May 14, 2024

Open Burning/Open Detonation Proposed Rule

On March 20, 2024, EPA proposed RCRA regulations allowing for the open burning/open detonation (OB/OD) of waste explosives under new Parts 264 and 265, Subpart Y. [89 FR 19952] Waste explosives would be defined in §260.10 as:

“Hazardous wastes that exhibit the reactivity characteristic (D003) and are capable of detonation or explosive chemical reaction as defined in §261.23(a)(6-8) and include propellants, explosives, pyrotechnics, munitions, military munitions as defined in §260.10, and unexploded ordinance.”

Before a facility would be authorized to operate OB/OD units, it would first need to determine if a safe and available alternative technology is available in lieu of OB/OD. Alternative technology evaluations would be detailed in §§264 and 265.707 and include a review of options for both on- and off-site treatment and treatment in a mobile treatment unit (MTU). A RCRA permit would be required at each location where an MTU would operate.

Facilities seeking to operate OB/OD units must meet waste analysis requirements in §§264 and 265.706. The proposed waste analysis requirements are in addition to what is already required under §§262.11, 264.13, and 265.13. The additional requirements include analysis of net explosive weight (NEW), measures of insensitivity, flash point, pH, and free liquid. Generator knowledge could be sufficient for compliance with these proposed regulations.

Like other RCRA-permitted units, Subpart Y OB/OD units would be subject to operating and monitoring requirements, inspections, closure and post-closure care, and facilities would be responsible for meeting reporting and recordkeeping requirements and providing personnel training.

The proposed rule addressed emergency responses and emergency permits, allowing for the use of the existing RCRA emergency response exemption. During explosives or munitions emergency responses, facilities would be exempt from evaluating alternative treatment technologies. Facilities would be required to submit specified information after the emergency response is complete.

An additional exemption involving the de minimis treatment of waste explosives via OB/OD is also included in the proposal. This exemption applies to facilities generating up to 15,000 lbs NEW waste explosives annually and exempts facilities from the requirement to conduct an alternative technology evaluation. The waste explosives must be generated onsite, and the facility must make three unique de minimis demonstrations to EPA:

The proposed de minimis treatment by OB/OD would contribute negligible contamination and potential for exposure.
No onsite or offsite treatment by an alternative technology, nor treatment in an MTU, is safe and available.
The facility does not have any unresolved compliance or enforcement actions and does not have a history of noncompliance.

As the proposed rule is more stringent than the existing federal regulations and would be implemented under the authority of the Hazardous and Solid Waste Amendments, it would take effect in all states and territories at the same time. More information on the proposal, including a recording of a public webinar, is available on EPA’s OB/OD rule website. Comments may be submitted through June 20, 2024 via Docket ID No. EPA-HQ-OLEM-2021-0397. [89 FR 42832]

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 environmental regulations. Persons evaluating specific circumstances dealing with the environmental 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.