F Regulatory Background

This appendix provides background information on the statutory and regulatory programs that impact RAP for NSCWM activities. It concludes with a discussion of available RAP mechanisms for treatment of NSCWM.

THE RESOURCE CONSERVATION AND RECOVERY ACT

RCRA was intended by Congress to be a state-implemented program. Under this program, the U.S. Environmental Protection Agency (EPA) was charged with developing regulations that would define wastes as hazardous and establish a cradle-to-grave system for managing them. States would then adopt these regulations and seek authorization from EPA to implement the RCRA program within their respective boundaries. EPA implements the program within states that choose not to adopt and implement the hazardous waste program.1 Those states that choose to adopt EPA’s regulations may decide to seek authorization from EPA to implement the entire RCRA program or a portion of it. In some states, therefore, facilities are regulated by the state for some activities and by the EPA for other activities. Additionally, when they adopt EPA’s regulations, the states cannot be less stringent than the federal program, but they can develop regulations for implementation within their state that are more stringent or broader in scope. For example, states have the authority under RCRA to regulate additional waste streams as hazardous within their boundaries that EPA does not regulate.

Under the RCRA program, wastes may be designated hazardous waste under two separate and distinct mechanisms. First, wastes may be listed as hazardous waste. Six of the eight stockpile states—Colorado, Indiana, Kentucky, Maryland, Oregon, and Utah2—list military chemical agents as hazardous waste. These wastes are not listed hazardous waste under EPA regulations or in other states.

Under the hazardous waste listings, wastes may be listed for various reasons. For example, they may be listed because they are toxic or acutely toxic. RCRA requirements for management of acutely toxic wastes are more restrictive than its requirements associated with other types of hazardous waste. For example, RCRA places more stringent restrictions on the amount of acutely toxic waste (as compared with other types of hazardous waste) that may be stored at any one time.

In addition, pursuant to the RCRA mixture and derived-from rules—40 CFR §261.3(a)(2)(iv) and 40 CFR §261.3(c)(2)(i), respectively—wastes that are mixed with listed hazardous waste or that are derived from the treatment, storage, or disposal of listed hazardous waste (e.g., treatment residues) are themselves regulated as listed hazardous waste. RCRA, however, provides an exclusion mechanism, known as a delisting petition, that generators may use to demonstrate that a listed hazardous waste, including mixture and derived-from waste, is not hazardous (40 CFR §260.22). Delistings are risk-based exclusions that

1  

All the stockpile states are authorized by EPA to operate their own RCRA programs in lieu of EPA.

2  

Interestingly, each of these states lists chemical agents (and in some cases, associated wastes) differently.



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F Regulatory Background This appendix provides background information on the statutory and regulatory programs that impact RAP for NSCWM activities. It concludes with a discussion of available RAP mechanisms for treatment of NSCWM. THE RESOURCE CONSERVATION AND RECOVERY ACT RCRA was intended by Congress to be a state-implemented program. Under this program, the U.S. Environmental Protection Agency (EPA) was charged with developing regulations that would define wastes as hazardous and establish a cradle-to-grave system for managing them. States would then adopt these regulations and seek authorization from EPA to implement the RCRA program within their respective boundaries. EPA implements the program within states that choose not to adopt and implement the hazardous waste program.1 Those states that choose to adopt EPA’s regulations may decide to seek authorization from EPA to implement the entire RCRA program or a portion of it. In some states, therefore, facilities are regulated by the state for some activities and by the EPA for other activities. Additionally, when they adopt EPA’s regulations, the states cannot be less stringent than the federal program, but they can develop regulations for implementation within their state that are more stringent or broader in scope. For example, states have the authority under RCRA to regulate additional waste streams as hazardous within their boundaries that EPA does not regulate. Under the RCRA program, wastes may be designated hazardous waste under two separate and distinct mechanisms. First, wastes may be listed as hazardous waste. Six of the eight stockpile states—Colorado, Indiana, Kentucky, Maryland, Oregon, and Utah2—list military chemical agents as hazardous waste. These wastes are not listed hazardous waste under EPA regulations or in other states. Under the hazardous waste listings, wastes may be listed for various reasons. For example, they may be listed because they are toxic or acutely toxic. RCRA requirements for management of acutely toxic wastes are more restrictive than its requirements associated with other types of hazardous waste. For example, RCRA places more stringent restrictions on the amount of acutely toxic waste (as compared with other types of hazardous waste) that may be stored at any one time. In addition, pursuant to the RCRA mixture and derived-from rules—40 CFR §261.3(a)(2)(iv) and 40 CFR §261.3(c)(2)(i), respectively—wastes that are mixed with listed hazardous waste or that are derived from the treatment, storage, or disposal of listed hazardous waste (e.g., treatment residues) are themselves regulated as listed hazardous waste. RCRA, however, provides an exclusion mechanism, known as a delisting petition, that generators may use to demonstrate that a listed hazardous waste, including mixture and derived-from waste, is not hazardous (40 CFR §260.22). Delistings are risk-based exclusions that 1   All the stockpile states are authorized by EPA to operate their own RCRA programs in lieu of EPA. 2   Interestingly, each of these states lists chemical agents (and in some cases, associated wastes) differently.

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apply to specific wastes generated at specific facilities. Many facilities have pursued delistings for mixture and derived-from wastes, because in many cases these wastes no longer contain hazardous constituents in significant concentrations. Historically, however, the delisting process has been long and arduous, often taking months or years and many thousands of dollars to achieve. EPA has attempted to develop a rule that would provide a more generic and self-implementing process for relieving wastes that could qualify for delisting from hazardous waste regulation. Known as the Hazardous Waste Identification Rule (HWIR), it would provide a risk-based mechanism for relieving low-risk wastes from hazardous waste control. Unlike delistings, however, HWIR would apply to all wastes at all locations. Using a complex multimedia model, the HWIR would provide concentrations of hazardous constituents below which a waste would no longer be considered hazardous. The HWIR rule has been very controversial, however. On November 19, 1999, EPA released its proposed HWIR (64 FR 63382). The proposed HWIR constituted a reproposal of a 1995 proposed rule (60 FR 66344, November 13, 1995), which was highly criticized by both state regulators and the regulated community. While EPA intends to finalize the HWIR rule, the final form of the rule and the date of promulgation remain uncertain.3 The second mechanism by which wastes may be designated hazardous waste is by the federal RCRA hazardous waste characteristics. These characteristics include ignitability, corrosivity, reactivity, and toxicity (40 CFR §§261.21-261.24), as follows: Ignitability (40 CFR §261.21)—An ignitable waste is a waste that (1) is a liquid, other than an aqueous solution containing less than 24 percent alcohol by volume, and has a flash point less than 60 °C or 140 °F as determined by various test methods; (2) is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture, or other spontaneous chemical changes and, when ignited, burns so vigorously and persistently that it creates a hazard; (3) is an ignitable compressed gas; or (4) is an oxidizer as defined in U.S. Department of Transportation (DOT) regulations. Corrosivity (40 CFR §261.22)—A corrosive waste is a waste that (1) is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5; or (2) is a liquid and corrodes steel (SAE 1020) at a rate greater than 6.35 mm (0.250 inch) per year at a test temperature of 55 °C (130 °F). Reactivity (40 CFR §261.23)—A reactive waste is a waste that (1) is normally unstable and readily undergoes violent change without detonating; (2) reacts violently with water; (3) forms potentially explosive mixtures with water; (4) when mixed with water or, when it is a cyanide- or sulfide-bearing waste that, when exposed to pH conditions between 2.0 and 12.5, can generate toxic gases, vapors, or fumes in a quantity sufficient to present a danger to human health or the environment; (5) is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement; (6) is readily capable of detonation or explosive decomposition or reaction at standard temperature and pressure; or (7) is a forbidden explosive as defined in DOT regulations. Toxicity (40 CFR §261.24)—A toxic waste is a waste that contains concentrations of certain listed contaminants above established thresholds when tested using the Toxicity Characteristic Leaching Procedure, a leaching test. Contaminants include both organic (e.g., pesticides, chlorinated organics) and inorganic contaminants (e.g., heavy metals, including As, Ba, Cd, Cr, Hg, Pb, Se and Ag). Unlike listed hazardous waste, wastes that exhibit one or more of the RCRA characteristics are not subject to the RCRA mixture or derived-from rules. In addition, a waste may be a listed hazardous waste and also exhibit one or more hazardous waste characteristics. Once wastes are designated hazardous waste, by either listing or characteristic (or both), generators and RCRA treatment, storage, and disposal facilities (TSDFs) are subject to a wide range of regulations. Of particular note for this report is the requirement to obtain a permit for treatment, storage, or disposal operations. In some cases, however, RCRA provides alternative mechanisms for obtaining approval of the regulator, and several of these alternative mechanisms are particularly well suited for NSCWM treatment operations. RAP mechanisms for NSCWM are reviewed later in this appendix. Also of note for this report are the RCRA Land Disposal Restrictions (LDRs).4 The LDR program was mandated by the RCRA Hazardous and Solid Waste Amendments of 1984. In essence, LDRs are treatment standards for listed and characteristic hazardous waste that must be achieved prior to land disposal. Treatment standards under the LDR program are established on the basis of the best demonstrated available technology and are therefore technology-based (as opposed to risk-based). Although LDR standards are technology-based, EPA has proposed, as part of HWIR, to cap LDR treatment standards with the HWIR risk-based levels. In this manner, treatment would not be required below those levels necessary to minimize risk to human health or the environment. LDRs would apply to non-stockpile wastes (or stockpile wastes) only if they exhibit one or more of the RCRA characteristics. Because EPA has not listed any agent waste as hazardous waste, LDR treatment standards have not been established specifically for these wastes. To date, no state that lists agent waste as hazardous has established LDRs or other regulatory-based treatment requirements for these wastes.5 Because most states operate their own RCRA regu 3   EPA has finalized some provisions of the original HWIR rule. However, that aspect of the rule that would establish risk-based exemption levels has not been finalized. 4   LDRs are established in 40 CFR §268. 5   Some states, such as Kentucky, have established a generic treatment requirement for agent wastes (e.g., 99.9999 percent destruction efficiency), but specific treatment standards have not been established.

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latory program in lieu of EPA, and considering that most of the stockpile states have listed chemical agents as hazardous waste, the remainder of this appendix assumes that NSCWM waste would be managed under a state-implemented program. It should be recognized, however, that in some states, EPA implements the RCRA program.6 THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is a federal law governing the cleanup of releases of hazardous substances, pollutants or contaminants from uncontrolled hazardous waste sites (40 CFR 300). CERCLA, as implemented by the National Contingency Plan,7 applies to the private sector as well as to government agencies, including the Department of Defense (DOD) and the Army. Unlike RCRA, which is intended to be a state-implemented program, CERCLA is implemented by the federal government. Whereas EPA implements the program for private sector entities and has oversight over federal government cleanups, the DOD is designated the lead agency for the Army with respect to CERCLA actions. The states and the public nevertheless have a significant role in CERCLA implementation. There are basically two separate cleanup processes prescribed by CERCLA and the National Contingency Plan. Removal actions are intended to address emergency situations or time-critical concerns. While they can entail permanent remedies, in general, removal actions are intended as a temporary remedy to prevent, minimize, or mitigate a release of hazardous substances. Remedial actions, on the other hand, entail a more thorough evaluation of site conditions and risks and result in permanent remedies. For federal agencies, including Army installations, CERCLA applies to essentially two types of hazardous waste sites: sites listed on the National Priorities List (NPL) and non-NPL sites. Sites listed on the NPL (published in the Federal Register) are those that have indicated significant risk as determined through application of a numerical ranking system (i.e., the Hazard Ranking System). Non-NPL sites may nevertheless present significant risk and are therefore also addressed under CERCLA. Either or both removal and remedial actions may be taken at NPL and non-NPL sites. Actions taken pursuant to CERCLA removal authority may be taken at any location, even at RCRA facilities, by the lead federal agency (in this case the DOD) without prior regulatory approval. While federal agencies are required to coordinate these types of CERCLA actions with state regulators, there are no federal or state approvals required. Because DOD is the lead agency for Army installations, DOD can make CERCLA removal decisions without the approval of regulatory authorities, even at NPL sites. Decisions under the remedial program, however, require the concurrence of the EPA and the states. For removal actions, CERCLA nevertheless requires the DOD to coordinate removal decisions and related actions with federal and state regulators. At least for some types of military ranges (e.g., training ranges), such as those closed under the Base Realignment and Closure Program, DOD and EPA have indicated a preference for emergency actions involving ordnance and explosives (which can include NSCWM) to be processed under CERCLA authorities (DOE, 1997; EPA, 2000). Such actions can include remediation measures as well as implementation of treatment technologies such as the RRS and EDS. The U.S. EPA and DOE have developed numerous CERCLA guidance documents that may be consulted for more information on CERCLA removals and remedial actions.8 THE CHEMICAL WEAPONS CONVENTION The CWC also affects management of non-stockpile items and associated wastes. As indicated previously, about 85 percent of all recovered CWM in the United States is stored at Pine Bluff Arsenal in Arkansas; smaller quantities are stored at Aberdeen Proving Ground in Maryland and Dugway Proving Ground in Utah. According to the CWC, these recovered items must be destroyed by April 2007. NSCWM buried before January 1997 is excluded from treaty requirements as long as it remains buried (U.S. Army, 2001). NSCWM removed from burial sites, however, must be identified and declared under the CWC. The CWC addresses the destruction of the agents, which are defined under the CWC as Schedule 1 compounds, but it also addresses agent precursors, known as CWC Schedule 2 compounds. Schedule 2 compounds can be present in some types of agent treatment residues, such as RRS and EDS neutralent. These compounds are not considered hazardous constituents under the federal RCRA program; however, some states have shown concern for some of these compounds in their regulatory programs. Like the chemical agents, there are no federal or state RCRA standards for their treatment. Further, applicability of the CWC to wastes that may contain low concentrations of Schedule 2 compounds 6   RCRA state authorization status may be viewed for each state at the following EPA Website: <http://www.epa.gov/oswer/hazwaste/state/index.htm#adoption>. 7   Formally, the National Oil and Hazardous Substances Pollution Contingency Plan (40 CFR 300). 8   These guidance documents may be obtained through EPA and DOE Web sites <http://www.epa.gov/> and <http://www.doe.gov/>, respectively.

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(such as EDS or RRS secondary wastes) is unclear. If the CWC places restrictions on wastes containing small amounts of Schedule 2 compounds, off-site treatment at commercial TSDFs may be more difficult. Overall, the CWC requires that stockpile and non-stockpile munitions be destroyed in accordance with a very aggressive schedule in order to meet the established deadlines. Because RCRA permits for some non-stockpile operations may take several years or more to achieve, when RCRA permits are required, the Army clearly faces a daunting challenge in meeting CWC schedule requirements. ARMY REGULATION AR 50-6 On June 26, 2001, the U.S. Army revised Army Regulation (AR) 50-6 for chemical surety. The surety program outlines a system of reliability, safety, and security control measures designed to protect the local population, workers, and the environment by ensuring 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 programs that involve chemical agents, including the stockpile and non-stockpile programs. The primary component of AR 50-6 that affects the non-stockpile program is that pertaining to recovered chemical warfare material (RCWM). These requirements are described in Chapter 12 of AR 50-6. The specific definition of RCWM is as follows: Chemical agent material and/or associated equipment and surrounding contaminated media discovered either by chance or during deliberate real estate recovery/restoration operations that was used for its intended purpose or previously disposed of as waste. RCWM will be classified based on the requirements of 40 CFR 266 Subpart M (EPA Military Munitions Rule). RCWM does not fall within the scope of the Army Chemical Surety Program except as detailed in Chapter 12. Chapter 12 outlines numerous requirements for RCWM. In general, these provisions are not as comprehensive as those associated with surety material, but they are nevertheless substantial. In addition, although AR 50-6 is focused on surety measures, it addresses other areas that are important in the committee’s analyses. For example, the AR indicates that RCWM found buried is required to be managed in compliance with environmental laws and regulations, including CERCLA and RCRA, and must be classified (regarding whether it is hazardous waste or not) per the RCRA Military Munitions Rule.9 Also, the AR specifies that deliberate unearthing of suspect RCWM will not begin until all required plans and approvals are obtained for transportation and storage or treatment. AR 50-6 also defines requirements for management of RCWM. The regulation specifies that emergency on-site destruction of chemical munitions may be considered an option to reduce risk and that non-emergency on-site destruction is subject to CERCLA or RCRA. Also, AR 50-6 indicates that soil suspected of contamination by chemical agents or industrial chemicals is presumed hazardous until confirmed otherwise by laboratory analysis and is required to be managed in accordance with environmental laws and regulations. The AR also addresses requirements for transportation of RCWM. In general, RCWM may be transported to an approved location if on-site treatment or disposal cannot be accomplished. Once transported to an installation with an active surety mission, RCWM is afforded the same safety and security measures as chemical surety material. The regulation states, though, that this is not to reclassify RCWM as surety material. One of the more significant new provisions of the revised AR is the classification of CAIS as RCWM. This decision triggers many requirements, including notification of states and Congress prior to transportation across state lines. As discussed in Chapter 4 of this report, the committee believes that it is not necessary to handle CAIS as RCWM. SUMMARY OF RAP MECHANISMS AND PROCESSES The following paragraphs provide a summary of the processes that could be used for RAP of non-stockpile treatment technologies. In most cases, RAP for treatment of NSCWM is a responsibility of state regulators; however, expeditious RAP requires coordination and cooperation between the state regulators and the Army, as well as the public. Although EPA does not specifically regulate chemical agents under the RCRA program, it does play a consulting role for the states. RCRA Permitting Process 40 CFR §270, as adopted and implemented by the states, provides requirements for facilities seeking permits for management of hazardous waste and requirements for regulators who issue these permits. The RCRA permitting rules are quite complex and are the subject of a number of guidance documents that describe the permitting process (EPA, 1984; DOE, 1997). Relevant points are the following: RCRA permits pertain primarily to the units used to manage the waste (e.g., landfills, incinerators) and are tailored to address management of particular types of wastes in these units. 9   Among other things, the RCRA military munitions rule (62 FR 6622, February 12, 1997) clarifies applicability of RCRA to waste military munitions, including chemical munitions.

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RCRA permits are initiated through an application process where the facility submits a permit application to the regulator. Following submittal of the permit application, negotiations between the regulator and the permittee take place until permit conditions are agreed. The permit application and negotiation process, even for simple storage permits, typically takes over a year. Permits for landfills or incinerators typically take 3 years or more to permit. There are requirements for public involvement at several points along the permitting path. The RCRA regulations have many gray areas where interpretation can be difficult and contentious. Changes in facility operations during the permit life are facilitated through permit modifications. RCRA corrective action10 decisions for cleanup of releases from solid waste management units, some of which could contain buried NSCWM, could also be facilitated as a permit modification. At some facilities, and in particular those that have not yet received an operating permit, RCRA corrective action requirements may be issued through a RCRA order, described later in this appendix. In most cases, conventional RCRA permits pertain to moderate- or long-term operations involving fixed or semipermanent facilities. PMCD’s incinerator operations, for example, are permitted through this mechanism. Some NSCWM operations—and particularly longer-term ones such as MAPS and PBNSF— will be permitted as a RCRA treatment, storage, and disposal facility (TSDF). Initial operation of these types of facilities, however, could be approved through a different mechanism, such as a RCRA Research, Development, and Demonstration (RD&D) permit. In fact, operation of MAPS was initiated as a RCRA RD&D permit, but it is to transition into a regular RCRA permit once operations become routine. Operation of PBNSF is likely to follow a similar path. The RRS was permitted in Utah (Deseret Chemical Depot) as a RCRA TSDF. The MMD-1 was permitted in Utah (Dugway Proving Ground) under a RCRA RD&D permit (discussed later in this appendix).11 The committee expects that some NSCWM operations will not warrant the establishment of conventional RCRA permits. For example, the RRS or EDS (or similar treatment systems) could be approved under RCRA or CERCLA emergency actions (discussed further below). However, treatment of secondary and other wastes, such as RRS and EDS neutralents and rinsates, could be managed at on-site or off-site TSDFs. If RRS and EDS neutralent and rinsates are to be managed at existing facilities (including stockpile facilities)12 under TSDF permits, a permit modification may be required. Emergency Responses In many cases, the RRS or EDS systems (or similar treatment systems) may be used for emergency destruction operations for stable items—those that can be safely moved. Unstable non-stockpile items—those too sensitive to move—may be treated using alternative technologies being developed by the Army. While open detonation has been used to destroy these types of items in the past, the Army is developing a tent-and-foam technology that, if successful, would permit detonation while minimizing subsequent dispersion of detonation by-products, including potential unreacted agent. Both stable and unstable NSCWM could be addressed under the emergency response provisions of the RCRA or CERCLA programs. True emergency events were never intended to be addressed under the conventional RCRA permit, which as indicated above, may take years to obtain. RCRA emergency permits (40 CFR §270.61) or CERCLA emergency removal actions (40 CFR §300.415) may be employed in these cases. In some situations, however, even RCRA’s emergency permit provisions are inapplicable. EPA specifically addressed munition emergencies in its Military Munitions Rule (MMR) (EPA, 1997): Today’s rule clarifies that EPA considers immediate or time-critical responses to explosives or munitions emergency responses to be an immediate response to a discharge or imminent and substantial threat of a discharge of a hazardous waste under 40 CFR Secs. 264.1(g)(8), 265.1(c)(11), and 270.1(c)(3). Such responses are, therefore, exempt from RCRA permitting, and other substantive requirements, including emergency permits. . . . If an immediate response, however, is clearly not necessary to address the situation, and a response can be delayed without compromising safety or increasing the risks posed to life, property, health, or the environment, the responding personnel, if time permits, should consult with the regulatory agency regarding the appropriate course of action (e.g., whether or not to seek a RCRA emergency permit under Sec. 270.6l, or regular facility permit under 40 CFR Part 270). Situations where an immediate response is needed would include instances where the public or property is potentially threatened by an explosion. Situations where an immediate response is clearly not necessary would include instances where the public or property are not threatened by a potential explosion (e.g., in remote areas such as some former ranges or where 10   Mandated by the Hazardous and Solid Waste Amendments to RCRA in 1984, RCRA corrective action requires cleanup of releases of hazardous waste or hazardous constituents from solid waste management units at RCRA facilities (RCRA Section 3004 (u) and (v)). Similar to the CERCLA program, RCRA corrective action pertains specifically to cleanup at RCRA facilities. 11   Note that the MMD-1 was used to treat phosgene. The Army decided to discontinue its use prior to treatment of agent. 12   Permit modification may be especially warranted at stockpile facilities, because in most cases, these permits prohibit the Army from accepting wastes generated from off-site locations, which would include NSCWM or NSCWM secondary wastes.

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immediate action is not necessary to prevent explosion or exposure). In these cases, there is time to consult with the EPA or state regulatory agency on how to proceed. Further, in the final MMR, EPA evaluated the DOD statutory requirements and standing operating procedures and found the emergency response procedures sufficiently protective for chemical munitions responses. For example, transport and destruction of lethal chemical agents are regulated by 50 U.S.C. 1512 and 1512a, requiring special approvals by the Secretary of Defense and the Secretary of Health and Human Services prior to transport or destruction. Congress and affected state governors must also be notified prior to any such destruction or transportation. The standards for emergency responses in the final MMR, including the exemption for immediate responses and the requirements for emergency permits, would apply equally to conventional and chemical munitions. As indicated above, another RAP option for operation of the RRS or EDS device (in lieu of the RCRA emergency permit) is use of CERCLA emergency removal authority. This RAP mechanism is similar to the RCRA emergency permit in nature and scope, and in many situations, either regulatory authority may be applied. The primary difference between RCRA emergency permits and CERCLA removal authority is that actions taken pursuant to a RCRA emergency permit are conducted under state authority and under state oversight and reporting. In most situations, either RCRA emergency permits or CERCLA emergency removal authority may be used for RAP in situations that warrant use of the EDS or the RRS. However, if an emergency RAP mechanism is employed for operation of the RRS or EDS, the RAP documentation may or may not include requirements for management of secondary wastes. Such wastes may be deferred to on-site waste management units (if the response is conducted at an existing installation), or to treatment at an off-site TSDF (assuming the secondary or other waste is defined as hazardous). The emergency that warranted operation of a primary treatment technology such as the RRS or EDS should not extend to treatment of secondary wastes, such as RRS or EDS neutralent and rinsates. The committee believes that once the primary threat of release of the chemical agent is over, the emergency situation is over as well. RCRA Orders RCRA orders constitute a different RAP mechanism that could be used for NSCWM operations. There are several different types of orders that could be applied, including a RCRA §7003 imminent and substantial endangerment order, a RCRA §3008(h) corrective action order, or the state equivalents to these orders. The §7003 order would typically be used in emergency situations. These orders are issued by the regulator when an imminent emergency is perceived. While a RCRA emergency permit could also be used in these situations, use of the §7003 order provides additional latitude to the regulator to take immediate action. Operation of the EDS to destroy the GB bomblets at RMA was processed under a state equivalent to the RCRA §7003 order.13 The §3008(h) order (or state equivalent) could also be applied for recovery and treatment of NSCWM. These types of orders are typically issued by regulators to facilities seeking RCRA permits that have solid waste management units (which could include NSCWM) which have released hazardous waste or constituents into the environment. These facilities are subject to RCRA corrective action requirements. In this case, the §3008(h) order could be exercised. This type of order would typically be used for non-emergency cleanup activities and may include requirements for remediation, including recovery and treatment of NSCWM. Other RCRA Mechanisms Other RAP mechanisms include the RCRA treatability study (40 CFR §261.4(e) and (f)) and the RD&D Permit (40 CFR §270.65). As indicated previously, the PMNSCM used the RCRA RD&D permit for demonstration of the MMD-1 at Deseret Chemical Depot. In addition, construction and initial operation of MAPS are being conducted under a RCRA RD&D permit, and after operations become routine, a full RCRA operating permit will be pursued. Permitting for PBNSF is likely to follow a similar path. These types of RAP mechanisms are used to demonstrate new technologies or to demonstrate that existing technologies can be used to treat new or different types of wastes. These RAP mechanisms usually entail waste treatment and allow an expedited mechanism for RD&D. Both of these RAP mechanisms are limited to treatment of specified waste amounts over a specified period of time. Other CERCLA Mechanisms Other CERCLA mechanisms for RAP may also be employed, depending on the specific nature of the activity. These include nonemergency removal actions, as well as remedial actions. Since some EDS and RRS operations will be emergencies, it is unlikely that CERCLA remedial actions would be considered. Unlike CERCLA emergency removal actions, remedial actions under CERCLA require concurrence of the federal and state regulator as part of the CERCLA Record of Decision. 13   It is noted that the RMA responded to the incident using its emergency removal authority under CERCLA. In this case, both RCRA and CERCLA RAP mechanisms were used.

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REFERENCES DOE (Department of Energy). 1997. RCRA Permitting Guide for Hazardous & Radioactive Mixed Waste Management Facilities. DOE/ EH[RCRA]9705. U.S. Department of Energy. Washington, D.C. EPA (Environmental Protection Agency). 1984. Permit Writers Guide. U.S. Environmental Protection Agency. Washington, D.C.: Environmental Protection Agency. EPA. 1997. Military Munitions Rule. 62 FR 6621, February 12. Washington, D.C.: Environmental Protection Agency. EPA. 2000. Potential Applicability of Assembled Chemical Weapons Assessment Technologies to RCRA Waste Streams and Contaminated Media. EPA 542-R-00-004, August. Available at <www.epa.gov/tio/clu-in.org>. U.S. Army. 2001. Final Programmatic Environmental Impact Statement. Vol. 1. Aberdeen Proving Ground, Md.: Program Manager for Chemical Demilitarization.