These amendments to 6 CCR 1007-3, Parts 261 and 268 are
made pursuant to the authority granted to the Solid and Hazardous Waste
Commission in §
25-15-302(2),
C.R.S.
Mustard Agent Amendments
These amendments revise the K901 and K902 mustard agent
listings in § 261.32(a) (Hazardous Waste from Specific Sources) and
Appendix VII of Part 261 (Basis for Listing Hazardous Waste), and add the K901,
K902, P909 and P910 listings to the Treatment Standards for Hazardous Waste
table in § 268.40 of the Colorado Hazardous Waste Regulations (6 CCR
1007-3). These amendments also correct a typographical error in the header of
the table in § 268.40.
The Colorado Hazardous Waste Regulations, 6 CCR 1007-3,
Part 261, Subpart B, allow chemicals or other materials that are solid wastes
to be added to the hazardous waste listings if the chemicals can be shown to
meet any one of the criteria listed in § 261.11, and these listings may be
revised based upon relevant information.
In previous rulemakings (§ 8.30, § 8.46, and
§ 8.48), the Commission determined the reason for the listing of chemical
munitions on the basis of the available information that the chemical agents
(HD and HT) were toxic as compared to the regulatory criteria for listing a
hazardous waste found at 6 CCR 1007-3, § 261.11(a), and that there was
adequate justification to add these Mustard Agents to the P-listed wastes found
in § 261.33 of the regulations by adding waste codes P909 and P910 for the
H and HD forms of Mustard Agent (CAS # 505-60-2) and the HT form of Mustard
Agent (CAS# 505-60-2 and CAS # 63918-89-8), respectively. At the time of the
original listings, the regulatory evaluation was focused upon the EPA
determination that Mustard was a reactive waste due to its propensity to
rapidly react with water to form hydrogen sulfide as well as hydrochloric acid,
that the toxicity of Mustard Agents met the definition of an acutely toxic
hazardous waste found at both § 261.11 (a) and § 261.11 (a)(2), and
that the Army alleged that it had conservatively chosen to apply the toxicity
characteristic waste codes applicable to metal constituents (the "RCRA metals",
Arsenic, Barium, Cadmium, Chromium, Lead, Silver, Selenium, and Mercury), or
D004 - D011.
At the time of these previous rulemakings, the Commission
was acting upon available information, but better, more definitive, information
has come to hand that indicates that other consequential constituents are
present, that themselves, warrant a revision of the initial listing
actions.
Background Documents
The Army, in compliance with regulatory requirements
associated with Interim Status with respect to their stockpile storage mission,
submitted a Part A Permit Application which details what they believed to be
the constituents of the munitions in storage. This application is attached to
this rulemaking as Exhibit 1.
The Army, in compliance with regulatory requirements to
characterize these munitions, produced and presented to the Division the
Munitions Assessment and Characterization Report (the "MACR"). This document
was classified as a For Official Use Only ("FOUO") document which restricts
this information to only those with a need to know the contents in an official
capacity. Since the time of the original Division briefing to the Commission on
these revisions to the listing specifications, on August 18, 2009, the Army has
reclassified sections of this document to allow the general release of selected
segments of this information to the public record. This reclassified document
is attached to this rulemaking as Exhibit 2.
The Division, in concert with the regulatory and technical
review of the submitted MACR and other waste characterization data for mustard
agent, extracted a list of constituents found within, or associated with the
mustard housed in the agent cavities of these munitions. This list of
constituents is attached to this rulemaking as Exhibit 3.
The information found in Exhibits 1, 2, and 3 concerning
the constituents found in or associated with mustard did not contain any
information that was useful in determining the magnitude, or concentration of
any of the constituents found in the chemical agent. However, prior to and
during the acquisition of the information found in Exhibits 1, 2, and 3, the
ABCDF Demil Facility located at the Edgewood Area of Aberdeen Proving Grounds
had been treating mustard stored in ton containers with a hydrolysis reactor,
in a process considered the prototypical approach planned for implementation at
Pueblo Chemical Depot, designated the Pueblo Chemical Agent-Destruction Pilot
Plant ("PCAPP"). The sampling data available from the ABCDF facility on the
hydrolysate treatment residuals provided the first window into the actual
composition of mustard. This data is attached to this rulemaking as Exhibits 4a
and 4b. The Division's assessment of this data with respect to mustard
characterization was presented to the Commission on August 15, 2009, and this
PowerPoint presentation is attached to this rulemaking as Exhibit 5.
Previous Listing
Determinations
In assessing the characterization that has been applied to
munitions housing the chemical agent mustard with respect to the current
listing, the assessments found in previous rulemakings (§ 8.30, §
8.46, and § 8.48) were evaluated in the light of the currently available
information. EPA's assignment of the D003 characteristic is still operative.
The Division finds that the toxicological profile presented for mustard in
these previous rulemakings are entirely valid assessments and adequate to
justify the retention of the P-listing for these wastes as an acutely toxic
substance, the addition of the chemical agent mustard components HD and HT to
the P-list at § 261.33 (e), the addition of mustard(s) to Appendix VIII of
§ 261 as a mutagens and carcinogens, the K-list at § 261.32 (a), and
the addition of mustard(s) to Appendix VII of § 261. The P-listing is and
has been typically applied to single component, off-specification chemicals. In
these rulemakings, the K- listing for mustard contemplates the presence of
other toxic constituents found in Appendix VII. Mustard is, in fact, no such
single component material, and there are other chemicals that are needed in
Appendix VII mustard listings besides the mustard(s) at concentrations of
concern.
Contemporary Data and Revision of Listing
Discussion
At the time of the previous rulemakings, the information
known and available to the Commission did not include any definitive discussion
regarding other constituents or characteristics exhibited by mustard. This was
not an oversight, but it represented the extent of the available information
and data. Since that time, the Division has closely scrutinized all available
data and information pertaining to the composition of mustard.
During the previous rulemakings, no information was
available regarding the corrosive nature of mustard, except its well known
vesicant interactions with skin. It was known at that time that mustard was not
an aqueous material, and that insufficient water was present in mustard to
allow a determination of pH to forward an understanding of the potential that
mustard may, or may not exhibit the D002 - characteristic of corrosivity, as
defined in § 261.22 (a)(1). In the intervening time period since the
original rulemaking, the Division has carefully evaluated the phenomena of
leaking munitions that occur at PCD, along with the anecdotal information
submitted in the MACR. The result of this analysis revealed three important
findings:
(1) the physical process of
leaking occurs as a result of pressurization of the agent cavity housing the
mustard, and
(2) the propulsive
force or pressurization of the agent cavity is, in fact, caused by the
interaction of mustard with the steel of the agent cavity, a corrosive
mechanism, and
(3) a penetration of
the agent cavity must occur to allow the pressurized contents of the agent
cavity to escape, and this weakened area of the agent cavity enclosure is
caused by corrosion of the steel by mustard. Furthermore, data from the ABCDF
facility conclusively show that mustard's reaction with water, while dubious
for the copious generation of hydrogen chloride gas that may adversely affect
human health, does generate sufficient dissolved hydrogen chloride gas in the
form of hydrochloric acid to generate a pH less than the 2 standard units
needed to exhibit the corrosive characteristic. Mustard is so toxic that
sampling, handling, health, and safety issues preclude the execution of the
definitive engineering test specified to elicit the corrosion to steel
determination found at § 261.22 (a)(2). With the absence of test data,
this is overwhelming evidence to conclude that mustard exhibits the
characteristic of corrosivity, D002.
At the ABCDF facility, 8 percent by weight mustard agent
was hydrolyzed with an excess of water in a reactor, and then pH adjusted to
alkaline conditions (>12.5) to complete the reaction and eliminate the D003
characteristic. The inherently large dilution of the agent in water necessary
to complete the reaction resulted in a treatment residual, or hydrolyzate that
exhibits several characteristics. It is evident that the virgin mustard must
either exhibit extraordinary concentrations of the compounds associated with
these characteristics, or exhibits a propensity to generate these
characteristics. The sampling of hydrolyzate can be conducted without the
extreme risk associated with sampling virgin mustard, and the volumes of
secondary wastes generated are inconsequential. These data represents the best
data for understanding the composition of mustard. The accumulated ABCDF data
support the conclusion that the following characteristics are applicable to
mustard, and should be incorporated into the Treatment Standards for Hazardous
Waste, § 268.40, and the following characteristics should be added to
§ 261, Appendix VII, Basis of Listing for mustard K listed wastes:
D002 Corrosive
D003 Water Reactive Subcategory
D004 D011 (Arsenic, Barium, Cadmium, Chromium, Lead,
Mercury, Selenium, and Silver)
D027 1,4- Dichlorobenzene
D028 1,2 - Dichloroethane
D029 1,1 - Dichloroethylene
D039 Tetrachloroethylene
D040 Trichloroethylene
D042 2,4,6-Trichlorophenol
D043 Vinyl Chloride
Underlying Hazardous Constituents ("UHC") are those
compounds present or reasonably expected to be present in characteristic waste
at the point of generation. UHCs have their own treatment standards found in
the Universal Treatment Standards Table at § 268.48. The accumulated ABCDF
data support the conclusion that UHC chemicals are present in mustard and
mustard treatment residuals. The variability of mustard within munitions is
somewhat understood, but the presence and concentrations of residual production
chemicals, by-products, congeners, and chemicals formed by the degradation of
these substances cannot be well established with certainty. Therefore, a
generally applicable list of chemicals with a reasonable probability of
occurrence as UHCs related to mustard and mustard treatment residuals cannot be
presently defined because their occurrence and concentration are inherently
related not only to the parent mustard, but also to the precise treatment
applied. Due to these uncertainties, most generators of hazardous waste must
sample the hazardous waste, as generated, to determine UHCs, but mustard
sampling cannot be entertained, or reasonably required without significant
risk. The Army must sample treatment residuals to make this determination
required by the Land Disposal Restrictions. The mix design (recipe), and
operating variables (e.g., residence time, temperature, and pH) can alter the
actual composition of a treatment residual; therefore, the applicable UHCs list
associated with mustard is peculiar to the treatment process. The ABCDF
facility UHC list was ascertained by sampling and analysis of the hydrolyzate,
and if the PCAPP plant was operated identically, this list would be valid for
PCAPP. If there are local variations, or colloquial initiatives at PCAPP, the
ABCDF UHC list may not be applicable in its entirety, and sampling for UHCs
would be necessary. It should be noted that the ABCDF hydrolyzate did not have
to comply with Land Disposal Restriction oversight because this residual was
treated in an exempt, permitted Clean Water Act unit (a large POTW). Some of
the Underlying Hazardous Constituents found in mustard hydrolyzate from the
ABCDF facility include the following:
|
Acetone
|
Hexachlorobenzene
|
1,1,1-Tichloroethane
|
|
Benzene
|
Hexachlorbutadiene
|
1,1,2-Trichloroethane
|
|
Carbon Tetrachloride
|
Hexachloroethane
|
1,1,1,2-Tetrachloroethane
|
|
Chlorobenzene
|
Methylene Chloride
|
1,1,2,2-Tetrachloroethane
|
|
2,4-Dinitrotoluene
|
Napthalene
|
Toluene
|
|
Ethylene Oxide
|
Nitrobenzene
|
.
|
|
Ethyl Ether
|
Pentachlorophenol
|
.
|
Thus, it is acknowledged that the assignment of a list of
applicable UHCs pertain only to the mustard and to treatment residuals
generated by a specific process. If, as has already been discovered, a
different and distinguishable process is used to decontaminate mustard, other
characteristics may be exhibited which need to be added to the treatment
residuals, and/or the UHC list modified to account for all of the chemicals
found from sampling. Specifically, the mustard calibration standards used in
the laboratory at PCD are treated by the addition of sodium hypochlorite to
hexane containing known quantities of mustard. When this approach is used,
Chloroform is synthesized as a disinfection by-product in the treatment
residual, and depending upon the treatment recipe, mass loading, and
operational controls, the residual may also exhibit the D022 characteristic for
Chloroform. If Chloroform is present at a concentration less than the
regulatory threshold for D022 at 6 ppm in a TCLP extract, it may be a UHC with
its own treatment standard. Regarding these facts, it is clear that there is a
distinct advantage to delineating these mustard waste forms, their associated
codes, and the treatment standards that are applicable for the benefit of the
Army, the Division, and the Commission.
Generators of Hazardous Waste are required to meet the
applicable standards for UHCs for their characteristic hazardous waste, and if
process knowledge is lacking, regarding the presence and concentrations of
UHCs, sampling is required for the 250+ UHCs in the Universal Treatment
Standards Table found at § 268.48. For each process applied to mustard,
the mustard residuals must be sampled because the process knowledge with regard
to UHCs is not fundamentally defined.
Land Disposal Restrictions applicable to
Mustard and Mustard Waste Forms
This rulemaking incorporates the aforementioned mustard
listing revisions into § 261.32(a) (Hazardous Waste from Specific
Sources), into Appendix VII of Part 261 (Basis for Listing Hazardous Waste),
and into § 268.40 (Treatment Standards for Hazardous Waste).
These amendments are more stringent than the federal
regulations, which do not contain federal analogs to the state-only K901, K902,
P909, and P910 mustard agent listings related to military munitions. The
Commission finds that there is substantial evidence in the record that these
rules are necessary to protect the public health and the environment of the
state. The Commission's findings are based upon its evaluation of the public
health and environmental information and studies contained in the rulemaking
record, the Statement of Basis and Purpose, and testimony presented at the
hearing. Pursuant to C.R.S. section
25-15-302(4)(a),
these findings were approved by more than six members of the Commission.
Statement of Basis and Purpose - Rulemaking Hearing
of February 16, 2010
Notes
6 CCR 1007-3-8.72
37
CR 24, December 25, 2014, effective 3/2/2015
38
CR 11, June 10, 2015, effective 6/30/2015
39
CR 05, March 10, 2016, effective
3/30/2016
39
CR 11, June 10, 2016, effective
6/30/2016
40
CR 06, March 25, 2017, effective
4/14/2017
40
CR 11, June 10, 2017, effective
6/30/2017
40
CR 21, November 10, 2017, effective
11/30/2017
41
CR 06, March 25, 2018, effective
4/14/2018
41
CR 11, June 10, 2018, effective
6/30/2018
41
CR 24, December 25, 2018, effective
1/14/2019
42
CR 06, March 25, 2019, effective
4/14/2019
42
CR 06, March 25, 2019, effective
5/30/2019
42
CR 11, June 10, 2019, effective
6/30/2019
43
CR 12, June 25, 2020, effective
7/15/2020
44
CR 06, March 25, 2021, effective
4/14/2021
44
CR 11, June 10, 2021, effective
6/30/2021
44
CR 24, December 25, 2021, effective
1/14/2022
45
CR 11, June 10, 2022, effective
6/30/2022
45
CR 17, September 10, 2022, effective
9/10/2022
45
CR 17, September 10, 2022, effective
9/30/2022
45
CR 23, December 10, 2022, effective
1/30/2023
