4
Regulatory Approval and Permitting Issues

Before treatment technologies can be deployed to destroy non-stockpile chemical warfare materiel (NSCWM), regulators and the public must be satisfied that these operations will be carried out within the regulatory and legal frame-work established for protection of human health and the environment. The regulatory approval and permitting (RAP) process determines the choice of treatment technologies and the requirements they must meet and provides opportunities for public involvement in the decision-making process. The Non-Stockpile Chemical Materiel Product’s (NSCMP’s) RAP experience to date demonstrates that difficulties in resolving RAP issues can result in extensive delays and substantially increased costs for NSCWM treatment. An efficient and noncontentious RAP process can result in the timely destruction of NSCWM, in accordance with the Chemical Weapons Convention (CWC) schedule.

This chapter focuses on RAP for waste management, primarily that required under the Resource Conservation and Recovery Act (RCRA) but also, to a lesser extent, that conducted under the authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Many of the principles discussed herein are also applicable to RAP under other environmental laws, including the Clean Air Act, the Safe Drinking Water Act, the Clean Water Act, and state-specific environmental legislation.

This chapter begins with a review of the Army’s prior RAP experience for its various treatment systems and deployment actions. The committee then examines key issues that must be resolved to facilitate the RAP process in the future. Finally, the committee offers findings and recommendations to resolve these issues. Appendix F provides background on key regulatory provisions and a review of various RAP mechanisms that may be used for the destruction of NSCWM in accordance with regulatory requirements.

THE ARMY’S RAP EXPERIENCE

Prior experience can be summarized by examining permitting for various deployments of non-stockpile treatment technologies, including the MMD-1 (munitions management device) system, the RRS (rapid response system), the Spring Valley (Washington, D.C.) action, and the deployment of the explosive destruction system (EDS) to Rocky Mountain Arsenal (RMA) to destroy GB bomblets (NRC, 2001b). RAP efforts for the munitions assessment and processing system (MAPS) and Pine Bluff Non-Stockpile Facility (PBNSF) facilities are also reviewed.

Munitions Management Device

The Munitions Management Device was a trailer-mounted system developed by PMNSCM for the nonexplosive destruction of NSCWM by drill-and-drain plus neutralization technology. The MMD-1 (a neutralization technology) was permitted using a RCRA Research, Development, and Demonstration (RD&D) permit at Dugway Proving Ground, Utah. It took more than 5 years to issue the RD&D permit, and even then, the initial permit was limited to the treatment of phosgene. Treatment of agent in the MMD-1 was still under negotiation when the Army cancelled the MMD program in March 2001. The Utah Depart



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4 Regulatory Approval and Permitting Issues Before treatment technologies can be deployed to destroy non-stockpile chemical warfare materiel (NSCWM), regulators and the public must be satisfied that these operations will be carried out within the regulatory and legal frame-work established for protection of human health and the environment. The regulatory approval and permitting (RAP) process determines the choice of treatment technologies and the requirements they must meet and provides opportunities for public involvement in the decision-making process. The Non-Stockpile Chemical Materiel Product’s (NSCMP’s) RAP experience to date demonstrates that difficulties in resolving RAP issues can result in extensive delays and substantially increased costs for NSCWM treatment. An efficient and noncontentious RAP process can result in the timely destruction of NSCWM, in accordance with the Chemical Weapons Convention (CWC) schedule. This chapter focuses on RAP for waste management, primarily that required under the Resource Conservation and Recovery Act (RCRA) but also, to a lesser extent, that conducted under the authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Many of the principles discussed herein are also applicable to RAP under other environmental laws, including the Clean Air Act, the Safe Drinking Water Act, the Clean Water Act, and state-specific environmental legislation. This chapter begins with a review of the Army’s prior RAP experience for its various treatment systems and deployment actions. The committee then examines key issues that must be resolved to facilitate the RAP process in the future. Finally, the committee offers findings and recommendations to resolve these issues. Appendix F provides background on key regulatory provisions and a review of various RAP mechanisms that may be used for the destruction of NSCWM in accordance with regulatory requirements. THE ARMY’S RAP EXPERIENCE Prior experience can be summarized by examining permitting for various deployments of non-stockpile treatment technologies, including the MMD-1 (munitions management device) system, the RRS (rapid response system), the Spring Valley (Washington, D.C.) action, and the deployment of the explosive destruction system (EDS) to Rocky Mountain Arsenal (RMA) to destroy GB bomblets (NRC, 2001b). RAP efforts for the munitions assessment and processing system (MAPS) and Pine Bluff Non-Stockpile Facility (PBNSF) facilities are also reviewed. Munitions Management Device The Munitions Management Device was a trailer-mounted system developed by PMNSCM for the nonexplosive destruction of NSCWM by drill-and-drain plus neutralization technology. The MMD-1 (a neutralization technology) was permitted using a RCRA Research, Development, and Demonstration (RD&D) permit at Dugway Proving Ground, Utah. It took more than 5 years to issue the RD&D permit, and even then, the initial permit was limited to the treatment of phosgene. Treatment of agent in the MMD-1 was still under negotiation when the Army cancelled the MMD program in March 2001. The Utah Depart

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ment of Solid and Hazardous Waste (DSHW) and the Army were both frustrated by the experience. The DSHW experienced many problems in evaluating permit application documentation and negotiating permit requirements with the Army. The Army experienced numerous and changing demands for data and information from the state. The process may have been complicated by the MMD-1 design, which evolved considerably over time and which raised issues different from those raised by the stockpile incinerator facility at the neighboring Deseret Chemical Depot (DCD). These problems contributed to the Army’s decision to cancel the MMD program. The EDS device was initially tested at Porton Down, in the United Kingdom, and the PMNSCM plans to initially test the EDS-2 device there as well.1 Rapid Response System The RRS device was operated at DCD, Utah, under a standard RCRA permit. Approval of the RRS permit took more than 3 years, with the RRS mission at DCD having since been completed successfully. As had happened with the MMD-1, the DSHW and the Army were equally frustrated over the RRS permitting process, although the RCRA permit for it was easier to obtain than that for the MMD-1. While there are probably several reasons for this difference, the main ones would be the greater complexity of the MMD-1 system and the larger quantity of neat chemical agent to be handled. Spring Valley, Washington, D.C. In 1993, World War I era mustard and other munitions were discovered in the Washington, D.C., neighborhood of Spring Valley (U.S. Army, 2002b). The munitions were buried at the former American University Experiment Station, a World War I era military site used for the development of chemical warfare items. As a formerly used defense site (FUDS), Spring Valley is not part of a facility or installation. There was therefore no overarching environmental regulatory structure under RCRA or CERCLA at the time of the FUDS discovery. The action was processed using CERCLA removal authority in consultation with the Army and regulators from the Environmental Protection Agency (EPA) Region III and the District of Columbia. The response was initiated in 1994 and is ongoing.2 The RAP at Spring Valley did not involve approval or deployment of treatment technologies. Most of the recovered items were transported to Pine Bluff Arsenal for storage and eventual treatment. Rocky Mountain Arsenal, Colorado At RMA, Colorado, the EDS was used to destroy 10 GB (sarin) bomblets. The first stage of the EDS operation was carried out through a state equivalent of EPA’s imminent and substantial endangerment order (RCRA §7003), issued by the state of Colorado. RMA is listed on the CERCLA National Priorities List and has an ongoing remedial program, approved through a CERCLA record of decision. The Army used the existing structure under the RMA’s CERCLA remedial program to destroy the sarin bomblets using the EDS; it met the requirements of the state’s RCRA order as a CERCLA emergency removal action.3 Doing so enabled the Army to avoid the long RAP delays experienced in Utah with RCRA permitting of the RRS and MMD-1. The Army hopes that the CERCLA removal approach can be a model for the RAP process at future sites to which the EDS might be deployed.4 However, the CERCLA emergency removal action RAP mechanism, as deployed at RMA, pertained only to the use of the EDS itself; management of secondary waste was deferred to the RMA waste management plan (U.S. Army, 2001g). In accordance with that plan, neutralents were sent off-site to a commercial TSDF for incineration, and equipment rinsates and cleaning solutions were disposed of through the on-site wastewater treatment system. Munitions Assessment and Processing System The MAPS facility is currently under construction at Aberdeen Proving Ground (APG), Maryland. Construction and initial operation of the facility are being conducted under a RCRA RD&D permit. The current schedule is to have the facility completed by mid-2003, after which testing and operations will begin. The Army, in agreement with the state of Maryland, plans to transition from RD&D to a full RCRA operating permit once operations become routine. This progression will facilitate destruction of NSCWM stored at APG within the CWC schedule requirements. Thus far, the RAP process at APG has proceeded relatively smoothly, although there have been several construction delays.5 1   William Brankowitz, Office of the PMNSCM, briefing to the committee on May 23, 2001. 2   There has been much local criticism of the Army’s handling of the Spring Valley incident. The concerns here seem to be focused on whether the Army should have performed a more thorough investigation of the area at an earlier date. The choice of RAP mechanism does not seem to have been a factor in the criticism. 3   Department of Defense (DOD) facilities are required to consult with regulatory authorities and the public on decisions pertaining to removal actions, but the final decision belongs to DOD (CERCLA Section 212(f)). See Appendix F for details. 4   Bill Brankowitz, Office of the PMNSCM, presentation to the committee on May 23, 2001. 5   These delays were due to finding buried munitions-related debris at the MAPS construction site.

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Pine Bluff Non-Stockpile Facility The Army has just begun to evaluate permitting strategies for the PBNSF. As with MAPS, construction and initial operation of the facility could proceed under a RCRA RD&D permit. Then, after operations at the facility become routine, the PBNSF operations could be transitioned to the full RCRA permit. SPECIFIC ISSUES Regulatory Approval and Permitting Mechanisms In the usual context, regulatory approval refers to the process of obtaining traditional RCRA permits from regulators for hazardous waste treatment, storage, and disposal facilities (TSDFs). However, there are more expeditious mechanisms under RCRA for obtaining the approval of the regulator, and several of these are well suited for the recovery and treatment of NSCWM, especially for small or even moderate finds or where mobile treatment technologies will be employed. In addition, in some cases, regulator approval for waste management activities may be obtained under CERCLA in lieu of RCRA. Accordingly, “RAP” refers to all mechanisms for obtaining regulator approval. RAP mechanisms are reviewed in Appendix F. Cooperation Between the Army, the States, and the Public in the RAP Process As indicated above, although there have been some bright spots (MAPS at APG and the EDS-1 at RMA) in the RAP process for the non-stockpile program, PMNSCM and some of the states have experienced excessive delays and unusually high expenses during the RAP process. One of the state regulators’ most frequent criticisms of the Army’s non-stockpile permitting program is the Army’s incomplete understanding of the regulatory requirements for permitting emerging technologies. Typically, the Army does not initially provide all the data and information that is required by regulators as input to the RAP process. Also, because non-stockpile technologies are innovative in many respects, the states do not always know ahead of time what data or information they need for complete RAP documentation. In addition, some state regulators perceive that the Army does not initiate the permitting process soon enough, especially given the tight time lines imposed by the CWC. One of the Army’s most frequent criticisms of state regulators is their tendency to be overly conservative in the regulation of chemical agents and associated wastes. Other common criticisms of state regulatory programs include their tendency to change and remake decisions regarding how the chemical agents should be regulated and, even after state regulations have been promulgated, to attempt to impose standards that are more stringent or broader in scope than those specified in the promulgated regulations. One of the most frequent criticisms about the role of public stakeholders in the RAP process is that “public” opinion is very often driven by one or more public interest groups that do not adequately reflect the views of the local public. This criticism emanates from both the Army and state regulators. Public stakeholders, for their part, often perceive that the Army—and, to a lesser extent, the states—makes decisions about, for instance, which technology should be used for a particular application and then seeks public approval after the fact. Public involvement is discussed more completely in Chapter 5 of this report. Classification of Chemical Agent Identification Sets On June 26, 2001, the U.S. Army revised Army Regulation AR 50-6 for Chemical Surety. The surety program imposes a set of reliability, safety, and security control measures to ensure that only personnel who meet the highest standards of reliability conduct chemical agent operations, that chemical agent operations are conducted safely, and that chemical agents are secure. AR 50-6 applies to all Army activities involving chemical agents, including the stockpile and non-stockpile destruction programs. One of the more significant revisions in AR 50-6 is the classification of CAIS as recovered chemical warfare materiel (RCWM). The committee believes, however, that it is not necessary to handle CAIS as RCWM. The volume of agent is small, there are no explosives or energetic materiel associated with CAIS, the DOT container requirements are adequate, and the risk is likely to be within the range typically accepted for commercial hazardous waste (NRC, 1996a). The added costs of treatment and disposal would be out of proportion to the benefits, if any, that would be realized by this decision. Furthermore, the committee believes that classification of CAIS as RCWM is unwarranted because the surety risks that this materiel poses in no way compare to the risks posed by other RCWM, such as recovered mortars or bombs (NRC, 1999a).6 Diverse Army Organizations with Responsibility for RAP NSCMP is responsible for developing and proving technologies that are capable of destroying non-stockpile materiel and for treating secondary wastes and related waste in 6   As discussed in NRC 1999a, this conclusion is based on the fact that CAIS sets contain no explosives and relatively small quantities of agent, and that the hazards of the chemical agents in CAIS (mustard and lewisite) fall within the range of the hazards presented by industrial chemicals ordinarily disposed of according to U.S. hazardous waste regulations.

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compliance with regulatory requirements. However, individual installations are responsible for achieving RAP for the management of non-stockpile materiel at their installations. In cases where a developed technology is being demonstrated, such as through a RCRA RD&D permit, the NSCMP has an active role in achieving RAP. In general, however, it plays a secondary, technical support role in achieving RAP for NSCWM treatment at specific installations. When non-stockpile materiel is found at nonmilitary locations, such as Spring Valley (Washington, D.C.), typically the U.S. Army Corps of Engineers is delegated responsibility for obtaining RAP for management of this materiel and implementing the cleanup program. Again, the NSCMP has a secondary role in such activities. Other Army organizations also support the RAP process at specific locations, such as the Soldier and Biological Chemical Command (SBCCOM), the Army Environmental Center, and the Center for Health Promotion and Preventive Medicine. In addition, SBCCOM is responsible for permitted storage of NSCWM (and stockpile materiel) at installations where this materiel is stored.7 Overall, the missions of the entities responsible for supporting and achieving RAP for chemical materiel storage, stockpile destruction, and the non-stockpile program do not appear to be well coordinated within the Army. Also, the roles and responsibilities of the various Army entities involved in the RAP process for non-stockpile activities (and, in general, for all of the Army’s chemical agent programs) and the interrelationships among them do not appear to be well defined. The diversity of Army entities involved in achieving RAP for chemical agent operations and the lack of coordination have caused confusion among the regulators and the public. State regulators and public interest groups have observed that the diverse Army entities involved in achieving RAP for chemical agent operations and deployment are often at odds with one another because they have competing missions and because communication among them is less than ideal. Schedule Requirements of the CWC The Army is bound by the requirements of the CWC in its destruction of stockpile and non-stockpile munitions. Although treaties ratified by Congress have the force and effect of law and do apply to the states, the CWC does not impose specific requirements directly on state regulators. In addition, although the states would prefer that chemical munitions be destroyed as quickly as possible, their primary concern is that the destruction occur in a manner that provides adequate protection to human health and the environment. There is no direct incentive for the states to meet CWC schedule requirements. At the same time, the Army must receive regulatory approvals from the states to handle and treat non-stockpile materiel, so it must address the regulatory concerns of the states. As indicated previously, these concerns have sometimes resulted in very significant delays in the RAP process (e.g., for the MMD-1 and the RRS). Regulatory delays may make attainment of treaty deadlines difficult. Part of the problem here is that states often have been faced with the challenge of evaluating and approving RAP documentation for stockpile and non-stockpile operations during the same time period. Another part is that many of the technologies being developed for NSCWM are innovative and have not previously been permitted in the United States. At the same time, the hazards posed by NSCWM present unusual concerns for the states and the public. Thus, the states are faced with reviewing innovative technologies and addressing special concerns posed by non-stockpile, often at the same time as they are processing permit documentation for stockpile operations. In consideration of these circumstances, the committee believes that the states may not possess sufficient resources to make regulatory determinations for the non-stockpile program within the time frame required by the CWC schedule. While the Army provides funds to the states under cooperative agreements to oversee chemical agent operations, it is unclear whether the states are being provided sufficient funds given these unique challenges. Overall Lack of a Regulatory Program for Treatment Requirements Because there are no treatment standards for chemical agents and associated wastes established in federal or state regulations, treatment requirements are negotiated between the Army and the states on a case-specific basis. Further, the chemicals and technologies being regulated as part of the NSCWM have few commercial hazardous waste analogues. As a result, a large share of state resources must be devoted to developing regulations that affect a very low volume of waste, compared with commercial hazardous waste regulations. This has resulted in considerable delays in the RAP process at the state levels, often resulting in different treatment requirements being applied for the same type of chemical agent or secondary waste in different states. Several states have considered developing regulations for chemical agent waste treatment. In 1995, the state of Utah and the Army began a cooperative effort to develop RCRA land disposal restrictions (LDR) for agent wastes. While the Army and the state met frequently on the rule and agreed to resolve most issues, several issues remained. Also, whereas 7   These and other Army organizations may be involved in future land use planning, which is also an important consideration. However, future land use planning and related issues are beyond the scope of this report.

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the initial concept was for the Army and the state to team up in writing the rule, the Army ended up writing its version and presenting it to the state for consideration. In May 1999, the Army presented its version of the so-called Utah Chemical Agent Rule (UCAR) to the state of Utah for consideration (U.S. Army, 1999b). Three general principles were established, in agreement with Utah officials, as a basis for the rule: Chemical agents should be regulated in the same manner as similar toxic materials generated by private industry in the state of Utah. The primary basis for determining the level or stringency of regulation should be the potential risk that a release of a substance would pose to human health and the environment. There should be a reasonably acceptable relationship between the cost of a regulation and its anticipated benefits. In accordance with these principles, a risk-based approach was the underpinning for the rule. The Army’s proposed UCAR addressed treatment technologies for chemical agents and associated wastes, including treatment technologies under development.8 The rule was also expanded to address exemption levels—de minimis levels below which wastes that might contain (or have contained) chemical agents would no longer be considered hazardous waste.9 After the Army’s proposed UCAR was presented to Utah officials, it was provided to other states that were interested in evaluating its provisions, primarily the stockpile states. Some states, including Utah, looked at the Army’s proposed UCAR very carefully, but to date, no state has officially adopted it, or any parts of it. The benefit of such a rule is that instead of defining and specifying treatment requirements on a case-by-case and state-by-state basis (as part of RAP documentation), requirements would be established in a clear, concise manner and would be applicable to a variety of cases and states. The committee believes that the UCAR represents a good starting point for further development of a rule that would establish treatment requirements for agent waste in a manner protective of human health and the environment and at the least possible cost. Further, the committee believes that significant savings in time and effort could be realized if such a rule were developed cooperatively among the primary states responsible for chemical agent and munitions treatment. The public and other stakeholders should be involved in any rulemaking effort. Secondary Waste Classification Secondary wastes from agent destruction processes (such as occur in the EDS) include the primary reaction products, called neutralents, the excess reagent dilute aqueous rinses of the reaction vessel, and cleaning solutions used to remove residuals before processing the next NSCWM item or agent (NRC, 2001a). Secondary wastes will also include residuals from further treatment of neutralent, if further treatment is performed and such treatment generates additional treatment residuals. Three issues associated with the regulatory classification of secondary wastes warrant discussion. The first is whether secondary wastes are acutely hazardous, as defined under RCRA.10 There is no question that the primary chemical agents found in non-stockpile items are acutely hazardous and warrant stringent controls. Secondary treatment residuals, however, are often placed in the same acutely hazardous category as the parent agent (as, for example, in the Utah and Colorado regulatory programs). RCRA requirements for management of acutely hazardous wastes are more restrictive than those for other types of hazardous waste—for example, there are tighter restrictions on the amount that may be stored at any one time. At worst, neutralents may contain trace amounts of agent, small amounts of agent degradation products, and unreacted reagents. The data gathered to date demonstrate that neutralization destroys 99.995 percent to 99.99998 percent of various chemical agents, so it is highly unlikely that neutralent would pose an acute toxicity risk. In fact, the Army has performed toxicity testing on neutralents and similar wastes that supports the contention that these types of waste are not acutely toxic in accordance with the RCRA definition (NRC, 2001a). While the handling and disposal of neutralent does warrant regulation and further treatment as a hazardous waste, the data do not support the stringent controls associated with the acute toxicity classification (NRC, 2001a, pp. 34-36). The second issue is whether neutralent waste streams, as indicated above, contain trace amounts of agents and small amounts of agent degradation products. In most states where agent wastes are regulated as listed hazardous waste, neutralents, as a direct by-product of agent neutralization, would remain in the chemical agent hazardous waste category. The Army has indicated that it will pursue a hazard 8   RAP documentation for the MMD-1 and RRS was under development as the UCAR was being developed. 9   These exemption levels are similar in concept to those that EPA is establishing for listed hazardous waste under the Hazardous Waste Identification Rule (HWIR). HWIR is discussed in Appendix F. 10   Acutely toxic wastes under RCRA are wastes having a rat oral LD50 (lethal dose to 50 percent of exposed population) of less than 50 mg/kg, a rat inhalation LC50 (concentration lethal to 50 percent of exposed population) of less than 2 mg/L, or a rabbit dermal LD50 of less than 200 mg/kg (40 CFR 261.11(a)(2)).

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ous waste delisting for the mustard hydrolysate (similar to neutralent in nature and content) that will be generated at APG, which would have the effect of removing the agent hazardous waste classification (NRC, 2001d). The hydrolysate would most likely still be classified as hazardous waste, however, because it is likely to exhibit one or more RCRA hazardous waste characteristics (see Appendix F for information on these characteristics). The advantage, in this case, is that removal of the agent from the listing would make it easier for off-site commercial TSDFs to accept the wastes for further treatment. Delistings, as reviewed in Appendix F, are typically long and arduous processes where data are generated and presented to regulators in support of waste declassification. While a delisting effort may make sense in cases where large amounts of waste will be generated over a relatively short period of time, as with APG, they do not make sense for the non-stockpile program, where different types of neutralents are likely to be generated at multiple locations in multiple states over a period of perhaps many years. The Army could consider, however, working with the states to establish a de minimis concentration for the agents in waste streams, which could be incorporated into the listing regulations. In this manner, neutralents would no longer be associated with the parent agent waste, and acceptance by off-site commercial TSDFs would be facilitated. Third, some secondary wastes may not warrant regulation as a hazardous waste at all. Rinsates and cleaning solutions consist primarily of water with much lower concentrations of hazardous chemicals than the initial neutralent and appear to pose relatively little risk (NRC, 2001c). Yet in some states, they would also be regulated as acutely hazardous wastes, just as the parent agent is. In addition, residuals from the further treatment of neutralent, such as through chemical oxidation, are expected to be similar to rinsates and cleaning solutions in terms of risk. Not only does this materiel not warrant regulation as an acutely hazardous waste, but the committee believes that it might be safely managed as nonhazardous waste. To ensure that secondary wastes are classified properly for regulatory purposes, the Army should work with regulators and the public. RAP for Mobile Technologies The Army developed the RRS and EDS as mobile treatment technologies. Thus, they may be brought to a site where NSCWM are discovered. Use of a mobile treatment system such as the RRS or EDS has two stages. The first stage involves the following. transporting the system to the site obtaining the regulatory approvals necessary to operate the mobile treatment system actual neutralization of non-stockpile chemical materiel The second stage involves the subsequent treatment and disposal of the RRS or EDS secondary waste streams, whether at the site where they are generated or at an off-site facility. Although the RAP mechanism applied for operation of the RRS or EDS device itself will affect the choice of RAP mechanism for treatment of the RRS or EDS secondary waste streams, the two are nevertheless distinct. As indicated in Appendix F, operation of the RRS or EDS devices may be permitted under a number of mechanisms, including RCRA emergency permits or CERCLA emergency removal actions. RCRA orders may also be used. In more urgent emergencies, prior regulatory approval is not required for the initial response (EPA, 1997). A number of RAP mechanisms could be used for the management of liquid waste streams from the second stage of RRS or EDS operations. In some cases, secondary waste treatment could be deployed to the site where primary treatment is conducted. Given potential public opposition to sending secondary wastes off-site, this may be the preferred option. However, as indicated previously, secondary wastes from mobile treatment technologies are not expected to contain amounts of chemical agent or other chemicals that would render the materiel acutely hazardous. The committee believes that this materiel may safely be transported off-site or off-installation to a TSDF for treatment. In this case, the treatment would be conducted under the permit for an off-site TSDF. If the permit for the off-site TSDF is not written broadly enough to allow treatment of these secondary wastes, it may need to be modified. In this case, provisions for permit modification should be considered well ahead of initial treatment of the NSCWM. See Appendix F for additional information on RAP alternatives. Certain state regulators (e.g., regulators in Oregon) have been considering requiring that wastes be agent-free prior to their release to off-site facilities. Resolution of this issue has contributed to the delay in issuing regulatory approvals and permitting decisions for the stockpile program. Such an approach, if adopted by other states, is expected to be a serious problem for the non-stockpile program, because materiel could be found virtually anywhere, and in many cases, offsite transport and treatment of secondary waste may be one of the better options from a risk and cost standpoint. Further, in the non-stockpile program, it may be necessary to ship secondary wastes that contain very small amounts of agents (as from CAIS or single-round containers (SRCs) to off-site facilities for treatment). While an agent-free level could be based on risk, the state of Oregon is pursuing a definition based on analytical detection capability. The committee believes, however, that it is neither necessary nor appropriate to establish a definition of agent-free on any basis. Although the committee believes very strongly in controlling munitions that contain or may contain significant amounts of chemical agents, neutraliza

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tion, as indicated previously, results in the destruction of between 99.995 percent and 99.99998 percent of the agent. For this reason, the committee sees little benefit in requiring that secondary wastes be totally agent-free prior to their release to off-site facilities for further management, and it sees no risk basis for requiring treatment until residuals are agent-free. EPA, for instance, uses risk- or technology-based approaches in establishing regulatory levels of concern; no federal environmental regulations are premised on the total absence of risk. FINDINGS AND RECOMMENDATIONS Regulatory Permitting/Approval Mechanisms Finding 4-1. While the traditional RCRA permit is suitable for facilities like MAPS and PBNSF, initial operation of these facilities may be expedited using other less arduous RAP mechanisms. In addition, when mobile treatment systems or technologies are employed, and particularly for small or even moderate NSCWM finds, operations may be expedited using other (non-RCRA permit) regulatory approval mechanisms under RCRA or CERCLA. Recommendation 4-1. The Army should work with state regulators to tailor RAP mechanisms to the magnitude of the NSCWM recovery and treatment operations. For facilities, initial operations should be conducted under expedited RAP mechanisms (e.g., a Research, Development, and Demonstration permit); traditional Resource Conservation, and Recovery Act (RCRA) permits, if necessary, should be employed after operations become routine. When mobile treatment systems or technologies are employed, and particularly for small or even moderate quantities of newly discovered NSCWM, expedited (non-RCRA permit) regulatory approval mechanisms under RCRA or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) should be used, as appropriate. Cooperation Between the Army, the States, and the Public in the RAP Process Finding 4-2. The PMNSCM and the states have experienced excessive delays and incurred significant expenses in the RAP process. All of the primary stakeholders—the Army, state regulators, and public interest groups—share responsibility for this situation. If RAP is to be achieved in a timely and efficient manner in the future, early interaction of all stakeholders in the technology selection and RAP process is essential. Recommendation 4-2. The Army should establish a prepermitting process to resolve RAP issues involving the Army, regulators, and the public for both mobile systems and non-stockpile treatment facilities. In addition, the Army should develop guidance on RAP for management of NSCWM. A guidance that is jointly issued by the Army and regulators, with input from the public, should be considered, and the committee recommends that it be of national scope. Classification of CAIS Finding 4-3. The Army’s revision of Army Regulation 50-6, in which CAIS is now classified as RCWM, effectively puts CAIS in the same hazard category as recovered bombs and mortar rounds. The committee believes that this classification is inappropriate and that CAIS could safely be classified as hazardous waste. Recommendation 4-3. The Army should reverse its classification of CAIS as recovered chemical warfare materiel (RCWM), thus avoiding additional time and cost for their destruction. Diverse Army Organizations with a Responsibility for RAP Finding 4-4. Several Army entities are involved in developing and demonstrating technologies for destroying NSCWM and treating secondary wastes and for achieving RAP for these activities. In addition, the Army has established separate RAP responsibilities for chemical warfare materiel (CWM) storage and for stockpile destruction operations. Army entities involved in these RAP processes often have competing missions, and communication among them is less than ideal. Further, the roles and responsibilities of these entities, and the interrelationships among them, are not well defined, and this has caused confusion for regulators and the public. Recommendation 4-4. RAP for all of the Army’s chemical agent programs, including the non-stockpile program, should be seamless and transparent to the regulator and the public, who should “see” only one Army across all chemical agent programs at a specific location or operation. An installation-specific (or in the case of off-site NSCWM finds, operation-specific) core Army RAP team should be established for all chemical agent operations, including treatment of NSCWM. Installation or operation representatives should lead the RAP team at each location. The team should be directed by a central Army organization encompassing all chemical agent operations that require RAP so as to promote communication, continuity, and consistency among them. This organization should have the authority to establish RAP policy for all chemical agent operations nationwide.

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Schedule Requirements of the CWC Finding 4-5. Most of the alternative technologies being developed for NSCWM are innovative and have not been previously permitted in the United States. At the same time, the hazards posed by NSCWM present special concerns for the states and the public. The states have also been faced with the challenge of evaluating RAP documentation for non-stockpile treatment at the same time that similar documentation for the stockpile program is under review. While the states have been provided funds, through cooperative agreements, to oversee the Army’s chemical agent operations, it is unclear, given these challenges, whether those funds have been sufficient for them to evaluate NSCWM technologies and process RAP documentation within a time frame consistent with CWC deadlines. Recommendation 4-5. The Army should examine funding provided to the states as part of existing cooperative agreements to ensure that they are sufficient to evaluate new or innovative NSCWM treatment technologies within a time frame consistent with CWC deadlines. Overall Lack of a Regulatory Program for Treatment Requirements Finding 4-6. Although the Army and the state of Utah worked together to develop regulatory-based chemical agent treatment standards (as part of the Army’s proposed UCAR) and other states have examined these standards, the Army and the states have not continued joint efforts toward adoption of these standards. As a result, there are still no regulations that establish treatment standards for these wastes. Recommendation 4-6. The Army and the states should continue to work together to achieve mutually acceptable regulations that define appropriate treatment for chemical agents and associated wastes. While state-specific treatment standards can be established, the committee recommends standards that are national in scope. Secondary Waste Classification Finding 4-7a. De minimis secondary wastes such as neutralents, rinsates, and cleaning solutions are classified as “acutely hazardous” by some states because they are derived from chemical warfare agents. Such classification results in more stringent management requirements. While neutralents may contain very minute amounts of agent and agent degradation products, it is unlikely that they would pose an acute toxicity hazard. Finding 4-7b. While neutralents may exhibit hazardous waste characteristics, they contain such small amounts of agent that they could be considered as no longer associated with the parent agent waste. If the hazardous waste listing is reversed, off-site commercial TSDFs would be able to more easily accept the waste for treatment. Finding 4-7c. Rinsates and cleaning solutions, as well as residuals from treatment of neutralent, will consist primarily of water and pose even less of a hazard than neutralent. Recommendation 4-7. In states where secondary waste streams are regulated as acutely hazardous, the Army should work with state regulators to remove the designation “acutely hazardous.” For neutralents, the Army should work with state regulators to establish de minimis concentrations for the agents in waste streams, to be incorporated into the listing regulations, whereby the waste would longer be considered as being associated with the parent agent waste. Further, the Army and the states should consider whether rinsates and cleaning solutions and residuals from the treatment of neutralent should be classified as hazardous waste at all. RAP for Mobile Technologies Finding 4-8. Certain state regulators have been considering requiring that secondary wastes be agent-free before they are released to off-site facilities. This would pose a serious problem for the non-stockpile program, because NSCWM can be recovered anywhere and the off-site transport of secondary wastes may be a viable management option. Recommendation 4-8. Given the similarities between NSCWM secondary wastes and industrial hazardous wastes, the committee recommends that no additional prohibitions be placed on the off-site transportation of secondary wastes.