Previous Corner.

LAST MONTH’S CONTENT FOR YOUR CONVENIENCE.

In the United States, hazardous wastes are subject to regulations mandated by the Resource Conservation and Recovery Act (RCRA). Every month, we provide clear, in-depth guidance on a different aspect of the RCRA regulations. The information presented here is an excerpt from McCoy’s RCRA Unraveled, 2020 Edition.

Learn more >   Buy >   Compliance Corner >

©2020 McCoy and Associates, Inc. All rights reserved.

Point of Generation for Waste Military Munitions

At the onset of RCRA in 1980, many federal facilities operated on the assumption that the hazardous waste regulations did not apply to them. Citing sovereign immunity, they managed their waste independently of the RCRA program. Some facilities, recognizing the danger of waste chemicals to human health and the environment, voluntarily complied with RCRA; however, their compliance consistency was hit-or-miss at best. Recognizing the environmental costs for RCRA noncompliance at federal facilities, Congress enacted the Federal Facilities Compliance Act (FFCA) in 1992. The act established that federal facilities (which are those facilities within the Executive branch of the U.S. government) were not immune from federal, state, or local enforcement that results from noncompliance with the hazardous waste regulations. In short, federal facilities were required to adhere to RCRA regulations; otherwise, they could face civil or criminal penalties. Based on the FFCA and subsequent implementing regulations, military waste, including waste military munitions, falls within the realm of RCRA regulation.

Congress was especially concerned about waste military munitions. Throughout the early 1990s, the Department of Defense (DOD) relied on a patchwork of guidance, interpretations, and rules from states on when their munitions became a solid (and potentially hazardous) waste. Through the FFCA, Congress directed EPA to consult with DOD to finalize a nationally uniform rule identifying when conventional and chemical military munitions become solid and hazardous waste under RCRA. On February 12, 1997, EPA published the military munitions rule, which became effective August 12, 1997. [62 FR 6622]

What are “military munitions”?

The term “military munitions” (defined in §260.10) applies to all ammunition products and components produced or used by or for the U.S. Armed Services for national defense and security, including munitions under the control of the Coast Guard, National Guard, and the U.S. Department of Energy (DOE). The munitions rule also covers those parties under contract or acting as an agent for the above mentioned entities. [62 FR 6624] Military munitions include, but are not limited to: confined gaseous, liquid, and solid propellants, explosives, pyrotechnics, chemical warfare agents, chemical munitions, rockets, missiles, bombs, warheads, mortar rounds, ammunition, grenades, mines, torpedoes, demolition charges, and devices and components thereof. The term does not include wholly inert items and improvised explosive devices. Nuclear weapons managed under DOE’s nuclear weapons program are also not recognized as military munitions unless such weapons have been sanitized to the degree specified by the Atomic Energy Act of 1954.

Most military munitions are products that will be or have been used for their intended purpose. Thus, they are not solid or hazardous waste. However, there are a number of situations where these munitions can become a discarded material and a solid waste, subjecting them to the RCRA program. The February 1997 rule amended §261.2(a)(2) to include a fourth type of discarded material: those military munitions identified as solid waste under the provisions of §266.202. That section in Part 266, Subpart M sets out when military munitions are and are not solid wastes.

Determining if military munitions are solid wastes

Part 266, Subpart M characterizes the status of four activities involving military munitions:

  1. Unused munitions that are designated for disposal;
  2. Unused munitions that are disassembled, repaired, or otherwise recovered;
  3. Munitions that are used for training, research and development, or evaluation; and
  4. Range clearance activities.

Unused munitions that are designated for disposal

Part 266, Subpart M cites four situations where unused military munitions become a solid waste because they are designated for disposal. Those situations are shown in Figure 1 and noted below:

Figure 1
  1. Munitions that have been or are being disposed, burned, or otherwise treated prior to disposal [§266.202(b)(1)];
  2. Munitions removed from storage for the purposes of being disposed, burned, or otherwise treated prior to disposal [§266.202(b)(2)];
  3. Munitions that are leaking or deteriorated [§266.202(b)(3)]; and
  4. Munitions declared by an authorized military official to be a solid waste [§266.202(b)(4)].

Munitions that are disposed, burned, or otherwise treated

Generally, a military munition becomes discarded, and therefore a solid waste, when it has been abandoned by being disposed (e.g., buried or landfilled), burned, detonated, or otherwise treated prior to disposal. However, if burning or detonation is performed as part of a training exercise, a solid waste is not generated because the munition is a product being used for its intended purpose. Also, actions taken as part of an emergency response (e.g., stabilization, detonation) can be exempt from Subtitle C standards under the immediate response exemption. Unused munitions that were buried in the past are considered solid wastes and potentially hazardous waste and would be regulated as such if unearthed and further managed. [62 FR 6626]

Munitions removed from storage and then disposed, burned, or otherwise treated

EPA’s approach for determining when unused munitions become a solid waste is the same approach the agency used for unused commercial chemical products held by manufacturers or their customers. That is, the unused product (in this case a munition) will not be a solid waste until there is an intent to discard the material.

Unfortunately DOD’s complex system of accounting and management controls and the numerous management options available for munitions (e.g., reconditioning, reuse, and sale) made it difficult to determine at what point there is an intent to discard the munition. For example, aged, damaged, or outdated munitions may be sent to a central arsenal for evaluation. Upon evaluation, the munitions may be put back into service, reconditioned, disposed, sold to other nations, etc. Just because a munition was slated for evaluation at a central arsenal did not mean there was an intent to discard.

EPA wanted a simple enforceable approach to determining when a solid waste munition was generated, and the agency recognized that DOD has in place extensive storage standards that are protective of human health and the environment. So EPA took the approach that a munition becomes discarded (thus, a solid waste) when it is removed from military magazines or other storage for the purposes of disposal, burning, incineration, or other treatment prior to disposal. At that point, the munition will be a solid waste. This approach is known as the “magazine door” rule.

Munitions that are leaking or deteriorated

Military munitions in storage are not solid wastes. However, if a munition is found to be deteriorated or damaged to the point that it cannot be put into serviceable condition and cannot reasonably be recycled or used for other purposes, it is a solid waste. For example, a stabilizer is added to a military propellant during the manufacturing process. Over time the stabilizer in the propellant can deteriorate to the point the unstabilized propellant poses an autoignition hazard. The only options available for this unstable propellant are treatment or disposal. Under these circumstances, the munition in storage would be a solid waste. [62 FR 6627]

However, in preamble guidance, EPA noted that if a leaking chemical munition or agent container can be repaired or reclaimed, the munition would still be considered a product. [62 FR 6627]

Munitions determined by an authorized military official to be a solid waste

An authorized military official (usually the designated disposition authority or DDA) may declare a stockpiled military munition to be a solid waste subject to RCRA regulation. For example, in 1984 the Army determined that M55 rockets (which contain a chemical agent) are solid waste. DOD made this decision because 1) the rockets’ delivery system no longer existed, 2) the rockets would not be used in military operations, and 3) they would not be sold or reclaimed.

Unused munitions that are disassembled, repaired, or otherwise recovered

Military munitions that are repaired, reused, recycled, reclaimed, disassembled, reconfigured, or otherwise subjected to materials recovery activities are not solid waste (see Figure 1), unless such activities result in use constituting disposal or burning for energy recovery. [§266.202(a)(2)] See Table 1 for examples of how this principal applies to munitions.

Table 1

Munitions used for training, research and development, or evaluation

EPA has consistently held that products used for their intended purpose are outside the scope of RCRA, even if such use results in land application. For example, the proper application of a pesticide will usually result in soil contamination. However, as long as the product was used for its intended purpose, RCRA doesn’t regulate the activity or the resulting contamination. [January 4, 1985; 50 FR 628, RO 11291, 12357] By the same logic, EPA has consistently held that the use of munitions for their intended purpose (e.g., firing a round of ammunition, dropping a bomb from an aircraft, throwing a grenade) does not constitute “discard” and therefore is not a waste management activity. [62 FR 6628]

Part 266, Subpart M cites two situations where used military munitions are not a solid waste; rather, they are products used for their intended purpose. Those situations are:

  1. Military training exercises [§266.202(a)(1)(i)]; and
  2. Weapons testing, research and development, or evaluation [§266.202(a)(1)(ii)].

Military training exercises

Munitions used for the training of military personnel and explosive ordnance disposal (EOD) personnel are not solid waste under RCRA. Such training, which can include the destruction of unused artillery or mortar round propellant, is a legitimate use of a product, and it lies outside the realm of RCRA.

During a bombing run as part of a training exercise, four of the bombs hit the ground but fail to detonate. The pilot requests permission to take a strafing run at the bombs to detonate them. However, the flight operations officer thinks that such an activity would necessitate a RCRA Subpart X permit. Are the unexploded bombs an explosive waste subject to Subpart X permitting prior to detonation?

No. Since it is normal that not all bombs detonate when dropped, any unexploded bombs are within the normal use pattern of training/target practice. There is no intent to discard the bombs. Subsequent detonation of the bombs in place is not subject to Subpart X permitting. The training mission (or further use of the bombs) can include the strafing run, any dismantling or deactivation of the bombs, or detonating them in place by other means. However, if at any point the bombs are collected and shipped to a place other than the training range (or another training range) to be open burned/open detonated, then that OB/OD site is subject to the permitting requirements of RCRA. [RO 11370]

Weapons testing, research and development, or evaluation

Munitions used during research, development, testing, and evaluation programs are not regulated under RCRA. This includes using munitions during the testing and evaluation of weapons and weapon systems. EPA views such operations as legitimate use of a material or product for its intended purposes.

A fired military munition would also not be a solid waste if shipped offrange for further evaluation, unless the evaluation is related to treatment or disposal. [62 FR 6628]

Range clearance activities

The recovery, collection, and onrange destruction of debris and unexploded ordnance is a common practice at military ranges. During these activities, debris and unexploded ordnance are collected and rendered safe by EOD specialists. EPA considers such onrange management activities to be a necessary part of the safe use of munitions for their intended purpose. As such, the agency excludes range clearance exercises at active or inactive ranges from RCRA regulation. [§266.202(a)(1)(iii)]

However, if used or fired munitions are removed from their landing spot and shipped offrange for treatment or disposal, the debris or unexploded ordnance would be a solid waste. [§266.202(c)] Recognizing the inherent danger of buried munitions, EPA clarified that the onrange disposal (e.g., recovery, collection, and subsequent burial) of unexploded ordnance and debris would generate a solid waste. [§266.202(a)(1)(iii), (c)(2)] In either case, EPA believes the munition is no longer being used for its intended purpose and there is clearly an intent to discard or abandon the munition.

On rare occasions, fired munitions may land offrange. What is the status of munitions that have been used for their intended purpose, but have landed offrange? EPA addressed these rare situations in §266.202(d). Munitions that land offrange and are not promptly collected or rendered safe are solid waste and, further, are potentially subject to RCRA’s corrective action and imminent and substantial endangerment provisions. It is EPA’s belief that failure to render safe or retrieve a munition that lands offrange is an intent to discard in the same manner that failure to clean up a spill is an intent to discard. In those situations where retrieval or remediation is infeasible (e.g., impact spot could not be located), the operator of the range must maintain a record of the event for as long as any threat remains. The record must include the type of munition and its location (to the extent the location is known).

What is the regulatory status of fired munitions and munitions fragments that are collected and sent offrange for metals recycling?

Fired munitions and munitions fragments being sent offrange for reclamation are solid waste per §266.202(c)(1). Though not explicitly stated in Part 266, Subpart M, those items that meet the definition of scrap metal can be managed as RCRA-exempt scrap metal under §261.6(a)(3)(ii) if they meet the acceptance criteria of the scrap metal recycler. For example, expended small arms cartridge casings sometimes fail the TCLP for lead but would not be D008 if recycled as scrap metal.

Military munitions that are solid waste may also be hazardous waste

Once a military munition is determined to be a solid waste, the generator must make a hazardous waste determination. A solid waste will be a hazardous waste if it is listed in Part 261, Subpart D or if it exhibits a characteristic of ignitability, corrosivity, reactivity, or toxicity from Part 261, Subpart C. These munitions will normally not be listed, but they could be reactive (D003) and/or toxic due to heavy metals and/or 2,4-dinitrotoluene. Thus, once military munitions become solid waste, they could be subject to all RCRA Subtitle C hazardous waste management regulations.

An example of the above is spent M5-HC smoke pots used during range training exercises. Testing shows that these spent units fail the TCLP for cadmium and lead, thereby requiring the D006 and D008 codes, respectively, when disposed. [“Hazardous Waste Study No. 37-7016-97/98,” U.S. Army Environmental Center]


COMPLIANCE
CORNER
 

Topic: Corrective Action Process


©2020 McCoy and Associates, Inc. All rights reserved.

McCoy and Associates has provided in-depth information to assist environmental professionals with complex compliance issues since 1982. Our seminars and publications are widely trusted by environmental professionals for their consistent quality, clarity, and comprehensiveness.

 

Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.