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5 Regulatory Approval and Permitting and Public Involvement Before PBNSF can be constructed and operated, it must undergo a permitting process established within the federal and state regulatory and legal frameworks to protect human health and the environment. The regulatory approval and permitting (RAP) process involves in-depth examination of the Army' s proposed treatment technologies and the require- ments they must meet and provides opportunities for public involvement in the decision making process. In this chapter, the committee examines regulatory approval and permitting issues, as well as public involvement issues. REGULATORY APPROVAL AND PERMITTING There are several federal and state regulatory programs under which the Army and off-site treatment, storage, and disposal facilities (TSDFs) must operate to successfully ac- complish the non-stockpile mission at the Pine Bluff Arse- nal (PBA), particularly the hazardous waste regulations is- sued pursuant to the Resource Conservation and Recovery Act (RCRA), the Clean Air Act limitations on air emissions, and the Chemical Weapons Convention (CWC) obligations. Each of these has a different focus and impact, as discussed below. The NRC report Systems and Technologies for the Treat- ment of Non-Stockpile Chemical Warfare Materiel discussed extensively the environmental regulatory framework under which non-stockpile chemical materiel (NSCM) must be treated and disposed of (NRC, 2002a). Scope of Committee's Regulatory Approval and Permitting Review The committee's review was based on the draft RCRA permit application, which the Army prepared when the PBNSF design was 35 percent complete (U.S. Army, 2003a). However, the committee believes there are RAP issues asso- ciated with the other NSCM operations that also warrant dis- cussion and therefore includes them in its review. This in- 44 eludes operation of the rapid response system (RRS) and EDS systems. The committee is especially concerned about the Army's plans for off-site treatment of secondary wastes from PBNSF and these other systems. Here again, detailed plans for off-site treatment of secondary wastes at commer- cial TSDFs were not available for review in time to be re- flected in this report, so the committee is able to consider such treatment only in a general way. RESOURCE CONSERVATION AND RECOVERY ACT AND ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY REGULATIONS Pine Bluff Non-Stockpile Operations and the Regulatory Approval and Permitting Approach The Product Manager for Non-Stockpile Chemical Mate- riel (PMNSCM) plans to destroy non-stockpile materiel at PEA using several separate facilities rather than relying upon one integrated facility. Whereas the Army plans to operate the PBNSF under a RCRA permit, the initial identification and characterization of NSCM to be treated within PBNSF will be conducted by the Pine Bluff munitions assessment system, which because it is primarily an analytical and sort- ing operation, will be operated outside RCRA permitting requirements. In addition, the RRS for treatment of chemical agent identification sets and the EDS for treatment of explo- sively configured (fuzed) NSCM will be constructed and operated under separate RCRA permits. The Arkansas De- partment of Environmental Quality (ADEQ) has exempted the Pine Bluff binary facility from RCRA permitting require- ments pursuant to the "generator accumulation tank treat- ment" exemption found in 40 CFR 262.34.i Also, the ton container cut and clean-out operation, because it is treating iArkansas Department of Environmental Quality, letter to Pine Bluff Arsenal, January 3 I, 2003.
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REGULATORY APPROVAL AND PERMITTING AND PUBLIC INVOLVEMENT containers defined as "empty" under RCRA (40 CFR 261.7), is exempt from RCRA permitting requirements. The inte- grated binary facility demolition is similarly being conducted outside RCRA permitting requirements. Finally, the Army plans to send secondary wastes generated from the above operations, some of which will be defined as hazardous waste under the RCRA program, to off-site (and perhaps out-of- state) RCRA-permitted commercial TSDFs (U.S. Army, 2003g). Under RCRA, the Environmental Protection Agency was charged with developing regulations that would define haz- ardous wastes and establish a cradle-to-grave system for managing these wastes. States would then adopt these regu- lations and seek authorization from the Environmental Pro- tection Agency to implement the RCRA program within their boundaries (APC&EC,2002~. Although their programs can- not be less stringent than the federal program, the states can develop regulations for implementation within their borders that are more stringent or broader in scope. With few excep- tions, the regulatory program within Arkansas is identical to the federal program. Under the RCRA program, wastes may be designated hazardous waste by being listed as hazardous waste or if they exhibit the RCRA hazardous waste characteristics (ignitability, corrosivity, reactivity, and toxicity (40 CFR §§261.21- 261.24~.2 Chemical agent wastes in Arkansas are not specifically listed as hazardous waste. However, non- stockpile materials to be treated at the PBNSF typically ex- hibit reactivity and toxicity (U.S. Army, 2003a). PBNSF neutralent and some other secondary wastes would be con- sidered corrosive and toxic and may also exhibit other char- acteristics (U.S. Army, 2003a). Energetics removed from NSCM at Pine Bluff would be considered reactive, and pos- sibly ignitable, and may also exhibit the RCRA toxicity char- acteristic. In summary, under Arkansas regulations, since the parent agent wastes are not listed as hazardous waste because of agent content, neither would any secondary wastes that re- sult from primary treatment. However, the non-stockpile items, along with the neutralent and most other secondary wastes, will most likely exhibit a RCRA characteristic, as discussed above, and will thus be regulated as hazardous waste. Waste Management Requirements and Treatment Goals The RCRA permit application prepared for PBNSF fo- cuses on waste management and treatment requirements per- taining to the hazardous waste characteristics (U.S. Army, 2The ignitability, corrosivity, and reactivity characteristics consist of a combination of prose descriptions and test methods. A toxic waste is a waste that contains concentrations of certain listed contaminants above established thresholds when tested using the Toxicity Characteristic Leaching Proce- dure, a leaching test. 45 2003a). There is little reference within the PBNSF permit application to waste management requirements and treat- ment goals with respect to the chemical agents themselves (U.S. Army, 2003a). Similarly, permit applications for off-site TSDFs treating secondary wastes would probably focus on waste manage- ment and treatment requirements pertaining to the hazard- ous waste characteristics. Public attention might neverthe- less focus on the possible presence of chemical agents within these secondary wastes (albeit at very low concentrations) and the possible presence of their degradation products (some of which may be classified as CWC Schedule 2 com- pounds3). As noted in prior reports, the Army may benefit from explaining the basis for its treatment goals, e.g., generally achievable detection limits, generally achievable treatment levels, and/or risk (NRC, 2001a; 2002a). For example, in the environmental impact statement for the non-stockpile trans- portable treatment systems, the Army compared residual lev- els after neutralization of chemical agent in the RRS, EDS, and Munitions Management Device (MMD) with various analogous regulatory levels (U.S. Army, 2001a). The Army could help the community to understand the non-stockpile chemical weapons disposal program by providing some ex- planation of the basis for the treatment goals to be used for the neutralization of agent at PBNSF, and for the treatment of secondary wastes. Finding 5-1: As required in Arkansas, the PBNSF permit application discusses treatment of wastes only with respect to RCRA characteristics. Yet the primary hazard associated with these wastes, and the one most likely to be of concern to the public, is the chemical agents and their toxic properties. For non-stockpile secondary wastes, the primary concern is CWC Schedule 2 compounds, but there may also be concern about low concentrations of chemical agents as well. Recommendation 5-1: For non-stockpile materiel to be pro- cessed at the Pine Bluff Non-Stockpile Facility, the Army should describe risk-based treatment goals for chemical agent destruction in publicly available documentation. The Army should also describe agent-related treatment goals for secondary wastes treated at offsite treatment, storage, and disposal facilities (e.g., for Schedule 2 compounds) in pub- licly available documentation. Treatment goals for related non-stockpile operations at the Pine Bluff Arsenal for ex- ample, the rapid response system and the explosive destruc- tion system should also be discussed in publicly available documents. 3Under the CWC, Schedule 2 chemicals have limited commercial utility and can be readily converted to chemical weapons. Production of these chemicals above specified limits is subject to reporting requirements and verification through on-site inspections.
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46 Permitting Approach for the Pine Bluff Non-Stockpile Facility The PBNSF includes storage containers, tanks, vaults and miscellaneous units,4 with each category having its own permit requirements, which the permit application must ad- dress. Whereas the regulatory standards for containers, tanks and vaults are fairly prescriptive, requirements for miscella- neous units are performance-based. The regulations under RCRA Subpart X do not refer to specific technical standards as do regulations for other hazardous waste management units, but instead specify environmental performance stan- dards under which units must be operated to be protective of human health and the environment. The permitting agency bases permit requirements on the information provided in the permit application, and for Subpart X units, may draw upon the prescriptive standards used for the other types of permitted units, such as those established for incinerators. The permitting process for these types of complex opera- tions is typically long and arduous. For non-stockpile chemical agent treatment facilities, the Army has several RAP options in addition to the standard RCRA permit (NRC, 2002a). The committee recommended that RCRA Research, Development and Demonstration (RD&D) permits be established for facilities like PBNSF, in lieu of standard RCRA permits, considering the facilities' developmental nature. Operations could then transition from RD&D to a full RCRA operating permit once operations become routine. This approach is being implemented for the Munitions Assessment and Processing System at Aberdeen Proving Ground (NRC, 2002a). The PMNSCM initially pro- posed the RCRA RD&D permit approach for PBNSF; how- ever, this option was dismissed in favor of a standard RCRA permit approach.5 The Anticipatecl Neecl for Frequent Permit Moclifications Changes in operations during the RCRA permit life re- quire permit modifications. Unlike most commercial TSDFs, stockpile facilities have been historically associated with an extraordinary number of permit modifications. For example, the Pine Bluff Chemical Demilitarization Facility (PBCDF) was permitted under RCRA in January 1999. Although not yet operational at the time this report was prepared, over 70 permit modifications have been processed to date for the PBCDF, which is scheduled for agent operations beginning April 2004. More permit modifications are anticipated dur- ing the operational phase. Stockpile facilities typically are associated with hundreds of permit modifications; over 300 Miscellaneous units are often referred to as Subpart X units, since they are described in RCRA regulations at 40 CFR Part 264, Subpart X. Conference call question and answer meeting between committee mem- bers and PMNSCM staff, May 20, 2003. ASSESSMENT OF THE ARMY PLAN FOR THE PINE BLUFF NON-STOCKPILE FACILITY modifications have been required to date for the Johnston Atoll Chemical Agent Disposal System (Johnston Island), and over 500 have been processed for the Tooele Chemical Agent Disposal Facility (Tooele, Utah). According to inter- views with stockpile facility staff, however, few of these permit modifications have resulted in facility downtime.6 The PBNSF is a first-of-its-kind treatment facility. In ad- dition, it is the PMNSCM's first large-scale non-stockpile operation. There is considerable uncertainty about the agent fills of NSCM and the choice of accessing technology (as discussed in previous chapters of this report). As a result, the committee expects that there will be a need for numerous permit modifications as PBNSF proceeds through construc- tion, systemization, operations, and, eventually, closure. Finding 5-2: The committee expects that numerous permit modifications will be needed as PBNSF proceeds through construction, systemization, operations, and, eventually, closure. Recommendation 5-2: The Army should urge the state to craft the Pine Bluff Non-Stockpile Facility permit to allow maximum flexibility during systemization and start-up, thus minimizing the need for frequent permit modifications to the extent possible. Further, the Army should develop plans for efficient management of Resource Conservation and Recov- ery Act permit modifications for the Pine Bluff Non-Stock- pile Facility. Because the stockpile program has experienced numerous permit modifications with respect to stockpile operations, the Product Manager for Non-Stockpile Chemi- cal Materiel should examine lessons learned from the stock- pile program in developing a Pine Bluff Non-Stockpile Fa- cility permit modification management plan. Permit Schedule and Chemical Weapons Convention Schedule Another issue that affects both permitting and compliance is the CWC schedule. The CWC requires that stockpile and non-stockpile munitions be destroyed in accordance with a very aggressive schedule in order to meet the April 2007 dead- line.7 The Army' s schedule has the RCRA permit for PBNSF being prepared and approved by ADEQ over a 13-month pe- riod, with issuance in April 2004. As this report was being prepared, permitting was already behind schedule. PBNSF is a developmental facility and is likely to face problems during systemization and start-up. It is similar in complexity to stockpile demilitarization facilities. Experi- 6CIara Moraga, Deputy Site Project Manager for Compliance, PBCDF, various e-mai] and phone contacts with Todd Kimmell, committee member, and NRC staff, April-May 2003. 7h is noted, however, that signatories to the CWC may request a 5-year extension to the April 2007 treaty deadline.
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REGULATORY APPROVAL AND PERMITTING AND PUBLIC INVOLVEMENT ence in the stockpile program shows that permit issuance for demilitarization operations involving chemical agent typi- cally takes far longer than the 13 months allocated for PBNSF. Agent operations at PBNSF are scheduled to begin in June 2006 and end in April 2007, the CWC schedule deadline. Since numerous permit modifications are expected to be needed during the operational period, the Army clearly faces a daunting challenge in meeting CWC schedule requirements for treatment of non-stockpile items at PBNSF. Finding 5-3: The PBNSF is a developmental facility similar in complexity to stockpile demilitarization facilities and is likely to face problems during systemization and start-up. The PMNSCM expects that a permit for the PBNSF will be issued in 13 months. Typically, RCRA permits for large, complex facilities can take well in excess of a year to obtain. The per- mitting process for the PBNSF is already behind schedule. The PMNSCM expects that operations at the PBNSF will be completed within 10 months. Experience with the stockpile program indicates that hundreds of permit modifications are typically needed during the life of the permit. Recommendation 5-3: The Product Manager for Non- Stockpile Chemical Materiel should reevaluate the schedule for permitting and operation of the Pine Bluff Non-Stockpile Facility. Schedules for operation of the Rapid Response Sys- tem and Explosive Destruction System, and other non-stock- pile operations at the Pine Bluff Arsenal should be similarly reevaluated. PUBLIC INVOLVEMENT Public involvement in significant, potentially controver- sial activities such as the Non-Stockpile Chemical Materiel Program (NSCMP) is not only a legal requirement but is also a key element of mission success. As an earlier NRC committee noted in its report Systems and Technologies for the Treatment of Non-Stockpile Chemical Warfare Materiel public involvement means working with a range of "pub- lics," or stakeholders (NRC, 2002a). The report emphasized that an effective public affairs approach has three compo- nents: (1) early provision of written information materials to the public; (2) outreach, or opening channels of communica- tion to allow the public to articulate its values, concerns, and needs; and (3) involvement, or providing mechanisms that engage members of the public and allow them to provide input and influence agency decisions.8 The publics interested in NSCMP activities at Pine Bluff include local stakeholders who work at and live near the See also the threefold division of public affairs activities described in a letter report from the Committee on Review and Evaluation of the Army Chemical Stockpile Disposal Program (NRC, 2000b). 47 arsenal; national stakeholders such as the Non-Stockpile Chemical Weapons Citizens' Coalition (NSCWCC)9 and the Core Groupie; and stakeholders along transportation routes and near sites (as yet unknown) where secondary wastes will be transported and treated or disposed of. Legal Basis for Public Involvement under the National Environmental Policy Act Each of the regulatory programs discussed above gives the public an opportunity to comment on the regulatory agency's proposed decisions. The National Environmental Policy Act (NEPA), on the other hand, imposes no substan- tive environmental requirements (e.g., emission limits or specifications for the design standard for buildings in which an explosion may occur). Rather, NEPA is "essentially pro- cedural" (Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978~. These procedures are intended to ensure that environmental infor- mation is available to public officials and citizens before decisions are made and before actions are taken so that gov- ernment and public attention can be focused on the environ- mental impacts (40 CFR § 1508.8; Robertson v. Methow Valley Citizen Council, 490 U.S. 332 (1989~. Also, where there is a clear and unavoidable conflict between the sched- ule dictated by NEPA and other U.S. legislation (e.g., as there may be in the future between deadlines in CWC imple- menting legislation and NEPA), the more specific statutory deadline may supersede NEPA (Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma, 426 U.S.776 (1976~. In some situations, the NEPA process may "spur all interested parties to rethink the wisdom of the action" (Natu- ral Resources Defense Council v. Hodel, 865 F.2d 288 (D.C.Cir. 1988~. The federal agency's sole obligation is to disclose in either an environmental assessment or an envi- ronmental impact statement (EIS) the significant impacts on the environment of the federal action. Nonetheless, there is a long history of federal agencies being sued by citizen groups who are opposed to the underlying federal decision, even when their suit is unlikely to succeed. Given the relatively short time available to design, con- struct, and implement destruction technologies for chemical weapons, a legal challenge alleging that the Army did not follow the procedural requirements of NEPA could cause a critical delay. 9The NSCWCC is a coalition of grass-roots organizations that devel- oped out of the Chemical Weapons Working Group. ~ A , . . . 1UThe Core Group includes NSCMP personnel, representatives of regu- latory agencies, and representatives of citizens' groups who meet regularly to exchange information and opinions on programmatic non-stockpile is- sues. The group, which was established by NSCMP and is funded by it, is facilitated by staff from the Keystone Center.
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48 Backgrouncl to the National Environmental Policy Act NEPA (42 U.S.C. §§ 4321-4347) requires federal agen- cies that are implementing "major federal actions" that could significantly affect the quality of the human environment to assess the environmental impacts of such actions, alterna- tives to them, the short- and long-term impacts, and any irre- versible and irretrievable commitments of resources, includ- ing the cumulative impact. Agencies must rigorously examine the environmental effects (including, where appro- priate, cumulative impacts) of their planned action. This must be done even after a proposal has received initial approval, although courts have held that a rule of reason should be applied in determining whether to supplement an EIS (Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851 (1989~. When and how to consider cumulative impacts is decided case by case, in large part because there is not "a single, universally accepted conceptual approach, nor even general principles accepted by all scientists and managers" (CEQ, 1997~. Typically, an environmental assessment is performed when the environmental impact is expected not to be signifi- cant or where additional evaluation is needed to determine whether the impact is significant. If the environmental im- pact is expected to be significant, the agency proceeds to perform an EIS. The primary difference between an environ- mental assessment and an EIS is the level of detail and evalu- ation. Generally, environmental assessments "are a cost-ef- fective way to determine whether potentially significant effects are likely and whether a project can mitigate these effects" (CEQ,1997~. In a typical year, 45,000 environmen- tal assessments are prepared as opposed to 450 EISs (CEQ, 1997~. Thus, NEPA provides a mechanism to involve the public in decision making. Of course, regardless of the boundaries of the NEPA process, an agency can always encourage more public involvement if it deems such action will further its other statutory mandates or otherwise further its mission. The Application of National Environmental Policy Act to the Pine Bluff Non-Stockpile Facility On August 8,2001, the Army announced its intent to pre- pare an EIS for all of the actions planned for the destruction of stored non-stockpile chemical materiel at PEA, and a scoping meeting was held on October 18, 2001. In parallel, the Army issued an EIS for the transportable iiA cumulative impact is one that results from the incremental impact of the action when added to other past, present, arid reasonably foreseeable future actions regardless of which agency (federal or nonfederal) or person undertakes such other actions (40 CFR § 1508.7), including not only the project proposal but all connected and similar actions that could contribute to cumulative effects (CEQ, 1997). ASSESSMENT OF THE ARMY PLAN FOR THE PINE BLUFF NON-STOCKPILE FACILITY treatment systems for destroying chemical agent (U.S. Army, 2001a), including the MMD (which is the basis of the tech- nology used in the PBNSF), the RRS, and the EDS. The record of decision for the final EIS on the transportable sys- tems concluded that the MMD technology was "environmen- tally safe" and that the "subsystems could be used in the future" (Federal Register, 2002~. The Army concluded that implementation delays would be less likely if several separate facilities were used to destroy the non-stockpile materiel rather than a single inte- grated facility. As a result the Army proposed separate facilities and released seven separate environmental assess- ments for the following: PBNSF, · EDS, · RRS, · Treatment of the empty ton containers, · Neutralization of binary weapons, · Destruction of the integrated binary production facil- ity, and Pine Bluff munitions assessment system. According to the Army, this change in strategy was ne- cessitated by several factors, including the need for addi- tional research on nonincineration alternatives to the destruc- tion of non-stockpile materiel, potential funding delays, and the limited time available for regulatory approval, facility design and construction, and treatment operations before the April 29, 2007, CWC deadline (U.S. Army, 2002b.~2 Based on the environmental assessment for PBNSF, the Army concluded that there would be no significant impact on land use, ecologic resources, water use, or socioeconomic resources (Federal Register, 2002~. In fact, the net impacts were determined to be positive because acutely toxic chemi- cals are permanently destroyed (U.S. Army, 2003h). The Army has not determined whether or to what extent NEPA applies to off-site treatment and disposal of neutralent and other secondary wastes at a commercial TSDF using as yet unselected technology. An NRC committee concluded that the secondary waste from the destruction of neutralents from the RRS, MMD, and EDS was likely to be treatable using the same technologies as those used to treat industrial RCRA hazardous wastes (NRC, 2002a). As noted earlier in this chapter, the nature and characteristics of the secondary wastes generated by the PBNSF and other non-stockpile treatment systems also fall within the range of characteris- tics of RCRA hazardous wastes (NRC, 2002a). Regardless of whether NEPA applies to off-site treatment, the Army has provided for a public involvement program in i2William Brankowitz, Deputy Product Manager, NSCMP, "Non-Stock- pile Chemical Materiel Product Overview," briefing to the committee on March 19, 2003.
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REGULATORY APPROVAL AND PERMITTING AND PUBLIC INVOLVEMENT its offsite secondary waste treatment contract. If this effort is well conceived and implemented, local citizens are more likely to understand the treatment process~es) and what, if any, risk may be posed by the transportation and treatment and disposal of these secondary wastes. In many ways, the Army may be facing a win-win situation because citizens groups have almost universally expressed a preference for chemical weapons destruction technologies that neutralize the agent and then use some nonincineration alternative on the secondary waste. Even if it is determined that NEPA does not apply to off- site secondary waste transportation and treatment, it would be prudent to provide enhanced public outreach to affected communities. The history of wastes of concern (such as the Navy' s program for the destruction of Vietnam-era napalm) suggests that public concerns and passions can be fanned by the perception that views of the local community were not solicited (U.S. Navy, 2001~. Delays could be caused by legal challenges to the envi- ronmental assessment issued for PBNSF and by challenges to the off-site facility used to treat the neutralent from Pine Bluff. Proactive public involvement in secondary waste dis- posal issues can eliminate or at least minimize the likelihood of delays due to legal challenges. Involvement of Local Area Stakeholclers At Pine Bluff, as at other non-stockpile sites, the PMNSCM provides program-level information and guid- ance, consistent with Army Regulation 360-1, dated Sep- tember 15, 2000. Authority for planning and conducting stakeholder interactions resides with the installation (arse- nal) commander, who requests assistance from PMNSCM as he deems appropriate. Several changes have occurred at Pine Bluff since the NRC report that expressed concern about the limited public involvement program at Pine Bluff (NRC, 2002a). Chemical stockpile and non-stockpile disposal programs have in- creased their coordination of activities: PMNSCM staff share in the operation of the community outreach office with the staff of the Chemical Stockpile Disposal Program. The Citi- zens' Advisory Commission for Pine Bluff stockpile opera- tions recently discussed non-stockpile issues at its meet- ings.~3 In addition, from an initial focus on activities that are legally required under NEPA or RCRA, the arsenal has ex- panded the range of its informal non-stockpile activities. For example, it makes presentations and meets informally with school and civic groups.~4 The arsenal has held a series of i3This trend toward greater coordination is being stepped up by the es- tablishment of site-centric public outreach plans that incorporate activities from stockpile, non-stockpile, and assembled chemical weapons assessment programs. i4The NSCMP provided a binder of news clippings and meeting sched- ules detailing these activities to the committee on May 2, 2003. 49 public meetings and availability sessions related to NEPA and RCRA actions. It has publicized its activities in the local press and has developed a contact list of officials, civic groups, and activists. A number of NRC reports have emphasized going be- vond Provision of information and the opening of channels of communication. They call for also developing effective relationships with the public and expanding public involve- ment (see NRC, 2002a and references cited therein; see also NRC, 2002b). The installation continues, however, to pro- vide only limited opportunities for public involvement. For example, it has not included the third component of an effec- tive public affairs program developing mechanisms that engage members of the public and encourage their inputs into program decisions. Such mechanisms have not been uti- lized for either the larger, more visible stockpile demilitari- zation program or the non-stockpile program. Further, in contrast to other communities with chemical materiel de- militarization activities, the public at Pine Bluff has not par- ticipated extensively in RCRA and NEPA public meetings and has not raised many of the issues raised at other loca- tions.~5 For example, only six non-governmental residents- as compared with about 50 officials attended an environ- mental assessment meeting conducted by the PMNSCM in August 2002 (U.S. Army, 2002e).~6 In the course of preparing this report, committee sub- groups and staff attended public meetings in Pine Bluff at which non-stockpile issues were presented to the commu- nity, visited the local outreach office, reviewed news ac- counts of chemical demilitarization issues in Pine Bluff, and interviewed state representatives as individuals who monitor public opinion. Based on these observations as well as on previous studies elsewhere, the committee believes that there are many reasons why members of the local public do not participate in public meetings. These reasons apply to differ- ent segments of the public to varying degrees; however, the public affairs staff's responsibilities should include identify- ing and addressing the reasons that may apply in a specific situation, such as Pine Bluff. The following are some of the more prominent reasons: Many people in the local community trust the installa- tion. The PEA is a significant, long-term employer. There is a feeling of kinship between the arsenal and the surrounding communities. For example, in previ- ous research, one community resident said in an inter- view: "We have a much more personal kind of rela- tionship with the arsenal. . . the arsenal is 'us"' i5Elizabeth Crowe, NSCWCC, teleconference with members of the com- mittee, July ~ I, 2003. i6leff Eindblad, NSCMP Public Outreach and Information Office, "Non- Stockpile Chemical Materiel Outreach Activities for Pine Bluff ArsenaL" briefing to the committee on April 22, 2003.
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so . (Bradbury et al., 1994~. A similar viewpoint was ex- pressed more recently by a state regulator, who noted that the arsenal has been in the community and people have worked there for years.~7 Residents tend to support the Non-Stockpile Program's proposals. Nationally, the most significant challenge to chemical materiel demilitarization programs has come from activist groups that oppose incineration. However, incineration is not an issue for the inventory of non-stockpile items at the PEA, since the PMNSCM has made it clear that it is not proposing incineration at that site. Local opponents of the stockpile incinerator support the PMNSCM's choice of neutralization. Transportable technologies such as the RRS and EDS, which are dismantled and removed after the waste is destroyed, are generally viewed favorably by the pub- lic.~8 And, as one state regulator who is also a Pine Bluff resident said, the local public generally appears to be more concerned about getting rid of the chemical materiel (whether stockpile or non-stockpile) than about the technologies per se. Further, he reported that in addition to not raising issues at public meetings, members of the public have not raised any negative issues related to the proposed facilities in written and telephonic communication with state personnel.~9 Approximately 3 percent (45 munitions and 34 liters of dilute chemicals such as those found in chemical agent identification sets) of the inventory of recovered chemical weapon materiel at Pine Bluff has been brought in from sites such as the Spring Valley neigh- borhood in Washington, D.C., Fort Devens, Massa- chusetts, and Jackson, Mississippi.20 Both opponents and supporters of incineration have long expressed the concern that Pine Bluff might become a national dump- ing ground for chemical munitions. There appears to be broad support, therefore, for the PMNSCM's decision to bring in transportable treatment systems. The Pine Bluff Commercial editorialized, "Let the federal government step up efforts to develop such a trans- portable system. It may well be the safest way to go" (Pine Bluff Commercial, 2000~. i7Joe Hoover, ADEQ, teleconference with members of the committee on July 24, 2003. i8Elizabeth Crowe, NSCWCC, teleconference with members of the com- mittee on July 11, 2003; Theodore J. Henry, U.S. Army Corps of Engineers, contractor overseeing community outreach for Spring Valley, teleconfer- ence with members of the committee on July 23, 2003. i9Joe Hoover, ADEQ, teleconference with members of the committee on July 24, 2003. 20Larry E. Wright, Executive Assistant, PEA, "Pine Bluff Arsenal Non- Stockpile Chemical Matenal," beefing to a fact-finding team on August 9, 2001. ASSESSMENT OF THE ARMY PLAN FOR THE PINE BLUFF NON-STOCKPILE FACILITY · People are confused by all the projects and the pro- cess for reviewing them. For several years, residents of the Pine Bluff area have been invited to a long series of meetings on chemical weapons disposal. The PMNSCM is careful to distinguish its program from the larger stockpile demilitarization incineration pro- gram. However, the inclusion of the binary weapons precursor stockpile in the non-stockpile program is a cause for confusion. Many members of the public re- portedly have difficulty distinguishing between the programs.2i The PMNSCM holds meetings in connec- tion with its RCRA permit applications and as part of the NEPA process. However, when it shifted from ini- tial consideration of a single EIS for the non-stockpile program at Pine Bluff to a series of environmental as- sessments, it did not clearly explain the effect of the switch on public involvement and, indeed, provided confusing and sometimes incorrect information about NEPA documentation (see, especially, U.S. Army, 2003i; 2003j). It is probably not clear to the average area resident what requirements for public review ap- ply to each proposed activity now covered by a sepa- rate environmental assessment (PBNSF, Pine Bluff Munitions Assessment System, the EDS, the RRS, treatment of the empty ton containers, neutralization of binary weapons, and destruction of the integrated binary production facility). Nor is the entire scope of work at Pine Bluff likely to be clear. The average per- son is simply aware of a series of meetings related to chemical materiel disposal sponsored by the Army. It would seem difficult enough for experts in fed- oral environmental policy to keep track of what is go- ing on in Pine Bluff. Local residents are therefore un- likely to have a clear picture of what is being proposed, let alone a notion of how to influence Army decisions. People in the local communityfeelpowerless. This is a common complaint in less affluent communities across the country, and it does not apply solely to activities by the Army or other government agencies. It is often a self-fulfilling sentiment. Most people have not seen large institutions respond to their concerns and com- plaints directly, so they are reluctant to express them. Some observers note that, in Pine Bluff there is a his- tory of keeping quiet a feeling that "asking too many questions or raising a fuss is something you just don't do."22 Longstanding cultural constraints may contrib- ute to such reluctance. For example, Battelle research- ers reported that some people they interviewed "saw the lack of involvement, especially among the poor Aloe Hoover, ADEQ, teleconference with members of the committee on July 24, 2003. 22Elizabeth Crowe, NSCWCC, teleconference with members of the com- mittee on July 11, 2003.
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REGULATORY APPROVAL AND PERMITTING AND PUBLIC INVOLVEMENT and black communities, as having roots in the eco- nomic and political history of the region" (Bradbury et al., 1994~. According to their report, a business leader in Pine Bluff recalled a conversation with a prominent black educator, who said: "This is really a lower Mis- sissippi delta problem. . . an overwhelming sense of powerlessness, despair, hopelessness; a sense that . . . .The black community harbors feelings of betrayal, anger, and frustration behind a mask of passive acceptance" (Bradbury et al., 1994~. Information may not be reaching all community mem- bers. In some cases, community leaders and officials may be the primary recipients of information. Infor- mation may not filter down to ordinary citizens for a variety of reasons, including insufficient educational attainment and literacy, discomfort with the format and location of meetings, and the poor clarity of informa- tion materials. In Pine Bluff, educational attainment and literacy are below the national average.23 In addi- tion, and despite a plethora of fact sheets, there is no overarching "plain English" explanation of the vari- ous non-stockpile activities and regulatory processes. Further, residents may feel intimidated by formal meetings. The Battelle researchers, for example, noted the unease of low-income residents about participat- ing in formal public meetings where Army experts are separated from the audience (Bradbury et al., 1994~. They recommended small face-to-face meetings in fa- miliar settings to encourage discussion. Others re- ported that some residents are reluctant to attend meet- ings held near the arsenal and are concerned, rightly or wrongly, about possible security checks.24 People expect other community members to represent them. This reason is by no means unique to Pine Bluff but may be more common there for the reasons dis- cussed above. Army public affairs specialists explain that people think of the neighbors who attend public meetings as their representatives and/or as having ex- pressed their views through informal contacts with rep- resentatives of the Core Group or the NSCWCC. nothing, has c.hnns,~.~1 ~nr1 nothing, ~.v~.r will . . The reasons for the low level of public attendance at meet- ings notwithstanding, the Army, as well as the community, 23Census data for 2000 show that the percentage of the population with less than ninth grade education is 9.3 percent for Pine Bluff City and 8.6 percent for Jefferson County, as compared with 7.5 percent for the U.S. overall. Adult literacy estimates show that 35 percent of the population in Pine Bluff City and 31 percent in Jefferson County are at the first reading level as compared with 21-23 percent in the United States overall (at level one, most adults can read a little, but not enough to fill out an application, read a food label, or read a simple story to a child (Reder, 1996)). 24Elizabeth Crowe, NSCWCC, teleconference with members of the com- mittee on July 11, 2003. 51 might benefit from more intensive and continuing public in- volvement. If non-stockpile operations at Pine Bluff proceed without incident, the current situation probably will have been satisfactory. But if something goes wrong, the Army may wish that more community members had invested time and ideas in understanding and improving the program up front. For example, an incident or even a false alarm at any Pine Bluff chemical demilitarization facility non-stockpile or stockpile could arouse an otherwise accepting or compla- cent public.25 Such incidents have been reported at the Johnston Atoll Chemical Agent Disposal System on Johnston Island and the Tooele Chemical Agent Disposal Facility in Utah, and they might happen at Pine Bluff (NRC, 2002b). An example of how public participation can strengthen a program against undesirable contingencies occurred when non-stockpile materiel found in the Spring Valley neighbor- hood of Washington, D.C., was destroyed.26 At a recent meeting of the Restoration Advisory Board (RAB), PMNSCM officials explained the planned use of the EDS on site. Community members of the RAB were generally sup- portive or at least accepting. At least one member, however, expressed concern about the Army's proposed procedures, saying she would "feel better if there was always someone trained for emergencies on-site, rather than have a distant monitoring system watched by security guards....The chal- lenge with an emergency is that there is no way to know what will happen and time could be critical" (U.S. Army, 2003k). Ten days later, the Army Corps' project manager for Spring Valley responded, in a letter to the RAB; "As a result of your feedback during that meeting the Corps and PMNSCM have agreed that having a qualified technician on site and monitoring the EDS during all hours of operation is nrl,(ltq.nt c.n~,r~tq. of Finn O ~ ~ ~~ ~~ ~' ~`I.... PMNSCM will modify its operating procedures, for the Spring Valley destruction op- eration, to have a trained operator monitor the system on a 24-hour basis while the EDS is in operation."27 There were no reported incidents during the June 2003 use of the EDS at Spring Valley, but if one had occurred, the community would have had reason to believe that the Army acted in consonance with community concerns to limit the potential impact of such an incident. Similarly, a community ~ r resee also Perrow's classic critique of the inevitability of accidents in complex systems (Perrow, 1999). 26The Army's Formerly Used Defense Sites cleanup program in Wash- ington, D.C.'s Spring Valley neighborhood has been using the transport- able EDS a system also proposed for Pine Bluff to dispose of locally recovered chemical munitions. The site has a RAB (which is authorized for cleanup sites) and extensive public participation by an educated, empow- ered community faced with a serious environmental problem. 27Gary Schilling, Project Manager and Military Co-Chair of the Spring Valley RAB, letter to the Spring Valley RAB, April 18, 2003.
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52 affairs program in Pine Bluff that goes well beyond legal requirements by holding informal meetings to ensure genu- ine public involvement could provide significant benefits: It would not only prepare the PMNSCM to deal with potential incidents, but might also enable the program to develop an on-site alternative for neutralent disposal, with community buy-in, should its plans for off-site disposal encounter oppo- sition in destination communities and communities along the transportation routes. However, when the committee asked PMNSCM manage- ment about potential changes in the program' s public affairs strategy, PMNSCM officials said their authority to institute change at the installation level was constrained by Army policy, although they promised to discuss possible improve- ments with their counterparts at PEA. The notion that the approach of the local installation may diverge from that of headquarters is confusing to the public and makes it difficult to implement change. If the PMNSCM is unable to represent its own activities to the NRC and the public, then representa- tives from PEA should be brought into closer contact with outside parties. Involvement of Nonlocal Stakeholclers in addition to providing guidance to the arsenal, PMNSCM has been working directly with stakeholders at the national level through the Core Group, which includes regulators, community representatives, and NSCMP offi- cials. The group has met over a period of 4 years to exchange information and opinions, focusing on the development of publicly acceptable disposal technologies, policies, and prac- tices. A recent activity has been to use technical criteria drawn up by group members in developing a matrix of nonincineration treatments for secondary wastes. Commu- nity representatives are also emphasizing associated institu- tional issues and working with PMNSCM to "trouble-shoot [and] raise red flags where there are potential problems with shipping waste off-site."28 Potential problems include the location of other facilities such as incinerators or refineries, the propensity to site disposal facilities where there is an environmental justice community (i.e., one with a high per- centage of minority and low-income persons), and whether a given community is opposed to receiving more waste. Members recognize that the Core Group is not a decision- making body and that its role is to provide useful input to the Army. Significantly, the dialogue that has occurred over the past 4 years among community activists, regulators, and Army personnel has contributed to changes in both Army policy and activists' positions. From a position of strong opposition to shipping secondary wastes off-site, the NSCWCC has moved to a position that reluctantly recog- 28Elizabeth Crowe, NSCWCC, teleconference with members of the com- mittee on July 11, 2003. ASSESSMENT OF THE ARMY PLAN FOR THE PINE BLUFF NON-STOCKPILE FACILITY nizes and is willing to address the inevitable trade-offs in addressing non-stockpile issues. To quote a leading repre- sentative of the NSCWCC: On the one hand, the NSCWCC wants to prevent chemical weapons, per se, from moving around; on the other hand, they recognize the hard reality that no-one has yet figured out how to reduce chemical weapons to nothing and that secondary waste will need to be shipped. This brings us back to the environmental justice issue if we cannot make the wastes disappear, where is the place where wastes will have the least impact on the community and the environment?29 The effective working relationships with national stake- holders that PMNSCM has fostered through the years may help address some of the difficult issues related to off-site shipment that have made policy implementation difficult for other programs. For example, residents in communities along transportation routes or in communities that receive neutralent and other wastes from Pine Bluff may object to treatment or disposal in their communities. While it is pos- sible that such opposition is based on an analysis of health risks from transportation, incineration, or some other tech- nology, it is likely to be fueled by the stigma associated with chemical weapons. For example, in 1998, when the Navy sought a location to dispose of Vietnam-era napalm products without a well-de- veloped public involvement program, strong local opposi- tion thwarted the shipment program. Similarly, some local residents have filed an environmental justice complaint be- cause of the Army's plan to ship hydrolysate from the New- port, Indiana, chemical stockpile plant for biotreatment at a facility near Dayton (DeBrosse, 2003~. Neutralent from non-stockpile chemical weapons, also a potential "waste of concern," might generate similar opposi- tion. While congressional restrictions on transporting chemi- cal agents30 do not apply to secondary wastes, the commit- tee is concerned about the potential impact of political, regulatory, and public concerns about transporting non- stockpile secondary wastes to off-site, perhaps even out-of- state, TSDFs. Building on the foundation already established with Core Group and NSCWCC representatives, PMNSCM could do more to anticipate and address problems with off-site dis- posal of secondary wastes. It could clarify or strengthen its upfront requirements for public involvement in oversight of the off-site waste disposal contract. The request for propos- als for waste disposal services requires that the contractor "review the Public Affairs sections of all NRC reports, as well as citizen comments." The Army has reportedly said that it "will make available further, and more detailed, infor- mation on the plans for disposal of this waste material after 29Elizabeth Crowe, NSCWCC, teleconference with members of the com- mittee on July ~ I, 2003. 30See Public Law 91-121 (1969) and Public Eaw 103-337 (1995).
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REGULATORY APPROVAL AND PERMITTING AND PUBLIC INVOLVEMENT the partnership has had time to talk with appropriate com- munity representatives and received input to finalize loca- tions" (DEA, 2003~. Therefore, it should not be too difficult to insist on a proactive public involvement strategy that in- corporates the positive lessons learned from stakeholder in- teractions with the Core Group and at installations such as the Aberdeen Proving Ground.3i Public Involvement Finclings and Recommenclations In summary, the committee commends the PMNSCM for its commitment to working effectively with the Core Group at the programmatic level. Although more remains to be done at the installation level, increased coordination with the stockpile and Assembled Chemical Weapon Assessment programs at local installations and increased visibility and informal interactions with Pine Bluff residents are positive steps. The committee believes that the PMNSCM is in a po- sition to build on the Pine Bluff community's unusually posi- tive, or at least accepting, view of the proposed activities, as well as on its working relationships with national-level stake- holders. Finding 5-4a: Although the local community around Pine Bluff appears generally supportive of the PMNSCM's cur- rent strategy for the disposal of recovered chemical muni- tions and other non-stockpile materiel, the Army would ben- efit from a more consistent level of public involvement that is integrated into key project decisions before they are made. Such involvement would strengthen the Army's ability to work through both anticipated and unanticipated problems in a timely fashion and would minimize the likelihood of a challenge to the Army's decision on the basis of a failure to comply with NEPA. Finding 5-4b: The shipment and off-site treatment of neutralent and other non-stockpile secondary wastes is likely to generate controversy elsewhere in the region or wherever the Army proposes to ship wastes from the Pine Bluff facili- ties. To resolve and preferably preempt such controversies constructively, the Army could pursue broader public par- ticipation, in addition to whatever outreach is conducted by the selected contractors for disposal of secondary waste. Recommendation 5-4: The committee recommends that the Product Manager for Non-Stockpile Chemical Materiel en- hance public involvement by (1) identifying and addressing 3iSome lessons learned at the Aberdeen Proving Ground are discussed in Chapter 5 of NRC, 2002a. 53 the reasons for limited participation by the public in meet- ings at Pine Bluff; (2) establishing an informal advisory group at Pine Bluff similar to a restoration advisory board; (3) augmenting the national Core Group with citizen stake- holders from Pine Bluff and from the yet-to-be determined location of the facility that is selected to treat and dispose of the secondary wastes from the Pine Bluff Non-Stockpile Facility; and (4) ensuring that the contractors for disposal of secondary wastes gores) beyond information and outreach activities to involve local community stakeholders. Finding 5-5: The Army has not expanded its public affairs program at the Pine Bluff Arsenal to include involvement as well as public relations and outreach activities, nor has it ensured coordination of program and installation missions at the arsenal, as recommended in a previous NRC report.32 Thus, the PMNSCM continues to be constrained in its au- thority to institute an expanded public involvement program at the PEA. Recommendation 5-5: The Army should consider revising Army Regulation 360-1 to expand its definition of public affairs activities to include involvement as well as informa- tion and outreach activities. At the same time, the Army should evaluate its traditional institutional roles and respon- sibilities to ensure greater consistency between installation and program-level approaches to public involvement, par- ticularly as they apply to the Pine Bluff Arsenal. Finding 5-6: Some members of the public might believe that the environmental assessments prepared by the Army for non-stockpile materiel at Pine Bluff do not give an adequate overview of the activities being conducted. Recommendation 5-6: As part of the public involvement process, the Army should consider preparing a new docu- ment that describes, in layman's terms, the treatment tech- nologies and facilities being proposed for non-stockpile ma- teriel at Pine Bluff. These technologies include those outside the Pine Bluff Non-Stockpile Facility and should include the technologies ultimately selected to treat neutralent off-site. The document might include a timeline and a summary of the cumulative environmental impacts. It would give the public a clear understanding of the proposed actions and help them to understand the operation of each technology and the interrelationships among them. 32See NRC, 2002a, pages 69-70.
Representative terms from entire chapter: