H.  Statutes, Regulations, and Government-Wide Application

Comment: One respondent stated that the rule is contrary to existing statutes such as the Resource Conservation and Recovery Act (RCRA), which sets strict requirements for manifesting and disposing of hazardous waste but does not prohibit use of materials such as hexavalent chromium.

DoD Response: The rule is not contrary to existing statutes. The rule is consistent with the 1984 Federal Hazardous and Solid Waste Amendments to RCRA that focused on waste minimization. RCRA prescribes "that the manifest required by subsection (a)(5) shall contain a certification by the generator that the generator of the hazardous waste has a program in place to reduce the volume or quantity and toxicity of such waste to the degree determined by the generator to be economically practicable."

Comment: Two respondents stated that the rule is not consistent with national and international regulations because laws such as the Clean Water Act and the Clean Air Act, and regulations such as OSHA and the European Union's Restriction on Hazardous Substances control the release of hexavalent chromium but do not prohibit its use.

DoD Response: As with the referenced statutes and regulations, the objective of this rule is the protection of human health and the environment while balancing other considerations. Protection of human health and the environment has historically been accomplished through the reduction of releases and/or managing exposure. This rule reduces releases and exposure by minimizing the incorporation of hexavalent chromium into products acquired by DoD. The DoD approach to minimizing hexavalent chromium does consider factors such as cost effectiveness and technical feasibility as described at 223.7305. Since this rule does not address the use of hexavalent chromium in the manufacturing process or completely ban the use of hexavalent chromium in end items delivered to DoD, other statutes and regulations addressing releases and managing human exposure will complement this rule when hexavalent chromium is used in or is a byproduct of the manufacturing process or is incorporated into the end item.

Comment: One respondent stated that the rule should be applicable Governmentwide.

DoD Response: The rule is only applicable to DoD. It is based on the April 8, 2009, policy memorandum, issued by the Under Secretary of Defense (AT&L).