[Federal Register Volume 70, Number 192 (Wednesday, October 5, 2005)]
[Rules and Regulations]
[Pages 58016-58054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19696]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 179
Munitions Response Site Prioritization Protocol
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: The Department of Defense (hereinafter the Department) is
promulgating the Munitions Response Site (MRS) Prioritization Protocol
(MRSPP) (hereinafter referred to as the rule) as a rule. This rule
implements the requirement established in section 311(b) of the
National Defense Authorization Act for Fiscal Year 2002 for the
Department to assign a relative priority for munitions responses to
each location (hereinafter MRS) in the Department's inventory of
defense sites known or suspected of containing unexploded ordnance
(UXO), discarded military munitions (DMM), or munitions constituents
(MC).
DATES: This rule is effective October 5, 2005.
FOR FURTHER INFORMATION CONTACT: If there are specific questions or to
request an opportunity to review the docket for this rulemaking, please
contact Ms. Patricia Ferrebee, Office of the Deputy Under Secretary of
Defense (Installations & Environment) [ODUSD (I&E)], 703-571-9060. This
final rule along with relevant background information is available on
the World Wide Web at the Defense Environmental Network & Information
eXchange Web site, https://www.denix.osd.mil/MMRP.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
III. Summary of Significant Changes to the Final Rule
IV. Response to Comments
A. Applicability and Scope
B. Definitions
C. Policy
D. Responsibilities
E. Procedures
1. Explosive Hazard Evaluation Module
2. Chemical Warfare Materiel Hazard Evaluation Module
3. Health Hazard Evaluation Module
4. Determining the Munitions Response Site (MRS) Priority
F. Sequencing
V. Administrative Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
B. Regulatory Flexibility Act
C. Unfunded Mandates
D. Paperwork Reduction Act
E. National Technology Transfer and Advancement Act
F. Environmental Justice Requirements under Executive Order
12898
G. Federalism Considerations under Executive Order 13132
I. Authority
This rule is being finalized under the authority of section 311(b)
of the National Defense Authorization Act for Fiscal Year 2002,
codified at section 2710(b) of title 10 of the U.S. Code [10 U.S.C.
2710(b)].
II. Background
The Department of Defense (hereinafter the Department) developed
the rule in consultation with states and tribes, as required by
statute. The Department published the proposed rule in the Federal
Register as a proposed rule on August 22, 2003, at 68 FR 50900. A
technical correction to the proposed rule was published on September
10, 2003, at 68 FR 53430.
The public comment period for the proposed rule ended November 19,
2003. Sixteen commenters submitted comments on the proposed rule. The
preamble to this final rule consists mainly of an explanation of the
Department's responses to these comments. Therefore, both this preamble
and the preamble to the proposed rule should be reviewed should a
question arise as to the meaning or intent of the final rule. Unless
directly contradicted or superseded by this preamble to the rule or by
the rule, the preamble to the proposed rule reflects the Department's
intent for the rule.
The preamble to the final rule provides a discussion of each
proposed rule section on which comments were received. Revisions to the
proposed rule that are simply editorial or that do not
[[Page 58017]]
reflect substantive changes are not addressed in this preamble.
In addition to the comments on the proposed rule, the Department
received a number of comments that addressed topics outside the scope
of the proposed rule. These topics included: The universe of sites that
comprise the inventory, which is established by statute; funding for
munitions responses; comments on data quality; a proposal for training
to educate Department personnel, regulators, and/or stakeholders; and
implementing guidance that the Department may develop for the rule.
These comments are not addressed in this rule. All comments the
Department received are presented in a ``Response to Comments''
document, which has been placed in the docket for this rulemaking.
III. Summary of Significant Changes to the Final Rule
The Department made a number of changes to the proposed rule that
are reflected in this final rule. Many of these revisions pertain to
clarification of terms and definitions based on comments received, or
changes to reflect new statutory definitions promulgated in the
National Defense Authorization Act for 2004 and codified at 10 U.S.C.
101.
The most significant change to the proposed rule pertains to the
module that evaluates the potential health hazards associated with MC.
The Department modified this module in response to several comments.
This module now has seven potential outcomes (i.e., A through G) rather
than the three potential outcomes described in the proposed rule (i.e.,
high, medium, and low). A detailed explanation of this modification is
provided in a following section of this preamble.
The Department has also revised the proposed rule to clarify that
current land owners may participate in application of the rule at
Formerly Used Defense Sites (FUDS). Another change was to clarify that
the quality assurance panel that reviews each priority will consist of
only Department personnel.
IV. Response to Comments
This section contains the Department's responses to the comments
received on the proposed rule, organized by the structure of the
proposed and final rules.
A. Section 179.2. Applicability and Scope
Several commenters stated that the proposed rule should be
published as Departmental guidance and not as a federal regulation. The
Department, however, interpreted the language in the National Defense
Authorization Act for 2002 as a term of art invoking the requirement
for public comment provided in the Administrative Procedures Act. The
Department is proceeding with publishing the final rule as a federal
regulation.
One commenter stated that sites containing chemical warfare
materiel (CWM) should be included as potential MRSs. The Department
observes that the proposed rule makes clear that, if CWM is present at
a defense site [as defined in 10 U.S.C. 2710(e)] in the form of UXO,
DMM, or MC, that site would be an MRS and would be included in the
inventory, and that all MRSs in the inventory are addressed under the
rule. The Department made no change to the rule to address this
comment.
Another comment stated that the Department had not clearly
explained the scope of the exclusion for ``combat operations'' under 10
U.S.C. 2710(d)(2). This exclusion exempts from the requirement for
inclusion in the inventory and application of the rule all locations
where ``the presence of military munitions'' resulted ``from combat
operations.'' The Department has not modified the rule.
A commenter requested that the Department change the Department's
Control classification in the Status of Property data elements
(proposed rule, Appendix A, Tables 5 and 15) to include land or water
bodies owned, leased, or otherwise possessed by state military
departments. The Department declined to make this change, as the
Department does not have jurisdiction over properties owned, leased, or
otherwise possessed by state military departments. Such locations are
under state jurisdiction and would not be included in the 10 U.S.C.
2710(a) inventory.
B. Section 179.3. Definitions
This section of the preamble addresses comments on the definitions
in section 179.3 of the proposed rule.
The Department has modified definitions from the proposed rule or
included certain new definitions to make this regulation consistent
with terms and definitions promulgated by the National Defense
Authorization Act for Fiscal Year 2004. These terms and definitions are
codified at 10 U.S.C. 101. Affected terms are military munitions,
operational range, range activities, and UXO.
The Department has also added the term ``munitions and explosives
of concern (MEC)'' to the final rule for consistency with new
Department policy. MEC, which is intended to distinguish specific
categories of military munitions that may pose unique explosives safety
risks, means UXO, as defined in 10 U.S.C. 101(e)(5); discarded military
munitions, as defined in 10 U.S.C. 2710(e)(2); or munitions
constituents (e.g., TNT, RDX), as defined in 10 U.S.C. 2710(e)(3),
present in high enough concentrations to pose an explosive hazard. As
used in the rule, this term does not create any new category of
materials covered under the proposed rule, nor does it exclude any
category of materials covered under the proposed rule, and is adopted
herein simply for consistency with terminology used elsewhere within
the Department.
In response to a comment, the term ``chemical warfare agents'' has
been changed to ``chemical agents.'' The definition of ``chemical
warfare agents'' has also been changed to read: ``Chemical agent means
a chemical compound (to include experimental compounds) that, through
its chemical properties produces lethal or other damaging effects on
human beings, is intended for use in military operations to kill,
seriously injure, or incapacitate persons through its physiological
effects. Excluded are research, development, testing and evaluation
(RDTE) solutions; riot control agents; chemical defoliants and
herbicides; smoke and other obscuration materials; flame and incendiary
materials; and industrial chemicals. This definition is adopted based
on 50 U.S.C. 1521(j)(1) in which the term ``chemical agents and
munitions'' means ``* * * an agent or munition that, through its
chemical properties, produces lethal or other damaging effects on human
beings, except that such term does not include riot control agents,
chemical herbicides, smoke, and other obscuration materials.'' This
change makes the terminology used in the final rule consistent with the
existing statutory definition of ``chemical agent and munition'' in 50
U.S.C. 1521(j)(1). The Department observes that chemical agents under
50 U.S.C. 1521(j)(1) include the V- and G-series nerve agents; H-series
(i.e., ``mustard'' agents) and L-series (i.e., lewisite) blister
agents; and certain industrial chemicals, including hydrogen cyanide
(AC), cyanogen chloride (CK), or carbonyl dichloride (called phosgene
or CG), when contained in a military munition; and does not include
riot control agents (e.g., w-chloroacetophenone [CN] and o-
chlorobenzylidenemalononitrile [CS] tear gas); chemical defoliants and
herbicides; smoke and other obscuration materials; flame and incendiary
materials; and industrial chemicals that
[[Page 58018]]
are not configured as a military munition.
The definition of ``chemical warfare materiel (CWM)'' has changed
to reflect the adoption of the term ``chemical agent'' discussed
previously in this rule.
One commenter stated that although the definition of ``military
range'' includes buffer zones with restricted access and exclusionary
areas, exclusionary zones at some former target bombing areas are not
well defined. While the Department realizes this may be the case at
some former military ranges, it believes site conditions and personnel
experience will help ensure such areas are included and provide for
reasonable application of the rule.
A commenter requested a change to the definition of ``MRS,''
maintaining that portions of a munitions response area (MRA) may not be
part of an MRS and, therefore, would not be evaluated using this rule.
The Department would like to clarify that, depending on site-specific
factors, an MRA may be designated a single MRS or may be subdivided for
the purposes of evaluation into multiple MRSs. In each and every case,
however, once all the MRSs comprising an MRA have been evaluated
(whether the MRA consists of a single MRS or multiple MRSs), the total
acreage encompassed by the MRA will have been evaluated using this
rule. Through this disciplined and documented approach, the protocol
will ensure that an MRA's entire acreage will be addressed.
For example, in investigating a 1,000-acre MRA, the Department may
identify five discrete locations (e.g., MRS 1 through 5) that
constitute 1,000 acres that require evaluation. Formal decision
documents will be prepared for all five MRSs that document the
Department's evaluations for the entire 1000 acres. This will ensure
that the entire MRA acreage will be evaluated using the protocol.
One commenter requested adding to the end of the definition of
``MRA'': `` * * * therefore, all property within a munitions response
area is known to require a munitions response.'' The Department
observes that the definition of ``MRA'' already states, ``An MRA is
comprised of one or more munitions response sites'' and the definition
of an ``MRS'' is ``* * * a discrete location within an MRA that is
known to require a munitions response.'' Because an MRA must comprise
at least one MRS, the Department does not believe the definition
requires modification as suggested by the commenter.
In response to another comment as to whether or not the acreage of
an MRA includes water bodies, the Department observes that the acreage
of an MRA may extend beyond the terrestrial boundary and include water
bodies, such as lakes, ponds, streams, and coastal areas.
One commenter requested adding CWM, in addition to UXO, DMM, and
MC, to the definitions of several terms, including MRA and MRS, and at
several locations in the tables (Appendix A) of the proposed rule. The
Department points out that the definition of ``military munitions''
already includes CWM; therefore, all other terms that build on the
military munitions definition, specifically UXO and DMM, already
include CWM.
C. Section 179.4. Policy
One commenter noted many positive attributes to the proposed rule.
These included affirmative statements concerning the Department's
active solicitation of participation by and inclusion of the states,
the tribes, and stakeholders; identifying the need for a quality
assurance panel to promote consistency in the application of the rule;
straightforward recognition that the same level of information will not
be available for all sites, and that for some sites, more information
will be required in order to realistically apply the rule; and
weighting factors, for the most part, are well explained and easy to
understand. These comments did not require changing the proposed rule.
One commenter stated that the team approach to prioritization was
too broad and implies that several people from multiple agencies,
community groups, or tribes will need to be involved in the application
of the rule to a specific MRS. The Department continues to believe that
it is important to receive input and feedback from such sources in
assigning a relative priority for response activities to each MRS and
has not amended the proposed rule to address this comment.
The Department received a comment recommending that a state
regulatory agency be designated to play a major role in the munitions
response process, and if a state agency is unable to perform in this
capacity, the U.S. Environmental Protection Agency (U.S. EPA) should do
so. In such situations, involvement of U.S. EPA personnel is a matter
for U.S. EPA to decide and not the Department; however, the Department
notes that it will use a team approach for prioritization and
encourages these agencies to participate.
The Department received a comment soliciting clarification on
whether stakeholders will have input on the ``no longer required''
determination. An MRS will have the ``no longer required''
determination assigned only after the Response Complete (RC) or Remedy-
in-Place (RIP) milestone is achieved. Stakeholders are afforded
opportunities to participate and provide input throughout the munitions
response process, to include prior to and following these milestones;
however, stakeholders do not have a role in determining when an MRS has
met the requirements for achieving these milestones.
D. Section 179.5. Responsibilities
A comment was received regarding the term ``administrative
control'' and whether this term referred to specific Component's
ownership responsibilities. The Department would like to clarify that
the phrase ``under their administrative control'' reflects the
delegation of responsibilities for munitions responses within the
Department. This responsibility does not require the Department to have
a current real property interest at a particular MRS.
The Department received several comments pertaining to
prioritization at FUDS sites. One commenter asked for clarification of
the phrase ``under the administrative control of,'' specifically
pertaining to how the rule will apply at a FUDS. Under 10 U.S.C. 2701,
the Department is required to ``carry out a program of environmental
restoration * * * at each facility or site which was under the
jurisdiction of the Secretary * * * at the time of actions leading to
contamination.'' Therefore, under this requirement, the Department will
apply the rule to an MRS at a FUDS if that MRS is included in the 10
U.S.C. 2710(a) inventory. FUDS, however, are not considered under the
Department's control for the purposes of the Status of Property data
elements in Appendix A, Tables 5 and 15.
Another commenter noted that for FUDS, the property owner should be
involved with applying the rule to any MRS at the FUDS. The Department
agrees and has modified section 179.5 to state: ``Ensure that EPA,
other federal agencies (as appropriate or required), state regulatory
agencies, tribal governments, local restoration advisory boards or
technical review committees, local community stakeholders, and the
current property owner (if the MRS is outside Departmental control) are
offered opportunities to participate throughout the process of
application of the rule and in making sequencing recommendations.''
Several commenters stated concerns pertaining to MRSs that have
already been evaluated using the Risk
[[Page 58019]]
Assessment Code (RAC). The Department wishes to clarify that all MRSs
in the 10 U.S.C. 2710(a) inventory will be evaluated using the rule and
the most current information available, irrespective of whether that
MRS has been evaluated under the RAC framework.
One commenter inquired whether a low prioritization score means
``no further action.'' The Department would like to clarify this is not
the case. Prioritization scores are the first tool when defining the
need for a munitions response.
One commenter asked the Department to add a definition of
``evaluation pending'' to the rule and publish procedures and time
frames that apply to evaluation pending sites. The Department's
response is that evaluation pending status is given to an MRS only when
there is insufficient information to complete the evaluation using the
rule. As soon as sufficient data are available, the MRS will be
evaluated. Although the Department is not specifying time frames for
addressing the MRS in evaluation pending status as part of this
regulation, the Department will be developing specific goals to drive
program progress.
A commenter asked for clarification as to when the rule will be
applied at sites where the environmental restoration process is
considered complete. The Department responds that, as stated in the
proposed rule, an MRS no longer requires a priority when the Department
has achieved the RC or RIP milestones. This means that a Component or
another entity has conducted a munitions response, all objectives set
out in the decision document for the MRS have been achieved, and no
further action, except for long-term management and/or five-year
reviews, is required.
There were many comments pertaining to the quality assurance panel
that will review prioritization decisions, especially inquiries about
the panel's composition and authority. The Department wishes to clarify
that the panel will comprise Component representatives trained in
application of the rule who were not involved in the initial scoring of
a specific MRS being reviewed. Stakeholders participate in application
of the rule at an MRS, but will not be part of the quality assurance
panel. The panel is an internal management and oversight function to
ensure consistency of the rule's application. Components are, however,
required to provide regulators and stakeholders the opportunity to
comment on the quality assurance panel's rationale for any changes to
the priority originally assigned.
One commenter proposed that the circumstances under which the rule
shall be reapplied include when a quality assurance panel recommends a
priority change. In response, the Department states that the panel will
not direct a Component to reapply the rule; rather, the panel's
decision, when adopted, will supersede the original priority assigned.
If the panel recommends a change that results in a different priority,
the Component will report, in the inventory data submitted to the
ODUSD(I&E), the rationale for this change. The Component will also
provide this rationale to the appropriate regulatory agencies and
involved stakeholders for comment before finalizing the change.
Another commenter expressed support for the quality assurance panel
in ensuring uniform application of the rule, but voiced concern this
panel may not be effective if they must review all decisions before the
prioritization can be finalized. According to the comment, initially it
may be more productive to require that the panel review a percentage of
the priority decisions to ensure they can review enough data to decide
either to support or to change the priority assigned. The Department's
response is that absent a review of each prioritization decision, it
cannot be stated with authority that all decisions are in fact
representative of site conditions and that the rule has been applied in
a consistent manner. For this reason, at least initially, the
Department is unwilling to consider a sampling-based approach to the
work of the quality assurance panel.
One commenter stated that the rule's emphasis on Management Action
Plans (MAPs) may place a strain on already limited state resources,
especially in those states that do not already have a MAP. The
Department responds that MAPs have been a requirement for all sites
addressed under the Defense Environmental Restoration Program (DERP)
for many years. If a specific site is not addressed in a MAP, that
matter should be referred to the appropriate Component's Deputy
Assistant Secretary with responsibility for environmental matters.
Should such a referral not result in action, the matter should then be
referred to the ODUSD(I&E).
Another commenter questioned how the MAPs for several MRSs would be
integrated with the statewide MAP being developed in the FUDS program.
The Department would like to clarify that the statewide MAP in the FUDS
program collectively addresses all FUDS within a state, and that a MAP
for each individual FUDS is also required.
Several commenters noted that conditions at an MRS are subject to
change and such changes should be reflected in the priority. The
Department agrees and has designed the rule to be reapplied if any
specific factor considered in the application of the rule changes and
if that change has the potential to affect the priority assigned.
There were several comments pertaining to sites where
investigations were previously conducted. In response, the Department
affirms that an appropriate munitions response is required for each
MRS, and that an MRS reaches the ``no longer required'' evaluation only
when the Department has conducted a munitions response, all objectives
set out in the decision document for the MRS have been achieved, and no
further action, except for long-term management and/or five-year
reviews, is required.
One commenter questioned the Department's reasons for rescoring
sites based on a munitions response, arguing that the result will be to
lower scores at the MRS without making progress toward completing all
required munitions response activities. The commenter feels that
partial munitions responses and continual rescoring is an inefficient
approach to the program as a whole. The commenter suggests that once an
MRS has received a score suitable to obtain funding, the score should
not be lowered based on a munitions response that does not
comprehensively and completely address the hazards present at the MRS.
The Department disagrees, and notes that an annual reevaluation of the
priority assigned to each MRS is statutorily mandated under 10 U.S.C.
2710(c)(1).
In response to a comment received on the certified letter the
Department will send to states, territories, federal agencies, and
tribal and local governments requesting their involvement in
prioritization, the Department will send the letter to any known
designee specified by the organization, or in the absence of such a
designation, to the head of the organization.
E. Section 179.6. Procedures
This section addresses comments received on section 179.6 of the
proposed rule and on the classification tables in Appendix A.
One commenter recommended that the Department revise the rule so
that all data elements are consistent using a scale of zero to five;
the Explosive Hazard Evaluation (EHE) module,
[[Page 58020]]
Chemical Warfare Materiel Hazard Evaluation (CHE) module, and Relative
Risk Site Evaluation (RRSE) module be combined into one module; and the
priority assigned to a site not be influenced by the type or source of
the hazard that may be present at the site. The Department has not
adopted such a change. Reducing the scale from seven to five,
eliminating the modules, and not addressing the type and source of the
hazard will not ensure that the priority given to an MRS adequately
reflects the hazard posed by conditions at the MRS. The Department's
objectives for the rule are: (1) ensuring that the priority
sufficiently reflects actual conditions and potential hazards at the
MRS, and (2) that the tool used be straightforward and easy to use. The
current construct achieves those objectives.
One commenter requested clarification as to the correct procedure
when multiple classifications apply at a given MRS. The commenter
questioned whether the scores are cumulative within the module or if
only the highest value is used. The Department wishes to clarify that
the one highest value within each data element is used. For example, if
at a specific MRS both (1) hand grenades containing an explosive
filler, which would be categorized as sensitive under Appendix A,
Table, and would score 30, and (2) DMM, containing a high-explosive
filler, that have not been damaged by burning or detonation, which
would be categorized as high explosive (unused) under Appendix A, Table
1, and would score 15 are present, the score (30 points) for the hand
grenades containing an explosive filler would be selected.
Numerous comments received address both the EHE and CHE modules,
particularly pertaining to the accessibility and receptor factors of
these modules. Where this is the case, the comment and response appear
under the EHE module responses for simplicity, but pertain to both
sections.
1. Section 179.6(a). Explosive Hazard Evaluation Module
The Department received numerous comments on the Munitions Type
data element (Appendix A, Table 1) and modified the rule to address
many of the comments. For example, the Department modified two
classifications within this data element to reflect the inherent
difference between primary and secondary explosives. Explosives are
classified as primary or secondary based on their susceptibility to
initiation. Primary explosives, such as lead azide, are highly
susceptible to initiation. Secondary explosives (e.g., TNT, RDX, HMX),
which constitute the bulk of the explosives likely to be present at an
MRS, are formulated to be far less susceptible to initiation. To
address these differences, the Department added to the sensitive
classification: ``Bulk primary explosives, or mixtures of these with
environmental media such that the mixture poses an explosive hazard.''
The Department also revised the Bulk high explosives, pyrotechnics or
propellant classification to exclude primary explosives: ``Bulk
secondary explosives, pyrotechnic compositions, or propellant (not
contained in a munition), or mixtures of these with environmental media
such that the mixture poses an explosive hazard.''
Also pertaining to the Munitions Type data element, another
commenter noted that bulk high explosives mixed with environmental
media can be reactive as well as explosive, and the hazard threshold of
explosive is too high and should be lowered. The commenter suggested
adding ``or reactive'' after ``that result in the mixture being
explosive'' in the description of ``bulk high explosives'' and
definitions for the terms ``reactive'' and ``explosive soil.'' The
Department chose not to make these changes because the commenter did
define ``reactive'' in this context, and the focus of the EHE module is
explosive hazards.
The Department also added an additional classification to the
Munitions Type data element to reflect the lesser risk posed by
pyrotechnics that are unused or undamaged. The Pyrotechnic (used or
damaged) classification is assigned a score of 20 points, while the
Pyrotechnic (not used or damaged) classification is assigned a score of
10 points.
The Department modified the text of the Propellant classification
to be consistent with the other classifications, adding ``* * * that
have been damaged by burning or detonation'' and ``* * * that are
deteriorated to the point of instability'' to the criteria for
propellants that are DMM. The Department also corrected the Practice
classification pertaining to the criteria for DMM to read: ``* * * that
have not been damaged by burning or detonation'' and ``* * * that have
not deteriorated to the point of instability.'' The Department also
provided greater detail in the definition of a ``practice munition.''
One commenter stated that all practice munitions should be
classified together and any MRS with practice munitions should receive
a score of 15. The commenter's position is that many practice munitions
with sensitive fuzes have miniscule amounts of explosives, while other
practice munitions without sensitive fuzes have a much larger explosive
or pyrotechnic spotting charge (e.g., practice bombs). Because practice
bombs, which receive a score of 5, account for some of the most common
and dangerous UXO and cause many serious injuries, the commenter feels
that practice munitions without sensitive fuzes that have explosive or
pyrotechnic spotting charges are not classified correctly. The
Department agrees with the commenter that practice munitions with
explosive or pyrotechnic charges do pose an explosive hazard. When
developing the rule, the Department defined practice munitions as those
munitions that contain inert filler. Practice munitions with explosive
or pyrotechnic charges are classified separately under the same data
element and are given a value.
One commenter identified an inconsistency pertaining to the
Munitions Type data element in that the definition of ``small arms
ammunition'' category used the term ``evidence'' but did not specify
whether this included ``historical evidence'' and ``physical
evidence,'' as is the case for ``evidence of no munitions.'' The
Department has revised the small arms ammunitions category within the
Munitions Type data element to state: ``All used munitions or DMM that
are categorized as small arms ammunition. [Physical evidence or
historical evidence that no other types of munitions (e.g., grenades,
sub-caliber training rockets, demolition charges) were used or are
present on the MRS is required for selection of this category.]''
Several commenters questioned the level of investigation required
for assessing whether physical or historical evidence indicates that no
UXO or DMM are present and suggested that specific investigation
requirements should be developed for different sites. The Department
has defined both historical evidence and physical evidence in the rule.
The personnel applying the rule at an MRS will determine the
appropriate level of evidence. The Department will not provide
additional detail in the final rule, but may address this situation in
implementing guidance or training materials.
One commenter requested clarification on the applicability of the
proposed rule to open burning/open detonation (OB/OD) units. The
commenter expressed concern that the rule indicates that OB/OD sites
are excluded because they were used or permitted for disposal of
military munitions. The Department would like to clarify that OB/OD
units are subject
[[Page 58021]]
to prioritization under the rule only when the unit meets the
requirements for inclusion in the 10 U.S.C. 2710(a) inventory.
One commenter suggested specifically including quality assurance
test ranges within the EHE module Source of Hazard data element
(Appendix A, Table 2) as they are not currently identified. To the
extent that a quality assurance test range is a location that is known
or suspected of containing UXO, DMM, or MC and is included in the
inventory required under 10 U.S.C. 2710(a), the rule would be applied
to that location. To the extent that such a quality assurance test
range meets the criteria of Appendix A, Table 2 (i.e., it meets the
test for being a ``former range''), it is already included.
One commenter did not understand why a former munitions treatment
area or unit would receive a lower score than a former military range
given the unknown hazard posed by munitions that have been treated by
OB/OD. The Department's response is that the higher value assigned to
former military ranges reflects the fact that UXO are fuzed munitions
that have been through their firing and arming cycle. In contrast,
munitions treated in an OB/OD unit, while potentially damaged, are not
normally fuzed and would most likely not complete their arming
sequence. For this reason, UXO at a former military range is considered
to pose a greater hazard than DMM at an OB/OD site.
In response to a comment, the Department modified the Former
industrial operating facilities classification within the Source of
Munitions data element to include former munitions maintenance
facilities.
A commenter requested the definition of ``evidence of no
munitions'' within the Munitions Type, Source of Hazard, and Location
of Munitions (Appendix A, Tables 1, 2, and 3) data elements be changed
to indicate that evidence shows that no UXO or DMM were ``ever''resent.
The Department declines to make this change as the Department does not
want to exclude sites from this classification where evidence indicates
that munitions were at one time present but have since been removed,
for example, as part of normal Department operation of a military range
while the range was in use. This situation is different from UXO or DMM
that are removed as part of a munitions response, as described in the
next paragraph.
Another commenter asked about UXO that is on the surface and has
since been removed, and UXO that is emergent from year to year, such as
through frost heave. If munitions were found on the surface of an MRS,
the MRS would be classified as Confirmed Surface. If investigation
confirms that there are only subsurface munitions present, and natural
phenomena (e.g., frost heave or tidal action) occur on the MRS, the
second-highest category--Confirmed subsurface, active--should be
selected.
In response to a comment, the Department clarified the definition
of ``on the surface'' to mean above the soil layer. UXO found in the
tundra of Alaska, for example, is considered ``on the surface'' for the
purposes of the rule, as the tundra is above the soil layer.
Several commenters stated that within the Information on the
Location of Munitions and the Information on the Location of CWM data
elements (Appendix A, Tables 3 and 13), no water depth is specified for
the Subsurface, physical constraint category. The Department, however,
would like to note that in these tables, a water depth of 120 feet was
cited as a physical constraint.
Several commenters asked the relevance for selecting 120 feet as
the depth for constituting a subsurface physical constraint. The
Department selected this depth because of the limited time (less than
15 minutes) normally allowed to scuba divers at this depth, the
considerable effort needed to dive to and below this depth, and the
dangers associated with such deep dives to basic scuba divers.
Also pertaining to Appendix A, Tables 3 and 13, a commenter
requested that the Department use caution when evaluating activities
that are ``likely to occur'' because land use and recreational
activities can change in ways that no one can predict. The commenter
also noted that similar caution is needed when evaluating physical
constraints because some constraints are barriers only if they are both
kept in place and maintained. The Department agrees with the commenter
that conditions may change over time. To address changes that may occur
over time, the rule requires reevaluation and rescoring if site
conditions change.
Pertaining to the Ease of Access data elements (Appendix A, Tables
4 and 14), one commenter stated that the proposed rule was unclear if
deep-water areas without any monitoring would be scored as a complete
or incomplete barrier. The Department's response is that if a barrier
such as deep water is present, it is evaluated as to its effectiveness
in preventing access to all parts of the MRS. In the specific case
described in the comment, deep-water areas not subject to surveillance
would be scored as Barrier to MRS access is complete, but not
monitored.
One commenter stated that it is inequitable that the highest score
under the Ease of Access data element (Appendix A, Tables 4 and 14) is
a ``10,'' indicating all areas of the MRS are accessible, whereas the
Information on Location of Munitions and Information on Location of CWM
data elements (Appendix A, Tables 3 and 13) have a maximum score of 20,
and a score of 10 represents only the suspected presence of UXO or DMM.
The Department believes the current construct is appropriate because
the Information on Location of Munitions and Information on Location of
CWM data elements address access to the munition or CWM, while the Ease
of Access data elements address access to the MRS.
Some commenters noted that some terms, such as ``barrier,'' need
further clarification to ensure all users apply the term consistently.
For example, people may assess differently whether a security patrol is
a partial barrier to the MRS or not a barrier at all. Additionally,
perceptions of a barrier may vary, as ``deep or fast-moving water'' may
be a challenge instead of a barrier to some people. The Department
recognizes these commenters' points but believes the definition is
sufficient for the purposes of prioritization. Final determination as
to what features, either natural or man-made, are barriers should be
based on site-specific knowledge and the judgment of the personnel
applying the rule to a specific MRS. Additionally, the Component's
quality assurance panels will ensure consistency in the final rule's
application.
One commenter stated that some data elements, specifically within
the accessibility and receptor factors, within the various modules and
among modules, are redundant and should be consolidated. The Department
disagrees. Each data element provides important information on its own,
bringing data from different perspectives together to best reflect
actual site conditions.
Several commenters expressed concern that the receptor factors of
the EHE and CHE modules do not capture transient populations. The
Department points out that two of the three data elements that address
human receptors attempt to address population, regardless of whether it
is permanent or transient. The Population Density data elements
(Appendix A, Tables 6 and 16) focus on permanent population as based on
U.S. Census Bureau data within a city, town, or county. The Population
Near Hazard data elements (Appendix A, Tables 7 and 17) are based on
any
[[Page 58022]]
inhabited structures, whether they are permanent or temporary, that are
routinely occupied for any portion of a day. The Type of Activities/
Structures data elements (Appendix A, Tables 8 and 18) are also
intended to address both permanent and transient populations. The
Department is confident that, combined, these data elements
sufficiently address both permanent and transient populations.
A commenter questioned the relevance of the Population Density data
element in scoring the EHE module because, per the comment, (1) this
number is dependent upon and controlled by the Ease of Access data
element, and (2) by including the Population Density element, the EHE
module score unjustifiably and unnecessarily prioritizes higher those
MRSs that are in more densely populated areas, even when potential
access to the MRS is precluded by barriers. The Department disagrees
because the Population Density data element considers both the on-site
and off-site populations surrounding an MRS. While access is a
prerequisite for an on-site population, the effects of an event (e.g.,
an explosion) at an MRS may affect populations that are not on site.
This is one of the reasons that several of the elements in the receptor
factor include a swath extending up to two miles from the perimeter of
the MRS. The same commenter also believed the Types of Activities/
Structures data elements (Appendix A, Tables 8 and 18) can be
reasonably measured via the Population Near Hazard data elements
(Appendix A, Tables 7 and 17), noting that including the Types of
Activities/Structures data elements only complicates the process and
favors MRSs in higher population areas. The Department again disagrees.
The Department included the Types of Activities/Structures data
elements to account for the types of activities occurring on a site,
and the potential for those activities to bring a receptor into contact
with UXO or DMM. It was not developed to give undue weight to high-
population areas.
One commenter did not agree that the two-mile criterion applied to
evaluating the Population Near Hazard data element is reasonable or
necessary for any MRS not having the potential to create a chemical
agent hazard that could affect inhabitants within two miles of the
boundary. Instead, distance criteria that more reasonably consider the
risks from the actual or suspected types of explosive hazards should be
used. The Department disagrees because the two-mile radius considers
not only the size of the population that may come onto the MRS, but
also the effects that an explosion on the MRS may have to areas off the
MRS (e.g., blast overpressure, fragment throw). While this distance may
be less than two miles, the two-mile distance was selected as a
conservative measure.
One commenter stated that the Population Near Hazard data elements
should bear greater weight than the Population Density data elements
because the greatest hazard is to the population closest to the MRS.
The Department, however, notes that these data elements evaluate
different aspects of population. The Population Density data elements
are used to assess the number of persons that could possibly access the
MRS, while the Population Near Hazard data elements focus on the
population (through number of structures) within a two-mile range that
could be impacted by an unintentional explosion or CA release. The data
elements are complementary.
Several commenters disagreed with the Department's use of inhabited
structures to indicate population in the Population Near Hazard and
Types of Activities/Structures data elements as, for example, ``people
may engage in all sorts of activities despite the absence of structures
in the vicinity, and many of these activities would put them at
considerably greater risk from military munitions than populations that
are, relatively speaking, protected within structures.'' The Department
notes the concern, but believes the rule sufficiently accounts for
these populations. The rule relies on several indicators to assess
potentially exposed populations. The Types of Activities/Structures
data elements address activities conducted on the MRS, and the number
of permanent or temporary structures present. Parks and recreational
areas, where hikers, campers, and tourists may be present, are
specifically included in the Types of Activities/Structures elements.
In response to one commenter's statement that UXO may be
encountered through nonintrusive activities such as boating and
fishing, the Department believes that such activities are accounted for
in the Types of Activities/Structures data elements.
Several commenters noted that Types of Activities/Structures data
elements seem structured to give the greatest weight to activities and
structures involving the most people, and that warehousing, industrial,
agricultural, and forestry activities are weighted less. Some
commenters are concerned because these areas experience high-density
populations and activities that penetrate the ground surface during
working hours. The Department recognizes the commenters' concerns but
notes that, even though agricultural and forestry activities penetrate
the ground surface, the exposed population is typically smaller than
commercial, residential, or recreational areas. The Department is
balancing activity intrusiveness with the potential population that
could be exposed to a hazard. The rule does, however, require
reevaluation if site conditions change.
One commenter questioned how the scoring values among modules and
within modules were selected. The commenter specifically noted that the
numerical weighting assigned within and among data elements seemed
arbitrary and unnecessarily complicated. Further, there is no rationale
for applying a score of 30 (worst case score) to certain data elements
and a value of only 5 (worst case score) to other data elements within
the same module. The commenter cites the Population Near Hazard data
element as an example. Within this data element, there are six
classifications established based on the number of inhabited structures
within a two-mile distance of an MRS. In this data element, 1-5
inhabited structures receives a score of only 1, while 26 or more
inhabited structures receives a score of 5. The commenter believes that
the score should be the same, regardless of whether a single residence
or 26 residences were on or near the MRS. The Department disagrees with
the commenter that all situations should be scored the same because it
impairs differentiation and thus prioritization, which is the purpose
of this rule. The rule-making development effort involved a series of
meetings over a year and a half, including substantial consultation
with states, tribes, and other federal agencies. The Department also
tested the developing model during this time to determine if the model
outcomes were reasonable given what was known about the trial MRSs. The
data elements and scores as presented in the proposed rule provided the
most rational results and distribution among the sites.
Many commenters believe that the definition of ``ecological
resources'' (Appendix A, Tables 9 and 19) in the rule is too limited.
The Department does not mean to imply that less sensitive ecological
resources are not important. For the purposes of assigning a relative
priority to each MRS, however, the Department believes that limiting
this definition to the most sensitive habitats is appropriate so that
these areas are elevated in priority.
[[Page 58023]]
Similar to the comments for ecological resources, a commenter noted
that the definition of ``cultural resources'' used in the EHE and CHE
modules is too narrow and the list of statutes should not be limited.
The Department believes this definition is appropriate for the purposes
of assigning a relative priority to each MRS.
One commenter stated that there may be only a few MRSs that score
high enough to be included in the highest tier of the EHE module, and
therefore, more sites will be distributed among the lower tiers. Based
on the testing described in the proposed rule, the Department expects
the universe of sites to be adequately distributed among the possible
scores. The highest hazard sites are not expected to be the most
numerous, nor are the lowest hazard sites expected to be the most
numerous. The Department believes this construct is appropriate.
2. Section 179.6(b). Chemical Warfare Materiel Hazard Evaluation Module
One commenter agreed with the Department that MRSs with known or
suspected CWM are important and deserve special attention. The
commenter did state, however, that the potential for public exposure
should be an important consideration when ranking such MRSs. MRSs that
have high potential for public exposures and risk should be ranked
higher than an MRS with CWM that has minimal opportunity for public
exposure. The Department addressed this concern during the development
of the rule by including data elements to factor in population density
and public exposure. Based on the data used in the rule, an MRS with
known or suspected CWM does not always rank higher than a site without
CWM.
A commenter suggested that receptors under the CHE module should be
weighted higher than those under the EHE module because CWM pose
hazards associated with both the explosive impact and the dispersion of
the chemical agents. The Department believes that the rule
appropriately accounts for the special characteristics of CWM in the
CWM Configuration and Sources of CWM data elements (Appendix A, Tables
11 and 12).
One commenter asked if all CWM is considered similar in the
severity of its effects and regardless of concentration. The
Department's response is that the rule does not consider the
differences in the mechanism of action (e.g., neurotransmitter
disruption) or the toxicological properties (e.g., Lethal Dose for 50
percent of the exposed population [LD50]). The CWM Configuration and
Sources of CWM data elements do address the differences in the hazards
posed by CWM (e.g., CWM with an explosive burster scores higher than
CWM without a burster).
One commenter felt that classifying CWM mixed with UXO lower than
CWM under the CWM Configuration data element does not make sense. The
commenter stated that this implies that placing some conventional UXO
at an MRS with known or suspected CWM can reduce the hazard at that
site. To remedy the conflict, the commenter suggested deleting the
category CWM mixed with UXO from Appendix A, Table 11 and treating all
MRSs containing CWM UXO or damaged CWM DMM as the highest scoring
hazard, irrespective of the presence of conventional munitions that are
UXO or DMM. The Department, however, believes that explosively
configured CWM, which are designed to achieve optimal dispersion of
their chemical agent fill, that are UXO or that are damaged DMM should
be assigned a higher score than undamaged CWM/DMM or CWM not configured
as a munition that are mixed with conventional munitions that are UXO.
The Department left this classification unchanged because the
detonation of a conventional munition that both is a UXO and mixed with
undamaged CWM/DMM or CWM not configured as a munition is less likely to
result in a dispersal of any chemical agent present. The Department
believes that the classifications assigned appropriately differentiate
between the potential chemical agent hazards presented.
One commenter questioned why production facilities; research,
development, testing and evaluation facilities; training facilities;
and storage or transfer points were identified as separate categories
with different hazard scorings within the Sources of CWM data element
(Appendix A, Table 12). According to the commenter, the only important
issues are: (1) The type of CWM (i.e., it must be either UXO or DMM);
(2) its condition (damaged or undamaged); and (3) the strength of
evidence (known or suspected CWM contamination). The commenter
recommended deleting all other categories. The Department does not
believe that there are only three important issues and that the other
categories are extraneous. The Department has identified those separate
categories under the CWM Configuration and Sources of CWM data elements
to enable it to evaluate all known and relevant data and to assign
appropriate priorities.
One commenter stated that the rule does not consider CWM that has
been managed via OB/OD activities or via on-site disposal (e.g.,
burial). The Department disagrees, and observes that while not
specifically described as OB/OD or burial sites, these sites have in
common that any CWM present is DMM. The CWM Configuration data element
(Appendix A, Table 11) specifically includes CWM that are DMM, and
addresses those differently depending on whether or not the CWM has
been damaged (irrespective of how that damage occurred). The Sources of
CWM data element (Appendix A, Table 12) specifically considers DMM that
are on the surface or in the subsurface, irrespective of how the CWM
came to be there.
One commenter stated that it is not clear whether CWM mixed with
UXO includes or purposely excludes explosively configured CWM. The
Department's response is that explosively configured CWM that is either
UXO or damaged DMM receives a score of 30 in Table 11 of Appendix A.
The CWM mixed with UXO is used for undamaged CWM that are DMM or that
are not configured as a munition, and that are commingled with
conventional munitions that are UXO. These score 25.
One commenter questioned whether the receptor factor in the CHE
module should be the same as for the EHE, given the impact of wind
drift on populations if a chemical agent is released. Evaluation of
factors such as dispersion by wind current is far more complex than is
appropriate for a prioritization tool. Such factors may, however, be
important during a munitions response and be important considerations
in the evaluation of remedial alternatives. The Department believes
that the current receptor construct is sufficient for assigning each
MRS a relative priority.
3. Section 179.6(c). Health Hazard Evaluation (HHE) Module
The Department received a number of comments on the Relative Risk
Site Evaluation (RRSE) module, which is intended to evaluate the health
hazards associated with MC and any incidental nonmunitions-related
contaminants at an MRS. The Department has revised and renamed this
module in response to the most significant comments received on the
proposed rule. Several commenters noted that although the EHE and CHE
module results seemed well balanced in terms of the distribution of
outcomes, the RRSE module appeared to score too many sites as ``high,''
inappropriately skewing the overall priority assigned to the MRS.
[[Page 58024]]
Specifically, it was observed that having only three outcomes (i.e.,
high, medium, and low) as provided in the RRSE module can result in
this one module being the dominating factor in the overall priority
assignment. In response to this significant comment, the Department
analyzed the construct of the module and revised it so that the outcome
in the rule has seven possible answers, increasing the ability to
differentiate among MRSs. Accordingly, the Department believes that the
revised module better reflects the relative evaluation of explosive,
CWM, and MC hazards potentially present at the site. The Department has
also changed the name of the module to the Health Hazard Evaluation
(HHE) Module to differentiate it from the three-outcome RRSE used in
the Department's Installation Restoration program (IRP). The Department
will apply the HHE only to MRSs subject to this rule. The HHE module is
intended to evaluate health hazards associated with MC at an MRS, with
only incidental nonmunitions-related contaminants addressed under the
MMRP.
The RRSE will continue to be applied to sites in the IRP category
of the DERP.
Within the revised framework, the data and the process by which the
data are evaluated are the same as within the RRSE; however, the
distinction between the previous and revised frameworks lies in the
greater number of outcomes (i.e., seven versus three). Only MRSs with
the maximum results for the three factors (i.e., Contaminant Hazard
Factor (CHF), Receptor Factor, and Migration Pathway Factor) are
assigned the highest priority (i.e., Category A). In other words, only
those MRSs with significant MC-related health hazards, an identified
receptor, and an evident migration pathway are assigned to Category A
for the HHE module.
Tables 1, 2, and 3 below illustrate the derivation of the seven
categories of the HHE. Table 1, which reproduces Table 21 of Appendix
A, provides the three potential outcomes for each of the factors in the
HHE. Table 2, which reproduces Table 22 of Appendix A, illustrates the
different possible combinations of the results. The frequency in this
table denotes the number of times each combination is used. Table 3,
which reproduces Table 23 of Appendix A, spreads the possible
combinations across seven categories, permitting only the most and
least hazardous combinations in the highest and lowest categories. The
other combinations are spread across the five remaining categories in a
bell curve based on frequency of the combination.
Table 1.--HHE Module Rating
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
Contaminant hazard factor Receptor factor
Migration pathway factor
------------------------------------------------------------
Significant........................ High (H).............. Identified............ High (H)............. Evident.............. High (H)
Moderate........................... Middle (M)............ Potential............. Middle (M)........... Potential............ Middle (M)
Minimal............................ Low (L)............... Limited............... Low (L).............. Confined............. Low (L)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2.--HHE Module Rating
--------------------------------------------------------------------------------------------------------------------------------------------------------
Migration pathway
Contaminant hazard factor Receptor factor --------------------------------------------------------------------------------------
Evident Potential Confined
--------------------------------------------------------------------------------------------------------------------------------------------------------
Significant......................... Identified................. HHH HHM HHL
Potential.................. HHM HMM HML
Limited.................... HHL HML HLL
Moderate............................ Identified................. HHM HMM HML
Potential.................. HMM MMM MML
Limited.................... HML MML MLL
Minimal............................. Identified................. HHL HML HLL
Potential.................. HML MML MLL
Limited.................... HLL MLL LLL
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3.--HHE Module
------------------------------------------------------------------------
Combination Frequency Category
------------------------------------------------------------------------
HHH.................................... 1 A
HHM.................................... 3 B
HHL.................................... 3 C
HMM.................................... 3 ....................
HML.................................... 6 D
MMM.................................... 1 ....................
HLL.................................... 3 E
MML.................................... 3 ....................
MLL.................................... 3 F
LLL.................................... 1 G
------------------------------------------------------------------------
A commenter asked why the ecological receptors for surface water
and sediment in the Receptor factor are limited to critical habitats
``and other similar environments.'' The Department's response is that
it chose to focus on locations of critical habitat as a means of
delineating among ecological receptors. Almost all areas are habitat
for some species, and considering all habitats equally provides no
differentiating criteria. In response to the same commenter, the
Department wishes to clarify that consumption of fish in contaminated
waters is accounted for in the HHE.
One commenter questioned the exclusion of an ecological endpoint
during the evaluation of surface soils and requested that the
Department consider groundwater as a minor receptor factor. The
Department's response is that ecological receptors are not considered
for evaluation of the surface soil since ecological standards are
generally not available for the CHF calculation.
Some comments were received requesting that the Department change
the comparison value used for carcinogens from a 1 x 10-\4\
to a 1 x 10-\6\ value, which would make it consistent with
some states' cleanup goals. This rule, however, is not using the 1 x
10-\4\ value for cleanup; it is being used to assign a
relative priority for action. The Department believes that 1 x
10-\4\ is an appropriate value for prioritization. Further,
changing the range will not change the relative ranking of any
individual site, as all sites would shift equally if a different
endpoint were used.
One commenter stated that the Receptor Factor should not be limited
to surface soil as receptors have the potential for exposure to
subsurface soil during intrusive activities or after development where
subsurface soils have been brought to the surface. The
[[Page 58025]]
Department responds that where subsurface soil is coming to the
surface, or is exposed in a manner in which people can contact it
(e.g., in an excavation), it is treated as surface soil.
Another commenter stated the module appears to underestimate the
risks posed by landfills. The Department points out the releases from
landfills usually do not include UXO, DMM, or MC. It is more likely
that a landfill would be addressed under the IRP category of the DERP
and, as such, would not be evaluated under this rule.
One commenter stated there is little detail describing the terms
``identified,'' ``potential,'' and ``limited'' receptors. Until
guidance specific to the HHE is developed, the Department suggests
reviewing the Relative Risk Site Evaluation Primer (available at http://www.dtic.mil/envirodod) for detailed information on the use of this
factor.
A commenter remarked that the Receptor Factor for groundwater
should consider individuals exposed inadvertently, such as construction
workers conducting invasive activities, in addition to water supply
exposure. The HHE was primarily developed to consider long-term chronic
exposures, not short-term exposures, through water consumption because
such exposures are the dominant case associated with groundwater
contamination. Further, as part of prioritization, it would be
difficult to determine if workers are being exposed in this way.
Finally, this rule is not intended as a risk assessment nor will it
take the place of a risk assessment, where unusual exposure scenarios
can be properly considered.
A few commenters were concerned as to whether or not CHF values are
established for all constituents, and if not, how the Department would
establish these values. The Department will initially adopt the current
contaminant tables in the Relative Risk Site Evaluation Primer as a
basis for the HHE. These values are updated every few years. The
Department will also continue to work with U.S. EPA in its efforts to
promulgate CHF values for MC and for other constituents.
Several comments pertained to state involvement and concerns about
data quality and consistency. The Department intends on developing
guidance and conducting training to ensure consistency in
implementation of the rule. Additionally, states will be involved in
applying the rule, including the HHE module.
4. Section 179.6(d). Determining the MRS Priority
The Department received several comments regarding how the module
for MC is integrated into the overall priority matrix because the EHE
and CHE modules have seven categories and the RRSE category has three.
Some commenters believe that because there are too few RRSE categories,
sites with high RRSE scores drive the priority unnecessarily too high.
In response to this and other comments, the Department revised the RRSE
module (now the HHE module) to provide a number of categories
consistent with the other modules in the rule.
One commenter remarked on the pros and cons of driving module
scores into tiers versus discrete scores and on the Department's
intentions. The Department's response is that the Department's intent
was to assign relative priorities to each MRS, not to develop a one-N
listing of priorities. If the latter had been the intent, the number of
possible outcomes would have become unwieldy.
One commenter maintained that the module with the lowest numerical
priority value should not determine the MRS priority. The commenter's
view is that this approach is intrinsically flawed because it fails to
consider the cumulative risk posed by the two modules having a lesser
priority ranking, even though those risks may be significant, and when
combined, may be greater than that posed by the third module. The
commenter suggested that all module priority scores be considered
cumulatively in determining the priority for establishing which MRS
presents the greatest overall hazard. The Department acknowledges the
commenter's concern that there is a cumulative aspect to the hazards
evaluated by each module. During the development of the rule, the
Department considered using a cumulative total to assign the priority
but was unable to define the mathematical relationship between the
three modules in a manner that appeared rational or acceptable to the
states, tribes, and others consulted during the development. Therefore,
the Department's approach is to assign the priority based on the
highest hazard posed by the conditions at the site.
F. Section 179.7. Sequencing
Two commenters stated that although the factors to be considered in
making sequencing decisions include the ``reasonably anticipated future
land use,'' land use assumptions, even reasonable ones, may change and
need to be reconsidered. The Department's response is that the rule is
used to assign to each MRS a relative priority, given the associated
risks. To the extent any specific factors considered in application of
the rule change, and that change affects the priority assigned to an
MRS, the annual reexamination of assigned priorities should identify
and consider the change. As a rule, the Department will address those
sites with the highest risk first. Sequencing decisions are, however,
often driven by other factors. Although sequencing decisions may change
as relative priorities change, once a sequencing decision is made and
execution of the munitions response has begun, it is unlikely that a
change in relative priority would affect the sequencing decision.
One commenter noted that the proposed rule required the Department
to report the results of sequencing; however, there is no mention of
how the Department will make available all the results of the ranking.
In response, the Department will compile the sequencing results and
make them available to the public.
V. Administrative Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
Executive Order 12866 (58 FR 51735 [October 4, 1993]) requires each
agency taking regulatory action to determine whether that action is
``significant.'' The agency must submit any regulatory actions that
qualify as ``significant'' to the Office of Management and Budget (OMB)
for review, assess the costs and benefits anticipated as a result of
the proposed action, and otherwise ensure that the action meets the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may
(1) have an annual effect on the economy of $100 million or more or
adversely effect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
The Department has determined that the rule is not a significant
rule under Executive Order 12866 because it is not likely to result in
a rule that will meet any of the four prerequisites.
(1) The rule will not have an annual effect on the economy of $100
million or more or adversely affect in a material
[[Page 58026]]
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or state, local, or
tribal governments or communities.
The primary effect on the economy will be the necessity for state
and/or local governments to conduct oversight of the environmental
restoration activities. The Department previously determined that the
rule does not place a burden in excess of $100 million each year on
state, local, or tribal governments. The changes from the proposed rule
do not significantly change the analysis conducted in support of the
proposed rule, which showed that the effects on the economy as a whole,
any particular sector of the economy, productivity, competition, or
jobs are not significant. In addition, because the one impact that was
identified, costs for state oversight are reimbursable through the
Defense and State Memorandum of Agreement (DSMOA) program, the overall
impact to any individual state is minimal.
Similarly, the previous determination that the proposed rule does
not have a direct adverse effect on the environment, public health, and
safety remains unchanged by the final rule. Any adverse effects were
either a result of the actions that caused the UXO, DMM, or MC to be
present at the MRS (e.g., the site's use as a military range, treatment
of waste military munitions at the site) , which predate the
application of the rule, or are the result of the munitions response
activities that are implemented after the application of the rule. In
the latter case, munitions response activities are performed under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), a process that fully considers the overall
impacts to human health and the environment posed by UXO, DMM, or MC
and the response to such.
For these reasons, the Department has determined that the rule will
not adversely affect, in a material way, the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities.
(2) The rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
Implementation of the rule will not create a serious inconsistency
or otherwise interfere with another agency's action because the
Department has lead authority for administering the DERP under 10
U.S.C. 2701(a)(1). The DERP statute delineates the responsibilities of
the Department and authority of U.S. EPA to some extent. The Department
is required by 10 U.S.C. 2701(a)(3) to consult with the U.S. EPA in its
administration of the environmental restoration program. Further,
Section 2701(c)(2) of the statute gives the Department the
responsibility of conducting environmental restoration activities on
all properties owned or leased by it, except those for which U.S. EPA
has entered into a settlement with a potentially responsible party. The
rule's ranking system will not interfere with the Hazard Ranking System
(HRS) maintained by the U.S. EPA because each serves its own purpose.
U.S. EPA uses the HRS to place uncontrolled waste sites on the National
Priorities List (NPL). U.S. EPA does not use the HRS to determine the
priority in funding U.S. EPA remedial response actions. The Department
will use the rule to assign a relative priority to each MRS based on
the risks posed at each MRS, relative to the risks posed at other MRSs,
and may use the rule as a basis for determining which MRS will receive
funding. The Department's use of the rule should not interfere with
U.S. EPA's use of the HRS. The Department action may interfere with
U.S. EPA action in a situation where U.S. EPA decides to pursue
response action at an MRS that the Department has designated as a low
priority. Where this occurs, the Department will cooperate, to the
extent possible, with U.S. EPA and rely on existing interagency
processes to reach agreement on MRS priorities and response actions.
Based on the above reasoning, the Department has determined that there
is minimal potential for inconsistencies or interference with action by
any other agency.
(3) The rule will not materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof.
The rule will not materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights and
obligations of recipients thereof because no entitlements, grants, user
fees, or loan programs are invoked through prioritization of each MRS
for response activities.
(4) The rule will not raise novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in the Executive Order.
Finally, the rule does not raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in the Executive Order. Congress has already
established the requirement for environmental restoration of MRSs and
for the Department's development of a method to assign each MRS a
relative priority. The rule is merely a method for the Department to
determine a relative priority of an MRS for response action. The
Department has identified no novel legal or policy issues that this
rule will create on either an MRS-specific basis or overall. Nor has
the Department identified any novel legal or policy issues arising out
of the President's priorities or principles set forth in the Regulatory
Impact Analysis.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act [SBREFA] of
1996), requires that an agency conduct a regulatory flexibility
analysis when publishing a notice of rulemaking for any proposed or
final rule. The regulatory flexibility analysis determines the impact
of the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). SBREFA amended
the Regulatory Flexibility Act to require federal agencies to state the
factual basis for certifying that a rule will not have a significant
economic impact on a substantial number of small entities.
The Department hereby certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
The nature of the rule provides the factual basis for a determination
that no regulatory flexibility analysis is required. The rule merely
provides a procedure by which the Department may assign a relative
priority to each MRS for response actions. No costs are directly
imposed on small entities nor is any action directly required of small
entities through this rule. Because the Department bears the financial
responsibility for remediating MRSs, and the source of its funding is
Congress, implementation of the rule will not directly affect small
entities in a financial manner. For the foregoing reasons, the
Department believes that the rule, if promulgated, would not have a
significant economic impact on a substantial number of small entities.
C. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, requires federal agencies to assess the effects of their
regulatory actions on state, local, and tribal
[[Page 58027]]
governments and the private sector. Section 202 of the UMRA requires
that, prior to promulgating proposed and final rules with ``federal
mandates'' that may result in expenditures by state, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year, the agency must prepare a written
statement, including a cost-benefit analysis of the rule. Under Section
205 of the UMRA, the Department must also identify and consider a
reasonable number of regulatory alternatives to the rule and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. Certain exceptions to Section 205
exist. For example, when the requirements of Section 205 are
inconsistent with applicable law, Section 205 does not apply. In
addition, an agency may adopt an alternative other than the least
costly, most cost-effective, or least burdensome in those cases where
the agency publishes with the final rule an explanation of why such
alternative was not adopted. Section 203 of the UMRA requires that the
agency develop a small government agency plan before establishing any
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments. The small government agency
plan must include procedures for notifying potentially affected small
governments, providing officials of affected small governments with the
opportunity for meaningful and timely input in the development of
regulatory proposals with significant federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
The Department has determined that the rule does not contain a
federal mandate that may result in expenditures of $100 million or more
for state, local, and tribal governments in the aggregate, or by the
private sector in any one year. The term ``federal mandate'' means any
provision in statute or regulation or any federal court ruling that
imposes ``an enforceable duty'' upon state, local, or tribal
governments, and includes any condition of federal assistance or a duty
arising from participation in a voluntary federal program that imposes
such a duty. The rule does not contain a federal mandate because it
imposes no enforceable duty upon state, tribal, or local governments.
The Department is responsible for funding munitions responses and
imposes no costs on other entities by prioritizing MRSs using the rule.
The Department recognizes that the state, local, or tribal government
may expend funds to conduct oversight of the response activities. The
rule, however, does not require such oversight. To the degree such
oversight is required, it is required by preexisting law on which the
rule has no effect.
D. Paperwork Reduction Act
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.,
prohibits a federal agency from conducting or sponsoring a collection
of information that requires OMB approval, unless such approval has
been obtained and the collection request displays a currently valid OMB
control number. Nor is any person required to respond to an information
collection request that has not complied with the PRA. The term
``collection of information'' includes collection of information from
ten or more persons. The Department has determined that the PRA does
not apply to this rule because, although the Department will collect
information on the MRS, it does not mandate that any person supply
information. All information collected from persons will be voluntary,
for example, through an interview. Therefore, the PRA does not apply to
the rule.
E. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, Section 12(d) (15 U.S.C. 272
note), directs federal agencies to use technical standards developed by
voluntary consensus standards bodies in its regulatory activities,
except in those cases in which using such standards would be
inconsistent with applicable law or otherwise impractical. ``Technical
standards'' means performance-based or design-specific technical
specifications and related management systems practices. Voluntary
consensus means that the technical standards are developed or adopted
by voluntary consensus standards organizations. In those cases in which
a federal agency does not use voluntary consensus standards that are
available and applicable, the agency must provide OMB with an
explanation.
The rule does not involve performance-based or design-specific
technical specifications or related management systems practices. The
values for relative risk used in the HHE module, to the extent they
qualify as technical standards, were formed through consensus. The rule
is therefore in compliance with the NTTAA.
F. Environmental Justice Requirements Under Executive Order 12898
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' a federal agency must, where practicable and
appropriate, collect, maintain, and analyze information assessing and
comparing environmental and human health risks borne by populations
identified by race, national origin, or income. To the extent practical
and appropriate, federal agencies must then use this information to
determine whether their activities have disproportionately high and
adverse human health or environmental effects on minority populations
and low-income populations.
The Department believes that implementation of the rule will
address environmental justice concerns in several ways. First, the rule
will address environmental justice by ensuring that prioritization is
based primarily on risk to the human health and environment of all
populations. The Department recognizes that prioritization of MRSs for
response action could result in a low-priority designation for some
MRSs located in low-income or minority neighborhoods. Under the risk-
based approach, such prioritization could only be viewed as
environmental injustice if low-income and minority populations were
disproportionately located near low-risk MRSs. However, should this be
the case, the final rule would allow the Department to consider this
fact in its sequencing decisions. Second, the Department has reserved a
step in the rule for consideration of environmental justice concerns,
having supplemented the risk-based prioritization decision with
consideration of whether low-income or minority populations are near
the MRS in question. Third, because the rule will provide the
Department with an established method for choosing which MRSs to
address first, it will ensure uniformity among decisions and eliminate
the potential for intentional discrimination against low-income and
minority populations. Finally, the Department's engagement with various
stakeholders, most notably tribal governments, in developing the rule
has helped to build consideration of environmental justice concerns
into the rule.
The Department plans to continue to study the environmental justice
effects once the rule is implemented. Until that time, no data exist
regarding whether low-income and minority populations live near high-
risk MRSs as opposed to low-risk MRSs. As such, there is
[[Page 58028]]
currently no way of determining whether generally focusing response
efforts first at those MRSs that pose a relatively higher risk will in
any way adversely affect these or any particular segment of the
population. The Department decided to include environmental justice
considerations in the body of the proposed rule as a precautionary
measure, but will examine the effect of the rule on low-income and
minority populations, once the Department has implemented it and has
compiled data from which to draw.
At this time, the Department believes that no action will directly
result from the rule that will have a disproportionately high and
adverse human health and environmental effect on any segment of the
population. The Department will examine, however, the effects of
implementation to ensure that no disproportionately high and adverse
human health or environmental effect occurs.
G. Federalism Considerations Under Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), establishes certain requirements for federal agencies
issuing regulations, legislative comments, proposed legislation, or
other policy statements or actions that have ``federal implications.''
Under the Executive Order, any of these agency documents or actions
have ``federal implications'' when they have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.'' Section 6 of
the Executive Order prohibits any agency from issuing a regulation that
has federal implications, imposes substantial direct compliance costs
on state and local governments, and is not required by statute. Such a
regulation may be issued only if the federal government provides the
funds necessary to pay the direct compliance costs incurred by state
and local governments, or the agency consults with state and local
officials early in the process of developing the proposed regulation.
Further, a federal agency may issue a regulation that has federalism
implications and preempts state law only if the agency consults with
state and local officials early in the process of developing the
proposed regulation.
The rule does not have federalism implications because it will not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
The statute authorizing the Department's environmental restoration
program, 10 U.S.C. 2701, clearly defines the role and responsibilities
of the Department with respect to state and local governments. The role
and primary responsibility of the Department is to implement an
appropriate environmental restoration program at MRSs. The Department
funds environmental restoration activities and does not directly affect
the states in any manner. The only potential dispute regarding
distribution of power may arise where the state attempts to require the
Department to respond to an MRS under a state hazardous waste law, and
the Department has not ranked the MRS as a high priority or allocated
funding for environmental restoration of the MRS. Such a situation,
however, would be dealt with per established legal principles regarding
the relationship of states to the federal government. The rule does not
alter this relationship. Additionally, it would not be appropriate for
the rule to attempt to assign roles to the Department or any state
because such assignment of roles is outside the scope of the statutory
mandate. The rule does not impose direct compliance costs on state or
local governments because the Department funds environmental
restoration activities.
Finally, development of a method for prioritizing action at MRSs
was specifically required by statute. Therefore, the requirements of
the Executive Order, Section 6, do not apply to the rule.
List of Subjects in 32 CFR Part 179
Arms and munitions, Environmental protection, Government property,
Military personnel.
0
Accordingly, 32 CFR part 179 is added to Chapter 1, Subchapter H to
read as follows:
PART 179--MUNITIONS RESPONSE SITE PRIORITIZATION PROTOCOL (MRSPP)
Sec.
179.1. Purpose.
179.2. Applicability and scope.
179.3. Definitions.
179.4. Policy.
179.5. Responsibilities.
179.6. Procedures.
179.7. Sequencing.
Appendix A to Part 179--Tables of the Munitions Response Site
Prioritization Protocol (MRSPP).
Authority: 10 U.S.C. 2710 et seq.
Sec. 179.1 Purpose.
The Department of Defense (the Department) is adopting this
Munitions Response Site Prioritization Protocol (MRSPP) (hereinafter
referred to as the ``rule'') under the authority of 10 U.S.C. 2710(b).
Provisions of 10 U.S.C. 2710(b) require that the Department assign to
each defense site in the inventory required by 10 U.S.C. 2710(a) a
relative priority for response activities based on the overall
conditions at each location and taking into consideration various
factors related to safety and environmental hazards.
Sec. 179.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense,
the Military Departments, the Defense Agencies and the Department Field
Activities, and any other Department organizational entity or
instrumentality established to perform a government function (hereafter
referred to collectively as the ``Components'').
(b) The rule in this part shall be applied at all locations:
(1) That are, or were, owned by, leased to, or otherwise possessed
or used by the Department, and
(2) That are known to, or suspected of, containing unexploded
ordnance (UXO), discarded military munitions (DMM), or munitions
constituents (MC), and
(3) That are included in the inventory established pursuant to 10
U.S.C. 2710(a).
(c) The rule in this part shall not be applied at the locations not
included in the inventory required under 10 U.S.C. 2710(a). The
locations not included in the inventory are:
(1) Locations that are not, or were not, owned by, leased to, or
otherwise possessed or used by the Department,
(2) Locations neither known to contain, or suspected of containing,
UXO, DMM, or MC,
(3) Locations outside the United States,
(4) Locations where the presence of military munitions results from
combat operations,
(5) Currently operating military munitions storage and
manufacturing facilities,
(6) Locations that are used for, or were permitted for, the
treatment or disposal of military munitions, and
(7) Operational ranges.
Sec. 173.3 Definitions.
This part includes definitions for many terms that clarify its
scope and applicability. Many of the terms relevant to this part are
already defined, either in 10 U.S.C. 101, 10 U.S.C.
[[Page 58029]]
2710(e), or the Code of Federal Regulations. Where this is the case,
the statutory and regulatory definitions are repeated here strictly for
ease of reference. Citations to the U.S. Code or the Code of Federal
Regulations are provided with the definition, as applicable. Unless
used elsewhere in the U.S. Code or the Code of Federal Regulations,
these terms are defined only for purposes of this part.
Barrier means a natural obstacle or obstacles (e.g., difficult
terrain, dense vegetation, deep or fast-moving water), a man-made
obstacle or obstacles (e.g., fencing), and combinations of natural and
man-made obstacles.
Chemical agent (CA) means a chemical compound (to include
experimental compounds) that, through its chemical properties produces
lethal or other damaging effects on human beings, is intended for use
in military operations to kill, seriously injure, or incapacitate
persons through its physiological effects. Excluded are research,
development, testing and evaluation (RDTE) solutions; riot control
agents; chemical defoliants and herbicides; smoke and other obscuration
materials; flame and incendiary materials; and industrial chemicals.
(This definition is based on the definition of ``chemical agent and
munition'' in 50 U.S.C. 1521(j)(1).)
Chemical Agent (CA) Hazard is a condition where danger exists
because CA is present in a concentration high enough to present
potential unacceptable effects (e.g., death, injury, damage) to people,
operational capability, or the environment.
Chemical Warfare Materiel (CWM) means generally configured as a
munition containing a chemical compound that is intended to kill,
seriously injure, or incapacitate a person through its physiological
effects. CWM includes V- and G-series nerve agents or H-series
(mustard) and L-series (lewisite) blister agents in other-than-munition
configurations; and certain industrial chemicals (e.g., hydrogen
cyanide (AC), cyanogen chloride (CK), or carbonyl dichloride (called
phosgene or CG)) configured as a military munition. Due to their
hazards, prevalence, and military-unique application, chemical agent
identification sets (CAIS) are also considered CWM. CWM does not
include riot control devices; chemical defoliants and herbicides;
industrial chemicals (e.g., AC, CK, or CG) not configured as a
munition; smoke and other obscuration-producing items; flame and
incendiary-producing items; or soil, water, debris, or other media
contaminated with low concentrations of chemical agents where no CA
hazards exist. For the purposes of this Protocol, CWM encompasses four
subcategories of specific materials:
(1) CWM, explosively configured are all munitions that contain a CA
fill and any explosive component. Examples are M55 rockets with CA, the
M23 VX mine, and the M360 105-mm GB artillery cartridge.
(2) CWM, nonexplosively configured are all munitions that contain a
CA fill, but that do not contain any explosive components. Examples are
any chemical munition that does not contain explosive components and VX
or mustard agent spray canisters.
(3) CWM, bulk container are all non-munitions-configured containers
of CA (e.g., a ton container) and CAIS K941, toxic gas set M-1 and
K942, toxic gas set M-2/E11.
(4) CAIS are military training aids containing small quantities of
various CA and other chemicals. All forms of CAIS are scored the same
in this rule, except CAIS K941, toxic gas set M-1; and CAIS K942, toxic
gas set M-2/E11, which are considered forms of CWM, bulk container, due
to the relatively large quantities of agent contained in those types of
sets.
Components means the Office of the Secretary of Defense, the
Military Departments, the Defense Agencies, the Department Field
Activities, and any other Department organizational entity or
instrumentality established to perform a government function.
Defense site means locations that are or were owned by, leased to,
or otherwise possessed or used by the Department. The term does not
include any operational range, operating storage or manufacturing
facility, or facility that is used for or was permitted for the
treatment or disposal of military munitions. (10 U.S.C. 2710(e)(1))
Discarded military munitions (DMM) means military munitions that
have been abandoned without proper disposal or removed from storage in
a military magazine or other storage area for the purpose of disposal.
The term does not include UXO, military munitions that are being held
for future use or planned disposal, or military munitions that have
been properly disposed of consistent with applicable environmental laws
and regulations. (10 U.S.C. 2710(e)(2))
Explosive hazard means a condition where danger exists because
explosives are present that may react (e.g., detonate, deflagrate) in a
mishap with potential unacceptable effects (e.g., death, injury,
damage) to people, property, operational capability, or the
environment.
Military munitions means all ammunition products and components
produced for or used by the armed forces for national defense and
security, including ammunition products or components under the control
of the Department of Defense, the Coast Guard, the Department of
Energy, and the National Guard. The term includes confined gaseous,
liquid, and solid propellants; explosives, pyrotechnics, chemical and
riot control agents, smokes, and incendiaries, including bulk
explosives and chemical warfare agents; chemical munitions, rockets,
guided and ballistic missiles, bombs, warheads, mortar rounds,
artillery ammunition, small arms ammunition, grenades, mines,
torpedoes, depth charges, cluster munitions and dispensers, and
demolition charges; and devices and components of any item thereof. The
term does not include wholly inert items, improvised explosive devices,
and nuclear weapons, nuclear devices, and nuclear components, other
than nonnuclear components of nuclear devices that are managed under
the nuclear weapons program of the Department of Energy after all
required sanitization operations under the Atomic Energy Act of 1954
(42 U.S.C. 2011 et seq.) have been completed. (10 U.S.C. 101(e)(4))
Military range means designated land and water areas set aside,
managed, and used to research, develop, test, and evaluate military
munitions, other ordnance, or weapon systems, or to train military
personnel in their use and handling. Ranges include firing lines and
positions, maneuver areas, firing lanes, test pads, detonation pads,
impact areas, and buffer zones with restricted access and exclusionary
areas. (40 CFR 266.201)
Munitions and explosives of concern distinguishes specific
categories of military munitions that may pose unique explosives safety
risks, such as UXO, as defined in 10 U.S.C. 101(e)(5); discarded
military munitions, as defined in 10 U.S.C. 2710(e)(2); or munitions
constituents (e.g., TNT, RDX), as defined in 10 U.S.C. 2710(e)(3),
present in high enough concentrations to pose an explosive hazard.
Munitions constituents means any materials originating from UXO,
discarded military munitions, or other military munitions, including
explosive and nonexplosive materials, and emission, degradation, or
breakdown elements of such ordnance or munitions. (10 U.S.C.
2710(e)(3))
Munitions response means response actions, including investigation,
removal actions, and remedial actions, to address the explosives
safety, human
[[Page 58030]]
health, or environmental risks presented by UXO, discarded military
munitions (DMM), or munitions constituents (MC), or to support a
determination that no removal or remedial action is required.
Munitions response area (MRA) means any area on a defense site that
is known or suspected to contain UXO, DMM, or MC. Examples are former
ranges and munitions burial areas. An MRA comprises one or more
munitions response sites.
Munitions response site (MRS) means a discrete location within an
MRA that is known to require a munitions response.
Operational range means a range that is under the jurisdiction,
custody, or control of the Secretary of Defense and that is used for
range activities, or although not currently being used for range
activities, that is still considered by the Secretary to be a range and
has not been put to a new use that is incompatible with range
activities. (10 U.S.C. 101(e)(3))
Range means a designated land or water area that is set aside,
managed, and used for range activities of the Department of Defense.
The term includes firing lines and positions, maneuver areas, firing
lanes, test pads, detonation pads, impact areas, electronic scoring
sites, buffer zones with restricted access, and exclusionary areas. The
term also includes airspace areas designated for military use in
accordance with regulations and procedures prescribed by the
Administrator of the Federal Aviation Administration. (10 U.S.C.
101(e)(1)(A) and (B))
Range activities means research, development, testing, and
evaluation of military munitions, other ordnance, and weapons systems;
and the training of members of the armed forces in the use and handling
of military munitions, other ordnance, and weapons systems. (10 U.S.C.
101(3)(2))
Unexploded ordnance (UXO) means military munitions that:
(1) Have been primed, fuzed, armed, or otherwise prepared for
action;
(2) Have been fired, dropped, launched, projected, or placed in
such a manner as to constitute a hazard to operations, installations,
personnel, or material; and
(3) Remain unexploded, whether by malfunction, design, or any other
cause. (10 U.S.C. 101(e)(5))
United States means, in a geographic sense, the states,
territories, and possessions and associated navigable waters,
contiguous zones, and ocean waters of which the natural resources are
under the exclusive management authority of the United States. (10
U.S.C. 2710(e)(10))
Sec. 179.4 Policy.
(a) In assigning a relative priority for response activities, the
Department generally considers those MRSs posing the greatest hazard as
being the highest priority for action. The priority assigned should be
based on the overall conditions at each MRS, taking into consideration
various factors relating to safety and environmental hazard potential.
(b) In addition to the priority assigned to an MRS, other
considerations (e.g., availability of specific equipment, intended
reuse, stakeholder interest) can affect the sequence in which munitions
response actions at a specific MRS are funded.
(c) It is Department policy to ensure that U.S. EPA, other federal
agencies (as appropriate or required), state regulatory agencies,
tribal governments, local restoration advisory boards or technical
review committees, and local stakeholders are offered opportunities to
participate in the application of the rule in this part and making
sequencing recommendations.
Sec. 179.5 Responsibilities.
Each Component shall:
(a) Apply the rule in this part to each MRS under its
administrative control when sufficient data are available to populate
all the data elements within any or all of the three hazard evaluation
modules that comprise the rule. Upon further delineation and
characterization of an MRA into more than one MRS, Components shall
reapply the rule to all MRSs within the MRA. In such cases where data
are not sufficient to populate one or two of the hazard evaluation
modules (e.g., there are no constituent sampling data for the Health
Hazard Evaluation [HHE] module), Components will assign a priority
based on the hazard evaluation modules evaluated and reapply the rule
once sufficient data are available to apply the remaining hazard
evaluation modules.
(b) Ensure that the total acreage of each MRA is evaluated using
this rule (i.e., ensure the all MRSs within the MRA are evaluated).
(c) Ensure that EPA, other federal agencies (as appropriate or
required), state regulatory agencies, tribal governments, local
restoration advisory boards or technical review committees, local
community stakeholders, and the current landowner (if the land is
outside Department control) are offered opportunities as early as
possible and throughout the process to participate in the application
of the rule and making sequencing recommendations.
(1) To ensure EPA, other federal agency, state regulatory agencies,
tribal governments, and local government officials are aware of the
opportunity to participate in the application of the rule, the
Component organization responsible for implementing a munitions
response at the MRS shall notify the heads of these organizations (or
their designated point of contact), as appropriate, seeking their
involvement prior to beginning prioritization. Records of the
notification will be placed in the Administrative Record and
Information Repository for the MRS.
(2) Prior to beginning prioritization, the Component organization
responsible for implementing a munitions response at the MRS shall
publish an announcement in local community publications requesting
information pertinent to prioritization or sequencing decisions to
ensure the local community is aware of the opportunity to participate
in the application of the rule.
(d) Establish a quality assurance panel of Component personnel to
review, initially, all MRS prioritization decisions. Once the
Department determines that its Components are applying the rule in a
consistent manner and the rule's application leads to decisions that
are representative of site conditions, the Department may establish a
sampling-based approach for its Components to use for such reviews.
This panel reviewing the priority assigned to an MRS shall not include
any participant involved in applying the rule to that MRS. If the panel
recommends a change that results in a different priority, the Component
shall report, in the inventory data submitted to the Office of the
Deputy Under Secretary of Defense (Installations & Environment)
(ODUSD[I&E]), the rationale for this change. The Component shall also
provide this rationale to the appropriate regulatory agencies and
involved stakeholders for comment before finalizing the change.
(e) Following the panel review, submit the results of applying the
rule along with the other inventory data that 10 U.S.C. 2710(c)
requires be made publicly available, to the ODUSD(I&E). The ODUSD(I&E)
shall publish this information in the report on environmental
restoration activities for that fiscal year. If sequencing decisions
result in action at an MRS with a lower MRS priority ahead of an MRS
with a higher MRS priority, the Component shall provide specific
justification to the ODUSD(I&E).
(f) Document in a Management Action Plan (MAP) or its equivalent
all aspects
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of the munitions responses required at all MRSs for which that MAP is
applicable. Department guidance requires that MAP be developed and
maintained at an installation (or Formerly Used Defense Site [FUDS]
property) level and address each site at that installation or FUDS. For
the FUDS program, a statewide MAP may also be developed.
(g) Develop sequencing decisions at installations and FUDS with
input from appropriate regulators and stakeholders (e.g., community
members of an installation's restoration advisory board or technical
review committee), and document this development in the MAP. Final
sequencing may be impacted by Component program management
considerations. If the sequencing of any MRS is changed from the
sequencing reflected in the current MAP, the Component shall provide
information to the appropriate regulators and stakeholders documenting
the reasons for the sequencing change, and shall request their review
and comment on that decision.
(h) Ensure that information provided by regulators and stakeholders
that may influence the priority assigned to an MRS or sequencing
decision concerning an MRS is included in the Administrative Record and
the Information Repository.
(i) Review each MRS priority at least annually and update the
priority as necessary to reflect new information. Reapplication of the
rule is required under any of the following circumstances:
(1) Upon completion of a response action that changes site
conditions in a manner that could affect the evaluation under this
rule.
(2) To update or validate a previous evaluation at an MRS when new
information is available.
(3) To update or validate the priority assigned where that priority
has been previously assigned based on evaluation of only one or two of
the three hazard evaluation modules.
(4) Upon further delineation and characterization of an MRA into
MRSs.
(5) To categorize any MRS previously classified as ``evaluation
pending.''
Sec. 179.6 Procedures.
The rule in this part comprises the following three hazard
evaluation modules.
(a) Explosive Hazard Evaluation (EHE) module.
(1) The EHE module provides a single, consistent, Department-wide
approach for the evaluation of explosive hazards. This module is used
when there is a known or suspected presence of an explosive hazard. The
EHE module is composed of three factors, each of which has two to four
data elements that are intended to assess the specific conditions at an
MRS. These factors are:
(i) Explosive hazard, which has the data elements Munitions Type
and Source of Hazard and constitutes 40 percent of the EHE module
score. (See Appendix A to this part, Tables 1 and 2.)
(ii) Accessibility, which has the data elements Location of
Munitions, Ease of Access, and Status of Property and constitutes 40
percent of the EHE module score. (See Appendix A, Tables 3, 4, and 5.)
(iii) Receptors, which has the data elements Population Density,
Population Near Hazard, Types of Activities/Structures, and Ecological
and/or Cultural Resources and constitutes 20 percent of the EHE module
score. (See Appendix A, Tables 6, 7, 8, and 9.)
(2) Based on MRS-specific information, each data element is
assigned a numeric score, and the sum of these score is the EHE module
score. The EHE module score results in an MRS being placed into one of
the following ratings. (See Appendix A, Table 10.)
(i) EHE Rating A (Highest) is assigned to MRSs with an EHE module
score from 92 to 100.
(ii) EHE Rating B is assigned to MRSs with an EHE module score from
82 to 91.
(iii) EHE Rating C is assigned to MRSs with an EHE module score
from 71 to 81.
(iv) EHE Rating D is assigned to MRSs with an EHE module score from
60 to 70.
(v) EHE Rating E is assigned to MRSs with an EHE module score from
48 to 59.
(vi) EHE Rating F is assigned to MRSs with an EHE module score from
38 to 47.
(vii) EHE Rating G (Lowest) is assigned to MRSs with an EHE module
score less than 38.
(3) There are also three other possible outcomes for the EHE
module:
(i) Evaluation pending. This category is used when there are known
or suspected UXO or DMM, but sufficient information is not available to
populate the nine data elements of the EHE module.
(ii) No longer required. This category is reserved for MRSs that no
longer require an assigned priority because the Department has
conducted a response, all objectives set out in the decision document
for the MRS have been achieved, and no further action, except for long-
term management and recurring reviews, is required.
(iii) No known or suspected explosive hazard. This category is
reserved for MRSs that do not require evaluation under the EHE module.
(4) The EHE module rating shall be considered with the CHE and HHE
module ratings to determine the MRS priority.
(5) MRSs lacking information for determining an EHE module rating
shall be programmed for additional study and evaluated as soon as
sufficient data are available. Until an EHE module rating is assessed,
MRSs shall be rated as ``evaluation pending'' for the EHE module.
(b) Chemical Warfare Materiel Hazard Evaluation (CHE) module. (1)
The CHE module provides an evaluation of the chemical hazards
associated with the physiological effects of CWM. The CHE module is
used only when CWM are known or suspected of being present at an MRS.
Like the EHE module, the CHE module has three factors, each of which
has two to four data elements that are intended to assess the
conditions at an MRS.
(i) CWM hazard, which has the data elements CWM Configuration and
Sources of CWM and constitutes 40 percent of the CHE score. (See
Appendix A to this part, Tables 11 and 12.)
(ii) Accessibility, which focuses on the potential for receptors to
encounter the CWM known or suspected to be present on an MRS. This
factor consists of three data elements, Location of CWM, Ease of
Access, and Status of Property, and constitutes 40 percent of the CHE
score. (See Appendix A, Tables 13, 14, and 15.)
(iii) Receptor, which focuses on the human and ecological
populations that may be impacted by the presence of CWM. It has the
data elements Population Density, Population Near Hazard, Types of
Activities/Structures, and Ecological and/or Cultural Resources and
constitutes 20 percent of the CHE score. (See Appendix A, Tables 16,
17, 18, and 19.)
(2) Similar to the EHE module, each data element is assigned a
numeric score, and the sum of these scores (i.e., the CHE module score)
is used to determine the CHE rating. The CHE module score results in an
MRS being placed into one of the following ratings. (See Appendix A,
Table 20.)
(i) CHE Rating A (Highest) is assigned to MRSs with a CHE score
from 92 to 100.
(ii) CHE Rating B is assigned to MRSs with a CHE score from 82 to
91.
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(iii) CHE Rating C is assigned to MRSs with a CHE score from 71 to
81.
(iv) CHE Rating D is assigned to MRSs with a CHE score from 60 to
70.
(v) CHE Rating E is assigned to MRSs with a CHE score from 48 to
59.
(vi) CHE Rating F is assigned to MRSs with a CHE score from 38 to
47.
(vii) CHE Rating G (Lowest) is assigned to MRSs with a CHE score
less than 38.
(3) There are also three other potential outcomes for the CHE
module:
(i) Evaluation pending. This category is used when there are known
or suspected CWM, but sufficient information is not available to
populate the nine data elements of the CHE module.
(ii) No longer required. This category is reserved for MRSs that no
longer require an assigned priority because the Department has
conducted a response, all objectives set out in the decision document
for the MRS have been achieved, and no further action, except for long-
term management and recurring reviews, is required.
(iii) No known or suspected CWM hazard. This category is reserved
for MRSs that do not require evaluation under the CHE module.
(4) The CHE rating shall be considered with the EHE module and HHE
module ratings to determine the MRS priority.
(5) MRSs lacking information for assessing a CHE module rating
shall be programmed for additional study and evaluated as soon as
sufficient data are available. Until a CHE module rating is assigned,
the MRS shall be rated as ``evaluation pending'' for the CHE module.
(c) Health Hazard Evaluation (HHE) module.
(1) The HHE provides a consistent Department-wide approach for
evaluating the relative risk to human health and the environment posed
by MC. The HHE builds on the RRSE framework that is used in the
Installation Restoration Program (IRP) and has been modified to address
the unique requirements of MRSs. The HHE module shall be used for
evaluating the potential hazards posed by MC and other chemical
contaminants. The HHE module is intended to evaluate MC at sites. Any
incidental nonmunitions-related contaminants may be addressed
incidental to a munitions response under the MMRP.
(2) The module has three factors:
(i) Contamination Hazard Factor (CHF), which indicates MC, and any
nonmunitions-related incidental contaminants present; this factor
contributes a level of High (H), Middle (M), or Low (L) based on
Significant, Moderate, or Minimal contaminants present, respectively.
(See Appendix A to this part, Table 21.)
(ii) Receptor Factor (RF), which indicates the receptors; this
factor contributes a level of H, M, or L based on Identified,
Potential, or Limited receptors, respectively. (See Appendix A, Table
21.)
(iii) Migration Pathway Factor (MPF), which indicates environmental
migration pathways, and contributes a level of H, M, or L based on
Evident, Potential or Confined pathways, respectively. (See Appendix A,
Table 21.)
(3) The H, M, and L levels for the CHF, RF, and MPF are combined in
a matrix to obtain composite three-letter combination levels that
integrate considerations of all three factors. (See Appendix A, Table
22.)
(4) The three-letter combination levels are organized by frequency,
and the resulting frequencies result in seven HHE ratings. (See
Appendix A, Table 23.)
(i) HHE Rating A (Highest) is assigned to MRSs with an HHE
combination level of high for all three factors.
(ii) HHE Rating B is assigned to MRSs with a combination level of
high for CHF and RF and medium for MPF (HHM).
(iii) HHE Rating C is assigned to MRSs with a combination level of
high for the CHF and RF and low for MPF (HHL), or high for CHF and
medium for the RF and MPF (HMM).
(iv) HHE Rating D is assigned to MRSs with a combination level of
high for the CHF, medium for the RF, and low for the MPF (HML), or
medium for all three factors (MMM).
(v) HHE Rating E is assigned to MRSs with a combination level of
high for the CHF and low for the RF and MPF (HLL), or medium for the
CHF and RF and low for the MPF (MML).
(vi) HHE Rating F is assigned to MRSs with a combination level of
medium for the CHF and low for the RF and MPF (MLL).
(vii) HHE Rating G (Lowest) is assigned to MRSs with a combination
level of low for all three factors (LLL).
(5) The HHE three-letter combinations are replaced by the seven HHE
ratings. (See Appendix A, Table 24.)
(6) There are also three other potential outcomes for the HHE
module:
(i) Evaluation pending. This category is used when there are known
or suspected MC, and any incidental nonmunitions-related contaminants
present, but sufficient information is not available to determine the
HHE module rating.
(ii) No longer required. This category is reserved for MRSs that no
longer require an assigned MRS priority because the Department has
conducted a response, all objectives set out in the decision document
for the MRS have been achieved, and no further action, except for long-
term management and recurring reviews, is required.
(iii) No known or suspected munitions constituent hazard. This
rating is reserved for MRSs that do not require evaluation under the
HHE module.
(7) The HHE module rating shall be considered with the EHE and CHE
module ratings to determine the MRS priority.
(8) MRSs lacking information sufficient for assessing an HHE module
rating shall be programmed for additional study and evaluated as soon
as sufficient data are available. Until an HHR module rating is
assigned, the MRS shall be classified as ``evaluation pending'' for the
HHE module.
(d) Determining the MRS priority. (1) An MRS priority is determined
based on integrating the ratings from the EHE, CHE, and HHE modules.
Until all three hazard evaluation modules have been evaluated, the MRS
priority shall be based on the results of the modules completed.
(2) Each MRS is assigned to one of eight MRS priorities based on
the ratings of the three hazard evaluation modules, where Priority 1
indicates the highest potential hazard and Priority 8 the lowest
potential hazard. Under the rule in this part, only MRSs with CWM can
be assigned to Priority 1 and no MRS with CWM can be assigned to
Priority 8. (See Appendix A to this part, Table 25.)
(3) An ``evaluation pending'' rating is used to indicate that an
MRS requires further evaluation. This designation is only used when
none of the three modules has a numerical rating (i.e., 1 through 8)
and at least one module is rated ``evaluation pending.'' The Department
shall develop program metrics focused on reducing the number of MRSs
with a status of ``evaluating pending'' for any of the three modules.
(See Appendix A, Table 25.)
(4) A ``no longer required'' rating is used to indicate that an MRS
no longer requires prioritization. The MRS will receive this rating
when none of the three modules has a numerical (i.e., 1 through 8) or
an ``evaluation pending'' designation, and at least one of the modules
is rated ``no longer required.''
(5) A rating of ``no known or suspected hazard'' is used to
indicate that an MRS has no known or expected hazard. This designation
is used only when the hazard evaluation modules are
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rated as ``no known or suspected explosive hazard,'' ``no known or
suspected CWM hazard,'' and ``no known or suspected MC hazard.'' (See
Appendix A, Table 25.)
Sec. 179.7 Sequencing.
(a) Sequencing considerations. The sequencing of MRSs for action
shall be based primarily on the MRS priority determined through
applying the rule in this part. Generally, an MRS that presents a
greater relative risk to human health, safety, or the environment will
be addressed before an MRS that presents a lesser relative risk. Other
factors, however, may warrant consideration when determining the
sequencing for specific MRSs. In evaluating other factors in sequencing
decisions, the Department will consider a broad range of issues. These
other, or risk-plus factors, do not influence or change the MRS
priority, but may influence the sequencing for action. Examples of
factors that the Department may consider are:
(1) Concerns expressed by regulators or stakeholders.
(2) Cultural and social factors.
(3) Economic factors, including economic considerations pertaining
to environmental justice issues, economies of scale, evaluation of
total life cycle costs, and estimated valuations of long-term
liabilities.
(4) Findings of health, safety, or ecological risk assessments or
evaluations based on MRS-specific data.
(5) Reasonably anticipated future land use, especially when
planning response actions, conducting evaluations of response
alternatives, or establishing specific response action objectives.
(6) A community's reuse requirements at Base Realignment and
Closure (BRAC) installations.
(7) Specialized considerations of tribal trust lands (held in trust
by the United States for the benefit of any tribe or individual). The
United States holds the legal title to the land and the tribe holds the
beneficial interest.
(8) Implementation and execution considerations (e.g., funding
availability; the availability of the necessary equipment and people to
implement a particular action; examination of alternatives to responses
that entail significant capital investments, a lengthy period of
operation, or costly maintenance; alternatives to removal or treatment
of contamination when existing technology cannot achieve established
standards [e.g., maximum contaminant levels]).
(9) Mission-driven requirements.
(10) The availability of appropriate technology (e.g., technology
to detect, discriminate, recover, and destroy UXO).
(11) Implementing standing commitments, including those in formal
agreements with regulatory agencies, requirements for continuation of
remedial action operations until response objectives are met, other
long-term management activities, and program administration.
(12) Established program goals and initiatives.
(13) Short-term and long-term ecological effects and environmental
impacts in general, including injuries to natural resources.
(b) Procedures and documentation for sequencing decisions. (1) Each
installation or FUDS is required to develop and maintain a Management
Action Plan (MAP) or its equivalent. Sequencing decisions, which will
be documented in the MAP at military installations and FUDS, shall be
developed with input from appropriate regulators and stakeholders
(e.g., community members of an installation's restoration advisory
board or technical review committee). If the sequencing of an MRS is
changed from the sequencing reflected in the current MAP, information
documenting the reasons for the sequencing change will be provided for
inclusion in the MAP. Notice of the change in the sequencing shall be
provided to those regulators and stakeholders that provided input to
the sequencing process.
(2) In addition to the information on prioritization, the
Components shall ensure that information provided by regulators and
stakeholders that may influence the sequencing of an MRS is included in
the Administrative Record and the Information Repository.
(3) Components shall report the results of sequencing to ODUSD(I&E)
(or successor organizations). ODUSD(I&E) shall compile the sequencing
results reported by each Component and publish the sequencing in the
report on environmental restoration activities for that fiscal year. If
sequencing decisions result in action at an MRS with a lower MRS
priority ahead of an MRS with a higher priority, specific justification
shall be provided to the ODUSD(I&E).
Appendix A to Part 179--Tables of the Munitions Response Site
Prioritization Protocol
The tables in this Appendix are solely for use in implementing
32 CFR part 179.
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Dated: September 27, 2005.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-19696 Filed 10-4-05; 8:45 am]
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