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Impact of Revised Airborne Exposure Limits on Non-Stockpile Chemical Materiel Program Activities 6 Regulatory Approval and Permitting, and Public Involvement INTRODUCTION The regulation of chemical agent destruction processes and public involvement in some of the decisions surrounding these processes were discussed in several earlier National Research Council (NRC) reports on the Non-Stockpile Chemical Materiel Product (NSCMP) (NRC, 2002, 2004a). However, the Army has experienced significant delays in implementing the stockpile destruction program (GAO, 2004).1 The committee believes that the problems faced by the stockpile program could affect the non-stockpile program as well, especially with regard to environmental permitting issues and public involvement programs. As indicated in earlier NRC reports on the non-stockpile program, regulatory approval and permitting (RAP) and public involvement issues have hampered the Army’s ability to meet the CWC schedule and increased the cost of compliance as well (NRC, 1999, 2001a, 2001b, 2002, 2004a). The imposition of new airborne exposure limits (AELs) presents a new set of RAP and public involvement challenges for the non-stockpile program. The new AELs for workers and the community will involve a new round of regulatory approvals or amendments to existing approvals and have the potential to give rise to additional regulatory- and public-involvement-related delays and costs in meeting the CWC deadlines. Constructive engagement with regulators and the public is essential to the completion of chemical materiel disposal in accordance with the CWC schedule. The committee believes that RAP and public acceptance are critical path items. That is, if regulators or the public at any location present significant objections to any program activity, it will become increasingly difficult for the Army to achieve its programmatic milestones. REGULATORY PROGRAMS Implementation of the new AELs must be carried out within the federal and state regulatory and legal framework established for protection of workers and for protection of human health and the environment. There are actually two separate regulatory programs in operation here, one for worker protection and the other for protection of human health and the environment. There is a significant amount of overlap between the two programs, and both have implications for cost and the Army’s ability to meet the CWC schedule for non-stockpile operations. Worker Protection Historically, workplace protection standards for general industry have been the purview of the U.S. Occupational Safety and Health Administration (OSHA). OSHA does not, however, develop or administer worker protection standards within the U.S. military.2 The authority for establishing and implementing worker protection within the military has been delegated to the DOD. Within the Army, the Office of the Assistant Secretary for Installations and Environment establishes policies and procedures for worker and environmental protection. The 1 According to the Government Accountability Office (GAO), known as the General Accounting Office until July 2004, delays in implementing the stockpile program have stemmed “from incidents during operations, environmental permitting issues, concerns about emergency preparedness, and unfunded requirements” (GAO, 2004, summary). The GAO indicates that if the Army does not resolve the problems that have caused these schedule delays, the United States risks not meeting the Chemical Weapons Convention (CWC) treaty deadline to destroy the entire stockpile, even if the deadline is extended to 2012 (GAO, 2004). Of course, delays and increased costs have also been due to many of the Army’s own policies and problems with integrating the role of the NSCMP, the Army Corps of Engineers, and, where appropriate, the base commander (NRC 2002, 2004a). As a result, the NRC recommended that the regulators and the public “should ‘see’ only one Army across all chemical agent programs” (NRC, 2002, p. 62). 2 The U.S. military may nevertheless request guidance from OSHA, as appropriate.
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Impact of Revised Airborne Exposure Limits on Non-Stockpile Chemical Materiel Program Activities Chemical Materials Agency’s (CMA’s) Risk Management Directorate carries out this function for chemical agent operations. Specific policies and procedures applicable to the Army’s chemical agent programs are established in Army Regulation (AR) 385-61 (U.S. Army, 2001a) and Department of the Army pamphlet (DA PAM) 385-61 (U.S. Army, 2002).3 AR 385-61 was last issued on October 12, 2001, and DA PAM 385-61 was last issued on March 27, 2002. Neither of these regulatory documents describes how standards for worker safety interact with standards for protection of human health and the environment. The Army plans to revise its safety regulations to incorporate the new AELs. This provides an opportunity to incorporate language that would clarify the applicability of safety regulations to standards intended to protect human health and the environment. With the advent of the Army’s chemical demilitarization program, Congress directed, within the defense appropriations bill, the U.S. Department of Health and Human Service’s Centers for Disease Control and Prevention (CDC) to establish chemical agent AELs for worker protection (P.L. 99-145, November 8, 1985). The CDC first issued the AEL standards in 1988 (Federal Register, 1988). While Congress directed the CDC to develop the AEL standards and required the CDC to review the “particulars and plans” and provide recommendations for transportation and disposal of chemical warfare agents, it provided no direct oversight or enforcement responsibilities to the CDC. The legislation, however, imposes restrictions on the expenditure of funds if CDC recommendations are not implemented. Thus, the CDC directives are a hybrid—somewhat more than a recommendation but somewhat less than a traditional regulatory requirement. Protection of Human Health and the Environment Many of the Army’s non-stockpile operations are permitted or have received other types of regulatory approval under the Resource Conservation and Recovery Act (RCRA).4 RCRA, enacted in 1976, established a cradle-to-grave management system for hazardous waste (40 CFR Part 260-282), primarily to protect human health and the environment from indiscriminant hazardous waste management practices. The applicability of RCRA to non-stockpile operations is reviewed in Systems and Technologies for the Treatment of Non-Stockpile Chemical Warfare Materiel (NRC, 2002). The RCRA regulations apply the substantive OSHA regulations to state and local government employees engaged in hazardous waste operations, as defined in 29 CFR Part 1910.120(a), but not to federal employees (40 CFR Part 311). Federal employees at cleanup sites have protection limits that are at least “comparable to Federal OSHA standards.”5 Worker Protection Standards and RCRA Integration Issues In some states, but not all, worker protection AELs have been incorporated into RCRA permits and regulatory approvals, including those under development.6 The RCRA statute does not provide explicit authority to the Environmental Protection Agency (EPA) or the authorized state programs to regulate workplace exposures. In fact, EPA indicates, in a memorandum dated December 1983, as follows: A related issue that has arisen in some of the first permit reviews is whether RCRA permit writers should insert permit conditions which would require permittees to meet requirements established under other Federal laws and regulations. Permit writers should realize that the RCRA regulations have been specifically written to avoid duplication of coverage with other Federal authorities. The supporting information behind the Part 264 regulations points out that the Agency has excluded from the regulations many proposed Part 264 standards that would have required permittees to meet other Federal laws and regulations (see 45 FR 33171, May 19, 1980). Therefore, as a general matter, permit writers should not include the RCRA permits conditions based on other Federal authorities merely for repletion or emphasis. Such conditions should only be used if the permit writer decides they are needed to meet RCRA regulatory requirements. (Weddle, 1983, p. 1) Nevertheless, RCRA provides, under its omnibus provisions (RCRA 3005(c)(3)), the authority to permit writers to incorporate conditions into RCRA permits that are not specifically described in 40 CFR Part 264 if it can be demonstrated that the additional standards are necessary to protect human health and the environment. Under this authority (or similar state authority) some state-authorized RCRA programs have incorporated agent-associated worker protection standards into operating permits or other regulatory approvals. 3 Army Regulation 385-61 can be found at http://www.army.mil/usapa/epubs/pdf/r385_61.pdf, and DA PAM 385-61 at http://www.army.mil/usapa/epubs/pdf/p385_61.pdf. 4 Other types of regulatory approvals are issued pursuant to removal and remedial actions under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In some cases, permits for certain operations have also been established under provisions of the Clean Air Act (CAA). 5 MaryAnn Garrahan, OSHA, Office of Health Compliance Assistance, Briefing to the RCRA National Meeting, January 17, 2002. 6 As described in Systems and Technologies for the Treatment of Non-Stockpile Chemical Warfare Materiel (NRC, 2002), the RCRA program was intended by Congress to be a state-implemented program, and many of the states, and all of the stockpile states, have received authorization from EPA to administer the RCRA program within their boundaries.
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Impact of Revised Airborne Exposure Limits on Non-Stockpile Chemical Materiel Program Activities Finding 6-1a: AELs have been incorporated into RCRA permits and other regulatory approvals for many of the Army’s non-stockpile operations, and their implementation is also regulated by the worker protection authorities within the Army. Worker protection standards are then implemented and enforced, pursuant to multiple regulatory authorities. Because the AELs are incorporated into RAP documentation for some non-stockpile operations, RAP documentation will require significant changes, including permit modifications, to accommodate the new AELs. Considering the number of non-stockpile operations in progress or planned, the effort required to support the changes to RAP documentation will be substantial. Finding 6-1b: Permit modifications and modification to other RAP documentation will be required for all existing and planned operations. Using Lower Alarm Levels and Reportable Limits In incorporating AELs into RCRA permits and other regulatory approvals, some states (e.g., Utah) have determined that the Army’s practice of setting the alarm level for NRT monitors at 0.70 AEL for non-stockpile program operations would not be consistent with stockpile operations, where alarm levels as low as 0.20 AEL are often used. These state regulators have urged the Product Manager for Non-Stockpile Chemical Materiel (PMNSCM) to examine the feasibility of using an alarm level of 0.20 AEL for non-stockpile operations, for consistency with stockpile operations.7 Non-stockpile operations in these states would then have alarm levels 3.5 times lower than alarm levels in other states. Although using an AEL of 0.20 rather than 0.70 would increase the probability of detecting agent excursions above 1.00 AEL, it would also increase the frequency of false positives. The same conclusion applies to reportable limits using the DAAMS monitoring technology. Here again, if reportable limits are set below the relevant AEL (e.g., WPL or GPL) to achieve a higher probability of detecting agent excursions above 1.00 AEL, the frequency of false positives would be expected to rise. Finding 6-1c: Some state regulators have urged PMNSCM to examine the feasibility of using NRT alarm levels as low as 0.20 AEL for non-stockpile operations, to be consistent with stockpile operations in the same states. Similarly, reportable limits using the DAAMS technology could be set at lower levels. Recommendation 6-1: As the Army modifies its safety regulations (AR 385-61 and DA PAM 385-61) to address the new AELs, it should consider incorporating language that would clarify RCRA applicability to non-stockpile operations. In addition, to avoid reinventing the wheel in the many states where mobile treatment systems might be used, the Army should develop templates for modifying RAP when the new AELs are implemented for non-stockpile operations. In addition, although the committee believes that more stringent standards would be warranted if they significantly reduce risk, the non-stockpile mission would also benefit from uniform standards and procedures, particularly for its mobile systems. Further, to facilitate state and public acceptance of revised Army regulations, RAP templates, and consistent standards, the Army should consider establishing a collaborative group made up of state regulators and members of the public. For example, the Army might establish a collaborative arrangement based on the existing Core Group or on an existing outside organization, such as the Interstate Technology and Regulatory Council (ITRC).8,9 Relationship of AELs to the RCRA Contingency Plan All RCRA permit applications contain a RCRA contingency plan—see, for example, the Newport Chemical Depot’s (NECD’s) former production facility RCRA permit modification application, March 2004, Attachment G3.10 The purpose of the contingency plan is to minimize hazards to human health or the environment from fires, explosions, or unplanned releases of hazardous waste or hazardous waste constituents. In Army terms, such events, if they involved exceedance of the STEL, would be termed chemical events that are reportable under AR 50-6 (U.S. Army, 1995). In the past, RCRA contingency plans were nonspecific with respect to the magnitude of a release of hazardous waste or hazardous waste constituents that might cause their activation. In addition, a contingency plan is written broadly so that it applies to releases to the outside environment as well as within confined structures (such as NECD Building 144). Presumably, therefore, the release of any amount of agent, either inside a building or to the outside environment, might 7 Communication between William Brankowitz, Product Manager, Non-Stockpile Chemical Materiel Product, and the committee, June 16, 2004. 8 Established by NSCMP in 1999, the Core Group includes Army personnel from the chemical demilitarization program, representatives of regulatory agencies, and representatives of citizens’ groups; it meets twice a year to exchange information about the non-stockpile program. 9 The ITRC is a state-led coalition working with industry and stakeholders to achieve regulatory acceptance of environmental technologies. ITRC consists of 40 states, the District of Columbia, multiple federal partners, industry participants, and other stakeholders, cooperating to break down barriers and reduce compliance costs, making it easier to use new technologies and helping states maximize resources. 10 This permit can be obtained from the Newport Chemical Depot, Newport, Indiana.
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Impact of Revised Airborne Exposure Limits on Non-Stockpile Chemical Materiel Program Activities activate the contingency plan. Because activation of a MINICAMS alarm above the STEL might signal an agent release, it would presumably activate the RCRA contingency plan. However, as indicated earlier in this report, MINICAMS alarms are often confirmed as false positive readings by the DAAMS. Finding 6-2: The relationship between MINICAMS alarms and DAAMS confirmation, on the one hand, and activation of a RCRA contingency plan, on the other, is unclear. Recommendation 6-2: PMNSCM should describe, within the RCRA contingency plan, specific criteria that would activate the plan. These criteria should address MINICAMS alarms and DAAMS confirmation and should consider the frequency of false positive confirmations. PUBLIC INVOLVEMENT Constructive engagement with the public is essential to the timely completion of chemical materiel disposal. In fact, the committee believes that public acceptance, like regulatory approval, is a critical path item. That is, if the public at any location turns against any program activity, including off-site secondary waste disposal, then it becomes difficult for the Army to achieve its programmatic milestones. For the most part, the non-stockpile program has avoided delays caused by public concern and opposition. Its disposal strategies have earned widespread support, and, through the Core Group, it maintains a constructive relationship with the activist public. Further, before each deployment of its transportable treatment systems, it conducts activities to involve the local public. However, given the intense public concern about chemical weapons, this largely successful experience should not allow complacency. A single incident could easily reverse the positive relationship. The committee believes that public involvement at non-stockpile program sites is and should be based on the program’s activities at each of those sites. Since those activities differ significantly, the potentially impacted public varies as well. This study covers sites of three types: The disassembly of former production facilities—for example, Building 143 at the Newport Chemical Depot (Indiana)—containing small amounts of VX and its by-products. The use of mobile destruction systems, such as the EDS and RRS, within large military facilities, such as Pine Bluff Arsenal (Arkansas), the Dugway Proving Ground (Utah), and Dover Air Force Base (Delaware) The use of those same mobile systems in populated nearby areas, such as Denver, Colorado (Rocky Mountain Arsenal), or the Spring Valley neighborhood in Washington, D.C. At NECD, the surrounding community is unlikely to show much interest in monitoring potential releases from the dismantling of the former production facility. The small quantities of VX trapped in old piping are dwarfed by the 1,269 tons of liquid VX in the Newport stockpile that await neutralization.11 Any monitoring designed to protect people living in the vicinity of stockpile storage and treatment should be more than adequate to address non-stockpile risks. Those affected at the NECD former production facility at Newport are, therefore, primarily the workers. They are the people whose health and safety directly depend on the accuracy and reliability of the monitoring system. Further, these same workers understand both the benefits of and challenges posed by personal protective equipment (PPE), the use of which may serve to allay concerns about (1) problems with the monitoring technologies and (2) the possibility of more false positive alarms. During the summer of 2004, the Army’s Center for Health Promotion and Preventive Medicine (CHPPM) conducted a series of focus groups with workers in five states, including one at NECD for stockpile demilitarization, stockpile storage, and non-stockpile program workers. The committee’s observation of the CHPPM focus group in Newport reinforces the Army’s conclusion that communication between Army management and the contractor workforce needs strengthening. At the time of the focus groups, workers did not understand, but were concerned about, the impact of the new AELs on their work: There was general concern … that revising AELs will directly impact the way workers perform theirs jobs. Concern about job impacts far outweighed health and safety concerns. Of particular note about job impacts was that some workers expressed concern that revised AELs could lead to a culture of false positives and result in workers taking alarms less seriously. In addition, participants consistently pointed out that these changes would impact schedules and wanted to know if the schedules would be extended to accommodate the requirements of the revised AELs. (U.S. Army, 2004h, p. 5) The committee commends the Army’s focus groups as a first step in consulting workers about potential changes in monitoring strategy. It agrees with CHPPM’s recommendations for improved training and communications, including the suggestion that the CMA “provide avenues for individuals to express concerns, raise issues, and ask questions about implementing the AEL changes directly to CMA HQ” (U.S. Army, 2004h, p. 13). Further, both the contractor teams and the technical escort units that operate and support the EDS, the RRS, and other non-stockpile operations are highly trained and prepared. The committee believes that they, too, should be consulted should there be any significant changes in the Army’s monitoring strategy. 11 See http://www.globalsecurity.org/wmd/facility/newport.htm.
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Impact of Revised Airborne Exposure Limits on Non-Stockpile Chemical Materiel Program Activities While workforce concerns are generally the same in populated areas as on remote military installations, public involvement takes on an important new dimension when chemical weapons are recovered in or near areas where people live. The Army has identified 96 suspected chemical weapon burial locations in 38 states, the Virgin Islands, and the District of Columbia.12 Thus, it is likely that the mobile disposal equipment will be brought in to numerous areas where civilians reside, work, study, or enjoy outdoor recreation. The discovery of what many citizens consider weapons of mass destruction in or near populated areas, regardless of their source, is likely to trigger fear and mistrust. To dispose of recovered chemical materiel in a timely fashion, it is prudent that the Army go to great lengths to ensure that the potentially impacted public is comfortable with Army efforts to mitigate the risks of exposure. In addition to meeting the regulatory requirements described in the preceding section, a proactive public involvement program will not only help to reduce delays and other obstacles to the accomplishment of the disposal mission but will also provide the basis for resolving unexpected problems if they arise. That is, to be effective, the non-stockpile program must be seen as part of the solution, not part of the problem. When chemical ordnance or identification kits are discovered in a community, there is rarely time to build a public involvement strategy from scratch. Communities do not necessarily know in advance the extent of the removal or remedial actions, intrusive work, and monitoring that will be needed, or even that chemical warfare material (CWM) treatment/disposal operations will probably be required. The Army’s current strategy, which includes scheduling, publicizing, and conducting open houses or public meetings before finalizing destruction plans, is a good start. Still, it is advisable that the Army work with the Core Group to establish a public involvement model that it can roll into town along with the RRS or the EDS. A satisfactory model would include established monitoring protocols describing how communities would be warned of any hazardous release from the chemical materiel, and it would lay out ground rules for communicating with the public, including at public meetings, where the local population has the opportunity to influence monitoring and other plans. With such proactiveness, communities are likely to facilitate rapid completion of the non-stockpile mission and to participate more constructively in overcoming unanticipated problems. Also, early public involvement often facilitates the investigation, especially at formerly used defense sites, because citizens may recall previous finds, suspicious areas, health problems, or other potentially relevant information that could help the investigators. Given the fear associated with chemical munitions, it is reasonable to expect that some communities will want more monitors or more stringent notification levels than outside experts recommend. The committee notes that even when the outside experts indicate a certain level of monitoring is sufficient, the Army may decide to take local factors into consideration. The non-stockpile program has good relations with the communities in which it operates, and the committee believes that with a moderate, proactive public involvement strategy, it can maintain those relations in other communities into which it is called. Finding 6-3: Workers whose safety depends on prompt, reliable warnings of airborne exposures to chemical agent are concerned about the impact that the new AELs will have on their work. Recommendation 6-3: PMNSCM management should continue or expand its efforts to consult with the non-stockpile workforce before implementing any changes in agent monitoring or the use of personal protective equipment. Finding 6-4: Public acceptance is critical to the smooth, timely use of mobile destruction devices in populated areas. The non-stockpile program’s proactive community relations program has thus far been effective, but the potential for controversy remains. Recommendation 6-4: PMNSCM should develop, in consultation with the non-stockpile Core Group, a model for public involvement in the fielding of mobile systems and the implementation of monitoring systems to protect the general public. 12 William Brankowitz, Product Manager for Non-Stockpile Chemical Materials, Briefing to the committee, September 14, 2004.
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