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Proposed Rule2024-05088

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

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Published

March 20, 2024

Issuing agencies

Environmental Protection Agency

Abstract

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.

Full Text

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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-05088]

[[Page 19951]]

Vol. 89

Wednesday,

No. 55

March 20, 2024

Part II

Environmental Protection Agency

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

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

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

[[Page 19952]]

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ENVIRONMENTAL PROTECTION AGENCY

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

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2021-0397, by one of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the online instructions for submitting comments.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, OLEM Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460.
<bullet> 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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided.

FOR FURTHER INFORMATION CONTACT: For further information regarding
specific aspects of this document, contact Sasha Lucas-Gerhard (email
address: <a href="/cdn-cgi/l/email-protection#3d5a584f555c4f59134e5c4e555c7d584d5c135a524b">[email&#160;protected]</a>, phone number: (202) 566-0346) or Paul
Diss (email address: <a href="/cdn-cgi/l/email-protection#51353822227f2130243d113421307f363e27">[email&#160;protected]</a>, 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, <a href="https://www.epa.gov/hw/regulatory-status-automotive-airbag-inflators-and-fully-assembled-airbag-modules">https://www.epa.gov/hw/regulatory-status-automotive-airbag-inflators-and-fully-assembled-airbag-modules</a>). 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\ <a href="https://www.epa.gov/fedfac/emerging-contaminants-and-federal-facility-contaminants-concern">https://www.epa.gov/fedfac/emerging-contaminants-and-federal-facility-contaminants-concern</a>.
\4\ Alternatives for the Demilitarization of Conventional
Munitions, NASEM, January 2019. <a href="https://www.nap.edu/catalog/25140/alternatives-for-the-demilitarization-of-conventional-munitions">https://www.nap.edu/catalog/25140/alternatives-for-the-demilitarization-of-conventional-munitions</a>.
\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 <a href="https://comptox.epa.gov/dashboard/">https://comptox.epa.gov/dashboard/</a>.
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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, <a href="https://www.sciencedirect.com/science/article/pii/S0269749121022363">https://www.sciencedirect.com/science/article/pii/S0269749121022363</a>.
\7\ Information about specific chemicals, including information
on health and environmental impacts, can be found on EPA's CompTox
Chemicals Dashboard <a href="https://comptox.epa.gov/dashboard/">https://comptox.epa.gov/dashboard/</a>.
\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)'' <a href="https://rcrapublic.epa.gov/files/14946.pdf">https://rcrapublic.epa.gov/files/14946.pdf</a>.
\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 <a href="https://www.epa.gov/sites/production/files/2019-12/documents/final_obod_alttechreport_for_publication_dec2019_508_v2.pdf">https://www.epa.gov/sites/production/files/2019-12/documents/final_obod_alttechreport_for_publication_dec2019_508_v2.pdf</a>.) 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
<a href="https://www.epa.gov/sites/production/files/2019-12/documents/final_obod_alttechreport_for_publication_dec2019_508_v2.pdf">https://www.epa.gov/sites/production/files/2019-12/documents/final_obod_alttechreport_for_publication_dec2019_508_v2.pdf</a>. ``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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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

[[Page 19958]]

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

[[Page 19959]]

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

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

[[Page 19960]]

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

\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.
---------------------------------------------------------------------------

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

D. Alternative Technology Evaluation and Implementation

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

\30\ Open burning of hazardous waste was originally proposed to
be prohibited unless the owner/operator ``can demonstrate that
alternative treatment and disposal methods . . . have been evaluated
and determined to be technically or economically infeasible or that
the transport, treatment, and disposal of such waste poses a greater
risk to human health or the environment than open burning.'' 43 FR
59000, December 18, 1978.
---------------------------------------------------------------------------

Further confounding implementation of alternative technologies for
facilities operating under subpart X permits or ``OB/OD permits,''
there is no mention of the prohibition of OB of hazardous wastes nor
the exception for waste explosives in the subpart X regulations at
Sec. 264.600. However, EPA did address its expectations for permitting
OB/OD units in the 1987 final rule for subpart X (see footnote 13).
These expectations and supporting statutory references are restated in
EPA's June 7, 2022, policy memorandum entitled Open Burning and Open
Detonation (OB/OD) of Waste Explosives Under the Resource Conservation
and Recovery Act (RCRA). To summarize from the memorandum, EPA expects
that subpart X permits would only be issued for OB/OD units treating
waste explosives as defined in Sec. 265.382, and that such permits
would incorporate the prohibition on OB/OD except for waste explosives
which cannot safely be disposed of through other modes of treatment
(see footnote 17).
Proposed Revisions and Supporting Rationale
EPA proposes to clarify the existing regulations to remove any
ambiguity in implementing the requirement to demonstrate eligibility
for continued use of OB/OD in light of the availability of safe
alternative technologies. EPA proposes to revise the regulatory text at
Sec. 265.382, and include new regulatory text in new subpart Y,
Sec. Sec. 264.704 through 264.715 and Sec. Sec. 265.704 through

[[Page 19963]]

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

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

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

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

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

[[Page 19964]]

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

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

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

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

[[Page 19965]]

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

\37\ ``Aerostat-based sampling of emissions from open burning
and open detonation of military ordnance.'' J. Aurell, et al.
Journal of Hazardous Materials, 2015. <a href="https://19january2017snapshot.epa.gov/sites/production/files/2015-03/documents/9546011.pdf">https://19january2017snapshot.epa.gov/sites/production/files/2015-03/documents/9546011.pdf</a>.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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, <a href="http://www.directives.doe.gov">http://www.directives.doe.gov</a>.
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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.
<bullet> Bulk energetics and propellants include unconfined
energetic materials.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> Potentially explosive-contaminated materials include
energetic-contaminated wastes, such as cotton rags, gloves, and post-
test debris; and energetic contaminated containers such as wood crates,
cardboard boxes, velostat bags, and cellulose drums (see footnote 45,
pgs. 2-3).
Chemical aspects should be characterized according to the
constituents contained in the item. For example, composite rocket motor
contains ammonium perchlorate, aluminum, polyurethane, and
nitroguanidine (NQ).
For each physical grouping of items, each item in that group would
be listed, along with the quantity, the pounds NEW of each item, the
total pounds NEW per year for each item requiring treatment,\44\ its
chemical content, and current method of treatment. For example, under
large-cased munitions, one entry may be: 25 ammonium perchlorate rocket
motors, 60 lbs NEW propellant per motor, 1,500 lbs NEW per year,
contains ammonium perchlorate, aluminum, polyurethane, and NQ, and is
treated by OB.
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\44\ Pounds per year may be reported for the most recent year
available, or when a waste stream fluctuates widely from year to
year, it may be reported as an average over a maximum of five years.
---------------------------------------------------------------------------

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

[[Page 19970]]

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

[[Page 19971]]

(DOT) competent authority approval (i.e., EX number) \46\ or a special
permit \47\ has been requested and denied. Documentation would need to
consist of the denial correspondence and the tracking number assigned
to the request for the competent authority approval or special
permit.\48\ For decisions concerning MTUs, the rationale would be based
on the same criteria as any other alternative technology: if it is safe
and available. EPA believes it equally important to consider off-site
shipment and use of MTUs as potential alternative solutions. Any waste
streams that remain after a thorough evaluation of all possible
alternative technology options would then likely be eligible for OB/OD.
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\46\ Competent authority approvals are written and issued by DOT
(and include assignment of an ``EX Number'' for the approved
explosive material). Persons can be authorized or certified by the
DOT to evaluate, examine, and test explosives and recommend a
shipping description, division, and compatibility group, and submit
to DOT for approval; however, all approvals must be issued by DOT
and do not expire. For more information on competent authority and
approvals, see 49 CFR 105.5 and 173.56(b). For information on
organizations approved to examine and make recommendations on new
explosives, see: <a href="https://www.phmsa.dot.gov/hazmat/energetic-materials-approvals/explosive-test-labs">https://www.phmsa.dot.gov/hazmat/energetic-materials-approvals/explosive-test-labs</a>.
\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: <a href="https://www.phmsa.dot.gov/approvals-and-permits/hazmat/approvals-search">https://www.phmsa.dot.gov/approvals-and-permits/hazmat/approvals-search</a>.
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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:
<bullet> 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.
<bullet> 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.
<bullet> When safe to do so, shipping wastes off-site to another
treatment facility to be managed by an alternative technology.
<bullet> 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.
<bullet> 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: <a href="https://www.epa.gov/sites/default/files/2019-09/documents/final_rcra_ppm_updated.pdf">https://www.epa.gov/sites/default/files/2019-09/documents/final_rcra_ppm_updated.pdf</a>.
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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

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