The Texas Natural Resource Conservation Commission (commission) proposes amendments to §335.1, Definitions; §335.41, Purpose, Scope and Applicability; §335.61, Purpose, Scope and Applicability; §335.91, Scope; §335.111, Purpose, Scope, and Applicability; §335.112, Standards; and §335.152, Standards. The commission also proposes new §335.271, Purpose, Scope, and Applicability; and §335.272, Standards.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The primary reason for the proposed amendments is to adopt the military munitions rule promulgated by the United States Environmental Protection Agency (EPA) in the February 12, 1997 issue of the Federal Register, at 62 FedReg 6622. The proposal includes conforming changes to the commission's rules that are needed to establish equivalency with the federal regulations, which will enable the State of Texas to increase its level of authorization to operate aspects of the federal hazardous waste program in lieu of the EPA. The proposed rules would also make needed administrative revisions, improvements to readability, and correction of internal cross-references.

The federal military munitions regulations proposed for adoption resulted from several years of consultation between EPA, the United States Department of Defense (DOD), states, and citizens groups. This effort responded to a congressional mandate to develop a regulatory system to identify when conventional and chemical military munitions become a hazardous waste regulated under the Resource Conservation and Recovery Act (RCRA) and to provide for the safe storage and transportation of such waste. A complete history of this process, including supporting documentation and comments is available from EPA as indicated at 62 FedReg 6622.

The major issues addressed in the federal regulations are: (1) At what point does an unused munition become a hazardous waste? Specifically, at what point do unused munitions slated for destruction first become subject to regulation under RCRA? (2) Should hazardous waste management standards apply to the use of munitions in weapons testing or military training exercises? (3) How do hazardous waste regulations apply to emergencies involving military munitions and explosives and non-military explosives? (4) In what way (if any) do RCRA requirements apply to unexploded ordnance and environmental contamination at military ranges, especially ranges that are closed or transferred? (5) Once it has been determined that a munition is a hazardous waste for regulatory purposes, what management standards are needed to ensure safe transportation and storage, while protecting human health and the environment?

The proposed definition of "military munition" and the proposed rules which determine whether a military munition is a solid waste are the substance of this proposal. This proposal would seek to clarify the regulatory status of unused military munitions by identifying the specific circumstances under which an unused military munition is considered to be a solid waste.

These proposed amendments conform the commission's rules to the federal military munitions regulation. This proposal will identify when conventional and chemical military munitions become a solid waste subject to hazardous waste determination, and provide for the safe storage and transport of this waste. The proposal would also provide rules for emergency responses involving both military and non-military munitions and explosives; and treatment, storage, disposal, and transportation standards for waste military munitions.

The federal munitions regulation provides an exemption for all generators and transporters of hazardous waste, not just the military, from manifest requirements for the transportation of hazardous waste on public or private right-of-ways on or along the border of contiguous properties, under the control of the same person, regardless of whether the contiguous properties are divided by right-of-ways. However, this part of the federal regulations was adopted by the commission on April 28, 1999, (in §335.10(h)), effective May 20, 1999; therefore, it is unnecessary for the commission to address the contiguous property manifest exemption in this proposal.

SECTION BY SECTION DISCUSSION

This proposal adds three new definitions to §335.1 to clarify the proposed exemption from hazardous waste permitting for immediate responses to threats involving munitions or other explosives. The proposed new definitions: "explosives or munitions emergency," "explosives or munitions emergency response," and "explosives or munitions emergency response specialist" reflect the federal munitions regulations at 40 Code of Federal Regulations (CFR) §260.10 and §261.2.

Proposed §335.1(47) would add the definition of "explosives or munitions emergency" to specify the types of emergencies that will be subject to the military munitions rule. The proposed definition describes what constitutes an emergency and clarifies that an emergency situation includes suspect situations with significant uncertainties, including improvised explosive devises. The proposed definition of explosives or munitions emergency also states that the newly defined "explosives or munitions emergency response specialist" is responsible for determining whether an emergency exists.

Proposed §335.1(48) would add the definition of "explosives or munitions emergency response" to specify the criteria under which an emergency response involving military munitions or explosives becomes subject to the military munitions rule in 40 CFR §266.24. An explosives or munitions emergency response would include all immediate response activities identified and carried out by the emergency response specialist to eliminate the threat. The proposed definition also provides that: an explosives or munitions emergency response includes in-place render-safe procedures, treatment or destruction of the explosives or munitions and/or transporting those items to another location to be rendered safe, treated, or destroyed; any reasonable delay in the completion of an explosives or munitions emergency response caused by a necessary, unforeseen, or uncontrollable circumstance will not terminate the explosives or munitions emergency; and explosives and munitions emergency responses can occur on either public or private lands and are not limited to responses at hazardous waste facilities.

Proposed §335.1(49) would add the definition of "explosives or munitions emergency response specialist" to describe the required qualifications that a person must have to properly handle explosives or munitions emergencies. Included within this proposed definition are all military and non-military personnel trained in the identification, handling, treatment, transport, and destruction of explosives or conventional and chemical military munitions.

In order to account for the proposed addition of the new definitions in §335.1(47)-(49), currently existing §335.1(47)-(83) is proposed to be renumbered §335.1(50)-(86).

Proposed §335.1(87) would add the definition of "military munitions" to describe the specific components that are and are not military munitions. New §335.1(87) is proposed to conform to the federal definition of "military munitions," finalized in 40 CFR §260.10 and would establish the basis for the proposed special procedures and management standards for waste military munitions. The proposed term "military munitions" would include all types of both conventional and chemical ammunition products and their components, produced by or for the military for national defense and security. This definition would clarify that military munitions may be under the control of the United States Department of Energy (DOE), the United States Coast Guard (Department of Transportation), and the National Guard (which includes the State National Guard), as well as the DOD and its various components. Other parties under contract or acting as an agent for DOD, are included as long as they are managing "military munitions." The proposed definition of "military munitions" lists examples of military munitions components, including propellants, explosives, pyrotechnics, bulk chemical warfare, and riot control agents, warheads, cluster munitions and dispensers, demolition charges, rockets, guided and ballistic missiles, bombs, mines, grenades, mortar rounds, artillery and small arms ammunition, torpedoes, and chemical munitions.

The proposed new definition would exclude wholly inert items and improvised explosive devices, i.e. homemade bombs (which are non-military). Nuclear weapons, nuclear devices, and nuclear components thereof, are also excluded.

In order to account for the proposed addition of the new definitions under §335.1(47)-(49) and §335.1(87), currently existing §335.1(84)-(154) are proposed to be renumbered §335.1(88)-(158).

A conforming change to the definition of "solid waste" is being proposed in another rulemaking by the commission. Under that separate rulemaking, §335.1(124)(B) is proposed to be amended by adding clause (iv) which adds military munition identified as a solid waste under 40 CFR §266.202 to the list of materials which are considered to be discarded material. This separate proposed amendment is a change to conform to the federal regulations promulgated by EPA on February 12, 1997 at 62 FedReg 6621.

Proposed §335.41(d)(2) is reorganized into §335.41(d)(2)(A)-(D) to improve readability of the distinct requirements for interim status and permitted facilities regarding hazardous waste processing or containment activities during and after an immediate response. References to interim and permitting standards are corrected in new §335.41(d)(2)(A) and (B), providing the applicable state rules, rather than federal regulations. Additionally, superfluous wording is proposed to be removed from §335.41(d)(2)(C).

Proposed §335.41(d)(2) would add a specific exemption from hazardous waste management general provision for persons engaged in processing or containment activities during the response to an immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist as defined in §335.1. This exemption would address the potential for delays and confusion regarding the application of permitting requirements to an explosives or munitions emergency. The objective of the federal regulation to which this amendment would conform is to remove regulatory impediments to the safe and prompt management of explosives or munitions emergencies. This exemption is further explained in proposed §335.41(d)(2)(D), which would allow removal of the material or waste by transporters who do not have EPA identification numbers and without the preparation of a manifest. Recordkeeping requirements are proposed in new §335.41(d)(2)(D), including retention of records for three years identifying the dates of the response, the persons responding, the type and description of material addressed, and its disposition.

Proposed §335.41(a) would amend the phrase "Code of Federal Regulations (CFR)" by adding the appropriate acronym "(CFR)." Subsequent occurrences of "Code of Federal Regulations" within this section are proposed to be replaced with "CFR" for the purpose of improved readability.

Proposed §335.41(e)(2) would delete the out-of-date reference to the Texas Department of Health.

Proposed §335.41(j) is corrected by changing the phrase "§335.261 of this title" to "Subchapter H, Division 5 of this chapter."

Proposed §335.61(h), would exempt federal, state and local officials and authorized munitions emergency response specialists, answering to an explosives or munitions emergency, from the requirements to comply with the generator standards of Chapter 335, Subchapter C (Standards Applicable to Generators of Hazardous Waste). This exemption would address the potential for delays and confusion regarding the application of generator requirements to an explosives or munitions emergency. The objective of the federal regulation to which this amendment conforms is to remove regulatory impediments to the safe and prompt management of explosives or munitions emergencies.

Proposed new §335.91(f) provides an exemption for transporters who are responding during an explosives or munitions emergency from the requirements of Chapter 335 Subchapter D (Standards Applicable to Transporters of Hazardous Waste). As discussed above, this proposed exemption is intended to allow prompt response to explosives emergencies when necessary.

Proposed §335.91(g) would incorporate the non-emergency transportation directives provided in 40 CFR §266.203, proposed for adoption by reference in new Chapter 335, Subchapter H, Division 6 (relating to Military Munitions). A conditional exemption from RCRA regulation for waste non-chemical military munitions in transportation is provided within 40 CFR §266.203. The EPA has evaluated the DOD tracking and security system, and has determined that it is at least as effective as the RCRA manifest in assuring that waste munitions are tracked from "cradle to grave." The agency views this conditional exemption to be protective of human health and the environment. The proposed exemption is conditional in that the stipulations of the rule must be met or the transporter would be required to comply with the transportation standards under Chapter 335, Subchapter D (Standards Applicable to Transporters of Hazardous Waste).

Proposed §335.111(a) is amended to add the phrase "except as specifically provided for in §335.41 of this title (relating to Purpose, Scope, and Applicability)." This amendment would provide a cross-reference to exemptions from interim status and permitting requirements, including the proposed exemption for response to an explosives or munitions emergency.

Section 335.112, Standards, is proposed for amendment in §335.112(a)(4) to update the adoption by reference of 40 CFR Part 265, Subpart E--Manifest System, Recordkeeping, and Reporting. The proposed amendment would incorporate the exemption from manifest requirements for owners and operators of off-site facilities with respect to waste military munitions that are conditionally exempt by 40 CFR §266.203(a) from the transporter standards in Chapter 335, Subchapter D.

Proposed §335.112(a)(22) would incorporate by reference 40 CFR Part 265, Subpart EE--Hazardous Waste Munitions and Explosives Storage requirements which provide design, operating, closure, and post-closure care standards for owners and operators who store non-military or military waste munitions in storage units. Subpart EE controls are necessary for the storage of waste munitions which were previously unregulated and for waste military munitions that are not managed in compliance with existing controls. Adoption of this federal regulation would ensure the safe storage of waste munitions while at the same time, not unnecessarily duplicating or impeding existing regulation and handling of such wastes.

Proposed §335.112(a)(23) is renumbered without wording changes.

Proposed §335.112(b)(4) is rewritten with additions to provide a more complete translation between federal regulations and the appropriate state rule equivalents. This amendment would provide the necessary correlation between state rules and corresponding federal regulations. The proposed additional cross-reference translations are as follows: references to 40 CFR §265.1 are changed to §335.111 of this title (relating to Purpose, Scope and Applicability); 40 CFR Parts 260 through 270 means the commission's rules including but not limited to Chapter 50 of this title (relating to Action on Applications and Other Authorizations), Chapter 305 of this title (relating to Consolidated Permits), Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), as applicable; and references to 40 CFR §264.310 are changed to §335.174 of this title (relating to Closure and Post Closure Care (Landfills)).

Proposed §335.112(b)(5) and (6) would provide a translation between federal regulations and the appropriate state rule equivalents as follows: references to 40 CFR Part 265, Subpart D (Contingency Plan and Emergency Procedures) are changed to §335.112(a)(3) of this title (relating to Standards) and §335.113 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator); references to 40 CFR §§265.71, 265.72, 265.76 and 265.77 are changed to §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities), §335.12(c)(1) and (2) of this title, §335.15(3) of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities), and §335.115 of this title (relating to Additional Reports), respectively.

Section §335.112(b)(5)-(7) is proposed to be renumbered to §335.112(b)(7)-(9). Superfluous commas are removed from proposed §335.112(b)(7) and (8).

Section 335.152, Standards, is proposed to update §335.152(a)(4), which is the incorporation of 40 CFR Part 264, Subpart E--Manifest System, Recordkeeping, and Reporting, with exceptions. The update would incorporate the exemption from manifest requirements for owners and operators of off-site facilities with respect to waste military munitions that are conditionally exempt by 40 CFR §266.203(a), proposed for adoption by reference under Subchapter H, Division 6, from the transporter standards in Chapter 335, Subchapter D.

Proposed §335.152(a)(20) would incorporate by reference 40 CFR Part 264, Subpart EE requirements. This amendment would provide design, operating, closure, and post-closure care standards for owners and operators who store non-military or military waste munitions in storage units which were previously unregulated. Subpart EE controls are necessary for the storage of waste munitions that are not already regulated and for waste military munitions that are not managed in compliance with existing controls. This amendment would ensure the safe storage of waste munitions while at the same time, not unnecessarily duplicating or impeding existing regulation and handling of such wastes.

Section 335.152(a)(21) is renumbered without wording changes.