As mentioned in the introduction, the Army must clean up large quantities of buried chemical warfare materiel (CWM). Whether the cleanup involves containment on the one hand or the recovery and destruction of CWM on the other will impact the scope and costs of the program.
The first subsection of this chapter discusses the treaty and regulatory requirements that influence whether buried CWM that may exist in pits and trenches will be contained or destroyed.
The next subsection discusses the other federal and state environmental regulatory requirements that may be critical-path items in determining the ultimate total cost, the cost-effectiveness, and time frames for the remediation of buried CWM and the committee’s suggestions on how to address these requirements.
The last subsection discusses public involvement issues since, historically, public involvement has affected the remedial approaches selected by the Army and regulators.
This chapter provides only a very general overview of the environmental regulatory programs applicable to discarded chemical warfare materiel, with a focus on those legal and regulatory issues that have the most significant impact on implementation of the buried CWM remediation program. More detailed information on these regulatory programs and how they apply to the Army’s overall remediation responsibilities (i.e., the cleanup of munitions and industrial hazardous wastes) is provided in Appendix D.
The scope and costs of the CWM cleanup program are largely driven by (1) the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC, or “the Treaty”);1 (2) the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) hazardous substance cleanup program (EPA, 1980); and (3) the federal Resource Conservation and Recovery Act (RCRA) corrective action program (EPA, 1976).
The CWC and related U.S. enabling legislation require the destruction of recovered chemical warfare materiel (RCWM) (NRC, 2003). Nothing in the CWC requires the United States to recover buried CWM munitions. However, once removed and determined to fall into one of the categories of chemicals covered in the treaty, steps must be taken to declare and destroy the items in accordance with the requirements of the CWC.2
CERCLA is a federally implemented hazardous waste cleanup program and has been used to clean up hazardous waste sites all over the United States, including military sites that contain CWM. The Environmental Protection Agency (EPA) promulgates the regulations and has issued many guidances governing the investigation, remedy selection, and cleanup of CERCLA sites, whether the responsible entity is the government or a private company.
The decision to contain or recover and destroy buried CWM is made in the context of a complex set of laws, regulations, guidance, and implementing Department of Defense (DOD) cleanup programs. Under CERCLA, the Army performs the site investigations, evaluates the reme-
2Lynn M. Hoggins, Director, Chemical and Biological Weapons Treaty Management, Office of the Deputy Assistant Secretary of Defense, Nuclear, Chemical and Biological Defense, personal communication to Nancy Schulte, NRC study director, January 6, 2012.
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3 Treaty and Regulatory Framework and Public Involvement Considerations As mentioned in the introduction, the Army must clean up (2) the federal Comprehensive Environmental Response, large quantities of buried chemical warfare materiel (CWM). Compensation and Liability Act of 1980 (CERCLA) haz- Whether the cleanup involves containment on the one hand ardous substance cleanup program (EPA, 1980); and (3) the or the recovery and destruction of CWM on the other will federal Resource Conservation and Recovery Act (RCRA) impact the scope and costs of the program. corrective action program (EPA, 1976). The first subsection of this chapter discusses the treaty and regulatory requirements that influence whether buried Treaty Obligations CWM that may exist in pits and trenches will be contained or destroyed. The CWC and related U.S. enabling legislation require the The next subsection discusses the other federal and state destruction of recovered chemical warfare materiel (RCWM) environmental regulatory requirements that may be critical- (NRC, 2003). Nothing in the CWC requires the United States path items in determining the ultimate total cost, the cost- to recover buried CWM munitions. However, once removed effectiveness, and time frames for the remediation of buried and determined to fall into one of the categories of chemi- CWM and the committee’s suggestions on how to address cals covered in the treaty, steps must be taken to declare and these requirements. destroy the items in accordance with the requirements of the CWC.2 The last subsection discusses public involvement issues since, historically, public involvement has affected the reme- dial approaches selected by the Army and regulators. CERCLA This chapter provides only a very general overview of the environmental regulatory programs applicable to discarded Overview chemical warfare materiel, with a focus on those legal and regulatory issues that have the most significant impact on CERCLA is a federally implemented hazardous waste implementation of the buried CWM remediation program. cleanup program and has been used to clean up hazardous More detailed information on these regulatory programs and waste sites all over the United States, including military sites how they apply to the Army’s overall remediation responsi- that contain CWM. The Environmental Protection Agency bilities (i.e., the cleanup of munitions and industrial hazard- (EPA) promulgates the regulations and has issued many ous wastes) is provided in Appendix D. guidances governing the investigation, remedy selection, and cleanup of CERCLA sites, whether the responsible entity is the government or a private company. TREATY AND REGULATORY REQUIREMENTS THAT The decision to contain or recover and destroy buried DETERMINE SCOPE AND COST OF CLEANUP CWM is made in the context of a complex set of laws, The scope and costs of the CWM cleanup program are regulations, guidance, and implementing Department of largely driven by (1) the Convention on the Prohibition of the Defense (DOD) cleanup programs. Under CERCLA, the Development, Production, Stockpiling and Use of Chemical Army performs the site investigations, evaluates the reme- Weapons and on their Destruction (CWC, or “the Treaty”);1 2Lynn M. Hoggins, Director, Chemical and Biological Weapons Treaty Management, Office of the Deputy Assistant Secretary of Defense, Nuclear, 1Availableat http://www.opcw.org/chemical-weapons-convention/. Last Chemical and Biological Defense, personal communication to Nancy accessed March 15, 2012. Schulte, NRC study director, January 6, 2012. 39
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40 REMEDIATION OF BURIED CHEMICAL WARFARE MATERIEL dial alternatives, and proposes an action (Section 120 of CERCLA “in the same manner and to the same extent, both CERCLA; EPA, 1988, 1990a, 1999). However, the process, procedurally and substantively, as any nongovernmental program, and funding for DOD remediation differs from a entity, including liability” (EPA, 1980). The DERP statute nonfederal CERCLA cleanup and depends on the type of requires that DOD “carry out a program of environmental DOD cleanup site. restoration at facilities under the jurisdiction of the Secre- The precise oversight role at DOD sites depends somewhat tary,” including response actions that are “subject to, and in a upon the program: (1) sites no longer owned or controlled by manner consistent with, section 120,” which in turn, requires DOD are handled by the formerly used defense sites (FUDS) compliance with CERCLA in the same manner as any program3 (U.S. Army, 2009b); (2) active bases are addressed nongovernmental entity. The Army final military munition by the Defense Environmental Restoration Program (DERP); guidance applies the CERCLA remedy selection process to and (3) sites on closing bases are addressed by the base munitions response sites, although explosive safety (which is realignment and closure (BRAC) program. generally not addressed at CERCLA sites) is the “paramount Some sites are placed on EPA’s National Priorities List priority” during a munitions response (U.S. Army, 2009b). (NPL), which means, as its name implies, that these cleanups U.S. Army guidance, in effect, treats NPL and non-NPL sites generally receive a higher priority and a greater degree of the same with regard to coordination with regulators and meeting regulatory requirements.5 Thus, CERCLA remedy EPA oversight. At NPL sites, EPA and DOD must negotiate a federal facility agreement (FFA), which provides a detailed selection criteria apply to DOD sites and are discussed in agreement concerning the process and timing by which the detail below. site investigation is performed, the remedy selected, and the remedial action implemented, including the regulatory CERCLA Remedy Selection Factors review (EPA, 1988, 1999.) As of 2010, EPA and DOD had successfully negotiated CERCLA remedial actions are selected using nine cri- FFAs at 136 out of 141 facilities (GAO, 2010), and addi- teria. The mandatory threshold remedy selection criteria tional agreements have been entered since 2010. However, are “overall protection of human health and the environ- at a small number of installations, disputes between EPA ment” (EPA, 1980) and “compliance with federal and state and DOD concerning implementation of FFAs have arisen regulatory requirements found to be applicable or relevant (GAO, 2010). DOD has in rare cases failed to obtain EPA’s and appropriate” (EPA, 1990a). Protectiveness is essential. prior approval for key cleanup decisions, leading EPA not CWM responses address “the chemical safety; explosives to recognize them and warn that additional work may be safety, when applicable; human health; or environmental required (GAO, 2010; Ferrell and Prugh, 2011). Accord- risks presented by chemical-agent-filled munitions or agents ing to GAO, “when an agency refuses to enter into an . . . in other than munitions configurations” (U.S. Army, 2009b). [FFA] and cleanup progress lags because of statutory and Risks posed by agent-filled munitions are “assessed through other limitations, EPA cannot take steps—such as issuing a baseline risk assessment that adheres to the requirements and enforcing orders—to compel CERCLA cleanup as it of CERCLA and the National Oil and Hazardous Substances would for a private party” (GAO, 2010). EPA may seek to Pollution Contingency Plan (NCP) (U.S. Army, 2009b). have DOD perform additional work (EPA, 1988).4 Thus, The final remedy is generally selected from protective and disputes must be resolved through interagency discussions applicable, relevant, and appropriate requirement (ARAR)- (GAO, 2010). Since Section 120 of CERCLA also contains compliant alternatives based on long-term effectiveness and a waiver of sovereign immunity, individuals and states may permanence; the reduction of toxicity, mobility, or volume bring citizen suits if an agency is not adhering to a CERCLA through treatment; short-term effectiveness; implementabil- mandate (EPA, 1999; GAO, 2010; EPA, 2011b). ity; and cost (EPA, 1990a). At non-NPL sites, EPA’s role is less direct and the cleanup State and community “acceptance” must be considered, may be more flexible. For the most part, state agencies over- but it does not provide either the state or local citizens the see DOD cleanup activities at non-NPL sites, which are the right to veto a remedy (EPA, 1990a). U.S. Army guidance majority of DOD sites (U.S. Army, 2009b). is clear that regulatory agencies and local governments Section 120 of CERCLA requires federal agencies, must be part of the CERCLA planning process and must be such as Army facilities containing CWM, to comply with consulted in key decisions (U.S. Army, 2005). However, as a practical matter, the exact process utilized and role of the state and community depends largely on whether the site is 3DOD, Environmental Restoration Program, web site. Available at https:// an NPL site or not. www.denix.osd.mil/denix/Public/Library/Cleanup/CleanupOfc/derp/index. html. Last accessed March 16, 2012. See also Army Regulation 200-1, Environmental Protection and Enhancement (February 21, 1997); AR 200-1 5Deborah (para 3-3b) requires facilities to include a contingency/response plan for A. Morefield, Environmental Management, Office of the hazardous substances as part of an SPCCP. Deputy Under Secretary for Installations and Environment Department of 4Paragraph J Subsequent Modifications of Final Reports, subparagraph Defense, “Remediation Operations from an OSD Installations and Environ - 3 of the 1988 Model Federal Facility Agreement. ment Perspective,” presentation to the committee on November 2, 2011.
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41 TREATY AND REGULATORY FRAMEWORK AND PUBLIC INVOLVEMENT CONSIDERATIONS Balancing the Criteria Case by Case required pursuant to CERCLA and RCRA corrective action are equivalent (see Figure 3-1, which compares very gener- On a case-by-case basis, the relevant criteria are “bal- ally the CERCLA and RCRA and remediation processes). anced in a risk management judgment as to which alternative (See Appendix D for details). provides the most appropriate solution for the site” (EPA, 1990a). Under CERCLA, EPA “expects to use treatment State Cleanup Programs to address the principal threats posed by a site, wherever practicable” (EPA, 1996c, p. 2). Practicability, however, is Because the RCRA cleanup process is driven primarily by “based on the balancing of trade-offs among alternatives that guidance rather than regulation, states (and EPA in certain are conducted during the selection of remedy” (EPA, 2009b). circumstances) have more flexibility in remedy selection and, In upholding the NCP against challenges seeking to require in fact, some do not follow the EPA guidance (by definition, only permanent remedies, the Court of Appeals for the D.C. guidance is not legally binding). The process is described in Circuit held that “nothing in CERCLA §121 . . . suggest[s] Appendix D in more detail. that selecting permanent remedies is more important than States implement RCRA programs within their boundar- selecting cost-effective remedies.”6 Rather, the emphasis on ies and normally serve as lead regulator for non-NPL instal- permanent solutions and treatment is balanced by the coequal lations and are a “regulatory team member” at BRAC sites mandate for remedies to be cost-effective (EPA, 1996c). As a (U.S. Army, 2009b). Additionally, state requirements can result, 65 percent of EPA CERCLA source control records of be incorporated into CERCLA cleanups because ARARs decision published from FY 1998 to FY 2008 have included may include state regulatory requirements (EPA, 1990a). a containment component, and treatment was “not practical” CERCLA “specifies that state laws ‘concerning removal and at 56 percent of the Superfund sites in which the record of remedial actions, including state laws regarding enforce- decision (ROD) was issued from 2005 to 2008 (EPA, 2010c). ment, shall apply to removal and remedial actions at facili- ties owned or operated by [the federal government] when such facilities are not included on the NPL.’”9 (U.S. Army, RCRA Corrective Action 2009b). Many of the state remediation regulations are similar The Resource Conservation and Recovery Act (RCRA) is to the federal approach, but states may adopt (and some have primarily a statute regulating how wastes (solid and hazard- done so) their own cleanup policies or preferences. ous wastes) must be managed to avoid potential threats to Although there may be some states that set different human health and the environment, as opposed to CERCLA’s cleanup goals than EPA for the same chemicals or situation, focus on the cleanup of contamination (EPA, 1976). How- most states use EPA values and guidance and rely upon ever, the RCRA corrective action authority is a hazardous CERCLA and RCRA authorities for their legal framework. waste cleanup program analogous to CERCLA that applies to Most states have essentially adopted the federal RCRA cor- past disposal locations on RCRA-permitted facilities, and for rective action program facilities that are closing without obtaining permits (includ- Although there is no known large buried CWM site in ing DOD facilities). Although RCRA is a federal program, New York, it is relevant in understanding the overarching most states have been authorized by EPA to implement the state cleanup process to recognize that even the New York program. state statute (which requires sites to be restored “to predis- EPA’s written policy is that the “RCRA and CERCLA posal conditions, to the extent feasible”) has been interpreted remedial programs should operate consistently and result by the highest court in the state to mean that remedies may in similar environmental solutions when faced with similar “reduce rather than completely eliminate dangers” and that circumstances,” i.e., procedural differences between RCRA this statute “evinces a preference for the most thorough and CERCLA should not substantively affect the outcome cleanup that makes sense in light of technical feasibility of remediation (EPA, 1996b, 1997a, and 2011c).7 EPA uses and cost-effectiveness.”10 The New York remediation “may essentially the same remedy selection criteria and the same encompass measures that run a gamut from removal of expectations for RCRA remediation as for CERCLA, spe- wastes to institutional controls . . . to address harms that cifically including the preference for “treatment to address the principal threats posed by a site whenever practicable the same remedy selection criteria as provided in CERCLA (EPA, 1997a). and cost-effective.” (EPA, 1996b).8 Substantively, cleanups In particular, it specified “remedy expectations” that are intended to “guide development of remedial alternatives” (EPA, 1996b). These expectations 6Ohio v. EPA, 997 F.2d 1520, 1533, D.C. Cir. 1993. are “not binding requirements,” but are often followed because they “reflect 7EPA uses the Corrective Action Advance Notice of Proposed Rule [EPA’s] collective experience” (EPA, 1996a). Specifically, “EPA expects Making (ANPRM) as its corrective action guidance. to use treatment to address the principal threats posed by a site whenever 8CERCLA includes explicit statutory remedy selection criteria which practicable and cost-effective” (EPA, 1996b). 942 U.S.C. § 9620(a)(4)(2001). express, among other things, a preference for treatment (see discussion 10New York State Superfund Coalition Inc. v. New York State DEC at above). This preference is also incorporated into the CERCLA cleanup regulations (EPA, 1990a). Although the RCRA statute does not contain a 9-10 (N.Y., No. 189, 12/15/11). Available at http://www.courts.state.ny.us/ statutory preference, EPA directed its staff to use as “guidance” essentially CTAPPS/Decisions/2011/Dec11/189opn11.pdf.
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42 REMEDIATION OF BURIED CHEMICAL WARFARE MATERIEL GOAL CERCLA RCRA Identify Releases Preliminary RCRA Needing Further Assessment and Site Facility Assessment Investigation Inspection Characterize Site Risk RCRA Facility Remedial Investigation Assessment Investigation Evaluate Alternatives Corrective Measures and Identify Preferred Feasibility Study Study Remedy Draft Permit Propose Selected Proposed Plan Modification Remedy (Decision Document) Public Participation Public Comment Public Comment Authorize Selected Record of Decision / Permit / Statement Remedy Decision Document of Purpose Design and Implement Remedial Design and Corrective Measures Chosen Remedy Remedial Action Implementation FIGURE 3-1 Comparable CERCLA and RCRA remedial action processes. Final draft Army guidance for Military Munitions Response Program (MMRP) remedial investigation feasibility study (RI/FS). Available at Remedial Action Processes.eps FIGURE 3-1 Comparable CERCLA and RCRA http://www.milvet.state.pa.us/DMVA/Docs_PNG/Environ - mental/MRRI-FSGuidance.pdf, pp. 1-14 (U.S. Army, 2008c). Accessed April 10, 2012. range from potential to actual hazards,” but the statute Existing Army guidance for performing remedial would not “compel a reversion to pristine environmental investigations at munitions response sites, detailed in the conditions.”11 Army’s Final Munitions Response Remedial Investigation/ Feasibility Study Guidance (MMRP RI/FS Guidance) (U.S. Army, 2009b) is both adequate and appropriate. This guid- Historic Examples of Cleanup of Buried CWM ance recommends following the Technical Project Planning Both RCRA and CERCLA have been or are planned to be (TPP) process, which requires identifying and bringing deci- used to address CWM, as summarized in Table 3-1. sion makers and technical personnel together (TPP Phase I), determining data needs (TPP Phase II), developing data collection options (TPP Phase III), and finalizing the data REQUIREMENTS collection program (TPP Phase IV). All of this planning A number of regulatory issues (particularly the remedy activity is designed to be front-loaded to identify potential selection criteria) impact the investigation, remedy design, conflicts and decisionmaking before field activities begin. and remedy implementation of buried CWM. The commit- While the existence of this guidance is a significant positive tee’s review documented the reasons that the environmental step for expediting the buried CWM portion of the munition r egulatory programs may require very costly remedial response mission, as a matter of law, guidance is not legally binding12 and, in the experience of many of the committee actions and several other regulatory issues that may be obstacles or impact the cost of the remediation of buried members, agencies do not always follow their own guidance. CWM. Significant issues that are likely to impact most CWM Moreover, some agency personnel may not be aware of all cleanup operations are discussed below. Issues relevant to of the agency guidance. Redstone Arsenal are discussed in Chapter 5. 11New York State Superfund Coalition Inc. v. New York State DEC at 12McLouth 9-10 (N.Y., No. 189, 12/15/11). Available at http://www.courts.state.ny.us/ Steel Products Corp. v. Thomas, 838 F. 2d 1317 (DC Cir. CTAPPS/Decisions/2011/Dec11/189opn11.pdf. Id. at 10-12. 1988).
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43 TREATY AND REGULATORY FRAMEWORK AND PUBLIC INVOLVEMENT CONSIDERATIONS TABLE 3-1 Examples of CWM Cleanups Containment/ Site Cleanup Program Destruction Technology Other Rocky Mountain CERCLA. Approved through a Destruction selected EDS A large CERCLA cleanup has been under Arsenal (NRC, CERCLA record of decision and it way since the 1980s. A small quantity of 2002) met the requirements of the state’s sarin bomblets in publicly accessed area RCRA order because it was a Rocky Mountain Arsenal was already CERCLA emergency removal action listed on the CERCLA NPL and had an ongoing remedial program for non-CWM; the sarin bombets are a small portion of overall cleanup. Spring Valley, D.C. CERCLA Destruction selected EDS Residential neighborhood, included soil (EPA, 2011a) to date. Investigation is ongoing. Future CWM remedy not decided. Camp Siebert CERCLA Destruction selected EDS Near a farm Redstone Arsenala State issued a RCRA permit State policy: destroy. Not determined On a munitions range on an active base. requiring cleanup. EPA is State has ordered Residential areas are encroaching on negotiating a CERCLA FFA, destruction of all the base. Groundwater is shallow and which would result in an EPA lead. CWM. contaminated groundwater is entering the The Army prefers one regulatory Final remedy not Tennessee River. decision maker. Who is the lead decided regulatory authority is not decided. Tooele, Utah RCRA Not decided. State Not determined These CWM are buried on an Army base prefers destroying that is remote from populated areas. CWM on surface, but contained buried Dugway Proving RCRA While there were Covers with Over 200 solid waste management units Ground (RCRA some removals, land use controls were identified at Dugway Proving Permit 2011)b most sites involved and continued Ground (DPG); corrective action was containment monitoring. implemented at most units during the remedies. 1990s. There are no active RCRA corrective action activities at DPG except for postclosure care, including land use controls and continued monitoring. Aberdeen, Md. CERCLA Contained. A cover was This was just one operable unit on a (U.S. Army, 2008d) Five-year reviews placed on CWM large active Army base. Munitions were in 1999, 2002, and in the O-field unstable. For the remedy to be protective 2008. landfill using in the long-term, containment of the remote technology waste must continue and LTM and 5-year and ground water reviews conducted until site conditions pumping allow for unlimited use and unrestricted exposure. aPresentations to the committee and conference calls with EPA Enforcement (December 5, 2011). bUtah, RCRA Permit Module VII, SMU 200 Post-Closure Plan. Available at http://www.hazardouswaste.utah.gov/HWF_Section/Docs/DPG/DPG7_At - tach22_HWMU200.pdf. Finding 3-1. The Army MMRP RI/FS Guidance document dicted with accuracy because the ultimate scope can only be determined through the regulatory cleanup process; it is out (U.S. Army, 2009b) describes how to implement a transpar- of the Army’s complete control. ent and coordinated strategy for identifying stakeholders and including them in the MMRP decision-making process. The Need for Flexibility in CWM Remediation Recommendation 3-1. Army managers of CWM projects A “multitude of challenges make the RI/FS at CWM should fully implement the TPP process as described in the sites unique,” including the “potential for exposure to toxic MMRP RI/FS Guidance as early as possible when planning chemical agents,” the presence of explosive material, and the and implementing CWM cleanups. co-location with nonchemical munitions or hazardous wastes (U.S. Army, 2009b). The presence of explosives requires The exact amount of cleanup required and the time frame over which the remedy will be implemented cannot be pre-
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44 REMEDIATION OF BURIED CHEMICAL WARFARE MATERIEL unique procedures to ensure safety. In addition, soil and other and the design of a continued media monitoring program, media may be contaminated. and eventual emplacement of the cap and monitoring system. Each site where CWM is buried may also be unique with Where a remove-and-destroy remedy is selected, removal respect to other factors. Factors include disposal conditions can be conducted in parallel with the remedial investigation (e.g., depth of disposal, cover soil), location (e.g., floodplain, so that as the site is characterized, identified surface and shallow groundwater, operational range), and exposure path- buried munitions are exhumed and treated. This is similar to ways (e.g., distance from installation boundary), in addition what the Army did at the Spring Valley site, where it took a to other factors. The diversity of conditions at each facility, remove-and-destroy-as-you-characterize approach. Risk has many with multiple CWM disposal areas, argues for a flex- been reduced as the investigation proceeds. ible approach toward site assessment, investigation, conduct Finding 3-2. The CERCLA and RCRA processes are flexible of removals or interim actions, final remedy selection and remedy implementation. This is especially the case since it enough to address the unique situations that buried CWM is often difficult to know exactly what is buried in disposal sites may represent. sites or the condition of the items in the burial site until the Finding 3-3. In some cases, sufficient data are available site is actually investigated. The CERCLA and RCRA processes provide flexibility for some CWM burial sites to be able to evaluate and select to conduct a tailored approach to assessment, investigation, remedial approaches and technologies without having to and eventual cleanup that still meets the substantive require- fully investigate the nature of the source or the extent of ments of both RCRA and CERCLA regulatory programs releases and migration pathways. (i.e., discovery, adequate characterization of the scope of Recommendation 3-2. DOD and the appropriate regula- the problem, determination of the risk, and balancing of the remedy selection factors). tory authorities, with opportunity for input of the interested With regard to CWM burial sites, and assuming that an public, should use the flexibility inherent in RCRA and exhumation and destruction approach is taken, test burial CERCLA to tailor the overall response to address unique pits, for example, may be dug as a removal or interim action attributes of individual buried CWM sites. in a first attempt to start the cleanup process but also to bet - Recommendation 3-3. The Army should consider empha- ter understand what may be present in the remainder of the disposal site and its condition. Once more is learned about sizing the implementation of risk reduction activities as specific disposal sites, additional removal or interim actions early as possible, even if there are not enough data to fully may be taken to further reduce risk and better understand the characterize the nature of the source and the extent of the materials present and their condition. More definitive reme- release and migration pathways. dial actions (CERCLA) and corrective measures (RCRA) should only be taken once the site is fully understood with Know Before You Go regard to nature and extent of contamination, exposure path- ways, and risk to human health and the environment. During the investigative phase of RCRA and CERCLA Specifically, the committee notes that in some cases, munitions sites cleanups, field investigative teams may adequate data about some CWM burial sites may be avail- encounter surface-disposed munitions as well as munitions able without having to perform a full-blown remedial that were buried. Under RCRA’s waste management require- investigation (CERCLA) or RCRA facility investigation ments, once a buried munition is uncovered, it is considered (see Appendix D). They may come from historical informa- having been “actively managed” and becomes newly gener- tion, geophysical investigations, limited test-pits, and some ated waste. Similarly, a surface-disposed munition that has sampling to enable development of a combined investiga- been undisturbed for many years would also become waste tive and cleanup approach. The conventional approach in once it is actively managed. If these munitions are deter- cleanup programs would entail completion of a full-blown mined to be hazardous waste, they are subject to RCRA’s r emedial investigation or RCRA facility investigation waste management requirements. even if insufficient data are available to enable evaluation In addition, and as indicated previously, should the muni- of cleanup options and a cleanup decision. An expedited tion be determined to be CWM, the CWC also comes into approach would entail the evaluation of cleanup options and play. Once confirmed to be chemical warfare materiel, the selection of a cleanup technology based on minimal but still CWC would require that munition to be destroyed, although sufficient data. The advantage of the expedited approach is there is no specific time limit for achievement of destruction. that funding can be applied toward risk reduction even if Considering both RCRA and CWC requirements, uncovered not enough data are available to fully characterize the nature CWM may not be placed back onto or into the ground. The and extent of the source of the contamination and the release Army RI/FS guidance, EPA guidance, and Army practice and migration pathways. Where a leave-in-place remedy is are to develop and obtain approval of plans for such activi- selected, available funds can be applied toward cap design ties. The Army may wish to develop, after consultation with
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45 TREATY AND REGULATORY FRAMEWORK AND PUBLIC INVOLVEMENT CONSIDERATIONS Recommendation 3-4. In assessing the appropriate remedy federal and state regulators and other stakeholders, a consen- sus systematic approach for how to process items that may for buried CWM on operational ranges, the Army and the be CWM. The approach should be site-specific and might regulators who approve or concur in the remedy for such include specific steps for further evaluation to identify the sites, should continue to consider the unique circumstances type of munition and chemical content, interim storage, and presented by operational ranges. eventual disposition, to include destruction either on-site or off-site, and management of secondary wastes and other Corrective Action Management Units residuals. Approval by the regulatory authority and involve- ment of the public is a regulatory requirement. Management of remediation waste is a highly complex subject. Also, because RCRA is largely state-implemented, the states often implement the requirements pertaining to Clean Islands in the Middle of Contaminated Operational the remediation of wastes differently. Very large amounts Ranges of remediation wastes may be generated from the active Operational ranges at most of the Army’s installations remediation of some CWM disposal sites. Such wastes have been in use for many years, most for decades. These include contaminated and uncontaminated empty munition operational ranges are used for multiple purposes, primar- bodies, intact chemical and conventional munitions, disposed ily training and research and development. Through use manufacturing and processing equipment, and contaminated over many years, these operational ranges have become soil and debris. While, it is beyond the scope of this report to contaminated with munitions-related constituents, including evaluate the intricacies of the regulations for the remediation munitions-related chemicals (e.g., trinitrotoluene, perchlo - of wastes that may come out of CWM sites, it is nevertheless rate) the breakdown products of munitions-related chemicals important to mention the options for managing such waste. (e.g., dinitrotoluene, heavy metals), and unrelated chemicals, Historically, EPA interpreted any movement of waste or such as those used to decontaminate chemical munitions contaminated soil at a site as the “generation of hazardous (e.g., bleach solutions, caustics, and organic solvents). These wastes,” which in turned triggered RCRA waste management operational ranges have been determined by the Army as requirements, including the requirement to treat the wastes safe for soldiers and other personnel involved in intermittent and, if necessary, contaminated soil and debris to meet stan- training and research and development, but the contamina- dards established under the RCRA land disposal restrictions tion at these ranges is a concern nonetheless. (LDR) program. EPA established a number of different types As indicated above, one of the options for cleaning up of units to allow flexibility in the selection of the approach waste disposal or treatment units located on operational for managing remediation waste and contaminated soil, other ranges is removal of exploded munition bodies and decon- media, and debris. As indicated in Appendix D, remediation taminated chemical munitions and the removal and destruc- wastes can be managed in corrective action management tion of intact munitions, including both conventional and units (CAMUs), temporary units, and in designated “areas chemical munitions. Presumably, contaminated media may of contamination” without having to meet all the restrictive also be removed and either treated or disposed of. requirements for what is known as “as-generated waste,” The committee notes that while the removal and destruc- including the requirement to treat remediation waste to meet tion of exploded munition bodies and decontaminated the same LDR requirements as “as-generated” wastes. c hemical munitions and the removal and treatment of CAMUs in particular are intended for situations where intact munitions, including both conventional and chemical large amounts of remediation waste are expected to be gen- munitions, and the removal and treatment and/or disposal erated from one or more units, and where the wastes can be of contaminated media may be appropriate for FUDS and safely and securely managed in the same on-site location BRAC sites, the removal and treatment option should be or at an acceptable off-site location. CAMUs include units carefully evaluated for operational ranges. The committee intended for storage and treatment of remediation waste is concerned that the removal and treatment option for old as well as for disposal of these wastes. Whereas storage disposal units located on operational ranges could result in and treatment CAMUs are temporary facilities, CAMUs cleaned-up islands in the middle of historically contaminated intended for disposal are permanent waste management operational ranges that through continued use for training units. Disposal CAMUs would therefore likely be limited to and other purposes into the future, would only become con- active installations where the Army is expected to maintain taminated again. ownership into the future. They could also be employed at BRAC locations where a federal land manager becomes the Finding 3-4. By their very nature, the Army’s operational new landowner for the facility. ranges are contaminated from prior and ongoing training, Contaminated or decontaminated chemical and conven- research, development, and other uses. Continued use of the tional munitions and other remediation wastes could be range will result in low-level or moderate contamination. managed in a CAMU. Indeed, any kind of remediation waste can be managed in a CAMU, as long as it can be shown to
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46 REMEDIATION OF BURIED CHEMICAL WARFARE MATERIEL be protective of human health and the environment. The storage permit for waste in storage for longer than 90 days. CAMU could also be used for treatment, storage, or disposal While a 90-day extension to this deadline might be issued of contaminated debris and soil. Since the CWC would by the regulatory authority, it is likely that RCWM would require the destruction of intact chemical weapons, these need to be stored for much longer. At Spring Valley, for materials could not be managed in a CAMU. Secondary example, RCWM were stored for approximately 2 years in an IHF before the EDS was brought on-site and operated.13 wastes remaining after such destruction, however, could be managed in a CAMU. Similarly, at the Camp Sibert, Alabama, FUDS, RCWM have Similar to CAMUs, Areas of Contamination, as described been in storage for over a year in an IHF awaiting eventual treatment in an EDS or EDT.14 RCRA corrective actions in Appendix D, could also be used to manage remediation wastes. If the concept of an Area of Contamination can be would be considered to be an ARAR under CERCLA, and shown to be protective of human health and the environment, only the substantive aspects of RCRA regulations would be considered applicable.15 Storage in excess of 90 days is typi- and pending regulatory acceptance, remediation wastes, including contaminated soils, could also remain in such cally not an issue at sites being addressed under CERCLA, Areas. This would be the case, for example, if a decision is because permitting would be considered an administrative made to leave remediation waste in place, with appropriate (nonsubstantive) requirement. The more likely issue would engineering controls (e.g., landfill cap, leachate collection be if the cleanup is being conducted pursuant to RCRA cor- system), monitoring (e.g., groundwater monitoring), and land rective action. In this case, the 90-day storage criterion would use controls. These types of remedies have been employed, apply. The regulatory authority in this case could direct the for example, at Aberdeen Proving Ground (Edgewood Area) installation to initiate action to permit the IHF as a RCRA and at Rocky Mountain Arsenal. The review of regula - storage facility. tory programs in Appendix D provides information on the The committee visited and examined an IHF at the Spring decision-making process for remedy selection under RCRA Valley site. In addition, the committee is aware of the regu- and CERCLA. In particular, the section in Appendix D on latory requirements imposed by the U.S. Army Technical types of remedies addresses the choice of active removal/ Center for Explosives Safety (USATCES) and the Depart- destruction vs. leave-in-place or containment remedies. ment of Defense Explosives Safety Board (DDESB) on the Similarly, Temporary Units, as described in Appendix management of munitions in such containers. The committee D, could also be used for the management of remediation believes that establishing additional regulatory requirements wastes. Such units would be ideal for an interim holding through the RCRA permit is unnecessary to protect human facility (IHF), for example, but could also be used for treat- health or the environment. The requirement to obtain a stor- ment units like the Explosive Destruction System (EDS) or age permit in this case is similar to a situation that emerged any of the explosive destruction technologies (EDTs). as the Military Munitions Rule was being developed by Setting up such units for the many “empty” munition EPA, with input from DOD. Here, EPA and DOD realized bodies and scrap metals and for contaminated soil and debris that munitions, both conventional and chemical, might be that may be present in large disposal pits would have many in storage for an extended period of time prior to undergo- advantages over other RCRA or CERCLA remedies. ing demilitarization. EPA agreed, after reviewing DOD regulatory requirements, that requiring DOD installations Finding 3-5. Corrective Action Management Units, Tempo- to obtain RCRA permits for such storage was unnecessary rary Units, or the designation of Areas of Contamination for (EPA, 1997b). In recognizing that obtaining a storage permit management of remediation wastes are possible solutions for in this case was unnecessary, the “igloo door” policy was management of the large amounts of remediation waste that established (DOD, 1998). In accordance with this policy, will be generated at RCRA or CERCLA CWM disposal sites. munitions destined for demilitarization did not become defined as waste subject to RCRA until they exited the igloo Recommendation 3-5. The Army should make increased on their way to demilitarization. This same concept can be use of Corrective Action Management Units in situations applied to RCWM in storage awaiting destruction. Another where large amounts of remediation waste are expected, approach would be to approve the IHF as a Temporary Unit although the committee recognizes the need to retain the under RCRA (see Appendix D). flexibility to make determinations based on site-specific circumstances. 13Steven Hirsh, Remedial Project Manager, Region 3, Environmental Protection Agency, “Protecting the Public: An EPA Perspective,” presenta- The Problem Posed by RCRA Storage Requirements tion to the committee on November 1, 2011. 14Karl E. Blankenship, FUDS Project Manager, Mobile District U.S. One complication that the Army could encounter during Army Corps of Engineers, “Remediation of Contaminated Soil at Camp CWM investigations and also during large-scale removal Sibert, Alabama: The Installation Manager’s Perspective,” presentation to the committee on November 3, 2011. operations might be the storage of the munition(s) awaiting 15The committee notes, however, that the definition of what is and what evaluation or destruction. RCRA requires a hazardous waste is not applicable and appropriate is subject to regulatory interpretation.
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47 TREATY AND REGULATORY FRAMEWORK AND PUBLIC INVOLVEMENT CONSIDERATIONS Regulatory Approval and Permitting of the EDS and EDTs Recycling of Treated Munition Bodies, Fragments, and Other Metals The EDS and two of the three types of explosive destruc- tion technology (EDT) have now been deployed to a number Recycling of metal fragments has been addressed in prior of locations within the U.S. and have been operated suc- NRC reports (NRC, 2007, 2010a). However, the number of cessfully. At CERCLA sites, such as Schofield Barracks in such metal parts will be much greater at buried CWM sites. Hawaii and Spring Valley in Washington, D.C., destruction For this reason, it would be appropriate to summarize les- technology was established as part of CERCLA documen- sons learned. All types of EDT and the EDS will produce a tation. Regulators were given the opportunity, through the significant amount of metallic secondary waste, consisting CERCLA process, to review the technology documentation of the treated munition body, fragments, and, in some cases, and to comment on operating conditions or controls for the explosive fragmentation protection system. Currently, these containers. The process has worked very well. At some the project manager for non-stockpile chemical materiel CERCLA locations, such as at the Rocky Mountain Arsenal (PMNSCM) plans to landfill these metal materials as haz- in Colorado, the regulatory authority sought an additional ardous waste at a RCRA-permitted treatment, storage, and disposal facility (TSDF).16 They could also be managed in level of control over operations to destroy recovered sarin bomblets, so it set its own conditions by formulating state a CAMU, as described above. Such secondary wastes, how- versions of RCRA’s emergency order provisions. ever, could instead be recycled as scrap metal. Experience In addition to CERCLA sites, the EDS and one of the has shown that EDT and EDS treatment can produce scrap EDTs have also been used at installations operating under a metal that is <1 vapor screening level (VSL) (NRC, 2009a). RCRA permit. Examples include the Pine Bluff Arsenal for The Dynasafe unit produces metal that may be released to the destruction of various types of chemical munitions, and the private sector for recycling or other uses. However, all Anniston Chemical Depot, Alabama, where a static deto- the units are expected to be capable of completely removing nation chamber (SDC) was used experimentally on waste and destroying the chemical agent. chemical munitions in anticipation of its use at the Pueblo The committee reiterates its prior view that the scrap Chemical Depot. Regulatory approval in these cases was metal produced from these devices should be cleared of not through the conventional RCRA permitting process, chemical agent and should be recyclable as well. Recycling but through alternative regulatory approval mechanisms the metal from these other technologies might, however, available under RCRA, such as Research Development and involve demonstrating to federal and/or state regulatory Demonstration (RD&D) permits. The EDS or any of the authorities that the metals should no longer be classified as EDTs may also be approved as a Temporary Unit, mentioned hazardous waste. While recycling from small and moderate above for approval of the IHF. Use of these alternative MRSs will not result in the recycling of a significant amount regulatory approval mechanisms can work well as a means of metal, the amount of metal that could be recycled from of allowing the regulatory authority to review documenta- large MRSs (which are likely to involve hundreds or even tion and approve use of the devices for RCWM in a timely thousands of munitions) could be substantial. The commit- manner. Another alternative for regulatory approval would tee expects that the Army will continue to explore potential be to pursue a conventional RCRA operating permit for a recycling of scrap metal resulting from RCWM treatment. hazardous waste management unit or, in the case of the EDS or the EDTs, a permit for a miscellaneous unit under RCRA Extending the Pine Bluff Model Subpart X. Obtaining such permits can be a very long and expensive process, however, taking one or more years and In the same fashion that NSCMP designated Pine Bluff many dollars to finalize. Arsenal, Arkansas, as the location of its EDSs to destroy the non-stockpile inventory at Pine Bluff and to be available for Finding 3-6. Some states may wish to employ the conven- emergency response, one or more of the large remediation tional RCRA permitting process as a means of approving use sites could be used for this purpose in the future. Each of the of the EDS or one of the EDTs at a RCRA CWM munitions large buried CWM sites will require investigation and some response site (MRS). Alternative approaches for regulatory level of remediation (containment or treatment) of buried or approval might save time and money. recovered CWM and other related contaminated media. If a portion of the CWM emergency response team and equip- Recommendation 3-6. The Army should urge the Environ- ment were located at one of these large sites, cost savings mental Protection Agency or the state regulatory authority, are likely to accrue because personnel could be engaged in as applicable, to employ the existing alternative approval remediation of buried CWM when they are not working on mechanisms and flexibility available under the Resource emergency responses, and their skills and training can be Conservation and Recovery Act in lieu of the typical permit- ting process for use of the explosive destruction system or 1 6 Franklin D. Hoffman, Chief, Operations Team, NSCMP, “Non- explosive destruction technologies. Stockpile Chemical Materiel Project Equipment and Capabilities Over- view,” presentation to the committee on September 27, 2011.
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48 REMEDIATION OF BURIED CHEMICAL WARFARE MATERIEL maintained in between emergency responses. Indeed, the 2004a, 2004c, 2005, 2009c, 2009d). The Non-Stockpile Army achieved just these benefits when it located several Chemical Materiel Program (NSCMP) never has primary responsibility,18 but it does play a support role—for example, EDSs at Pine Bluff (NRC, 2004). by providing literature for distribution and meeting with Finding 3-7. Potential cost savings are likely to be realized residents of impacted neighborhoods. by co-locating resources on one of the large burial sites, Feedback from stakeholders, reported in an earlier com- so that emergency response functions can be deployed mittee report (NRC, 2002), indicates that the U.S. Army efficiently. has made considerable progress in providing information to the public and improving communications with stakehold- Recommendation 3-7. The Army should evaluate and select ers. Stakeholder feedback has identified a number of issues one of the buried CWM sites as the location/repository for that typically are of high concern to members of the com- its emergency response operations in order to increase the munity. For example, there has been widespread opposition cost-effectiveness of the overall program and maintain flex- to importing out-of-state wastes that could result in a site ibility (NRC, 2004). becoming a dumping ground, with a correspondingly high preference for mobile destruction technologies. In addition, nonincineration technologies have received broad acceptance THE IMPORTANCE OF PUBLIC INVOLVEMENT as an advance over open detonation, but some community The importance of constructive and open engagement of members have expressed concern about the costs associated the public by the U.S. Army in its policy decisions regarding with the new technologies (NRC, 2002). non-stockpile materiel has been emphasized in several earlier The approach taken at different sites may vary, based reports from the National Research Council (NRC, 1994, on the level of public interest. For example, Spring Valley, 1999, 2001a, 2001b, 2002) and other organizations (EPA, in Washington, D.C., has a very active restoration advisory 2001, 2002b, 2009a, 2010b; U.S. Army, 2007d). Indeed, board (RAB), while at Camp Sibert, Alabama, the public has many of the alternative treatment technologies for chemical not shown any interest in having such a board. Both sites hold agents owe their existence to public concerns and the influ- public meetings, offer literature to the public, and provide ence of the public on Congress and the states. information to the media. The key issue facing the Army as Munitions response actions are governed by a number it starts to remediate large buried CWM sites is whether to of laws at the federal, state, tribal, and local levels. As keep its public involvement program modest in size, in pro- noted above, public involvement is embedded in RCRA and portion to the limited public interest expressed, or to expand CERCLA (U.S. Army, 2005; EPA, 2005). In addition, the its efforts in case public concern materializes as the buried Emergency Planning and Community Right-to-Know Act CWM remediation program grows. (EPCRA) requires military installations reporting releases Finding 3-8. The U.S. Army project managers at current of listed hazardous substances to complete and make public the Toxic Release Inventory annually if the quantities exceed C WM sites have recognized the importance of public the reporting threshold.17 engagement and are supported appropriately by NSCMP. T hese regulatory frameworks detail the community R ecommendation 3-8. A s the U.S. Army undertakes engagement and stakeholder participation activities to be followed by the lead agency at MRSs. Further, DOD and remediation at the larger CWM sites, project managers Department of the Army regulations and policies provide a should anticipate that there will be more public concern and framework to guide military decision makers—installation continue to seek proactive public engagement. They should commanders as the executive agent on active DOD instal- take steps to ensure that communications from the different lations, and the U.S. Army Corp of Engineers (USACE) as participating organizations are coordinated. executive agent at FUDS—on requirements for conducting public outreach and involvement activities (U.S. Army, 17David Lyon, Environmental Specialist, Environmental Division, Assis - tant Chief of Staff for Installation Management/Supply Directorate, personal 18Laurence G. Gottschalk, PMNSCM, personal communication, to communication to Derek Guest, committee member, on November 23, 2011. Richard Ayen, committee chair, November 29, 2011.