6 Colo. Code Regs. § 1007-3-8.35
These amendments to 6 CCR 1007-3, Parts 260, 264, and 265 are made pursuant to the authority granted to the Hazardous Waste Commission in section 25-15-302(2), C.R.S.
Testing and Monitoring Activities Amendment III
These amendments incorporate Update III to the Third Edition of the EPA-approved test methods manual "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846 in § 260.11(a) for use in complying with the requirements of subtitle C of RCRA as outlined in 62 FR 32452-32463, June 13, 1997. The intent of this action is to provide state-of-the-art analytical technologies for RCRA-related testing, thus promoting cost effectiveness and flexibility in choosing analytical test methods, as well as clarifying the RCRA Program's approach to working toward the Performance Based Measurement System (PBMS).
The use of SW-846 in complying with the requirements of RCRA is limited to specific areas of RCRA. These areas were cited in the Hazardous Waste Commission's Statement of Basis and Purpose from the Rulemaking Hearing on November 19, 1996 for the adoption of 6 CCR 1007-3, Section 260.12, and, more recently, in the issuance of Joint Guidance from the NRC and EPA regarding testing requirements for Mixed Radioactive and Hazardous Waste (see 62 FR 62093, November 20, 1997). Generally, those areas requiring the use of SW-846 are limited to delisting petitions, waste testing for the corrosivity and toxicity characteristics, evaluating decontamination rinsates, free liquid determinations, organic process vent emissions testing, metallic emissions of BIFs, certain Land Disposal Restriction testing, and testing associated with incinerator unit trial burn demonstrations. A closer examination of the changes to SW-846 with respect to these areas which require "currently approved SW-846 methods" reveals the following:
Volatile interface methods are modified by this rule, but these modifications do not substantially modify approaches to the TCLP. The Department has concerns about the cost, applicability, and safety regarding these new interface methods, and their use in other RCRA sampling. The interface methods added by this modification include 5021 -Equilibrium Headspace for Soils, 5030B-Purge and Trap for Aqueous Samples, 5031 -Azeotropic Distillation for non-purgable water soluble compounds, 5032-Vacuum Distillation, and 5035-Closed System Purge and Trap for Soil and Waste. Methods 5012 and 5035 employ "closed systems" and the use of acids which are not intrinsically safe to sampling crews, or laboratory chemists. Method 5031 includes narrative language discussing the notion that oxygenated volatile compounds do not perform well in Purge and Trap when acid preservation is employed; a fact established by the Department with the collection of empirical data. Of all of these interface methods, only 5030B-Purge and Trap is applicable to TCLP leachates, and this method is, fundamentally, the same Purge and Trap procedure used presently in most laboratories.
The federal regulatory impact analysis for this rule found that there was not a "significant regulatory impact" (see 62 FR 32461) This rule is presented as a simple, clarifying rule which explains the requirements and inherent flexibility in RCRA Testing and Monitoring. This analysis may not be entirely correct because certain applications are being phased out (specifically packed column chromatographic methodology), and newer methodologies employing capillary columns are being required. The Department does not think that this impact is unworkable, but questions whether deleting applicable, serviceable, and usable methods is the prudent thing to do. The Department does not think that this modification of SW-846 will bring new wastes into the hazardous waste universe because there are no changes to "method defined parameters" where the analytical result is wholly dependent on the process used to make the measurement. Changes to these parameters may change the end result, and alter the outcome of testing and analysis. The changes discussed in this rule (62 FR 32452-32463 June 13, 1997) are not of that nature. By and large, sampling precision is a much wider influence on the resulting data and is a larger contributor to the final result than the changes suggested in this rule.
The Department has always recognized those areas of RCRA which require the use of SW-846, and has allowed alternative methods where SW-846 is not mandatory. This was formally described in the language incorporated into 6 CCR 1007-3, Section 260.12 (a) and (b) where the Department specified the information necessary to allow the use of other sampling and analytical methods.
The Department has always operated in the belief that equivalent data obtained at a cost savings was beneficial to the implementation of RCRA in Colorado. Areas of RCRA such as Corrective Action and Permitting allow for the use of alternate methodology, provided that such methodology meets the Data Quality Objectives (performance objectives), or the reasons for sampling. Determinations of whether, or not SW-846 methods are required in a given circumstance has been complicated by uninformed and misdirected assertions that RCRA broadly requires the use of "currently approved SW-846 methods."
In the June 13, 1997 final rule (62 FR 32452-32463), EPA announced its interpretation to achieve a Performance Based Measurement System by deleting certain applicable, serviceable, and usable methods, and then stating that these deleted methods may be used provided that the Data Quality Objectives for the project are met. The Department interprets that SW-846 is a compendium of methodologies similar to other repositories of analytical methodology such as the American Organization of Analytical Chemists ("AOAC") method references, and that federal deletion of these referenced methods from the SW-846 in no way invalidates data generated by employing these methods in the past, or in the future. Any method which meets the specifications found in 6 CCR 1007-3, Section 260.12 (a) and (b) may be used when SW-846 is not specifically required. These applications may be published methodology, ready for immediate application with known performance characteristics such as: AOAC, American Water Works Association Methodology, Drinking Water Methodology, Clean Water Act Methodology, Contract Laboratory Program methods ("CLP"), American Society of Testing and Materials ("ASTM"), SW-846 methods from a previous edition or update, or methods researched and developed for a particular application provided that the Data Quality Objectives for the project are met.
In the environmental field, there is not a dearth of individuals educated and experienced in sampling, analysis, and the nuances of RCRA. Frequently, laboratory chemists are asked to render opinions regarding the use of particular methodology without fully knowing RCRA implications, or industry officials are tasked with determinations of applicable methodology without full knowledge of sampling and analytical method strengths and weaknesses. In a simpler world, information of this nature could be found in tabular form and presented for consultation. With the dollars actually being spent in the real world, cost savings from appropriately directed and designed sampling that meets or exceeds the purpose of sampling ought to be fully explored. A tabular presentation of the current state of knowledge in sampling and analysis of hazardous wastes has not been compiled; furthermore, such a document would most likely be obsolete prior to widespread use. To assist in directing sampling and analysis, the Department has always focused on the capture of useful data with sensitivities to cost. There exists the possibility that certain entities will insist upon the application of the most current SW-846 publication for any particular analysis when it is only required in certain instances. Implementing a Performance Based Measurement System will involve effort. This effort must be made in government and industry.
Presently, the only course of action to request consideration for another method when SW-846 is required is found at 6 CCR 1007-3, Section 260.21 which authorizes the Colorado Hazardous Waste Commission to entertain petitions submitted to use alternative methodology. On a national level, changes to those few areas where SW-846 is a requirement are being discussed, and the EPA has published a Notice of Intent to Reform Implementation of RCRA-Related Methods and Monitoring (see 63 FR 25430-25438, May 8, 1998). The direction of this dialog is known, but the precise outcome is not. The Department will participate in the debate, and comment on proposed changes, but the Department preceded the EPA by defining and implementing a Performance Based Measurement System approximately 1 1/2 years prior to the time that EPA issued this rule and interpretation. The Department's Performance Based Measurement System is continuously evolving to incorporate the forefronts of scientific inquiry where it is necessary, while allowing inexpensive, innovative applications of chemical measurements when the Data Quality Objectives of the project are met.
The Commission is not adopting the revisions made to 40 CFR Part 266 , Subpart H - "Hazardous Waste Burned in Boilers and Industrial Furnaces". Colorado has not adopted a state analog to 40 CFR Part 266 , Subpart H at this time. There are currently no BIFs seeking a permit or operating in Colorado. Operation of these devices is regulated in Colorado by the U.S. Environmental Protection Agency.
This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations published in the Federal Register at 62 FR 32452-32463, June 13, 1997.
Statement of Basis and Purpose - Rule-making Hearing of July 21, 1998
6 CCR 1007-3-8.35