Appendix D

Review of Regulatory Programs

TWO MAIN PROGRAMS

As indicated in Chapter 3, there are primarily two regulatory programs under which munitions response sites (MRSs), including those containing chemical warfare materiel (CWM), would be assessed, investigated, characterized, and cleaned up: the corrective action program under the Resource Conservation and Recovery Act (RCRA) and the cleanup program under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).1 The process leading to cleanup under both is fairly well prescribed, is highly complex, is often influenced by the type of facility (active installation, formerly used defense sites [FUDS], or Base Closure and Realignment Comnmission [BRAC]) and the type of action (emergency vs. nonemergency), and depends somewhat on whether the Environmental Protection Agency (EPA) or a state environmental regulator (or both) oversees the cleanup. The process leading to cleanup is also influenced by the level of local government involvement, the landowner (such as military, other federal agency, state or local government, or private sector), adjacent landowners, and the level and intensity of public involvement. The end result, eventual cleanup of the site, is likely to be the same regardless of those factors, but the path to the result can vary widely.

Resource Conservation and Recovery Act

RCRA (PL 94-580), an amendment to the Solid Waste Disposal Act, was enacted in 1976 to address hazardous-waste management. As required by the statute, EPA created a cradle-to-grave system of regulations for the management of hazardous waste. States could receive authorization to administer the RCRA program within their boundaries if they develop a regulatory program deemed by EPA to be substantially equivalent to the federal RCRA program. It is important for this discussion that in adopting the federal RCRA program, states could also choose to develop regulations that are more stringent than the federal program. For example, although EPA did not identify chemical agents as hazardous waste, most of the stockpile states have specifically listed chemical agents as hazardous waste under their RCRA programs.

Once wastes are defined as hazardous, a complicated system of requirements and permits becomes applicable. Permits are required for treatment, storage, and disposal, and, because RCRA is largely state-implemented, the nature and stringency of the permit can differ from state to state. Specific provisions are established in the RCRA regulations for permitting specific types of units, such as landfills, incinerators, and storage facilities. But EPA also established a catch-all category for units that could not meet a standard type, called a miscellaneous unit.2 If a full RCRA permit would be required for an EDT or the EDS, a unit would be defined as a miscellaneous unit. Other types of RCRA permits and mechanisms are also available under RCRA for regulatory approval.

RCRA has been amended by Congress several times to add specific provisions. The most significant RCRA amendment pertinent to the present report is the RCRA corrective action program, which came out of the 1984 Hazardous and Solid Waste Amendments (HSWA). Similar to CERCLA, RCRA corrective action requires investigation and cleanup of hazardous waste and constituents released from solid-waste management units (SWMUs) at RCRA facilities, either active facilities with current permits or at facilities that close under RCRA in lieu of obtaining permits. Areas at RCRA facilities in which buried CWM would be found would be regarded as SWMUs.

Cleanup under RCRA is intended to be risk-based. After a preliminary assessment (often referred to as a RCRA facility

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1In rare cases, the Safe Drinking Water Act and other federal and state authorities may be used as well.

2Miscellaneous units are often referred to as Subpart X units because of the designation under 40 CFR 264, Subpart X.



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Appendix D Review of Regulatory Programs TWO MAIN PROGRAMS is important for this discussion that in adopting the federal RCRA program, states could also choose to develop regula- As indicated in Chapter 3, there are primarily two regula- tions that are more stringent than the federal program. For tory programs under which munitions response sites (MRSs), example, although EPA did not identify chemical agents as i ncluding those containing chemical warfare materiel hazardous waste, most of the stockpile states have specifi- (CWM), would be assessed, investigated, characterized, and cally listed chemical agents as hazardous waste under their cleaned up: the corrective action program under the Resource RCRA programs. Conservation and Recovery Act (RCRA) and the cleanup Once wastes are defined as hazardous, a complicated program under the Comprehensive Environmental Response, system of requirements and permits becomes applicable. Compensation, and Liability Act (CERCLA).1 The process Permits are required for treatment, storage, and disposal, leading to cleanup under both is fairly well prescribed, is and, because RCRA is largely state-implemented, the nature highly complex, is often influenced by the type of facility and stringency of the permit can differ from state to state. (active installation, formerly used defense sites [FUDS], Specific provisions are established in the RCRA regula- or Base Closure and Realignment Comnmission [BRAC]) tions for permitting specific types of units, such as landfills, and the type of action (emergency vs. nonemergency), and incinerators, and storage facilities. But EPA also established depends somewhat on whether the Environmental Protection a catch-all category for units that could not meet a standard Agency (EPA) or a state environmental regulator (or both) type, called a miscellaneous unit.2 If a full RCRA permit oversees the cleanup. The process leading to cleanup is also would be required for an EDT or the EDS, a unit would influenced by the level of local government involvement, the be defined as a miscellaneous unit. Other types of RCRA landowner (such as military, other federal agency, state or permits and mechanisms are also available under RCRA for local government, or private sector), adjacent landowners, regulatory approval. and the level and intensity of public involvement. The end RCRA has been amended by Congress several times to result, eventual cleanup of the site, is likely to be the same add specific provisions. The most significant RCRA amend- regardless of those factors, but the path to the result can ment pertinent to the present report is the RCRA corrective vary widely. action program, which came out of the 1984 Hazardous and Solid Waste Amendments (HSWA). Similar to CERCLA, Resource Conservation and Recovery Act RCRA corrective action requires investigation and cleanup of hazardous waste and constituents released from solid- RCRA (PL 94-580), an amendment to the Solid Waste waste management units (SWMUs) at RCRA facilities, Disposal Act, was enacted in 1976 to address hazardous- either active facilities with current permits or at facilities waste management. As required by the statute, EPA created that close under RCRA in lieu of obtaining permits. Areas a cradle-to-grave system of regulations for the management at RCRA facilities in which buried CWM would be found of hazardous waste. States could receive authorization to would be regarded as SWMUs. administer the RCRA program within their boundaries if Cleanup under RCRA is intended to be risk-based. After a they develop a regulatory program deemed by EPA to be preliminary assessment (often referred to as a RCRA facility substantially equivalent to the federal RCRA program. It 1In 2Miscellaneous rare cases, the Safe Drinking Water Act and other federal and state units are often referred to as Subpart X units because of authorities may be used as well. the designation under 40 CFR 264, Subpart X. 112

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113 APPENDIX D assessment [RFA]), data are collected to define the nature and be accepted. A CAMU can be especially effective when extent of the release (often referred to as a RCRA facility wastes from multiple SWMUs or CERCLA units can be investigation [RFI]). If the release poses a risk that requires managed in the same location. One important advantage of corrective action, a study of alternatives is conducted (often a CAMU is that management of remediation waste within referred to as a corrective measures study [CMS]), and these units would trigger RCRA LDR requirements tailored selected measures are then implemented (often referred to for remediation wastes. as corrective measures implementation [CMI]). In addition, TUs are used to either treat or store remediation waste on interim measures may be taken at RCRA SWMUs to reduce site. They must be shown to be protective of human health risk sooner before more comprehensive cleanup approaches and the environment and have an operating life of 1 year, are considered. Interim measures can be part of a final correc- which may be extended for 1 year if that is determined to tive measure, but they were intended as a means of stabilizing be necessary. An ideal application of a TU might be for the releases to reduce risk pending more definitive corrective IHFs used for storage of RCWM. measures (55 FR 30798, July 27, 1990). Another concept that is important to mention in connec- An RCRA corrective action is implemented through the tion with management of remediation waste is what is known permit process. EPA initially proposed the above-described as the Area of Contamination Policy (EPA, 1998). This RFA-RFI-CMS-CMI prescriptive process for implement- policy was actually introduced in the original preamble to ing RCRA corrective actions, but opted instead for a less the National Contingency Plan under CERCLA (55 FR 8758, prescriptive approach that allows for some flexibility. Still, March 8 1990). An area of contamination is a designated area many of the states authorized for RCRA corrective actions of an RCRA or CERCLA site where management of reme- require a more structured approach, which, although it has diation waste—including treatment, storage, or disposal—is some advantages, can be a deterrent to progress. States differ allowed without triggering LDRs or requirements for design in how they implement RCRA corrective actions. of specific types of hazardous-waste management units (such Another important RCRA amendment pertinent to recov- as liners and leachate-collection systems). ered CWM (RCWM) involves the Land Disposal Restrictions Clearly, management of remediation waste—including (LDRs), which were also mandated by the 1984 HSWA. The consideration of CAMUs, TUs, treatment requirements, LDRs establish requirements for hazardous-waste treatment and areas of contamination—is a highly complex subject. before land disposal. LDRs include application of specific Also, because RCRA is largely state-implemented, the states treatment technologies but also establish numerical treatment often implement these types of requirements differently. standards for a number of constituents. Although no LDRs Although it is important to mention the various options for exist for listed chemical-agent wastes, these wastes may management of remediation waste, it is beyond the scope exhibit one or more of the RCRA characteristics. Treatment of this report to evaluate the intricacies of the regulatory of RCWM that exhibits RCRA characteristics may need to requirements for remediation wastes that may come out of meet LDRs for the applicable characteristics. In addition, and CWM sites. with some exceptions, remediation wastes, such as munition Emergency provisions and other enforcement mecha- bodies and contaminated media, may need to meet LDRs for nisms are available under RCRA to address releases of debris and contaminated soil. hazardous waste and constituents. EPA can issue Section Another regulatory development pertinent to this discus- 3008(a) compliance orders; Section 3008(h) interim status sion is EPA’s creation of the corrective-action management corrective-action orders; Section 3013(a) monitoring, analy- unit (CAMU) and temporary unit (TU) (EPA, 2002).3 A sis, and testing orders; and Section 7003 imminent-hazard orders.4 Many states have incorporated similar emergency CAMU is a type of waste-management unit that is designed specifically for the management of waste created during provisions and enforcement mechanisms into their state the cleanup of RCRA and CERCLA hazardous-waste sites, RCRA programs. known as remediation waste. CAMUs can be used for treat- Another important RCRA amendment was the Federal ment and storage and for disposal of remediation wastes. Facility Compliance Act of 1992 (PL 102-386), which They are ideal when facilities will be generating a large r equired EPA, in consultation with the Department of amount of remediation waste and when such waste can be Defense (DOD), to identify when waste military muni- managed on site near the area from which the remediation tions become subject to RCRA and to provide for their waste was removed and in a manner that is protective of safe transport and storage. The Military Munitions Rule human health and the environment. CAMUs can also be (MR) was promulgated in 1997 (62 FR 6622). It defined established at off-site locations. For example, if a CAMU when conventional and chemical munitions become subject is established at Redstone Arsenal, pending regulatory to RCRA requirements. Although the MR provided many approval, remediation waste generated at Camp Sibert could clarifications regarding classification of military munitions 367 4http://www.epa.gov/region4/waste/rcra/RCRAAdministrativeOrders. FR 2961, January 22, 2002. Available at http://www.gpo.gov/fdsys/ pkg/FR-2002-01-22/html/02-4.htm. Accessed April 10, 2012. html.

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114 REMEDIATION OF BURIED CHEMICAL WARFARE MATERIEL in the RCRA context, one of the important provisions for the time frame but can also be permanent remedies or parts of present report is that it provided an exemption from RCRA more permanent remedies. Regardless of whether a site is procedures (for example, permitting and waste manifesting) NPL-listed, a remedial investigation may be required. A for responses to explosives or munitions emergencies. It also remedial investigation is a detailed site investigation that provided an exemption for munitions on what have become leads to a determination that a site is sufficiently character- known as operational ranges. Another related provision per- ized to support the evaluation of cleanup alternatives. A tinent to buried CWM is that these do not become subject removal action can be conducted before, during, or even after to RCRA waste-management requirements unless they are a remedial investigation is completed. actively managed (for example, exhumed). DOD developed If a remedial investigation results in a determination that an interim guidance for implementation of the MR, which further action is needed to reduce risk, a feasibility study is was published in 1998 (DOD, 1998), and has been working undertaken to evaluate remedial actions, and alternatives are to develop it into an Army regulation. selected with the goal of permanently reducing “the volume, RCRA also has well-defined and established procedures toxicity, or mobility of hazardous substances, pollutants or contaminants.”5 for public involvement, especially in the corrective-action process. The public has a number of opportunities to influ- EPA is responsible for implementing CERCLA at most ence site-characterization procedures, interim measures, and sites. However, Executive Order 12580, issued in 1987, the selection of cleanup alternatives. delegated response authority to DOD and other federal land managers for both NPL and non-NPL sites. In addition, Sec- tion 120 of CERCLA contains specific procedures for apply- Comprehensive Environmental Response, Compensation, ing CERCLA at federal facilities. Most notably, if a site is and Liability Act not listed on the NPL, DOD and other federal land managers CERCLA is implemented through the National Oil and must conduct removal and remedial actions in accordance Hazardous Substances Pollution Contingency Plan (NCP) with state laws and requirements. If a site is NPL-listed, (40 CFR 300), which provides a structured process for over- EPA must develop an interagency agreement, often referred all responses. CERCLA can be applied at any site at which to as a federal facility agreement (FFA). An FFA is a bind- hazardous substances, pollutants, or contaminants have been ing agreement between EPA and the federal land manager, released into the environment, including active installations, in this case DOD. A state can also choose to be a signatory FUDS, and BRAC sites. CERCLA can also be applied at to an agreement, but at NPL sites EPA must concur with the permitted RCRA facilities. In both EPA and DOD guidance cleanup decision. U.S. Army guidance is clear that regulatory documents dealing with the cleanup of MRSs, including agencies and local governments must be part of the CERCLA sites with CWM, there is a clear preference for cleanups that planning process and must be consulted in key decisions follow the regulatory program under CERCLA (EPA, 2005; (U.S. Army, 2004). U.S. Army guidance, in effect, treats NPL U.S. Army, 2006) as opposed to RCRA corrective action. and non-NPL sites the same with regard to coordination with regulators and meeting regulatory requirements.6 The CERCLA cleanup process involves a number of steps, initiated through an initial assessment of risk. A preliminary RCRA corrective action and CERCLA are different, but assessment or site investigation is performed to gather data there are important crossovers. An example important for this to support a determination of to whether a site qualifies for discussion is known in the CERCLA program as applicable, further action. Sites are scored; if they present a significant relevant, and appropriate requirements (ARARs). Basically, risk, they may qualify for placement on the National Pri- requirements of other federal and state environmental laws orities List (NPL). Cleanup actions under CERCLA can be that are determined to be either applicable or relevant and required regardless of whether a site is listed on the NPL, but appropriate must be complied with. Most RCRA waste- NPL listing places a site in a category that requires a tightly management requirements (for media and debris removed structured process that leads to cleanup. Relatively speaking, from the site, including RCWM) would be considered either few MRSs containing CWM are listed on the NPL. The most applicable or relevant and appropriate at CERCLA sites. prominent examples of CWM sites that are NPL-listed are Although RCRA administrative requirements, such as the Aberdeen Proving Ground (Edgewood Area) in Maryland, need to obtain RCRA permits, would not be imposed at Rocky Mountain Arsenal in Colorado, and Redstone Arsenal in Alabama. Most of the FUDS and BRAC sites, and active 5CERCLA remedy-selection factors include threshold criteria, balancing installations that contain buried CWM that are addressed criteria, and modifying criteria and are discussed in many CERCLA guid- under CERCLA would be in the non-NPL site category. ance documents. (See OSWER Directive 9355.3-01F54, March 1990, avail- If it is determined to be necessary to reduce risk in an able at http://www.epa.gov/superfund/policy/remedy/pdfs/93-55301fs4-s. emergency or immediate timeframe, CERCLA removal pdf. Accessed March 21, 2012.) 6Deborah A. Morefield, Environmental Management, Office of the actions can be used to mitigate a release or threat of a release. Deputy Undersecretary for Installations and Environment Department of Like RCRA interim measures, removal actions are typically Defense, “Remediation Operations from an OSD Installations and Environ - short-term actions intended to reduce risk in an immediate ment Perspective,” presentation to the committee on November 2, 2011.

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115 APPENDIX D Defense Environmental Restoration Program federal CERCLA sites, the federal agency implementing a CERCLA action would be required to meet substantive DOD has been conducting cleanups at its hazardous- RCRA requirements.7 waste sites since the middle 1970s under its Installation Restoration Program (IRP). The IRP was formalized as the Summary Defense Environmental Restoration Program (DERP) with the passage of the Superfund Amendments and Reautho- Regardless of regulatory authority or type of MRS, rization Act in 1986. Congress directed DOD to carry out cleanup typically follows the same general flow of initial the DERP in consultation with EPA and with states and assessment, site investigation, conduct of removal or interim tribal authorities; except when situations are determined to actions to reduce short-term risk, site characterization, constitute emergencies, DOD is required to give state and evaluation and selection of alternative cleanup approach or local governments the opportunity to review and comment technology to reduce long-term risk, conduct of cleanup, on response actions. The DERP also established funding and site closeout. There are also requirements for periodic mechanisms for environmental restoration at MRSs; sepa- reviews—5 years under CERCLA and typically 5 or 10 years rate accounts are used for active installations, FUDS, and at RCRA facilities. Removal and treatment of RCWM may BRAC sites. However, DERP funding cannot be applied at occur anywhere during the process, but is most likely during operational ranges. the removal or actual cleanup (remedial) phase. And under both RCRA and CERCLA, cleanups may be determined to Chemical Weapons Convention Treaty Requirements be complete even if wastes or hazardous materials are left in place. When hazardous materials are left in place, the remedy The Convention on the Prohibition of the Development, typically involves mechanisms designed to control further Production, Stockpiling and Use of Chemical Weapons and releases of hazardous waste or constituents from the site (for on Their Destruction was signed by the United States in example, an engineered cap) and typically is combined with 1993 and ratified by Congress in 1997. Treaty requirements land-use controls and continued monitoring. are overseen by the Organization for the Prohibition of Chemical Weapons (OPCW). Although most of the treaty OTHER APPLICABLE REGULATORY PROGRAMS requirements pertain to destruction of chemical-weapons stockpiles in nations that stockpiled these materials, there Munitions Response Site Prioritization Protocol are treaty requirements that apply to non-stockpile materials, including RCWM. The treaty requires simply that RCWM As of September 2006, DOD had cataloged over 3,300 be destroyed and provides for oversight of the destruction by sites as potentially eligible for the Military Munitions the OPCW. There is no treaty requirement to recover buried Response Program, as shown in Table D-1. munitions, and no timeframe is specified in the treaty for With so many sites and limited funding for addressing destruction of the RCWM. The processes for treaty compli- them, a priority-setting system was needed. Development ance and OPCW oversight are coordinated by CMA. of the Munitions Response Site Prioritization Protocol (MRSPP) was mandated by the 2002 Defense Authoriza- DICTATION OF APPLICABLE REGULATORY PROGRAM tion Act (10 USC 2710), wherein Congress directed DOD BY TYPE OF FACILITY OR RESPONSE ACTION to develop a protocol for assigning priority to MRSs for response action. In 2005, DOD finalized its MRSPP.8 The The type of facility or property where a CWM-containing rule-making required DOD to use the MRSPP to rank MRSs MRS is can influence whether the response action taken to for response action. Priorities are based on potential risk: the clean up the site is conducted under RCRA or CERCLA. The highest priority is assigned to sites that contain or potentially following sections review the general types of MRSs and contain CWM. discuss regulatory programs applicable to the sites. Relative risk weighs heavily in determining priorities for response, but other factors influence which MRSs are next Active Installations in sequence for response. Those factors include economic development, environmental justice, and stakeholder con- Many active installations have RCRA-permitted haz- cerns. Some non-CWM MRSs may be selected for action ardous-waste management units, such as hazardous-waste before CWM MRSs despite a higher risk ranking. storage. Some installations may also have RCRA-permitted treatment units, including, for example, open burn–open detonation (OB/OD) units used for treatment of conven- tional waste munitions. Other installations may have initially 7The identification of RCRA requirements that are substantive and in - sought RCRA permits for hazardous-waste management cluded as ARARs can be contentious. activities (like OB/OD) but determined later that a permit 8 https://www.federalregister.gov/articles/2005/10/05/05-19696/ munitions-response-site-prioritization-protocol. Accessed March 21, 2012.

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116 REMEDIATION OF BURIED CHEMICAL WARFARE MATERIEL TABLE D-1 Number of Munitions Response Sites MRSs Active Installations BRAC Installations FUDS Properties 3,309 1,333 318 1,658 SOURCE: http://www.denix.osd.mil/mmrp/upload/MRSPP_Stakeholder_FactSheet_final.pdf. Undated. Accessed March 21, 2012. was not needed and were required to go through RCRA clo- the general public, will be key participants in the decision- sure. RCRA-permitted facilities and facilities going through making process. The state regulator also will probably be a RCRA closure are subject to RCRA corrective action and key player, and if the FUDS is also a CERCLA NPL site, will probably already be in the process of characterizing or EPA will become a primary decision-maker. It should also remediating SWMUs on the installation, including SWMUs be mentioned that even if MRSs are being addressed under that are also MRSs. CERCLA, states may issue emergency provisions or orders Nearly all active installations have also been assessed that are available under RCRA to address cleanup actions. under CERCLA, even those with active RCRA corrective action programs. Some of those installations may have Base Realignment and Closure CERCLA non-NPL sites or CERCLA NPL sites. If an active installation with CERCLA units is also an RCRA-permitted BRAC installations are similar to active installations with facility or is closing under RCRA, RCRA corrective action respect to RCRA corrective action vs CERCLA require- and CERCLA requirements apply to the same MRS at the ments. Some MRSs at BRAC sites will be addressed under same time. Quite often, states with RCRA corrective action RCRA, some under CERCLA (as either NPL or non-NPL authorization will want cleanup of MRSs at active installa- sites), and requirements of both programs may apply at tions that operate under RCRA permit to be conducted under some BRAC installations. Given that most BRAC sites will RCRA corrective action so that they can maintain some level eventually be turned over to the private sector, cleanup at of control over cleanup decisions. At the same time, EPA will installations going through BRAC will need to consider that often want cleanup to be conducted under CERCLA author- the land will in most cases no longer be managed by the ity so that it can maintain control over cleanup decisions, federal government. especially for NPL sites. RCRA vs CERCLA authority is an The provisions of CERCLA 120(h) allow the transfer issue facing active installations, inasmuch as the prospect of of contaminated federal property to nonfederal parties, but being subject to both RCRA and CERCLA cleanup require- there are restrictions. Under CERCLA 120(h), EPA (and in ments can be problematic. Redstone Arsenal is subject to some cases a state regulator) performs additional oversight both RCRA corrective action and CERCLA cleanup require- at federal facilities that transfer to nonfederal ownership. ments; neither EPA nor the state of Alabama has been willing Generally, remedial actions must be in place and operat- to defer regulatory authority. ing properly and successfully before a parcel is transferred (EPA, 2010), although remedial actions need not be complete before transfer. However, CWM sites at which the remedial Formerly Used Defense Sites action includes a containment (leave-in-place) option are FUDS are locations where the land may have been used unlikely to be transferred to nonfederal parties. for training, research and development, testing, or disposal of military munitions. Property owners are diverse and may Operational Ranges include federal and state agencies, local governments, com- mercial companies, public or private institutions, and even Another category of MRS where buried CWM may private landowners. Only in rare cases would a landowner be be found is operational ranges. Operational ranges are subject to RCRA requirements. For example, a commercial active ranges where testing, training, and other activities manufacturer that acquired the land that is now a FUDS are expected, planned, or going on. The RCRA munitions MRS may also hold an RCRA permit; in this rare case, it rule makes it clear that RCRA requirements do not apply is possible that the FUDS could be addressed under RCRA to operational ranges themselves but may apply to specific corrective action requirements. In the likely absence of over- locations on ranges. For example, many RCRA-permitted arching regulatory structure at most FUDS, the vast majority OB/OD units are on or next to operational ranges. Past of FUDS will probably be addressed under CERCLA. In that disposal units (including RCRA SWMUs) may also be on manner, whereas the military, through the Army Corps of operational ranges, as is the case at Redstone. In such cases, Engineers, will conduct the remedial investigation and even- RCRA or CERCLA cleanup requirements could apply not tually identify and carry out removal and remedial actions, only to a unit in question but to releases of hazardous waste the FUDS landowner and adjacent landowners, as well as or constituents from the unit.

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117 APPENDIX D As indicated earlier, another limitation with regard to The leave-in-place remedy is commonly used in both operational ranges is that DERP funding may not be used RCRA and CERCLA cleanups. It is used when leaving con- to fund cleanup at these sites. That limitation can be prob- tamination in place can be shown to be acceptable from a risk lematic in that some of the largest locations where CWM perspective and when removal of contamination would be is known to be buried are on operational ranges (such as technically impracticable or financially prohibitive. It is also Redstone Arsenal). used when the physical removal of contamination and later treatment can be shown to pose a health or environmental risk. That was the case at Old O-Field at Aberdeen Proving Emergency Response Ground, Maryland, where, among other concerns, reactivity Emergency response to a situation where a CWM or of energetic materials was thought to pose an unacceptable potential CWM is identified either on or off an installation or risk to workers. CWM at Old O-Field was consolidated and at an established BRAC or FUDS is generally “a situation in buried on the site with a specially designed cap and indefi- which there is an imminent and substantial threat to human nite monitoring of air and groundwater. As an NPL site, it is health or the environment and which requires immediate and reviewed every 5 years as required by the National Oil and expeditious action to eliminate the threat” (EPA, 2010). As Hazardous Substances Pollution Contingency Plan. indicated previously, the RCRA Munitions Rule provides The leave-in-place remedy is typically far less expensive an exemption from permitting requirements for emergency than removal, but there is a continuing cost and liability and, response. However, the preamble to the final rule indicates of course, long-term restrictions on land use and associated that a responder should consult with an applicable state loss of economic benefit that may be associated with that regulator if there is time. long-term use. Implicit in this remedy is the need to main- Once an emergency is over, however, depending on the tain ownership and control of the affected land area. For that potential for additional munition items (including CWM) reason, the remedy is limited to active installations. It may and location of the site, the site may become a FUDS. The also be used at BRAC sites or at non-BRAC closures, such Spring Valley site in Washington, D.C., was initiated as an as Rocky Mountain Arsenal, where a federal land manager emergency response in 1993 and has become one of the retains control over future land use. Although the remedy longest-active FUDS in the nation. theoretically could be used at FUDS, it is unlikely to be acceptable to landowners, adjacent landowners, and state and local government. TYPES OF REMEDIES Two types of remedies may be considered for CWM- Active Removal and RCWM Destruction containing MRSs. CWMs may be left in place with institu- tional “land-use controls” (LUCs) and continued monitoring, In accordance with DOD’s interim guidancefor CWM or they may be actively removed and destroyed. In addition, responses (U.S. Army, 2009e), “Munitions with an unknown when CWMs are actively removed and destroyed, RCWM liquid fill that are determined to be CWM and any CWM destruction may take place onsite (close to the point of recovered during a CWM response will normally be treated extraction), or they may be transported to a specified offsite (destroyed) on site using approved contained destruction location for destruction. The types of remedies for CWM- technology.” With the remove-and-destroy approach, buried containing MRS are discussed below. CWM is eliminated permanently and, assuming that the remainder of the MRS site (including contaminated soil) is remediated to accepted standards, the land may be returned Leave in Place with Institutional (Land-Use) Controls to beneficial use. Buried CWM can be left in place with LUCs to prevent Removal and destruction would entail location of the unauthorized access and with deed restrictions to prevent CWM, removal from the burial site, and then contained future uses that are incompatible with buried munitions. destruction. Although it would be most efficient, as indi- Most often, this type of remedy is accompanied by emplace- cated in an earlier National Research Council report on ment of an engineered cap and continued monitoring of international technologies (NRC, 2006), to move the RCWM media (such as groundwater) for an indefinite period to detect directly from the burial site to the destruction device, interim migration of contamination or fluctuations in contaminant storage for some period is sometimes required. Most RCWM concentrations. If unexpected migration or contaminant fluc- can be safely stored in an IHF, as described previously. tuation is detected, additional remedies may be considered. Destruction of the RCMW with a contained destruction Sometimes, this type of remedy is accompanied by active technology would involve the EDS or one of the EDTs, as treatment, such as pumping and treating of contaminated described previously. The IHF and EDS or EDTs could be groundwater. approved as TUs with the limitation that they would not be able to be operated for longer than 2 years.

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118 REMEDIATION OF BURIED CHEMICAL WARFARE MATERIEL Emplacement of a Corrective Action Management Unit, a goes on to say, “When open detonation is authorized, 50 Temporary Unit, or an Area of Contamination USC, Section 1518 requires Congressional notification.” Clearly, open detonation would be used only in highly A CAMU can also be considered for management of unusual circumstances when there is no safer way to deal remediation waste. Using a CAMU for disposal of remedia- with the RCWM. tion waste can be considered a type of leave-in-place remedy, but it does not necessarily need to be in or even near an REFERENCES existing SWMU or disposal site. It would be established at a location where remediation waste could be consolidated DOD (U.S. Department of Defense). 1998. Policy to Implement the EPA’s and managed; this is similar to use of a landfill. However, Military Munitions Rule. July 1. http://uxoinfo.com/blogcfc/client/ in contrast with leave-in-place, remediation waste would enclosures/1July98mrip.pdf. Accessed February 17, 2012. EPA (Environmental Protection Agency). 1976. Resource Conservation and be moved from the disposal units onsite to the CAMU. In Recovery Act (RCRA). 42 U.S.C. § 6901 et seq., as amended through addition, although the CAMU could receive munition bod- P.L. 107–377, December 31, 2002. Available at http://epw.senate.gov/ ies and scrap metal from the site and from the EDS or the rcra.pdf. Accessed June 14, 2012. EDTs, it would not necessarily need to include these metals. EPA. 1984. Hazardous and Solid Waste Amendments of 1984. H.R. 2867 It could be used merely to manage contaminated media such (98th). November 8. Available at http://www.govtrack.us/congress/ bills/98/hr2867. Accessed May 31, 2012. as soil). In addition, in combination with designated areas EPA. 1990. National Oil and Hazardous Substances Pollution Contingency of contamination, CAMUs used for storage and treatment, Plan (“National Contingency Plan”). 40 CFR Part 300; Preamble at 55 and possibly TUs, a cost-effective and efficient means of FR 8713. March 8. Available at http://www.epa.gov/superfund/policy/ dealing with remediation waste that is protective of human remedy/sfremedy/pdfs/ncppreamble61.pdf. Accessed March 29, 2012. health and the environment and that is tailored to the site in EPA. 1998. Management of Remediation Waste Under RCRA. EPA 530F- 98-026. October 14. Available at http://www.epa.gov/superfund/policy/ question could be developed. remedy/pdfs/530f-98026-s.pdf. Accessed March 21, 2012. EPA. 2002. Amendments to the Corrective Action Management Unit Rule; On-site Treatment vs Off-site Transportation for Treatment Final Rule. 40 CFR Parts 260, 264, and 27. January 22. Available at http://www.gpo.gov/fdsys/pkg/FR-2002-01-22/html/02-4.htm. Ac- The DOD interim guidance (U.S. Army, 2009) clearly cessed April 11, 2012. EPA. 2005. Handbook on the Management of Munitions Response Actions. favors on-site treatment, but it leaves the door open for off- May. Office of Solid Waste and Emergency Response. Available at site transportation for treatment: http://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=P100304J.txt. Accessed March 20, 2012. Under certain circumstances and after coordination with EPA. 2010. Munitions Response Guidelines. July. Office of Solid Waste appropriate state, federal and DOD agencies and, when ap- and Emergency Response Available at http://www.epa.gov/fedfac/ propriate, with concurrence by Center for Disease Control’s documents/docs/munitions_response_guidelines.pdf. U.S. Department of Health and Human Services (USDHHS), NRC. 2006. Review of International Technologies for Destruction of Re - covered Chemical Warfare Materiel. Washington, D.C.: The National the DASA (ESOH) may authorize other dispositions (e.g., Academies Press. transport and treatment off-site, open detonation). U.S. Army. 2004. Recovered Chemical Warfare Materiel (RCWM) Re- sponse Process. EP 75-1-3. U.S. Army Corps of Engineers. November Off-site transportation would presumably be considered 30. Washington, D.C.: Headquarters, Department of the Army. Avail - when space or other limitations prevent an onsite approach able at http://publications.usace.army.mil/publications/eng-pamphlets/ or when a military installation with EOD capabilities is a EP_75-1-3/toc.htm. Accessed April 11, 2012. U.S. Army. 2006. Military Munitions Response Process. EP 1110-1-18. reasonable distance from the burial site. There may be cir- U.S. Army Corp of Engineers, Engineer Pamphlet. April 3. Washing - cumstances in which off-site transportation for later destruc- ton, D.C.: Headquarters, Department of the Army. Available at http:// tion will be a good option. www.hnd.usace.army.mil/oew/policy/IntGuidRegs/EP1110-1-18.pdf. Accessed March 29, 2012. U.S. Army. 2009. Interim Guidance for Chemical Warfare Material (CWM) Other Approaches Responses. Memorandum from Office of the Assistant Secretary, Instal- lations and Environment. April 1. In the quotation above, DOD leaves open the option of open detonation for RCWM. The DOD interim guidance