Introduction
The Federal Facility Compliance Act, signed into law in 1992, contained provision 107 requiring the U.S. EPA (EPA), in conjunction with the Secretary of Defense and appropriate State officials, to develop regulations to define the point at which conventional military munitions become hazardous waste and to provide for the safe transport and storage of such waste under the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. section 6924 subsection 3004y). Since 1992, EPA has consulted with DoD, the Department of Defense Explosives Safety Board (DDESB), States, and various environmental interest groups on this regulatory initiative, culminating in the "Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties; Final Rule" published in the 12 February 1997 Federal Register. The effective date of the rule was 12 August 1997.
The impact of these new regulations upon USAF ordnance and munitions specialties is expected to be minimal. The purpose of this fact sheet is to introduce USAF personnel to these new regulatory requirements and briefly discuss how these changes will affect USAF operations.
Background
USAF Policy
Prior to release of the munitions rule, USAF policy was outlined in two USAF memos, one dated 1 November 1993 entitled Application of the Resource Conservation and Recovery Act (RCRA) Hazardous Waste Management Requirements to Conventional Explosive Ordnance Operations, and the other dated 14 January 1994 entitled Air Force Policy for Disposition of Munitions Assets.
This policy had set forth the guidance necessary to determine when RCRA applied to specific munitions operations. Under this approach, munitions removed from the active inventory were to undergo review to determine whether they can be returned to service or used for other purposes. When the possibility of beneficial uses had been eliminated, the material would be transferred to a hazardous waste account (the BHW account) and orders to destroy the munitions would be transmitted to the installation that held it. The munitions would become a hazardous waste at the point that the order was received by the munitions' custodian. The custodian, therefore, would become the waste generator in the context of RCRA; generator standards would apply at the storage magazine; and land disposal restrictions would require prompt treatment and disposal.
The most significant drawbacks to this policy were twofold: First, if munitions in a storage magazine were declared a hazardous waste, the magazine itself would become subject to RCRA and containment building standards. Although these magazines were constructed according to military specifications for protection against explosive hazards, they would have to be retrofitted to meet RCRA guidelines for hazardous waste accumulation and storage. Second, if the munitions were classified as hazardous waste and remained on the installation for more than 90 days, the installation would be subject to RCRA permitting requirements, a complex 2-3 year process involving considerable time and effort.
A Summary of the New Regulations
With The Military Munitions Rule, EPA has amended the Code of Federal Regulations (CFR) implementing RCRA in 40 CFR Parts 260-266, and Part 270. This Rule attempts to address six specific issues:
- the conditions specifying when military munitions become subject to regulation as a solid waste or hazardous waste under RCRA;
- the application of RCRA hazardous waste standards to the use of munitions in weapons testing and military training exercises;
- the standards applicable to emergency responses to incidents involving munitions and other explosives;
- the applicability of RCRA requirements to unexploded ordnance and environmental contamination at closed or transferred military firing ranges;
- management standards necessary for the protection of human health and environmental quality during the transportation and storage of waste military munitions; and
- hazardous waste manifesting requirements during transportation on public or private right-of-ways on or along the borders of contiguous properties under the control of the same person.
To establish the scope of this new Rule, EPA also defined the term "military munitions" in Section 266.201 and lists several product examples. This list and definition excludes wholly inert devices, improvised explosive devices, nuclear devices, and nuclear weapons (including the non-nuclear components and sub-parts). However, following sanitization procedures, as defined by the Atomic Energy Act of 1954, the non-nuclear components of nuclear weapons would be considered military munitions and governed by the Rule.
One of the most significant aspects of the Munitions Rule is the identification of the circumstances under which munitions are and are not considered to be a waste for regulatory purposes. The rule discusses the regulatory definition of solid waste in the context of three specific categories: unused munitions, munitions used for their intended purpose, and used or fired munitions. To further clarify this issue, we will examine each of these categories in depth and provide examples in order to illustrate the application of the definition.
When Are Munitions Not A Waste?
Munitions Used For Their Intended Purpose
Under RCRA definitions, the use of products for their intended purpose, even when the use of the product results in deposition upon the land, does not necessarily constitute "discarding" , is not a waste management activity, and is not subject to regulation. Section 266.202 (a) (1) (i)-(iii), clarifies this point and provides specific examples of military activities that are exempt from RCRA regulation.
This portion of the rule states that for regulatory purposes, used and fired munitions are not a solid waste when:
- Used for the training of military personnel and explosive and emergency response specialists. EPA views such training, which includes military personnel and civilian contractors, to constitute normal use of the product, rather than disposal activities.
- When a munition is used for research, development, testing, and evaluation. Testing munitions, or using munitions to test a weapons system to determine performance capabilities clearly falls within the definition of using a product/material for its intended purposes. EPA also views the removal of a used or fired munition from a testing or training range for further testing and evaluation to be within the definition of use of a material for its intended purpose.
- When a munition is destroyed during certain range clearance operations. EPA considers range management to be a necessary part of the safe use of munitions for their intended purpose; thus, range clearance activity is an intrinsic part of training or testing. From an environmental perspective, it makes no difference whether an ordnance item explodes on impact or is subsequently detonated by an EOD specialist. Therefore the rule establishes that range clearance exercises (recovery, collection, and on-range treatment or destruction of unexploded ordnance (UXO)) at active or inactive ranges are not regulated under RCRA.
However, it is important to note that some UXO disposal activities such as the recovery, collection, and subsequent burial or placement in a landfill, on-range are indeed regulated by RCRA. Additionally, an UXO or munition debris shipped off-range for treatment or disposal is considered a solid waste and potentially subject to RCRA.
Disassembly Operations
Section 266.202(a)(2) of the rule states unused munitions being repaired, reused, recycled, reclaimed, disassembled, reconfigured, or otherwise subjected to materials recovery activities are not subject to RCRA, "unless such activities involve use constituting disposal as defined in Section 261.2(c)(1) or burning for energy recovery as defined in Section 261.2(c)(2)." However, RCRA regulations do apply, if the munition is already classified as a waste and the disassembly operations are conducted to prepare for waste disposal. Materials recovery operations constitute a large part of DOD's Resource Recovery and Recycling program, which EPA strongly encourages and supports.
It is important to note that once materials recovery activities have been completed, any remaining residuals requiring disposal or treatment prior to disposal are considered solid wastes, possibly hazardous wastes, and subject to regulation under RCRA.
When do Munitions Become Waste ?
Unused Munitions
In 40 CFR Part 266, subpart M, Sections 266.202 (b) (1)-(4) the regulations state that an unused munition becomes a solid waste when any of four conditions apply:
- "The unused munition is abandoned by being disposed of, burned, incinerated, or otherwise treated prior to disposal." Thus, open burning/open detonation or incineration of unused munitions (except when done during an emergency response or during training in the use of a product, see above) is regulated, including the permit requirements. Similarly, unused munitions that were buried or landfilled in the past are considered abandoned, and therefore, subject to applicable RCRA regulations.
- "The unused munition is removed from storage for purposes of disposal or treatment prior to disposal." Typically, USAF personnel are removing munitions from storage for repair, reuse, recycling, reclamation, reconfiguration, or evaluation purposes, not waste disposal. As such, the munition is not a solid waste when shipped for these purposes. For example, ammunition classified as unserviceable or in a demilitarization account (BHW) may be returned to service after further review, or after reprocessing, sold for non-military purposes, or sold to nations that maintain weapons that utilize these munitions, or otherwise reused, reclaimed, or recycled. Additionally, unused munitions scheduled for disposal may be called back into service. Therefore, inclusion of a munition in a demilitarization account or a determination that a munition is "unusable" for its intended purpose does not, in EPA's view, constitute disposal and is not subject to RCRA. As another example, munitions classified as unserviceable are removed from storage and sent to central arsenals for evaluation to determine if they are, in fact, unusable and should be disposed of, or whether they can be recycled or processed for other uses. In this instance, the munition is not being removed from storage and transported for the purpose of treatment or disposal, but rather for evaluation. Therefore, RCRA regulations would not apply to the munition, until that time that a decision to destroy [the munition] had been clearly made, and the munition was removed from storage. Similarly, a munition may be removed from storage for the purpose of reconditioning, recycling, or materials recovery, and not be subject to RCRA regulations.
- "The unused munition is deteriorated, leaking, or damaged to the point that it can no longer be returned to serviceable condition, and cannot be reasonably recycled or used for other purposes." This is the most common circumstance under which an unused munition becomes a solid waste. In this case, a decision has been made to dispose of the munition, or treat it and it is removed from storage for transportation to a disposal site, or treatment unit, or to another facility for disposal. EPA recognizes that that under certain circumstances, munitions in storage may deteriorate to a point where they are no longer viable "products" and may present a potential danger or environmental threat. Section 266.202 (b) (3) of the Rule defines an unused solid munition as a solid waste if it is "deteriorated or damaged (e.g., the integrity of the munition is compromised by cracks, leaks, or other damage) to the point that it cannot be put into a serviceable condition, and cannot be reasonably be recycled for other purposes". For example, if the chemical stabilizers in a rocket propellant have deteriorated to the point where there is a significant hazard of auto-ignition, and the only options available to the Air Force are treatment and disposal, then the propellant would be a solid waste.
- "The munition has been determined by an authorized military official to be a solid waste." In this instance, the designated waste munition would be subject to RCRA regulations unless it is a non-chemical munition that meets the terms of the conditional exemptions in Sections 266.203 or 266.205. For example, in 1984, the Army determined that M55 rockets are hazardous waste. DoD made this decision because the rocket delivery system no longer existed, and that for operational reasons, the rockets would not be used in military operations, and that they would not be sold or reclaimed. These rockets are now being regulated as hazardous waste under RCRA. EPA emphasizes that this provision requires a specific declaration by an authorized military official that a munition is a solid or hazardous waste. A decision under DoD classification systems that a munition is "unserviceable" or the placement of a munition into a demilitarization account would not, by itself, constitute a decision that a munition is a solid waste.
Used or Fired Munitions
The rule clarifies that used or fired munitions are solid wastes when they are removed from their landing spot and then either: 1) managed off-range; or 2) disposed of (buried or landfilled) on range. For example, formerly used defense sites (FUDS) no longer under military control sometimes contain UXO or munitions fragments. Used or fired munitions removed from their landing spot and transported off-range would be subject to RCRA regulation (except in emergency situations). Similarly, used or fired munitions resulting from research and training activities at locations other than ranges (laboratories) would be considered solid waste when removed from the site of use and transported for treatment or disposal. Additionally, the rule provides that munitions that land off-range that are not promptly rendered safe (if necessary) and/or retrieved, are statutory solid wastes under RCRA section 1004(27) and potentially subject to RCRA corrective action or Section 7003 authority. This is based upon EPA's view that a failure to render safe and retrieve a munition that lands off-range would be evidence of intent to discard the munition, just as the failure to respond to a spill of a hazardous material could be evidence of intent to discard. If remedial action or render safe procedures were not feasible, the operator of the range is required to maintain a record of the event including the type of munition that was fired off-range and its location (if known) for as long as a threat remains.
Other Considerations
Military Munitions on Closed or Transferred Ranges
EPA has decided to postpone final action on this issue, partly because DoD has not yet issued the range cleanup rule, (DoD Range Rule).
Waste Materials Derived from Munitions Manufacture
The Munitions Rule makes no changes to the existing rules regarding waste materials derived from munitions manufacture.
Generator and Transporter Standards
The Rule makes changes to generator and transporter requirements as they pertain to munitions emergency responses and to waste military munitions. First, the rule exempts persons responding to emergencies (immediate threats from explosives and munitions) from RCRA generator and transportation requirements. This applies to conventional as well as chemical munitions responses, as well as emergencies involving civilian authorities and non-military explosives. Secondly, the rule exempts from RCRA generator and transporter requirements (including manifesting) waste non-chemical munitions that are shipped from a military owned or operated facility to a military owned or operated facility, as long as the shipping was done in accordance with DDESB shipping controls. This provision applies to waste munitions that are transported by commercial carriers under contract to the military and who have signed a contractual compliance agreement with Military Traffic Management Command, and who operate under DDESB standards. This exclusion does not apply to chemical munitions or chemical agents.
It should be noted that these exemptions are conditional and failure to meet their requirements could result in loss of the exemption or other penalty. Personnel responsible for shipping and transporting munitions should become familiar with the regulations as written.
The rule also exempts all generators and transporters, not just the military, from the RCRA manifesting requirements for transportation of hazardous waste on public or private right-of-ways on or along the border of contiguous properties under control of the same person, regardless of whether the contiguous properties are divided by right-of-ways.
Storage Standards
Waste munitions which exhibit a hazardous waste characteristic or are listed hazardous wastes are regulated under 40 CFR Parts 260 _ 279 while in storage unless:
- They are not chemical agents of chemical munitions;
- They are subject to Department of Defense Explosives Safety Board (DDESB) standards;
- They are stored in accordance with DDESB standards; and
- DoD complies with notice and reporting requirements described in the rule.
If waste munitions are not stored in accordance with DDESB standards, or are otherwise not eligible for the conditional exemption, they must be stored in accordance with:
- 40 CFR 264 or 265, Subpart EE, "Hazardous Waste Munitions and Explosives Storage," or
- Managed in other types of storage units, such as containment buildings (subpart DD), tanks (subpart J), or containers (subpart I).
The above storage standards reflect the nature of waste munitions and explosives and insure regulatory requirements do not interfere with the safe handling of these materials. Included in these standards are design, operation, monitoring, inspection, closure, and post-closure care standards consistent with the standards set for other RCRA units.
Waste Chemical Munitions
DoD policy for the past several years, has been to manage and store chemical munitions and agents as a RCRA regulated hazardous waste. Therefore, EPA does not believe additional rulemaking would enhance the protection of human health and the environment with respect to this specific issue. The rule, therefore, contains no changes for chemical munitions operations, unless otherwise specified.
Permit Modifications to Receive Off-Site Waste Munitions
Some RCRA permits at military installations have conditions prohibiting the receipt of "off-site" wastes. Under these permit restrictions, if the point of generation of a waste munition is any place other than the permitted installation, then the waste munition could not be accepted at the facility for treatment, storage, or disposal without the installation first receiving a RCRA permit modification. With the promulgation of the Munitions Rule, a number of formerly unregulated munitions might now be deemed to be wastes, and thus subject to these off-site permit restrictions. However, a provision in 40 CFR 270.42 (g) finalized with this rule allows permitted facilities with off-site prohibitions to continue to receive off-site munitions that have been newly designated solid waste, provided there is timely notification to the permitting authority (in the form of a Class 1 permit modification request), followed by a Class 2 permit modification request. Under this procedure, the facility may continue to accept waste munitions from off-site sources until the permitting authority makes a final decision on the Class 2 permit modification request.
There are three specific requirements that are attached to this provision and are provided in 40 CFR 270.42(h). First, the facility must be in existence on the date the munitions rule goes into effect, and must already have a permit to handle waste munitions. Second, the facility must submit a request for a Class 1 permit modification that seeks an amendment or removal of the permit restriction on off-site waste. Third, following a submission of the Class 1 permit modification request, a facility would have an additional six months following the effective date of the munitions rule to submit a Class 2 permit modification request for the removal of the off-site waste prohibition. Following submission of the Class 2 modification, the facility would be allowed to continue to accept waste munitions from off-site sources until such time as a final decision to grant or deny the modification is made.
The Munitions Rule does not affect activities at interim status facilities. In some cases however, the facility's part B permit may include an off-site waste prohibition. In this case, the facility owner should amend the permit application.
Emergency Responses
EPA considers immediate or time-critical responses to explosives or munitions emergencies to be an immediate response to a discharge or imminent and substantial threat of a hazardous waste. Such responses, therefore, are exempt from RCRA permitting, including emergency permits. After the emergency is determined to be over, however, any additional waste management may be subject to regulation. Additionally, three significant definitions are included in Section 260.10. This rule defines "explosives or munitions emergency," "explosives or munitions emergency response," and "explosive or munitions emergency response personnel" for regulatory purposes.
State Authority
Under RCRA Section 3006, EPA may authorize a State to administer and enforce the RCRA hazardous waste program. Additionally, Section 3009 of RCRA allows States to impose regulatory standards that are more stringent or more extensive in scope than those in the Federal program. Therefore, if a specific Air Force base is located in a "RCRA-approved" State, the state legislature has the authority to impose restrictions or definitions more stringent or broader in scope than those presented in the Munitions Rule. Significant effort should be made to coordinate with the appropriate State agencies to clarify any local regulations that may apply to munitions.
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