THE STANDARD – SEPTEMBER/OCTOBER 2015
In This Issue:
- US EPA’s Double Standard Following the Gold King Mine Release
- Kentucky Oil and Gas Regulatory Modernization Act
- Items Worth Noting in Update V of SW-846
- Laboratory News
- News from our subsidiary, Vitale Scientific Associates, LLC
- Coming to You: DKQPs, Data of Known Quality Protocols
- Updated Vapor Intrusion Guidance Issued by the PA DEP
US EPA’s Double Standard Following the Gold King Mine Release
On August 5, 2015, while excavating above an old mine tunnel at the Gold King Mine near Silverton, Colorado, a contractor using a backhoe inadvertently triggered a spill of about 3 million gallons of contaminated water and sediment into Cement Creek. The 3 million gallons of slurry eventually reached the Animas, San Juan, and Colorado rivers in New Mexico and Utah. The bright orange slurry was contaminated with arsenic, copper, manganese, zinc, and cadmium. The contamination could literally be seen for miles. Colorado, New Mexico, and Utah each declared a state of emergency.
What’s unique about this spill is that the contractor was acting at the direction of the US EPA, trying to enter the mine as part of a cleanup operation. Ironically known for taking a very hard line with corporations and their environmental standards, the US EPA has instead found itself on the receiving end for questionable management as it attempts to forge ahead with deep cuts to US carbon emissions.
Congressmen from Utah said that if the US EPA knew Colorado’s defunct Gold King Mine was likely to release contaminated water, it should have taken action — or at least done a better job of responding. New Mexico officials first heard about the spill nearly 24 hours after it happened from the Southern Ute Indian Tribe, not the US EPA. “Nobody is going to take the attention away from EPA’s incompetence on this,” said Colorado Senator Cory Gardner. “If this was a private company, all hell would be breaking loose.”
Daniel B. Markind, Esq. of Weir and Partners, LLP writes, this spill is “the single event that could have the greatest impact on industry/governmental relations going forward … It will make it more difficult for the EPA to take absolutist, moralistic positions against the industry in the future.”
Watchdog.org National Energy Correspondent Rob Nikolewski writes, “Exxon had its Valdez, BP had its Deepwater Horizon and now the US EPA has its Animas River disaster with which to contend.” It remains unclear if US EPA will face fines for its negligence. While the concept of “sovereign immunity” can be waived, there is no evidence so far that the federal government will do so.
Unlike those companies, the US EPA is protected from fines thanks to the common law rule of “sovereign immunity.” US EPA administrator Gina McCarthy said the agency “takes full responsibility” for the accident. During an Aug. 11 presentation, McCarthy referred to the incident as “tragic and unfortunate” going on to say, “EPA is an agency whose core mission is ensuring a clean environment and protecting public health, so it pains me to see this happening.”
The US EPA has come under sharp criticism for causing the spill and for its handling of the aftermath. At least four congressional committee hearings are scheduled, starting Sept. 9.
The Navajo Nation is preparing to file suit against the US EPA. The tribe contends that the US EPA’s Aug. 5 accident in Colorado also leaked hazardous substances into the San Juan River – one of the Navajo Nation’s primary water sources. Navajo Nation President Russel Begaye claimed the US EPA “endangered our people” and he called for the removal of all contaminated sediments from the San Juan River.
US EPA stated, “there is no longer a visible leading edge of the Gold King Mine plume. We estimate that the water associated with the release reached Lake Powell sometime on Wednesday afternoon August 12. Lake Powell is a large body of water, and we expect no significant impacts to the lake, the Colorado River or any water bodies downstream.” It is a case where dilution is the solution.
Markind writes, “Perhaps the era of the unchecked regulatory agency state, like the summer, is almost over.”
While accidents can and do occur, we are now left to wonder if the US EPA will modify its treatment of and behavior toward the private sector and the standards it implements and oversees. Yes, protecting the environment is of utmost importance for our health and future generations, but let’s hope the same standards will apply to US EPA when it comes to taking responsibility for and remediating this significant spill.
Kentucky Oil and Gas Regulatory Modernization Act
On June 24, 2015, the state of Kentucky enacted the Oil and Gas Modernization Act of 2015. Under this new regulation, shallow and deep wells were defined, along with new requirements based the depth of the well. A shallow well is defined as any well drilled and completed at a depth of less than 6000 feet or above the base of the lowest member of the Devonian Brown Shale, whichever is deeper. A deep well is defined as any well drilled or completed 6000 feet or below the base of the lowest member of the Devonian Brown Shale, whichever is deeper.
Before conducting any high-volume hydraulic fracturing (HVHF) – a stimulation treatment of a horizontal well injecting more than 80,000 gallons of fluid per stage or 320,000 gallons of fluid in total aggregate – well operators must notify all surface owners within 1000 feet of the wellhead at least 20 days prior to fracturing.
Information to be provided by the operator to each surface owner includes:
- Name and address of the well operator
- Location of the wellhead
- Name and location of the cabinet office where permits and other documents can be viewed.
Operators must also submit a chemical disclosure registry form to FracFocus.org within 90 days of HVHF.
Under the new regulation, operators will be required to collect baseline samples for all surface water impoundments and groundwater within 1000 feet of the wellhead at least 20 days prior to performing any deep HVHF stimulation treatments. Once fracturing treatments are complete, samples must be taken again within 3 to 6 months from each source that was tested during the baseline sampling event and sent to a certified laboratory. The list of analytes to be tested consists of metals, total dissolved solids, dissolved gases; benzene, toluene, ethylbenzene, xylene (BTEX); chloride, sulfates, surfactants, and naturally-occurring radioactive materials (NORM).
Contact Shane Penn at 865.376.7590 to learn more about how this new regulation could impact your business and operations in Kentucky.
Items Worth Noting in Update V of SW-846
On August 13, 2015, the US EPA released Final Update V to the Third Edition of US EPA publication SW-846, ‘‘Test Methods for Evaluating Solid Waste, Physical/Chemical Methods’’ (SW-846). The release of Final Update V accomplished three things:
- Established program-wide changes in the way the Agency approaches analyses performed for compliance with the Resource Conservation and Recovery Act (RCRA),
- Formalized changes to specific methods for compliance with RCRA, and;
- Added several new methods to SW-846.
Policy on Method Versions
The Agency finalized a Policy Statement, which strongly recommends the use of the latest version of a SW–846 method whenever possible.
This Policy Statement may be intended to eliminate confusion regarding the status of previous versions of SW-846 methods. Prior to Update IV, all updates were finalized by promulgation of rules. Simultaneous with promulgation of Update IIIB, the Agency promulgated the Methods Innovation Rule and changes to various regulations. This eliminated the need to promulgate final rules to affect future updates (except method-defined parameters), permitting updates by requesting public comment on the methods through Federal Register (FR) Notices.
Many data users erroneously attribute greater validity to methods in Updates 1 through IIIB than those in later updates, because the earlier versions were promulgated as rules while the later versions were finalized by FR Notices. By formalizing the recommendation to use the latest version of a SW-846 method, perhaps the Agency is attempting to address this misconception.
Method Detection Limit (MDL) and Lower Limit of Quantitation (LLOQ)
The 8/13/15 FR notice states: … the current MDL procedure is not suitable for complex matrices found in RCRA waste. Based on that, the Agency has made (or will be making) the following changes:
- References to the MDL have been replaced in Chapter 1 of SW-846 with the LLOQ for methods other than those used to measure method-defined parameters (MDPs).
- As regulations are revised, the RCRA program will remove the MDL reference from MDPs and replace it with the LLOQ concept where appropriate.
- As methods other than MDPs are updated, the Agency will remove references to the MDLs.
- The Agency will also remove MDL references in older methods that have not yet been updated, as time and resources allow.
- References to the MDL have been replaced with the LLOQ in method revisions released with Update V.
In addition, the 8/13/15 FR notice states: The Agency recommends the use of LLOQ, as appropriate, for the non-MDP methods that have not yet been updated.
These changes represent the Agency’s recognition of the shortcomings of the procedure typically used to determine the MDL. They establish the LLOQ (typically, the concentration of the lowest calibration point adjusted for sample weight, final digest or extract volume, dilutions, etc.) as the lowest concentration at which results are quantifiable within an acceptable precision and bias.
Update V provides guidance on interpretation of blank results, relative to the LLOQ. Blank results are:
… generally considered to be acceptable if target analyte concentrations are less than ½ the LLOQ or are less than project-specific requirements. Blanks may contain analyte concentrations greater than acceptance limits if the associated samples in the batch are unaffected (i.e., targets are not present in samples or sample concentrations are ≥ 10× the blank).
Relative Standard Error (RSE)
The Agency included RSE as an option for evaluating acceptability of a calibration curve. RSE refits the calibration data back to the calibration model and evaluates the difference between the measured and the true amounts or concentrations used to create the model.
Environmental Standards believes that use of the RSE is far superior to the use of coefficient of correlation or coefficient of determination for evaluating calibration curves. It will much more readily identify calibrations that deteriorate as the concentration decreases.
With Update V, the Agency revised Chapter 4 of SW-846 (Organic Analytes) to remove the recommendation to collect a second set of samples without adding an acid preservative and analyze in a shorter time frame if vinyl chloride and styrene are analytes of concern for aqueous samples.
The Agency revised the SW-846 methods listed in Table 1.
In most cases, the changes are primarily editorial in nature or reflect the replacement of references to MDL with LLOQ. Some notable revisions beyond these are as follows:
- 6010D (Inductively Coupled Plasma-Optical Emission Spectrometry)
Language was added to permit reporting of flagged data when the desired LLOQ has not been met.
- 8000D (Determinative Chromatographic Separations)
The method was updated to permit reporting of qualified (flagged) data if an analyte of interest is found in a sample in the batch near a concentration confirmed in the blank.
In addition to the revisions described above, The Agency added eight methods to SW-846, including several that use immunoassay techniques for screening of dioxins and furans.
PA DEP Fines Laboratory for Inadequate Employee Oversight and Training
REI Consultants, Inc., has been fined $75,000 by the Pennsylvania Department of Environmental Protection (PA DEP) for violations at its Beaver, West Virginia laboratory. PA DEP’s Laboratory Accreditation Program conducted a regularly scheduled on-site assessment of REIC and found that the laboratory’s management was not providing adequate oversight and training of the laboratory personnel. In addition, there were numerous violations during the data review and on-site assessment of REIC. PA DEP is REIC’s primary accreditation authority, but the laboratory does not perform compliance testing for PA DEP. REIC uses its primary National Environmental Laboratory Accreditation Program (NELAP) accreditation from PA DEP to obtain secondary NELAP accreditation from Virginia. In addition to the $75,000 fine, the laboratory has agreed to hire an independent third-party auditor to review the laboratory’s operations abilities to meet the conditions of its accreditation.
Laboratory Misconduct Leads to Tainted Water Quality Tests
Failure of one laboratory analyst in Minnesota to calibrate measurement equipment compromised hundreds of surface and groundwater samples which were collected for volatile organic compound (VOC), diesel, or gasoline product analysis. An analyst at Minnesota Department of Health (MDH) Public Health Laboratory failed to follow in-house training on proper calibration and ethical testing procedures. MDH removed the employee from laboratory duties and is bringing in external reviewers to conduct a thorough investigation. In addition to reanalyzing the data from 2,200 samples from 276 communities collected over a 2-year period, the MDH is taking steps to prevent future misconduct. This includes external audits, closer supervision of analysts, and more robust internal review processes. The department says it will also be reviewing training, practices, and procedures to determine what other changes may be warranted.
Accreditation Revoked for Southeast PA Laboratory
PA DEP revoked accreditation in-full for Cedar Grove Environmental Inc. (Cedar Grove), an environmental laboratory in Chester County, Pennsylvania. Following a regularly scheduled assessment of the facility in July 2015, repeat violations were found from 2012, 2009, and 2007 on-site assessments, despite claims from Cedar Grove that corrective measures had been taken, and despite previous suspensions. Cedar Grove has had various specific accreditations revoked, and in some cases reinstated, since 2003. At a minimum, the laboratory will be required to satisfactorily demonstrate correction of all violations, submit to a follow-up on-site assessment to confirm corrective action, pay a civil penalty as restitution for the violations found during the PA DEP’s July 2015 on-site assessment, and agree to stipulated penalties for failure to maintain corrective action if repeat violations are found by the PA DEP in follow-up on-site assessments.
Brooks Rand Labs Merger with Applied Speciation and Consulting is Now Complete
The merger of Brooks Rand Labs and Applied Speciation and Consulting to form Brooks Applied Labs is now complete. The merger “will enable us to increase our capacity and offer an even more comprehensive selection of specialty metals analyses and consulting.” Brooks Applied Labs is based in Seattle, WA.
Are Your Gasoline Test Methods Ready for the US EPA Tier III Deadline of January 1, 2016?
Although the US EPA promulgated the Tier III regulations as updates to 40 CFR 80 in 2014, the implementation of the “Performance-based Analytical Test Method Approach” of §80.47 takes effect on January 1, 2016. This section on performance-based analytical test methods is a departure from the traditional approach in that the measurement systems used for determination of sulfur, olefins, total aromatics, oxygenates, vapor pressure, distillation, and benzene are based upon established performance criteria for accuracy and precision. In addition, this new section also requires the use of specific statistical quality control procedures from ASTM D6299 for these regulatory test methods.
The new precision and accuracy requirements for these measurements are anchored to the published precisions of selected ASTM test methods that are the designated regulatory test methods. Generating the required precision data is relatively easy for a laboratory that uses “good laboratory practices,” however, demonstrating accuracy is more complex and would involve either an external reference laboratory or use of qualified proficiency test program data. It is important to note that a laboratory is exempt from the precision and accuracy requirements if they can demonstrate that they were using the designated regulatory test method prior to October 28, 2013.
Recently, the American Petroleum Institute (API) used data derived from the ASTM D02 Proficiency Test Program to evaluate the accuracy of several “alternative” test methods versus the designated regulatory test methods for olefins, total aromatics, and ethanol (oxygenates). The resulting correlation equations that are currently in the ASTM ballot process will be of use to laboratories needing to demonstrate accuracy of D6550 versus D1319 for olefins, D4815 versus D5599 for oxygenates (ethanol) and either D1319 or D5580 versus D5769 for total aromatics.
Will you be ready in three months?
VSA will provide assistance in achieving and evaluating your Tier III regulatory compliance.
Vitale Scientific Associates’ Senior Advisor Dr. Mike Green and Consultant Dr. Jim Bover stand ready to provide assistance to companies that are in need of support with Tier III implementation. Please contact Mike (email@example.com) if you would like to initiate discussions on this topic.
Coming to You: DKQPs, Data of Known Quality Protocols
New Jersey is known for many things: the shore, the pinelands, taxes, traffic … and being on the forefront of environmental protocols.
The New Jersey Department of Environmental Protection (NJDEP) recently published the “Data of Known Quality Protocols (DKQPs) Technical Guidance.” The guidance is designed to help whomever is responsible for conducting remediation, typically the Licensed Site Remediation Professional (LSRP), comply with current rules regarding the use of analytical data.
These requirements present challenges for many laboratories, LSRPs, consultants, and potentially responsible parties (PRPs) performing site assessment and remediation in New Jersey. Be informed, because the steps New Jersey has taken to control laboratory data and its usability, that guidance may be adopted by other states and agencies in the future.
The guidance reads, “If the assessment and usability process is to work efficiently and effectively, then it is important that the analytical quality assurance/quality control (QA/QC) followed is the same for all laboratories. If not, the task of creating and using a technical guidance document that addresses the assessment and usability of data, most decisions of which are based on the results of laboratories’ QA/QC results, becomes confusing, difficult, unruly, and burdensome. If data are to be assessed and used uniformly and consistently by the investigator, then it is beneficial to standardize, to the extent possible, the QA/QC associated with analytical methods. To this end, the Department developed Data of Known Quality Protocols.”
The guidance includes procedures for:
- Quality assurance project plan (QAPP) specifications
- Target analyte lists
- Reporting limits (RLs)
- Detailed laboratory analytical QA/QC criteria by method
- Report deliverables
- Holding times
- Allowable modifications to methods, etc.
In order to meet the DKQPs, laboratories must follow very prescriptive QA/QC criteria and reporting requirements. Laboratories that have been previously following internal QA/QC criteria now must modify their QA/QC procedures and information systems to meet the new demands of DKQPs. Of interest to the data user, the laboratory is required to complete and submit a Conformance/Nonconformance Summary Questionnaire (C/NCSQ) and narrative explaining any data that did not meet the DKQPs QA/QC guidelines.
The guidance also outlines performance of a data quality assessment (DQA) of the laboratory QC data and narrative, and performance of a data usability evaluation (DUE) to determine if the analytical data is of sufficient quality for the intended purpose. The DQA and DUE protocols are specified in a separate NJDEP document: “Data Quality Assessment and Data Usability Evaluation Technical Guidance.” Once the DQA is complete, the analytical data generated are termed Data of Known Quality (DKQ).
In the end, the LSRP’s highest priority is protection of public health and safety and the environment. In order to meet that priority, DKQ must be weighed on the scale of usability. Are the data good or bad? Should the LSRP use the data for remedial decision making? Does the LSRP have the technical expertise to make the DKQ and usability determination? LSRPs carry a great deal of responsibility and can be held personally liable if they provide professional services outside their areas of professional competency, including DKQ and usability determination.
A way to negate this liability and gain appropriate use of DKQs is to rely upon the technical assistance of one who is qualified by education, training, and experience. The chemists at Environmental Standards meet that determination.
Our recommended DQA and DUE include review of:
- Chain-of-Custody records and sample receipt conditions
- Laboratory DKQ C/NCSQ
- Laboratory case narratives
- Laboratory sample results for completeness and correctness (defined as correct methods, preservation, units, and RLs at or below the regulatory limit)
- Holding times
- Blank results (method, trip, and equipment)
- Surrogate recoveries
- Matrix spike sample recoveries
- Laboratory control sample recoveries
- Field duplicate sample results
A DQA is not to be confused with full data validation. It is meant to be a limited data review. The appropriate application of the DKQPs, in most cases, allows for a DQA without conducting full data validation.
The data are also evaluated for usability. We have the expertise to interpret how DKQ impact remedial decision making. Special consideration is given to analytical results which are close to the regulatory action limits and in which DKQ issues, such as bias, are present. In the case of data non-conformance and if the technical guidance documents are unclear regarding data usability decision making, Environmental Standards uses professional judgment when determining the use of any data.
The data usability decisions are documented in a DQA/DUE report. A standard DQA/DUE report includes:
- A Data Usability Evaluation Narrative
- Completed Data Quality Assessment Worksheets
- Summary tables of the reviewed data with qualifiers
- Copies of the DKQ C/NCSQ and Laboratory Case Narrative
- Copies of the Chain-of-Custody records
As DKQP, DKP, DQA, and DUE become acronyms we add to our glossaries, have confidence that Environmental Standards has the expertise to assist data users in understanding these new requirements and in making important data usability decisions. Please contact Senior QA Chemist Lydia Work, LRS at
firstname.lastname@example.org or 610.935.5577 to discuss your project needs.
Updated Vapor Intrusion Guidance Issued by the PA DEP
The Pennsylvania Department of Environmental Protection’s (PA DEP’s) Bureau of Environmental Cleanup & Brownfields released the draft version of its revised Land Recycling Program Technical Guidance Manual for Vapor Intrusion into Buildings from Groundwater and Soil under Act 2 (TGM) on July 28, 2015. The document was released shortly after US EPA released the final versions of its vapor intrusion assessment and mitigation documents in June 2015. The PA DEP document was issued as draft for public comment; comments were due September 23, 2015.
The TGM was developed by PA DEP to assist remediators in satisfying the requirements of Pennsylvania’s Land Recycling and Environmental Remediation Standards Act (Act 2) and the regulations published in Chapter 250 of the Pennsylvania Code. Specifically, the TGM provides guidance on how to address vapor intrusion (VI) from contaminated soil and groundwater into buildings. The 2015 document will replace the Land Recycling Program Technical Guidance Manual – Section IV.A.4 Vapor Intrusion into Buildings from Groundwater and Soil under the Act 2 Statewide Health Standard, dated January 24, 2004, in its entirety.
For those involved with assessment and remediation under Pennsylvania’s
Act 2 program, this guidance establishes screening values and assessment options that can be used under the Statewide health standard to address VI for existing and potential future inhabited buildings. It is important to note that the VI screening tables provided in the TGM are not meant to evaluate VI under the Site-Specific Standard; however, guidance on VI evaluations under the Site-Specific Standard, including the use of human health inhalation risk assessment, is presented as a standalone section in the 2015 TGM.
Some of the key topics addressed in the TGM include preferential pathway evaluation; use of proximity distances; soil and groundwater screening methods and values; alternative assessment options; mitigation and environmental covenants; evaluating the VI pathway under the Act 2 Site-Specific Standard; VI modeling guidance; and VI sampling methods. The 2015 TGM is more robust than the 2004 version and provides significantly more detailed guidance to assist the remediator throughout the VI evaluation process. Namely, guidance regarding VI modeling and sampling methods were essentially absent from the 2004 document, but are addressed in detail in the 2015 TGM. In addition, the 2004 version did not discuss evaluation of the VI pathway under the Act 2 Site-Specific Standard; however, this topic is addressed in detail in the 2015 version.
Several items that PA DEP emphasizes in the 2015 TGM are:
- In order to properly address the VI pathway, the remediator must first develop a Conceptual Site Model (CSM) based on the site characterization.
- The VI screening values presented in the TGM are not meant to evaluate VI under the Site-Specific Standard.
- Mitigation measures may be used for existing inhabited buildings to eliminate unacceptable risks associated with VI under the Statewide and Site-Specific Standards at any time in the evaluation process.
It is anticipated that PA DEP will finalize the 2015 TGM in late 2015 or early 2016, after public comments have been received and addressed.