DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Solid and Hazardous Waste Commission/Hazardous Materials and Waste Management Division

6 CCR 1007-3

hazardous waste

Proposed Amendment of Part 261, Appendix VII and Appendix VIII Regarding the Addition of Lewisite to the K901 and K902 Listings.

1) Appendix VII of Part 261 is amended by revising the K901 and K902 listings to read as follows:  

Appendix VII -- Basis for Listing Hazardous Waste	

EPA hazardous waste No.	
Hazardous constituents for which listed	

*******	
*******	
K901	0-isopropyl methylphosphonofluoridate (Sarin, GB), bis(2-chloroethyl)sulfide (Mustard, Mustard Agent,  Mustard Gas, H, HD), bis(2-chloroethylthio)ethyl ether (Mustard T),  Arsenic, Barium, Cadmium, Chromium, Lead, Mercury, Selenium, and Silver,  1,2 – Dichloroethane, 1,1 – Dichloroethylene,  Lewisite, Tetrachloroethylene,   Trichloroethylene,  Vinyl Chloride.	

K902	
0-isopropyl methylphosphonofluoridate (Sarin, GB), bis(2-chloroethyl)sulfide (Mustard, Mustard Agent, Mustard Gas, H, HD), bis(2-chloroethylthio)ethyl ether (Mustard T), Arsenic, Barium, Cadmium, Chromium, Lead, Mercury, Selenium, and Silver,  1,2 – Dichloroethane,  1,1 – Dichloroethylene, Lewisite, Tetrachloroethylene, Trichloroethylene, Vinyl Chloride.	

*******	
*******	

2) Appendix VIII of Part 261 is amended by adding a listing of lewisite to read as follows:  

Appendix VIII -- Hazardous Constituents	

Common name	
Chemical abstracts name	
Chemical abstracts No.	
Hazardous waste No.	

*******	
*******	
*******	
*******	
Lead subacetate	Lead, bis(acetato-O)tetrahydroxytri-	1335-32-6	U146	
Lewisite 1
	( 2-chloroethenyl) arsonous dichloride; Chlorovinylarsine dichloride	541-25-3
	K901 & K902
	
Lewisite 2
	2-Chlorovinyldichloroarsine; Bis (2-chlorovinyl) Chloroarsine	40334-69-8
	K901 & K902
	
Lewisite 3	Arsine, tris(2-chloroethenyl); tir-(2-Cholorvinyl) arsine	40334-70-1	K901 & K902	

Lindane	
Cyclohexane, 1,2,3,4,5,6-hexachloro-, (1alpha,2alpha,3beta,4alpha,5alpha,6beta)-	
58-89-9	
U129	
*******	********	*******	******	

3) Section 8.87 {Statement of Basis and Purpose for the Rulemaking Hearing of February 21, 2017} is added to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of February 21, 2017

8.87		Basis and Purpose.

These amendments to 6 CCR 1007-3, Part 261 are made pursuant to the authority granted to the Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Introduction

The Colorado Hazardous Waste Regulations (CHWRs), 6 CCR 1007-3, Part 261, Subpart B allow chemicals or other materials that are solid wastes to be added to the hazardous waste listing if the chemical or material can be shown to meet any of the criteria listed in 6 CCR 1007-3, Section 261.11(a).  Pursuant to 6 CCR 1007-3, Section 261.11(b), classes or types of solid waste may also be listed as hazardous waste if wastes within the class or type of waste are, typically or frequently hazardous under the definition of hazardous waste found in the Colorado Hazardous Waste Act.  That is, a "hazardous waste" means a solid waste which may "cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness or poses a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." C.R.S. § 25-15-101(6)(a).

The Division has previously requested listing of other chemical agents in the past.  The Division submitted a proposal to the Hazardous Waste Commission to list Mustard Agents as acute hazardous (P listed) wastes in June, 1997.  The Commission adopted these changes at the rulemaking hearing on August 19, 1997.  Additionally, the Division previously requested addition of chemical weapons containing Sarin and Mustard agents and environmental media, debris, and containers contaminated through contact with these agents to the specific source hazardous wastes, K901 and K902 listed hazardous wastes respectively in June, 2001.  The hazardous constituents that formed the basis for listing the K901 and K902 hazardous wastes in 6 CCR 1007-3, Part 261, Appendix VII were Sarin and both types of sulfur Mustard agents, HD and HT.  The Commission adopted these changes at the rulemaking hearing on June 19, 2001.

Currently, K901 wastes are described as waste chemical weapons using or containing any chemical compound identified in Appendix VII of Part 261 as the basis for the listing.  K902 hazardous wastes consist of “Any soil, water, debris or containers contaminated through contact with waste chemical weapons listed as K901.  Acute hazardous wastes are subject to more stringent management requirements than wastes that are not acute, including limited waste accumulation volumes.

Until recently, it was believed that Sarin and the Mustard agents wastes were the only chemical agent wastes that existed in Colorado.  However, during the last year it was discovered that Lewisite chemical agent wastes may also be buried at the Pueblo Chemical Depot.  Currently, the Army is formulating plans to excavate two Solid Waste Management Units (SWMUs 12 and 13) at the Pueblo Chemical Depot.   There are reports indicating that between 1944 and 1946, an unspecified number of Lewisite –containing munitions (possible maximum of 160 M70 bombs 
and various shells) may have been buried in at least one of these areas onsite.

When Lewisite agent is discarded as defined in 6 CCR 1007-3, Section 261.2(a)(2), the agent becomes a solid waste and meets at least one of the regulatory criteria set forth under 6 CCR 1007-3, Section 261.11(a).  Accordingly, if Chemical Weapons, or Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons containing Lewisite are discarded as defined in 6 CCR 1007-3, Section 261.2(a)(2), they pose a substantial present and potential hazard to human health or the environment if they are improperly treated, stored, transported, disposed of, or otherwise managed.  For this and other reasons presented herein, Waste Lewisite Chemical Weapons, or Environmental Media, Debris, and Containers Contaminated through Contact with Lewisite should be added to the existing K901 and K902 -listed hazardous wastes.

Statement of Basis and Purpose
These amendments to the CHWRs are made pursuant to the authority granted to the Hazardous Waste Commission in C.R.S. § 25-15-302(2).  

The Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (the Division) is proposing two revisions to 6 CCR 1007-3, Parts 261.  The proposed revisions provide for the following amendments to Part 261 of the CHWRs:

1)	Addition of Lewisite Agent (L) (2-Chlorovinylarsine dichloride (L1), Dichlorovinylchloroarsine (L2), and 2,2’,2”-Trichloro-trivinylarsine (L3)) to Appendix VIII “Hazardous Constituents”; and,

2)	Addition of Lewisite Agent (L1, L2, L3) to Appendix VII – “Basis of Listing Hazardous Waste” for K901 and K902 hazardous waste listings.

Adding Lewisite to the list of hazardous constituents for the existing K901 and K902 listings will allow for a more robust ability to manage and regulate both the acute toxic Lewisite agent as well as secondary wastes contaminated through contact with the material.

Lewisite (L) is an organoarsenic compound.  It was once manufactured in the U.S., Japan, and Germany for use as a chemical weapon, acting as a vesicant (blister agent) and lung irritant.

The regulatory criteria for listing a hazardous waste or listing classes or types of solid waste can be found in 6 CCR 1007-3, Section 261.11. In summary a solid waste can be listed as a hazardous waste if it meets any one of three (3) criteria:  first, if the solid waste exhibits any characteristic of a hazardous waste; second if a solid waste presents or is suspected to present certain acute human health hazards; and third, if it is capable of posing a substantial present or potential hazard to human health or the environment when improperly managed.  The second criterion applies to Acute Hazardous Waste, as the Division has proposed for the Lewisite Agent, Waste Chemical Weapons, and Environmental Media, Debris, and Containers Contaminated through Contact with Waste Lewisite Chemical Weapons.

Currently, the only facility in Colorado known to have material affected by this hazardous waste listing is the Pueblo Chemical Depot (PCD).  This facility is owned and operated by the United States Army (the Army).  

Overview of Chemical Weapons, Lewisite Agent L 

In the past, international agreements such as that arising from the 1972 Biological and Toxin Weapons Convention focused on the destruction of biological and toxin weapons that were manufactured and stockpiled as a result of their production during wartime.  These agreements have left nations with the formidable task of treating and disposing of these lethal weapons.

The Chemical Weapons Convention (CWC), the most recent of such agreements sought to clarify both the definition of Chemical Weapons and the prohibitions on the development, production, acquisition, stockpiling, destruction, and use of chemical weapons.  Article II of the CWC defines chemical weapons in three parts.  First, chemical weapons are “identified as all toxic chemicals and their precursors, except those intended for purposes allowed by the CWC,” second as “munitions and devices specifically designed to release these toxic chemicals,” and third as “any equipment specifically designed for use with such munitions or devices.”(OPCW Fact Sheet 2, 2001).

Chemical weapons are defined in Section 260.10 of the CHWRs to clearly define the K-waste listing.  The regulatory definition closely follows the definition for “chemical agent and munitions” found in 50 USC 1521(j) which is used by both the U.S. Environmental Protection Agency and the Department of Defense. In proposing this regulatory definition the Division reviewed the comprehensive definition provided by the CWC to ensure that the definition "does not unnecessarily hinder the legitimate use of chemicals and the economic and technological development to which such uses may lead" (OPCW Fact Sheet 4, 2001).  The Division believes that the definition for lewisite-containing chemical weapons is consistent with that provided by the CWC. 

Lewisite was developed as a chemical warfare blister agent during World War I and was named after its inventor Captain W. Lee Lewis. It is no longer produced in the United States. The general population will not be exposed to Lewisite. People that are potentially exposed to Lewisite are soldiers or people who work at military sites where Lewisite may be stored or disposed.

Pure Lewisite is a colorless, odorless oily liquid; however, synthesized agent is amber to dark brown liquid with a geranium like odor.  Lewisite may exist as the trans or cis isomer.  In basic solution, the trans isomer of Lewisite is cleaved to yield acetylene and sodium arsenite.  In addition, the cis isomer of Lewisite may be photoconverted to the trans isomer, and the trivalent form of arsenic in Lewisite oxide is generally oxidized to pentavalent arsenic under environmental conditions.  Lewisite is an unstable compound; thus, environmental exposures may be to a mixture of Lewisite with one or more of its degradation products and/or frequently occurring impurities. Lewisite has moderate vapor pressure, and if released into the air, it is expected to exist solely in the vapor phase. Once in the air, Lewisite is expected to degrade slowly (may persist for a few days before being broken down).  Lewisite has low water solubility, but it rapidly hydrolyzes in water forming the water-soluble product 2-chlorovinyl arsonous acid (CVAA) and hydrochloric acid, but small amounts may evaporate. Lewisite will be broken down in moist soil quickly, but small amounts may evaporate.  Lewisite does not accumulate in the food Chain.
Lewisite is an organic arsenical with vesicant properties. Lewisite-1 (L-1) is formed by the reaction of acetylene with arsenic trichloride using aluminum trichloride as a catalyst.  Arsenic trichloride, Lewisite-2 (L-2; bis(2-chlorovinyl) chloroarsine), and Lewisite-3 (L-3; tris(2-chlorovinyl) arsine) are co-products/impurities concurrently formed with L-1. L-1 yield is greater than 65%, and approximate yields of arsenic trichloride, L-2, and L-3 are 16-21%, 7-10%, and 4-12%, respectively.  Therefore, an accidental release from storage tanks or disposed chemical weapons of L will likely be the release of a mixture of L-1, L-2, L-3, and arsenic trichloride. Exposure will be to these compounds and to potential hydrolysis products, sodium arsenite (NaAsO2) and arsenic acid (H3AsO4). Toxicity data on arsenic trichloride are limited; however, effects are similar to those of L-1. With regard to lethality, arsenic trichloride appears to be approximately 2-3 times less toxic than L-1.

Health Effects of Lewisite

As summarized by the National Research Council (NRC, 2013), Lewisite is readily absorbed through the mucous membranes, and is also readily absorbed through the skin because of its lipophilicity.  Lewisite causes local corrosive damage and may cause systemic poisoning after absorption through skin or mucous membranes.  Lewisite is immediately and highly irritating at concentrations of about 6-8 mg/m3. The geranium-like odor is reportedly detectable at 14-23 mg/m3 (Gates et al. 1946 as cited by NRC, 2013). 

Exposure to lewisite causes almost immediate irritation and burning sensation of the eyes, skin, upper respiratory tract, and lungs.  Death may result from direct pulmonary damage or circulatory failure from fluid loss and arrhythmia.  Death that occurs within 24 h of exposure is likely due to pulmonary damage.  According to ATSDR (2014)2, exposure to very high levels of lewisite may cause liver and kidney damage.  Additionally, chronic respiratory diseases and severe damage to the eye may be present for a long time following exposure to large amounts of lewisite.  Chronic exposure to lewisite may lead to arsenical poisoning.

Human exposure data are dated and many studies are not well described. No information concerning developmental or reproductive toxicity or genotoxicity with regard to Lewisite exposure in humans was identified.  Information suggesting an increased cancer incidence in workers from a Japanese poison gas factory is confounded because workers were exposed to several chemicals.

Animal data are limited but suggest that lewisite is highly irritating and corrosive, causing dermal and ocular lesions by contact with liquid or vapor inhalation.  There is no evidence that Lewisite is a reproductive or developmental toxicant in rats or rabbits in the absence of maternal toxicity. Genotoxicity assay results were generally negative; the only positive result was in chromosome aberrations in Chinese hamster ovary (CHO) cells.  No information concerning carcinogenicity in animals was found.

Acute lethality

Inhalation
The inhalation LC50 for lewisite vapor in humans was estimated to be 120 mg/m3
for 10 min and 50 mg/m3 for 30 min.

In rabbits, 7.5-min LC50 of 160 mg/m3 and a 60-min LC50 of 25 mg/m3 was reported (Gates et al. 1946 as cited by NRC, 2013). In guinea pigs, a 9-min LC50 of 111 mg/m3 and a 60-min LC50 of 8 mg/m3 were reported (Gates et al. 1946 as cited by NRC, 2013).

Dermal
In humans an LC50 of 3,300 mg/m3 for 30 min for lewisite vapor absorption through the bare skin was estimated. This estimate is based on animal data and assumes that absorption of lewisite through skin is a function of the ratio of surface exposed to body volume. A dermal LD50
of more than 40 mg/kg was also estimated based on animal data (NRC 2013). 

In rabbits, dermal LD50 of 6 mg/kg and intravenous LD50 of 0.5 mg/kg were reported (Cameron et al. 1946 as cited by NRC, 2013). In guinea pigs, a dermal LD50 of 12 mg/kg and subcutaneous LD50 of 1 mg/kg were also reported (Cameron et al. 1946 as cited by NRC, 2013).

Ingestion
Ingestion of Lewisite is an uncommon route for exposure but can lead to local effects and systemic absorption. Ingestion of Lewisite may cause severe stomach pain, nausea, vomiting, and bloody stools ATSDR (2014) and ATSDR (2002).

Regulatory Evaluation
The regulatory criteria for listing a solid waste as a hazardous waste can be found in 6 CCR 1007-3, Section 261.11.  As explained previously, this proposed listing applies to Lewisite Agent, and Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons containing Lewisite that have been determined to be solid wastes.
Solid waste that has been found to be fatal to humans in low doses, or in the absence of data on human toxicity, has been shown in studies to have certain specific levels of toxicity in animals, may be listed as hazardous waste by the Division.  As discussed above, Lewisite Agent, by its inherent design as a lethal chemical agent, is fatal to humans in low doses.  Toxicological data and other information are readily available to establish that Lewisite is fatal to humans in low doses.  Pursuant to the CHWRs, materials exhibiting these criteria will be designated as Acute Hazardous Wastes.

Chemical weapons containing Lewisite, are designed to pose similar hazards to human health and the environment, as do the pure chemical agents.  These hazards are due both to the presence and demonstrated high toxicity of the chemical agents themselves.  The Division is seeking the addition of Lewisite to the Waste Chemical Weapons as a general class of hazardous waste because the weapons themselves, i.e. the shell casings and other material composing the "chemical weapon", are contaminated with the chemical agent.  In addition, any Environmental Media, Debris, and Containers which are solid wastes that have been generated as a result of the treatment, storage, or disposal of Chemical Weapons, frequently or typically pose a hazard to human health because these materials can also be contaminated with the chemical agent contained in the weapon.  Accordingly, Waste Chemical Weapons and Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons "pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." C.R.S. § 25-15-101(6)(a).

The Division believes that shell casings, munitions, devices, and other equipment used to contain, and release chemical agents as part of a Waste Chemical Weapon can be assumed to be contaminated with chemical agent as these components are often in direct contact with the chemical agent.  While it may be true that some of the components of a Waste Chemical Weapon may not be in direct contact with the chemical agent itself, the Division believes that the potential for these components to become contaminated with the chemical agent as a result of the agent leaking out is a realistic concern.  

The Division also believes that Environmental Media, Debris, and Containers which are solid wastes generated as a result of the treatment, storage, or disposal of Waste Chemical Weapons frequently or typically pose a hazard to human health because these materials can also be contaminated with the chemical agent contained in the weapon.  In fact, the "Army generates a number of secondary waste streams, primarily from treatment of wastes to remove or destroy chemical agent, that may contain minute amounts of the agents or associated compounds." (Army Vol. 1, pg. 40, 1999).

In order to assure that these secondary wastes are handled and disposed of appropriately, the Division is proposing the addition of Lewisite to the existing K901 and K902 listing for Waste Chemical Weapons and Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons to the hazardous waste listings.  Wastes that meet the K902 listing description would not carry the listing code for Waste Chemical Weapons (K901) which might otherwise be applied to these wastes based on the mixture and derived from rules. The Army appears to agree with this contention.  For example, the Army has proposed to list the following wastes as K-hazardous wastes in Utah: spent chemical neutralization solutions used to neutralize chemical agents, miscellaneous solids such as glass, metal, and wood contaminated with chemical agents, spent laboratory or monitoring and testing materials such as rags, wipes, gloves, aprons, and ppe contaminated with chemical agent, antifreeze, hydraulic fluid and refrigerants contaminated with chemical agents, spent carbon from air filtration equipment contaminated with chemical agent, ash, cyclone residue, baghouse dust, slag and refractory contaminated with chemical agent, and brine salts, liquids, solids and sludges generated from pollution abatement systems designed for treatment of chemical agents.  The Army contends that these "waste streams are all proposed to be listed because they typically or frequently contain (or at one time contained) toxic constituents B specifically one or more of the chemical agents . . ." (Army Vol. 1, pg. 69, 1999).

Based on the above regulatory evaluation, Waste Chemical Weapons and Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons meet the necessary criteria presented in Section 261.11(b) of the CHWRs for listing as a class of hazardous waste.  In addition, waste Lewisite Agent meets the necessary criteria presented in Section 261.11(a) of the CHWRs for listing as an acute hazardous waste.  Therefore, the Division proposes that Waste Chemical Weapons and Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons and Lewisite Agent be added to the K-listed wastes found in Sections 261.32 and 261.33 of the CHWRs respectively.  The Division specifically proposes to add Lewisite to the waste codes K901 for Waste Chemical Weapons, K902 for Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons.  

Lewisite Agent is also proposed for addition into Appendices VII and VIII of Part 261 of the CHWRs to identify the specific chemicals which form the basis for the K-listings.  As previously stated, Mustard Agents are already P-listed hazardous wastes in the CHWRs.  Addition of Lewisite to Appendix VII identifies the specific chemical agents that pose the acute health hazard (basis for listing) in the proposed listings. 

Benefits of Listing Lewisite as a hazardous constituent forming the basis for the K901 Waste Chemical Weapons, and K902 Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons as Hazardous Waste

The principal benefits of listing Lewisite as hazardous wastes include the following:
  
1)	The State will have an increased regulatory framework for management of waste Lewisite Agent, Waste Chemical Weapons containing Lewisite, and any Environmental Media, Debris, and Containers Contaminated through Contact with Waste Chemical Weapons which contain concentrations of the chemical agents.  Approving the proposed listing will require more complete and appropriate treatment, as well as adequate record keeping and management of current and future inventories of these waste streams under the CHWRs.

The Division believes this proposed listing is appropriate given the extreme toxicity of Lewisite agent and the potential for solid waste generated during management of chemical weapons to be contaminated with chemical agents.  The Department will have additional accountability from the Army thereby ensuring protection of human health and the environment during management of waste Lewisite Agent, Waste Chemical Weapons, or Environmental Media, Debris, and Containers Contaminated through Contact with Lewisite-containing Waste Chemical Weapons.  Management of these wastes will include the time during interim management (the time between recovery and treatment) of the wastes, during treatment and destruction of the wastes, and throughout disposal of the wastes.

2)	There will be an increase in the regulatory guidelines and enforcement accountability for the treatment and management of associated waste streams including munitions parts, personnel protective equipment (PPE), dunnage, etc.  If the proposed listing is approved, Lewisite-containing wastes would carry the listings until they are either delisted, fully treated or decontaminated, or properly disposed of.  These associated waste streams, resulting from the demilitarization process, may be large in volume, and could potentially have significant impacts on human health and the environment if improperly managed.

3)	Under the proposed listings, any spills (to soil or otherwise) or other impacts to environmental media would require cleanup and disposition as listed wastes under the "mixture rule."  The mixture rule provides that material mixed with a listed hazardous waste become a hazardous waste.  This provision helps ensure that waste quantities are minimized, and ensures the protection of public health and the environment through proper management of these contaminated wastes.

4)	This listing will require the Army to consider waste management planning as a factor in the Chemical Demilitarization Process which will be chosen for any Lewisite agent rounds recovered and stored at the Pueblo Chemical Depot.  All listed waste streams must be managed adequately to protect public health and the environment.  In addition, the planning process may result in the minimization of waste generation in the excavation and cleanup of burial areas.

The anticipated costs to the Army related to the impact of these proposed listings are minimal when compared to the overall cost of treatment and destruction of chemical agents and the decommissioning and disposal of any recovered chemical weapons.  Many of the costs to manage these wastes streams are already required to ensure worker safety.