agency-led public
participation in these permitting
56 Executive Order 14096: Federal Register
Revitalizing Our Nation’s Commitment to
Environmental Justice for All.
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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
§ 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
§ 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 § 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 § 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 sitespecific 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
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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 § 264.710(a).
However, in § 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 § 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 §§ 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
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19981
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 § 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 § 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.
In § 264.710(a)(6), owners/operators
must monitor air smoke plumes during
each OB/OD event. The visual
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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monitoring must include direction,
duration, extent, opacity, and whether
the plume goes off facility.
Under § 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.
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Recordkeeping, Reporting, Inspection,
and Training Requirements
Under § 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 §§ 264.15 and
264.16, subparts C and D, and § 264.73
to clarify and to add additional
provisions that are applicable to OB/OD
units. Under § 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
§ 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).
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In § 264.712(b), EPA is proposing
minimum inspection schedules in
addition to those found in § 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 § 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 § 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 § 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, §§ 264.110 through 264.120
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and part 265, subpart G, §§ 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
§§ 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 § 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 postclosure care in accordance with the
closure and post-closure requirements
that apply to landfills at § 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, § 264.310 requires that
the integrity and effectiveness of the
final cover be maintained during the
post-closure period. EPA proposes at
§ 264.714(b), in addition to the
requirements of § 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
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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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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 §§ 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
58 In Badger, WI, explosives and explosive
residues were buried, and a prescribed burn ignited
the residues causing an underground fire for 11⁄2
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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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
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19983
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
§§ 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.
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 incendiaryproducing 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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Chemical Weapons
Defense Authorization Acts directed
Chemical weapons were produced by research into alternatives to incineration
for chemical weapons, created Chemical
the United States from World War I to
Demilitarization Citizens’ Advisory
1968. These weapons were never used
Commissions, and formed the
in battle and are now obsolete and
deteriorating with time. These chemical Assembled Chemical Weapons68
Assessment program (ACWA). ACWA
weapons are made of nerve agents
activities
have continued since its
(sarin, tabun, VX) and vesicant, or
blister agents (sulfur mustards agents H/ creation, and at the time of this
HD and HT, lewisite).62 Nerve agents are proposal, the Army has destroyed the
remaining U.S. chemical weapons
like organophosphate pesticides, but
stockpile. The final two facilities that
much more potent, and exert their
recently completed their activities were
adverse effects by interfering with the
using alternative technologies. There are
nervous system. Humans can be
no chemical weapons being treated via
exposed to nerve agents through
OB or OD today. To remain consistent
inhalation, ingestion, skin, or eye
with current bans and practices, EPA is
contact. Exposure to low or moderate
proposing to ban all chemical weapons
doses of sarin can cause several effects
from OB/OD.
including but not limited to chest
tightness, cough, rapid breathing,
Mixed Waste Containing Depleted
confusion, and drowsiness among many Uranium
other effects. Large doses of this agent
Mixed waste, as defined in § 266.210,
can cause loss of consciousness,
is
waste that contains both RCRA
convulsions, paralysis, and respiratory
hazardous waste and source, special
failure possibly leading to death.63
Exposure to tabun causes adverse effects nuclear, or byproduct material subject to
the Atomic Energy Act of 1954. Thus,
including but not limited to miosis,
waste explosives (which are RCRA
nausea, vomiting, dyspnea, and
hazardous waste due to their reactivity
cramping. Severe effects include loss of
characteristic) and which contain
consciousness, seizures, muscular
depleted uranium are considered mixed
twitching, floppy paralysis, secretions
wastes under RCRA. EPA has
from nose and mouth, apnea, and
promulgated a conditional exemption
death.64 VX is persistent in the
environment and exposure to this agent from the regulatory definition of
hazardous waste for low-level mixed
has effects similar to those of tabun.65
waste in part 266, subpart N; however,
Vesicants or blister agents combine
with proteins and deoxyribonucleic acid treatment by OB/OD is not eligible for
this condition exemption. Specifically,
(DNA) to cause cellular changes
§ 266.235 prohibits under the
immediately after exposure. Clinical
effects include skin erythema, blistering, conditional exemption the treatment of
mixed waste that cannot be done in a
pharyngitis, cough, dyspnea,
tank or container without a permit.
conjunctivitis, burns, nausea, and
Uranium ore occurs naturally in the
vomiting. Other effects include but are
environment and contains several forms
not limited to necrosis, blindness,
of uranium known as isotopes (U-234,
atrioventricular block, cardiac arrest,
conclusions, coma, anemia, hemorrhage, U-235, and U-238). All uranium
isotopes are radioactive; however, only
and bone marrow suppression, among
one of these isotopes, Uranium-235 (Uothers.66
235),69 provides the fuel used to both
Congress ordered the destruction of
produce
nuclear power and in
all U.S. chemical weapons in The DoD
development of nuclear weapons. In
Authorization Act, 1986 (Pub. L. 99–
nature, U-235 only makes up a very
145) and for that process to be carried
small part of the uranium ore. Given its
out by the U.S Army in a manner to
protect the environment, the public, and importance for nuclear power and
nuclear weapons technology, U-235 is
workforce.67 Subsequent National
often removed from the natural uranium
62 History of U.S. Chemical Weapons Elimination,
ore and concentrated through a process
https://www.cdc.gov/nceh/demil/history.htm.
called uranium enrichment. DU is the
63 Sarin: Exposure, Decontamination, Treatment,
material left behind after enrichment.
https://emergency.cdc.gov/agent/sarin/basics/
As with natural uranium ore, DU is
facts.asp.
64 Tabun (GA): Nerve Agent, https://
www.cdc.gov/niosh/ershdb/emergency
responsecard_29750004.html.
65 VX: Nerve Agent, https://www.cdc.gov/niosh/
ershdb/emergencyresponsecard_29750005.html.
66 Vesicant/Blister Agent Poisoning, https://
emergency.cdc.gov/agent/vesicants/tsd.asp.
67 Facts: Assembled Chemical Weapons
Alternatives Program Legislation, https://
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www.peoacwa.army.mil/2021/03/12/facts-peoacwa-program-legislation.
68 Assembled Chemical Weapons Alternatives,
https://www.peoacwa.army.mil/wp-content/
uploads/ACWA_Program_Legislation_1985-2022_
FINAL_21April2022.pdf.
69 Uranium-235, https://comptox.epa.gov/
dashboard/chemical/details/DTXSID80872929.
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radioactive.70 Radioactive contaminants
can be released to the environment if
munitions or other materials containing
DU are open burned or detonated.
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.
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 autoignition with air, white phosphorous
can form a phosphoric acid residue
causing further contamination and
damage. Red phosphorus forms when
70 Depleted Uranium, https://www.epa.gov/
radtown/depleted-uranium.
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.
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/docu
ments/phosphorus.pdf.
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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
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
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
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.
75 White phosphorus, https://www.acs.org/
content/acs/en/molecule-of-the-week/archive/w/
white-phosphorus.html#:∼:text=White%20phos
phorus%20is%20one%20of,darkened
%20from%20exposure%20to%20lightml.
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.
78 White Phosphorus: Systemic Agent, https://
www.cdc.gov/niosh/ershdb/emergency
responsecard_29750025.html.
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Improved Conventional Munitions
(ICMs) and Submunitions
ICMs and cluster bombs are
munitions characterized by the delivery
of two or more antipersonnel, antimaterial, 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.
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 (PAX21)
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
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.
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.
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flexibility, and polymeric binders,
which bind all the chemicals together.86
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.
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
The Federal PCB Regulations
currently prohibit the OB of PCBs under
§ 761.50(a)(1), ‘‘No person may open
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.
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.
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-aboutpolychlorinated-biphenyls-pcbs#healtheffects.
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burn PCBs. Combustion of PCBs
approved under § 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 PCBcontaining waste by OB/OD is
prohibited.
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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 nonhazardous waste, or within 90 days after
approval of the closure plan, whichever
is later (§§ 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 (§§ 264.113(b) and 265.113(b)).
The closure standards at §§ 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 nonhazardous 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
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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 § 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 §§ 264.713 and 265.713
titled Closure; time allowed for closure
for certain activities. Also, EPA
proposes to revise §§ 264.113(b) and
265.113(b) to cross-reference the newly
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proposed §§ 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, §§ 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 §§ 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
§§ 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 § 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
§§ 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
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requirements in § 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 §§ 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 §§ 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
§§ 264.112(d)(1) and 265.112(d)(1) by
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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 §§ 264.713 and
265.713 and make conforming changes
to the existing regulations at §§ 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
§ 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
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19987
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 overprotective 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.
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 quantitydistance (QD) formula:
91 Defense Explosives Safety Regulation 6055.09
Edition 1, https://denix.osd.mil/ddes/home/homedocuments/desr-6055-09/.
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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 Kfactor 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 (ft2), 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 (ft2). 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.
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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 itemspecific 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.
EPA is not proposing revisions to the
table in § 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
92 Primary Fragment Characterization Tools: A
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table at § 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
§ 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
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 § 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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agency may issue a temporary RCRA
emergency permit under § 270.61. Both
provisions address emergency
situations, but they differ based on the
urgency of the response needed and
thus, applicable requirements.
The explosives or munitions
emergency response provisions at
§§ 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
§ 260.10) and are exempt from
substantive RCRA requirements,
including permits. On the other hand,
the emergency permit provision at
§ 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
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
95 Safe Handling, Storage and Treatment of Waste
Fireworks, https://www.epa.gov/hwpermitting/safehandling-storage-and-treatment-waste-fireworks.
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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).
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 § 270.61 or a traditional
permit according to § 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.,
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 autoignite 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_AmmunitionSurveillance-Procedures_22Nov16.pdf?ver=201612-19-150215-207.
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19989
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 § 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
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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definition of explosives or munitions
emergency in § 260.10 to replace
‘‘imminent threat’’ with ‘‘immediate
threat’’ for consistency.
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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 §§ 264.715(a)(1)
and 265.715(a)(1). Finally, EPA
proposes to add a new paragraph
(c)(3)(iv) to § 270.1(c)(3) that points to
the new reporting requirements of
§ 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
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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
The regulation at § 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 § 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 § 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,
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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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 §§ 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 §§ 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
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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 § 264.715(b)(4), and
consistent with § 270.61(b)(4), and a
new permit application would be
submitted per § 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
§§ 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
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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 sitespecific 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
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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 (§§ 262.10(i),
263.10(e), 264.1(g)(8) and 265.1(c)(11))
and permit requirements (§ 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
(§ 270.61 or § 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 §§ 264.715 and 265.715,
revise the existing regulations at
§ 270.61 Emergency permits, revise the
definition of explosives or munitions
emergency in § 260.10, and add a new
paragraph (c)(3)(iv) to the exclusion for
explosives or munitions emergency
responses in § 270.1(c)(3) that points to
the new parts 264 and 265, subpart Y
standards of §§ 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 § 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 § 270.61, EPA
proposes to clarify the duration of the
permit to be only 90 days by removing
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‘‘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 §§ 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.
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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
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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 offsite treatment location.101 Mobile
treatment units could bring alternative
technology to these locations thereby
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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mitigating the transportation safety
concern.
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-a`-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.
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 § 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
102 52
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MTUs is described in more depth in the
following sections.
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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
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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 § 270.61
and emergency exemption provisions at
§§ 264.1(g)(8)(i)(D), 265.1(c)(11), and
270.1(c)(3)(D) would supersede the twostage 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
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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
§ 270.332. The proposed process for
obtaining a nationwide conditional
approval described in § 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 twostage 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 twostage 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
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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
§ 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 § 270.13
except for the information required by
§ 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 § 270.13(b), (f) and (l)
during this initial stage. Instead, with
the exception of the topographical map
required by § 270.13(l), EPA is
proposing that the location-specific
information in these three sections
would be submitted during the locationspecific second stage of the permitting
process. EPA, in this proposal, is not
requiring the topographical map
required by § 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 § 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
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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 § 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 § 264.601 and the applicable
requirements of § 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.
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 § 264.601 for
ensuring protection of human health
and the environment, consistent with
§ 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
103 Note that, currently, there is no § 270.23(f).
However, as a result of this proposal, current
§ 270.23(e) would be redesignated as § 270.23(f).
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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 § 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 § 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 (locationspecific) phase of the MTU permitting
process. For example, it is not
reasonable to request information
related to arrangements with local
authorities required by § 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
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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 unitspecific 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 unitspecific 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
§ 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 §§ 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
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permit (including the conditional
approval), as provided in §§ 270.40
through 270.43. Relatedly, EPA is
proposing amendments to § 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 § 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 § 270.335. As with the
procedures for the nationwide
conditional approval, EPA modeled the
permitting process for the locationspecific 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 locationspecific 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.
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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 LocationSpecific Permits
At newly created § 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 § 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
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§ 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 § 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
§ 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
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performance standards of § 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 § 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
§ 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 LocationSpecific RCRA MTU Permits
At newly created § 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 § 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 § 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
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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 § 264.601 and the applicable
monitoring, analysis, inspection,
response, and reporting requirements of
§ 264.602. The environmental
performance standard in § 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 locationspecific 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 § 264.1(k).
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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 locationspecific 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
§ 270.333, such as information about the
MTU’s design and proposed operation
in accordance with the applicable
regulatory standards in the newly
proposed § 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
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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 § 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
§ 264.1(k). A commenter could not
however, comment on whether one of
the performance standards listed in
§ 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 § 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 § 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 § 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-
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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
§ 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 locationspecific RCRA MTU permit in
accordance with §§ 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
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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 § 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
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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 locationspecific 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.
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 locationspecific permit. If during that 45-day
104 Note that the Permitting Updates Rule is
considering proposed regulatory changes related to
major local newspaper and radio broadcast
requirements.
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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 locationspecific 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
§ 260.10 define ‘‘facility’’ as all
contiguous land under the control of the
owner/operator. In developing this
proposed rule, EPA considered the
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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
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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: §§ 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
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would be required to obtain the waste
analysis, per the § 264.13 requirements,
from the facility or entity requiring the
services of the MTU.105
The personnel training requirements
in § 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 § 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 § 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 §§ 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 § 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
105 When MTUs are procured for emergency
treatment, the waste analysis would be limited to
the procedures proposed in the new regulation at
§ 264.715(c) and (d).
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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 § 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
(§ 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 § 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 § 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 §§ 264.50 through
264.56, with exception of § 264.52(c)
which is location-specific. Paragraph (c)
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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
§ 264.71(c), operating record
requirements at § 264.73, the
availability, retention, and disposition
of records requirements at § 264.74, and
the biennial report requirements at
§ 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
§ 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
§§ 264.73 through 264.75, and § 264.77
(i.e., excluding the unmanifested waste
report provisions under § 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,
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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 startup 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 unitspecific 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
§§ 264.71, 264.72, and 264.77, with the
exception of § 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
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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.
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
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 § 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.
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
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 § 264.114 and the MTU specific
requirements at § 264.1(k)(5). In other
106 See Hazardous Waste Generator Improvements
Final Rule, 81 FR 85732; November 28, 2016, page
85762.
107 See 45 FR 72024; October 30, 1980, page
72026. Also see RCRA Online memos 12515, 12706,
and 13280.
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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
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.
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requirements in the new paragraph (k)
of § 264.1.
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 §§ 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
§ 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 §§ 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
§ 264.151 for financial assurance
mechanisms may need to be refined to
accommodate the mobile nature of
MTUs. For example, EPA anticipates
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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 § 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
§ 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
§ 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
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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
§ 264.601 and the part B unit specific
information for miscellaneous units of
§ 270.23(a), (d), and (f) when developing
the nationwide conditional approval,
and § 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
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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 tenyear term.
Limitation on Duration of LocationSpecific Permit and Operation at Job
Site
Additional aspects of the locationspecific 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
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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 locationspecific 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 locationspecific 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.
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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
§ 260.10 and also in the proposed RCRA
MTU permit conditions at § 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 locationspecific 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-bylocation 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
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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
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
109 Presumably, such a public hearing could be
held virtually and thus cover multiple population
centers.
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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.
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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 ondemand 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
§ 270.60 for certain classes of facilities
conditioned on meeting regulatoryspecified 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
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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 locationspecific 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 § 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.
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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
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20005
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 § 270.65 and
temporary authorizations under
§ 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
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
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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 (§ 270.65(a)(2)
and (3)).
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
§ 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
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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process.112 For MTUs, EPA sees merit in
both situations. In the first, the primary
purpose of MTUs is to provide shortterm 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.
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 § 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
112 53
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authorization to the facility mailing list
per § 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 onestage RCRA MTU permit, a nonpermitting 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 locationspecific 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
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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.
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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 § 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
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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
§ 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 § 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.
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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 § 270.61(b)(6) to incorporate other
applicable requirements, such as those
similar to requirements proposed.
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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 costeffective 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-bylocation 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
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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 locationspecific 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 locationspecific permit were considered by the
same authority (EPA). Moreover, the
approach could result in inconsistencies
in the location-specific permitting
approaches and requirements state-tostate, 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 locationspecific 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
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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.
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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/lawsand-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/
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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
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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.
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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.
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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.
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.
113 https://www.epa.gov/system/files/documents/
2021-10/2021-policy-on-childrens-health.pdf.
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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
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
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 (https://www.regulations.gov).
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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.
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.
115 EPA Policy on Consultation and Coordination
with Indian Tribes. https://www.epa.gov/tribal/
forms/consultation-and-coordination-tribes.
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• 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.
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.
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.
Authority: 42 U.S.C. 6905, 6912(a), 6921–
6927,6930, 6934, 6935, 6937, 6938, 6939,
6939(g), and 6974.
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
1. The authority citation for part 124
continues to read as follows:
■
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Subpart A—General Program
Requirements
2. Amend § 124.1 by revising
paragraph (a) to read as follows:
■
§ 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 § 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 § 270.29 of this
chapter.
*
*
*
*
*
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
3. The authority citation for part 260
continues to read as follows:
Subpart B—Definitions
4. Amend § 260.10 by:
a. Adding the definitions in
alphabetical order for ‘‘Detonation’’,
■ b. Revising the definition for
‘‘Explosives or munitions emergency’’;
■ c. Adding the definitions in
alphabetical order for ‘‘Mobile treatment
unit or MTU’’, ‘‘MTU location-specific
permit’’, ‘‘MTU nationwide conditional
approval’’;
■ d. Removing the definition for ‘‘Open
burning’’; and
■ 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:
■
■
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*
*
*
*
*
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 § 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 § 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
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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 combustionreaction 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 § 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.
*
*
*
*
*
§ 264.1
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
Subpart G—Closure and Post-Closure
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
6. Amend § 264.1 by adding paragraph
(k) to read as follows:
■
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Purpose, scope, and applicability.
*
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*
*
(k) The requirements of this part do
not apply to Mobile Treatment Units as
defined in § 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
§ 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 § 264.602 of subpart X
of this part, references to §§ 264.15,
264.76, and 264.101 are not applicable
for MTUs; and
(8) Section 264.706 of subpart Y of
this part.
7. Amend § 264.111 by revising
paragraph (c) to read as follows:
■
§ 264.111
Closure performance standard.
*
*
*
*
(c) Complies with the closure
requirements of this part, including, but
not limited to, the requirements of
§§ 264.178, 264.197, 264.228, 264.258,
264.280, 264.310, 264.351, 264.601
through 264.603, 264.713, and 264.1102.
■ 8. Amend § 264.112 by revising
paragraph (d)(1) to read as follows:
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§ 264.112
plan.
Closure plan; amendment of
*
*
*
*
*
(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.
*
*
*
*
*
■ 9. Amend § 264.113 by revising
paragraph (b) introductory text to read
as follows:
§ 264.113
closure.
Closure; time allowed for
*
*
*
*
*
(b) Except as provided in § 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
10. Amend § 264.601 by revising
paragraph (b) introductory text and
paragraph (b)(3) to read as follows:
■
§ 264.601 Environmental performance
standards.
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*
*
*
*
*
(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
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around the unit, and the stormwater
run-on and run-off patterns around the
unit;
*
*
*
*
*
■ 11. Revise § 264.603 to read as
follows:
§ 264.603
Post-closure care.
A miscellaneous unit that is a
disposal unit must be maintained in a
manner that complies with § 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
§ 264.601 during post-closure care. The
post-closure plan under § 264.118 must
specify the procedures that will be used
to satisfy this requirement.
■ 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.
§ 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 § 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 § 264.706
and an alternative technology
evaluation required under
§ 264.707(b)(3) to the Director in
accordance with the time frames
established under § 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
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20013
accordance with §§ 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 § 260.10 of this
chapter, except as § 264.1 provides
otherwise.
(d) Explosives and munitions
emergency responses as defined in
§ 260.10 of this chapter are exempt from
the requirements of this subpart, except
as indicated in § 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 § 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
§ 264.707, the owner/operator must
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submit this demonstration on the same
schedule as they would have submitted
alternative technology evaluations for
the subject wastes under § 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, § 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 § 264.707 within one year.
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§ 264.705
subpart.
Definitions applicable to this
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 § 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
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subjected to specified accidental and
combat threats.
Surface water means all water which
is open to the atmosphere and subject to
surface runoff.
§ 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 § 260.10 of this chapter must conduct
and provide to the Director a detailed
physical and chemical waste analysis
for each explosive waste per
§ 270.14(b)(2) and (3) of this chapter,
§ 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 multicomponent wastes must have chemical
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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 § 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 predetermined 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 § 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
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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.
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§ 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 § 260.10 of this
chapter must demonstrate through an
evaluation that there are no safe and
available alternative treatment
technologies, except as § 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
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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 § 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 § 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
§ 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
§ 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 § 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 pretreatment 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
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20015
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 § 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
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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 § 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 § 270.42 of this chapter.
(4) The owner/operator must comply
with the schedule of implementation of
the alternative technology.
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§ 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
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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
§ 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.
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(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 § 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
§ 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.
§ 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 § 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
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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 postclosure 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
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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 § 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
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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 offsite 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 §§ 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.
§ 264.712 Recordkeeping, inspections,
training, and reporting requirements.
All facilities must comply with
§§ 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.
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(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 nonconformance 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 nonconformance 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 § 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
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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 § 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.
§ 264.713 Closure; time allowed for
closure for certain activities.
Open burn and open detonation units
are subject to the requirements of
§ 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;
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Fmt 4701
Sfmt 4702
(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 § 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.
§ 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
§ 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 postclosure care in accordance with the
closure and post-closure requirements
that apply to landfills at § 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.
§ 264.715
Emergency provisions.
(a) Emergency responses. An
explosives or munitions emergency
response, as defined in § 260.10 of this
chapter, is exempt from RCRA
treatment, storage, and disposal
standards and permit requirements
pursuant to §§ 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
§ 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:
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(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 § 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 § 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 § 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
§ 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 § 270.10 of this chapter and
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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
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.
14. Amend § 265.111 by revising
paragraph (c) to read as follows:
■
§ 265.111
Closure performance standard.
*
*
*
*
*
(c) Complies with the closure
requirements of this subpart, including,
but not limited to, the requirements of
§§ 265.197, 265.228, 265.258, 265.280,
265.310, 265.351, 265.381, 265.404,
265.713, and 265.1102.
*
*
*
*
*
■ 15. Amend § 265.112 by revising
paragraph (d)(1) to read as follows:
§ 265.112
plan.
Closure plan; amendment of
*
*
*
*
(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
Frm 00069
§ 265.113
closure.
Closure; time allowed for
*
*
*
*
*
(b) Except as provided in § 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
17. Revise § 265.382 to read as
follows:
■
*
PO 00000
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.
*
*
*
*
*
■ 16. Amend § 265.113 by revising
paragraph (b) introductory text to read
as follows:
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§ 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 § 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:
Pounds of waste
explosives or
propellants
0 to 100 ...................
101 to 1,000 ............
1,001 to 10,000 .......
10,001 to 30,000 .....
Minimum distance from open
burning or detonation to the
property of others
204
380
530
690
meters
meters
meters
meters
(670 feet).
(1,250 feet).
(1,730 feet).
(2,260 feet).
18. Revise § 265.383 to read as
follows:
■
§ 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
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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 §§ 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.
■ 19. Amend part 265 by adding subpart
Y to read as follows:
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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.
§ 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 § 260.10 of this chapter and
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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 § 265.706
and an alternative technology
evaluation required under
§ 265.707(b)(3) to the Director in
accordance with the time frames
established under § 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 §§ 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 § 260.10 of this
chapter, except as § 265.1 provides
otherwise.
(d) Explosives and munitions
emergency responses as defined in
§ 260.10 of this chapter are exempt from
the requirements of this subpart, except
as indicated in § 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 § 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
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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
§ 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 § 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, § 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 § 265.707 within one year.
§ 265.705
subpart.
Definitions applicable to this
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.
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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 § 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.
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§ 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 § 260.10 of this chapter must conduct
and provide to the Director a detailed
physical and chemical waste analysis
for each explosive waste per
§§ 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
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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 multicomponent 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 § 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 predetermined 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.
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(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 § 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.
§ 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 § 260.10 of this
chapter must demonstrate through an
evaluation that there are no safe and
available alternative treatment
technologies, except as § 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
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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 § 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 § 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
§ 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
§ 270.65 of this chapter, all available
information that will accompany a
permit application, including
anticipated timing for initiating and
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completing the RD&D activities, must be
submitted to the Director.
(D) If an owner/operator is conducting
RD&D activities under § 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 § 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
§ 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].
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(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 § 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
§ 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.
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(4) The owner/operator must comply
with the schedule of implementation of
the alternative technology.
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§ 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
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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
§ 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 § 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
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conventional munitions (ICMs) or
cluster bombs; and
(vi) Chemical weapons as defined in
§ 265.705.
§ 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
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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 § 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
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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 offsite 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 §§ 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.
§ 265.712 Recordkeeping, inspections,
training, and reporting requirements.
All facilities must comply with
§§ 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
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enters post-closure, the records must be
maintained through the entire postclosure 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 nonconformance 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 nonconformance 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.
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(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 § 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 § 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.
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§ 265.713 Closure; time allowed for
closure for certain activities.
Open burn and open detonation units
are subject to the requirements of
§ 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
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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 § 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.
§ 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
§ 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 postclosure care in accordance with the
closure and post-closure requirements
that apply to landfills at § 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.
§ 265.715
Emergency provisions.
(a) Emergency responses. An
explosives or munitions emergency
response, as defined in § 260.10 of this
chapter, is exempt from RCRA
treatment, storage, and disposal
standards and requirements pursuant to
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§§ 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 § 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 § 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 § 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 § 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
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situation, or that the explosive material
cannot be shipped off-site.
(2) Documentation required in
§ 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 § 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
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
21. Amend § 270.1 by adding
paragraph (c)(3)(iv) to read as follows:
■
§ 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 § 264.715(a)(1) or
§ 265.715(a)(1) of this chapter.
Subpart B—Permit Application
22. Amend § 270.10 by adding
paragraph (a)(7) to read as follows:
■
§ 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.
*
*
*
*
*
■ 23. Amend § 270.23 by:
■ a. Revising the section heading, the
introductory text, paragraphs (a)(2) and
(3) and (b);
■ b. Redesignating paragraph (e) as
paragraph (f); and
■ c. Adding a new paragraph (e).
The revisions and addition to read as
follows:
§ 270.23 Specific part B information
requirements for miscellaneous and open
burn and open detonation units.
Except as otherwise provided in
§ 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 §§ 264.601 and
264.602 of this chapter for
miscellaneous units, or §§ 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
§ 264.603 of this chapter for
miscellaneous units or § 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
§ 264.601 of this chapter for
miscellaneous units or technical
standards of §§ 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 § 264.601 of
this chapter for miscellaneous units or
technical standards of §§ 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
23. Amend § 270.42 by:
a. Adding paragraph (l); and
■ b. In Appendix 1 to § 270.42, adding
the entry ‘‘P. Mobile Treatment Units’’
to the end of the appendix.
The additions read as follows:
■
■
§ 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
§ 270.42(a) and shall require the prior
written approval of the Director.
Appendix 1 to § 270.42—Classification
of Permit Modification
Modifications
Class
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*
*
*
*
*
*
P. Mobile Treatment Units:
1. All modifications to a permit for an MTU treating waste explosives issued in accordance with subpart K of this part .........
Q. Open Burning and Open Detonation Units:
1. Changes to alternative technology implementation schedule pursuant to § 264.707(e)(3) .....................................................
Subpart F—Special Forms of Permits
24. Amend § 270.61 by revising
paragraph (b) to read as follows:
■
§ 270.61
*
Emergency permits.
*
*
*
*
(b) This emergency permit:
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(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
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*
11
11
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;
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(5) Must be accompanied by a public
notice published under § 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
§ 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.
*
*
*
*
*
■ 25. Add § 270.69 to read as follows:
§ 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.
■ 26. Amend part 270 by adding subpart
K to read as follows:
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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.
§ 270.330
Applicability.
(a) An owner/operator of an MTU, or
group of identical MTUs, as defined in
§ 260.10 of this chapter, may obtain a
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RCRA MTU permit to treat only waste
explosives as defined in § 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
§§ 264.1(g)(8)(i)(D), 265.1(c)(11)(i)(D),
270.1(c)(3)(D), and 270.61 of this
chapter.
§ 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 §§ 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
§§ 270.335 through 270.337 for each
location at which the unit, or group of
identical units, will treat waste
explosives (location-specific permit).
§ 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 § 270.11(a) through
(c). In the application, both the owner
and the operator must also make the
certification required under
§ 270.11(d)(1).
(c) The application for a nationwide
conditional approval must include all
information required by § 270.333.
(d) If the Director tentatively finds
that the application for a nationwide
conditional approval includes all of the
information required by § 270.333 and
that the proposed design and operating
standards meet the applicable regulatory
standards in § 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
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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 § 270.333 or the
proposed design and operating
standards do not meet the applicable
regulatory standards in § 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
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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 § 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 § 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
§ 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 § 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 § 124.15 of this chapter
(or a decision under § 270.29 to deny a
permit for the active life of a RCRA
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hazardous waste management facility or
unit).
(2) This appeal is a prerequisite to
seeking judicial review of these EPA
actions.
§ 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 § 270.13
except that the information required by
§ 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 § 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
§ 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 § 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 § 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
§§ 270.13, 270.14, and 270.23 to
‘‘permit’’ should be read as ‘‘nationwide
conditional approval.’’
§ 270.334 Nationwide conditional approval
conditions.
If the Director prepares a nationwide
conditional approval, it must include
the:
(a) Information required under
§ 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 § 264.1(k).
(2) Terms and conditions in §§ 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
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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
§§ 270.41 through 270.43.
§ 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 § 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
§ 270.11(a) through (c). In the
application, both the owner and the
operator must also make the
certification required under
§ 270.11(d)(1).
(c) The application for a permit must
include all information required by
§ 270.336.
(d) If the Director tentatively finds
that the application for a permit
includes all of the information required
by § 270.336 and that the proposed
design and operating standards meet the
applicable regulatory standards of
§ 264.1(k) of this chapter and §§ 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
§ 270.336 or the proposed design and
operating standards do not meet the
applicable regulatory standards of
§ 264.1(k) of this chapter and §§ 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
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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;
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(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
§ 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.
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20029
(3) If the Director determines that the
permit does not include the information
and terms and conditions required in
§ 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 § 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 § 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 § 124.15 of
this chapter (or a decision under
§ 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.
§ 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
§ 270.332;
(2) The information required in
§ 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
§ 270.23(f);
(5) Information demonstrating
compliance with § 264.37 regarding
arrangements with local authorities;
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(6) An updated contingency plan
required by subpart D of part 264 of this
chapter including the information
required by § 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.
with definition of an MTU locationspecific permit in § 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
§ 264.601 of this chapter and the
applicable monitoring, analysis,
inspection, response, and reporting
requirements of § 264.602 of this
chapter.
§ 270.337
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
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 § 270.332;
(b) The proposed MTU location of
operation information required by
§ 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
27. The authority for part 271
continues to read as follows:
■
Authority: 42 U.S.C. 6905, 6912(a), 6926,
and 6939g.
28. Amend § 271.1 by:
a. Revising paragraph (h); and
■ 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
§ 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)
Promulgation date
Title of regulation
Federal Register
reference
[Month, XX, XXXX] ..................
Revisions to Standards for the Open Burning/Open Detonation
of Waste Explosives.
[XXXX] .................
*
*
*
*
*
29. Amend § 271.3 by adding
paragraph (b)(5) to read as follows:
■
§ 271.3
Availability of final authorization.
*
*
*
*
(b) * * *
(5) Any requirement applicable to the
permitting of Mobile Treatment Units to
treat waste explosives:
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*
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(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
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Effective date
[Month, XX, XXXX.]
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
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Agencies
[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.
-----------------------------------------------------------------------
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\
[[Page 19954]]
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.
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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.
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\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.
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\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).
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\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.)
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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.
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\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.
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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.
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\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.
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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.
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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%.
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\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.
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\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.
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\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.
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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, https://www.directives.doe.gov.
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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.
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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.
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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.
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\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.
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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.
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\51\ 52 FR 46950-46951, December 10, 1987.
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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\
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\52\ See Sec. Sec. 264.340(b), 266.100(b) and 270.22, and
270.62.
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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.
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\53\ See Sec. 260.10.
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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.
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\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.
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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\
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\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.
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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.
---------------------------------------------------------------------------
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.
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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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\102\ 52 FR 20914, June 3, 1987.
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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.
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\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).
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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.
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\104\ Note that the Permitting Updates Rule is considering
proposed regulatory changes related to major local newspaper and
radio broadcast requirements.
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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\
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\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).
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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.
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\106\ See Hazardous Waste Generator Improvements Final Rule, 81
FR 85732; November 28, 2016, page 85762.
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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.
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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.
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\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.
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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.
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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.
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\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.
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\113\ https://www.epa.gov/system/files/documents/2021-10/2021-policy-on-childrens-health.pdf.
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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\
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\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 (https://www.regulations.gov).
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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.
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\115\ EPA Policy on Consultation and Coordination with Indian
Tribes. https://www.epa.gov/tribal/forms/consultation-and-coordination-tribes.
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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