Disposal of Neutralent Wastes: Review and Evaluation of the Army Non-Stockpile Chemical Materiel Disposal Program (2001)

In 1985, after determining that incineration was a safe, proven technology, the Army decided to use incineration technology to destroy stockpile CWM (PMCD, 1999). Evaluations by the Army and others continue to show that the incineration of stockpile chemicals can be performed without threatening human health or the environment (NRC, 1997; PMCD, 1999). However, in 1994, in response to public concerns about incineration and at the direction of Congress, the Army began evaluating alternatives to incineration (PMCD, 1999). Public concerns about incinerating wastes may also affect the disposal of nonstockpile chemicals and neutralents. Therefore, the NSCMP has also found it necessary to evaluate alternative, nonincineration technologies.

Two constraints on the selection of a disposal technology are regulatory requirements and public stakeholder involvement in the selection and use of that technology. These two influences on the decision-making process are interrelated. Thus, the public may be not only directly involved in the Army's decision making but may also indirectly affect that decision by its involvement in the determining of regulatory requirements. (The Army's successful disposal of non-stockpile materiel within the specified deadlines may depend on whether the Army successfully addresses the public involvement and regulatory issues.)

The Statement of Task governing the actions of this committee does not explicitly request an assessment of the efficacy of the Army 's nonstockpile public involvement program. The primary task before this committee was to evaluate the technical merits of alternative treatment technologies. However, after hearing the views of many stake-holders, and based on the Army's experience with chemical demilitarization programs, the committee concluded that the public policy framework for selecting a technology must be taken into consideration and that public acceptability should be a criterion for selecting a technology.

Public acceptance is the result of a process that involves identifying interested or affected stakeholders, clarifying issues, and putting in place mechanisms to facilitate reaching an agreement (NRC, 1996a). ¹ In the context of the NSCMP, stakeholders include: the government agency making the decision (i.e., the Army); Congress, which enacted the statutes requiring that the Army make a decision; local citizens who may be affected by the decision; national nonprofit groups involved in the public policy debate; contractors, who must implement decisions; and federal and state regulatory agencies.

Through previous research and case studies, and through the stockpile program's recent experiences with the ACWA Program (described below), productive ways of resolving contentious issues over technology selection have been identified, the value of public involvement in governmental decisions in general has been documented, and the issues of concern to the public in the selection of disposal technologies for chemical materiel have been clarified. The necessity, as well as the desirability, of proactively seeking public involvement in policy decisions that once were considered purely scientific has been well documented (e.g., Funtowicz and Ravetz, 1985; Walsh, 1990; Wynne, 1996). The following discussion is a summary of these findings, as well as the recent experiences of the Chemical Stockpile Disposal Program and NSCMP.

Incineration has been the subject of citizen opposition for many years and the target of numerous lawsuits that have

focused media attention on the issue and led to a change in government policy. The problem of politically stigmatized wastes (e.g., napalm, and now, stockpile and nonstockpile wastes) has become so common that the EPA has dubbed them “wastes of concern” (i.e., wastes that are likely to create significant public concerns) (EPA, 2000a). Because of public opposition, the Army was directed by Congress (P.L. 102-84) to evaluate alternative disposal options (i.e., technologies that might be significantly safer and more cost effective than the baseline incineration system).

During the deliberations for this study, the committee reviewed previous studies to identify reported public views of disposal technologies (see especially NRC, 1996a, 1999b), and monitored the Nonstockpile Chemical Weapons Citizens Coalition (NSCWCC) and Chemical Weapons Working Group websites and publications that highlight public views of the nonstockpile program. In addition, the committee solicited the views of two stakeholder groups— opponents of incineration and federal regulators. Although these “representatives” do not reflect the full spectrum of public opinion, both groups are expected to be active participants in the decision to develop and deploy nonincineration technologies. The committee gathered this information to get a sense of what these two groups considered important, both for determining public acceptability and for gaining a general understanding of regulatory problems that might arise.

The committee solicited the views of citizen groups in several ways. NSCWCC was asked to provide documents outlining its views on nonincineration technologies. 2 Two committee members separately observed two meetings of the CORE group (Army personnel from the chemical demilitarization program, representatives of regulatory agencies, and representatives of citizen groups) that were scheduled during the study period. The CORE group, which meets once or twice a year to discuss public issues, provided an opportunity for committee members to observe interactions between participants and the NSCMP, to hear directly their issues of concern, and to talk informally with members of the group. In addition, representatives of these groups availed themselves of an opportunity to attend open committee sessions and present their views before the entire committee. One citizen representative of the CORE group accompanied the committee on a site visit to observe a technology being evaluated. Several members of the committee met with a group of federal regulators from the EPA Office of Waste Programs.

In both formal and informal discussions with members of the committee, representatives of citizens groups affirmed their strong opposition to the use of incineration for the primary or secondary treatment of CWM (NSCWCC, 2000), underscored their commitment to the development and deployment of an alternative technology (or technologies), expressed their belief in the long-term storage of neutralent wastes if an alternative is not available in the near term. The concerns expressed by these representatives are summarized below.

The “dialogue process” established by the ACWA Program was cited in the briefings as a model for early, direct public involvement in technology decisions. Through the ACWA Dialogue process, representatives of diverse public groups (including citizens and regulators) participated in the early stages of decision making. In other words, the public was involved in establishing criteria for selecting and demonstrating technologies, as well as in making trade-offs. The goal of the ACWA Dialogue process was to incorporate public concerns and preferences before a policy was set and to diminish or avoid the conflicts, delays, and cost escalations incurred earlier by the Stockpile Program. In the opinion of the National Research Council committee that evaluated the alternative technologies for the ACWA Program, the dialogue process was “a positive step toward gaining acceptance for alternative disposal technologies ” (NRC, 1999b). In the opinion of the participants, one of the most important results of the dialogue process was that it engendered trust (NSCWCC, 2000).

The NSCMP has already established a mechanism for public involvement based on the ACWA experience. To date, the program has convened three meetings of a group of representatives of public interest groups, regulators, and NSCMP personnel to facilitate interactions and discussions. Although the group is still recruiting representatives with diverse public views and developing effective working relationships, its establishment is an important initial step in seeking public input and improving working relations between NSCMP program staff and the public.

Some representatives of citizens groups who briefed the committee felt strongly that the Army should consider storing neutralent until an alternative technology to incineration could be developed and permitted. The Army's opposition to the storage of neutralent is based on several factors. As discussed in Chapter 2 , MMD neutralent can contain breakdown products that are on the list of Schedule 2 precursors (chemicals that could be used to remanufacture chemical agents) under the CWC. The CWC requires that Schedule 2 precursors derived from existing agents be destroyed in the same time frame as the chemical agents. The Army is concerned that long-term storage may be considered failure to

comply with the CWC or may be misinterpreted as a precedent for another party to the treaty to store large quantities of precursors that could be quickly converted into chemical agents. In addition, long-term storage would be inconsistent with the regulatory requirements under RCRA that limit the length of time hazardous wastes can be stored to 90 days. The Army's long-term interest, as well as the public's, would be served by a description in writing of the Army 's position. This document could then be the basis for discussion on the limitations on the Army's ability to store neutralent solutions.

Public opposition to incineration includes the perceived instability of the process, the potential for explosion, and the potential for unplanned releases of harmful pollutants. The formation and dispersal of dioxins and furans are of particular concern, as well as the release of minimal amounts of unknown, but potentially high-risk chemicals. To lessen these concerns, it was suggested by NSCWCC that the NSCMP evaluate incineration technology against the same criteria the ACWA Program has adopted for evaluating non-incineration technologies (NSCWCC, 2000).

According to the spokespersons for the NSCWCC who briefed this committee, the active opposition of some public interest groups is based not only on technical issues but also on other concerns, such as a desire for environmental justice, the unfairness of the decision-making process, mistrust of the technology provider and the Army, and the lack of accountability and institutional safeguards (e.g., environmental monitoring and emergency preparedness) (NSCWCC, 2000).

Previous research and case studies have shown that the active opposition of some public interest groups to the Army's baseline technology suggest that the Army's goal should be not only compliance with federal or state regulations, but also the highest possible performance standards and protection of workers and public health. In this context, briefers listed some of the criteria by which citizens evaluate technologies (Bradbury et al., 1994). They emphasized, however, that the criteria are not rigidly fixed. An alternative technology that does not meet all of the criteria might still be acceptable to a community—and community preferences may vary. Their primary criteria were:

• containment of by-products and effluents for analysis and further processing, if necessary

• identification of all by-products and effluents

• low-temperature, low-pressure operation

• no dioxins or furans

• pollution prevention (i.e., generation of as little secondary waste as possible)

In discussions with the committee and in a subsequent written statement, the representatives described the broad context for citizens' evaluations of technologies. First, they asserted that the destruction rate efficiency of a technology is not an accurate measure of its net environmental and public health impact. Attributes of preferred technologies include production of low volumes of hazardous waste and high destruction efficiency, rather than simply dilution, of hazardous waste; waste should not simply be moved from one place to another. However the waste is destroyed, it should directly impact as few communities as possible, and, as much as possible, the by-products should be reprocessed or recycled.

In the broadest sense, federal and state regulatory authorities can be considered stakeholders. However, regulatory agencies have the legal authority to bar some options from consideration and/or require the implementing agency to take specific actions to comply with environmental, health, safety, and treaty requirements.

The interaction between citizen stakeholders and regulatory stakeholders is unique. Since the 1960s, environmental laws have created a role for the public in the development of regulatory requirements, particularly if they relate to human health and safety. Thus, virtually every federal and state statute requires public notice and public comment. Some statutes, such as Superfund, require that regulatory agencies consider community opinion (42 U.S.C. § 9621, Section 21).

Several committee members met with a group of federal regulators from the EPA Office of Waste Programs to discuss the regulatory and permitting challenges to the development of new nonincineration technologies. In addition, information and perspectives were obtained from state regulators. The following subsections summarize these discussions but do not endorse a particular option; the committee had neither a mandate nor the resources to explore the advantages and disadvantages of each option. The Army will have to coordinate with the primary permitting authorities (i.e., the states), the EPA, and the public to develop a regulatory permitting plan. Some or all of the alternatives discussed below may be found to be disadvantageous, infeasible, or not cost effective. However, the process of working with stakeholders earlier, rather than later, to determine the necessary information and requirements will be advantageous to the Army and will ultimately speed up the process.

Neutralents may be designated hazardous wastes pursuant to EPA rules. However, states may interpret these rules differently. In the committee 's opinion, neutralents will be handled, transported, disposed of, or treated in compliance with regulations for hazardous wastes or hazardous matedais. Neutralents that are designated hazardous wastes may

not be stored at a site for more than 90 days without a RCRA permit, unless a specific exception applies (EPA, 2000b; NRC, 1999a). Any new nonincineration disposal technology must be permitted, unless it falls under a provision that allows treatment without a permit. For example, under EPA guidelines, treatment in a tank within 90 days does not require a hazardous waste permit (EPA, 2000a; Weddle, 1993; Williams, 1987a, 1987b). However, because states issue federal permits, and because they may have different interpretations of EPA regulations, they may require a permit for this treatment option. If treatment is performed pursuant to a Superfund cleanup, then no federal or state hazardous waste treatment permit is required for any portion of the treatment (Section 124(e) of CERCLA, 42 U.S.C. § 9224(e)).

No EPA regulations or guidances specify the levels of destruction, levels of air emissions, water discharge limits, or other environmental requirements for alternative treatment technologies used to treat nonstockpile materiel. Although some established environmental requirements may be applicable, EPA and the states usually develop environmental requirements on a case-by-case basis.

For the past four years, the Army has been going through the process of obtaining an environmental permit (RCRA part B) for the treatment of CAIS and other nonstockpile materiel in the RRS and MMD. Based on this experience and experiences with other nonstockpile and stockpile chemical treatment systems (i.e., incineration), the regulators expressed concerns (which are shared by the committee) that it may be very difficult to complete the regulatory process for a new technology in the time frame of the NSCMP/CWC. To expedite the process, the NSCMP will have to develop a regulatory compliance plan to evaluate its options in cooperation with EPA, state environmental regulatory agencies, and DOT.

EPA regulators expressed concerns that waiting until an alternative technology has been selected would unduly delay the process and expressed a willingness to begin working immediately with the Army, states, and interested public. In the committee's opinion, the Army should invite stake-holders to participate in an environmental-criteria working group to develop regulatory requirements and begin the process of determining which regulatory requirements apply to the alternative technologies being considered. The following options could be considered.

EPA rules allow nonthermal treatment of hazardous wastes in a tank on site without a hazardous waste permit, as long as the treatment is completed in 90 days or less (EPA, 2000b; Weddle, 1993; Williams, 1987a, 1987b). Under these conditions, neither RRS nor MMD neutralents would require a federal hazardous waste permit. However, state environmental regulatory agencies could impose more stringent permit requirements that would preclude this option. Nevertheless, this approach could potentially save the Army time and expense. Whether this exemption applies to a particular treatment operation must be determined on a case-by-case basis based on federal rules and guidance, as well as state rules and guidance.

EPA drafts national model permit guidance typically on an industry-by-industry basis. The Utah permit for testing the RRS and MMD could become the basis for a model permit for treating neutralents. The Army could work with EPA, states, and local citizens to ensure that the treatment meets the regulatory requirements of this policy and addresses other applicable environmental requirements. The development of environmental requirements by this approach would be the same as for permit-by-rule. The end point, however, would be nonbinding guidance, rather than a legally binding rule.

Some exemptions, exceptions, or variances from the hazardous wastes rules may apply to neutralents if nonstockpile CWM is remediated under the Superfund rules before being treated in the RRS and MMD. For example, the handling of wastes is exempt from the normal RCRA permitting requirements if the waste is being cleaned up pursuant to the Superfund on-site rule, which preempts all federal and state procedural permitting requirements for hazardous substances treated on a Superfund site (Section 120(e) of Superfund, 42 U.S.C.§9620(e)). Thus, the Army might try to clean up CAIS and nonstockpile chemicals under the Superfund rules.

The on-site exemption from permitting, however, still requires that the Superfund remedy meet the substantive environmental and health requirements of RCRA regulations, unless a Superfund waiver applies. In any case, the proposed cleanup would be subject to public comment under the Superfund public involvement procedures. Many cleanups by the U.S. Department of Energy are currently implemented as Superfund cleanups to obtain this flexibility (EPA, 2000b). At RCRA-regulated facilities, EPA and the state may decide to proceed pursuant to a state-issued federal RCRA permit or a CERCLA action.

A narrow statutory amendment could be devised to clarify which requirements apply to the treatment of nonstockpile chemicals and neutralents from the RRS and MMD. For

example, Congress could include an exemption similar to the one in Superfund legislation in the nonstockpile legislation. Waivers could include a requirement for state and public input and compliance with the substantive requirements of federal and state environmental requirements. A statutory amendment should only be pursued after consultation with and involvement of the entire stakeholder community to reach a political consensus.

All of the approaches suggested above would provide flexibility in the development of the regulatory requirements for neutralization of nonstockpile chemicals and the treatment of resulting neutralents. Each approach would allow public stakeholders to participate fully, would allow different options to be pursued, and would expedite the process of implementing an alternative treatment technology.

The states are the lead agencies in most hazardous waste permitting. Therefore, the Army must involve state regulatory stakeholders (as well as public stakeholders). Given the complexity of the issues and the limits on state budgets, state permitting would be expedited if the Army, EPA, and state regulatory officials developed a model state permit and generic risk assessments for the treatment of nonstockpile neutralent.