[Federal Register Volume 85, Number 130 (Tuesday, July 7, 2020)]
[Rules and Regulations]
[Pages 40594-40608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12695]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 63, 260, 261, and 278
[EPA-HQ-OLEM-2018-0830; FRL-10006-71-OLEM]
RIN 2050-AG93
Modernizing Ignitable Liquids Determinations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
updates to the regulations for the identification of ignitable
hazardous waste under the Resource Conservation and Recovery Act (RCRA)
and to modernize the RCRA test methods that currently require the use
of mercury thermometers. These revisions provide greater clarity to
hazardous waste identification, provide flexibility in testing
requirements, improve environmental compliance, and, thereby, enhance
protection of human health and the environment.
DATES: This final rule is effective on September 8, 2020. The
incorporation by reference of certain publications listed in the rule
is approved by the Director of the Federal Register as of September 8,
2020.
ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OLEM-2018-0830, is available at
https://www.regulations.gov or at the Office of Land & Emergency
Management Docket (OLEM Docket), Environmental Protection Agency Docket
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW, Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OLEM Docket is (202) 566-
0270. Please review the visitor instructions and additional information
about the docket available at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Daniel Fagnant, Materials Recovery and
Waste Management Division, Office of Resource Conservation and Recovery
(5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
Washington, DC 20460; telephone number 703-308-0319; email address:
[email protected]; or Melissa Kaps, Materials Recovery and Waste
Management Division, Office of Resource Conservation and Recovery
(5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
Washington, DC 20460; telephone number 703-308-6787; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
The information presented in this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. What action is EPA taking?
C. What is EPA's authority for taking this action?
D. What are the incremental costs and benefits of this action?
II. Background
A. What is a hazardous waste?
B. What is the hazardous waste characteristic of ignitability?
C. What is the regulatory history of the ignitability
characteristic?
D. Summary of the Proposed Rule
III. Discussion of the Final Rule and Public Comments
A. Flash Point Test Methods
B. Mercury Thermometer Requirements in Air Sampling and Stack
Emissions Methods
C. Technical Corrections to 40 CFR 261.21
D. Revised Definition of Aqueous and Comments on the Aqueous
Alcohol Exclusion
E. Sampling of Multiple Phase Wastes
F. Pressure Filtration and Ignitable Liquids
G. Additional Conforming Amendments
IV. Incorporation by Reference
V. State Authorization
A. Applicability of Final Rule in Authorized States
B. Effect on State Authorization
VI. Statutory and Executive Order (E.O.) Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
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Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
I. General information
A. Does this action apply to me?
You may be potentially affected by this action if you conduct
testing activities to determine the ignitability characteristics of
certain wastes and/or use SW-846 air sampling and stack emissions
Methods 0010, 0011, 0020, 0023A, or 0051. The following list of North
American Industrial Classification System (NAICS) codes is not intended
to be exhaustive, but rather provides a guide to help readers determine
whether this document applies to them. If you have questions regarding
the applicability of this action to a particular entity, consult the
person listed in the FOR FURTHER INFORMATION CONTACT section.
Potentially affected entities may include:
Other Electric Power Generation (NAICS code 221118).
Petroleum Refineries (NAICS code 324110).
Engineering Services (NAICS code 541330).
Testing Laboratories (NAICS code 541380).
Environmental Consulting Services (NAICS code 541620).
Research and Development in the Physical, Engineering, and
Life Sciences (except Biotechnology) (NAICS code 541712).
All Other Support Services (NAICS code 561990).
Hazardous Waste Treatment and Disposal (NAICS code
562211).
B. What action is EPA taking?
First, EPA is updating the test methods required for measuring the
flash point of a liquid waste when determining if that waste is an
ignitable hazardous waste (i.e., SW-846 Method 1010A (Pensky-Martens)
or Method 1020B (Setaflash)) under 40 CFR 261.21. Second, EPA is
codifying existing guidance regarding the definition of aqueous for
purposes of 40 CFR 261.21(a)(1). Third, EPA is updating cross
references to Department of Transportation (DOT) regulations and also
making certain other conforming amendments and technical corrections.
Finally, EPA is adding mercury thermometer alternatives in the air
sampling and stack emissions test methods in Test Methods for
Evaluating Solid Waste: Physical/Chemical Methods (SW-846);
specifically, Methods 0010, 0011, 0020, 0023A, and 0051.
C. What is EPA's authority for taking this action?
The authority for this rule can be found in sections 1002, 1006,
2002, 3001-3009, 3013, and 3017 of the Solid Waste Disposal Act (SWDA)
of 1970, as amended by the Resource Conservation and Recovery Act
(RCRA) of 1976, as amended by the Hazardous and Solid Waste Amendments
of 1984 (HSWA), 42 U.S.C. 6901, 6905, 6912, 6921-6929, 6934, and 6938;
sections 101 et seq. of the Clean Air Act, as amended, 42 U.S.C. 7401
et seq.
D. What are the incremental costs and benefits of this action?
EPA prepared an economic analysis of the potential costs and
benefits associated with this action. The Regulatory Impact Analysis of
the Modernization of Ignitable Liquid Determinations Rule is available
in the docket. The final rule will modify SW-846 test methods while
also retaining the current procedures to provide entities increased
flexibility. For the purpose of the analysis, EPA assumes that every
facility that currently conducts flash point testing: (1) Is compliant
with the current test methods, (2) will use the updated test methods if
cost effective, and (3) will continue to conduct flash point testing.
The universe of facilities affected by the updates to the
ignitability test methods and SW-846 air sampling and stack emissions
test methods includes: (1) Commercial laboratories, (2) EPA
laboratories, and (3) state laboratories. EPA identified 217 unique
commercial laboratories that conduct ignitability testing under either
Method 1010A or 1020. EPA identified an additional 18 commercial
laboratories accredited to conduct any of the air sampling and stack
emissions test methods that would be updated under rule, for a total of
235 commercial labs affected by the rule. These 235 total laboratories
are part of 177 unique firms, including several large commercial
laboratories with multiple locations. EPA estimates that the total
number of laboratories, including 20 state and nine federal
laboratories, potentially affected by this rule is 264.
The economic analysis indicates that the rule is projected to
result in annualized cost savings of about $78,500 to $477,000 (based
on a discount rate of seven percent). The net present value of costs
over 20 years is estimated to be a cost savings of $832,000 to $5
million (seven percent discount rate). EPA's analysis shows qualitative
benefits to human health and the environment through the reduced use of
mercury thermometers. EPA does not expect the other parts of this
action to affect any entity because they do not create new requirements
or change existing requirements.
II. Background
A. What is a hazardous waste?
Subtitle C of RCRA and its implementing regulations establish a
cradle-to-grave regulatory management scheme for certain solid wastes
that qualify as hazardous wastes. Any garbage, refuse, sludge from a
waste treatment plant, water supply treatment plant, or air pollution
control facility and other discarded material, including solid, liquid,
semisolid, or contained gaseous material is a ``solid waste'' under
RCRA section 1004(27) (42 U.S.C. 6903(27)). EPA has further defined the
term ``solid waste'' for purposes of its RCRA hazardous waste
regulations (40 CFR 261.2). To be considered a hazardous waste, a
material first must be classified as a solid waste. Generators of solid
waste must determine whether their wastes are hazardous wastes (40 CFR
262.11). A solid waste is a hazardous waste if it exhibits
characteristics of ignitability, corrosivity, reactivity, or toxicity
(40 CFR 261.20 through 261.24), or is a listed waste (40 CFR 261.30
through 261.33). Listed wastes include wastes from non-specific
sources, such as spent solvents; residuals such as by-products and
sludges from specific industries; and discarded, unused commercial
chemical products.
B. What is the hazardous waste characteristic of ignitability?
Under 40 CFR 261.21, the characteristic of ignitability identifies
solid waste as hazardous based on the properties of the waste that give
it the potential to cause harm to human health or the environment
through direct or indirect fire hazard, including contributing to or
causing landfill fires. Waste that is identified as hazardous pursuant
to 40 CFR 261.21 has the EPA Hazardous Waste Number of D001. Ignitable
hazardous waste (D001) is regulated to minimize its opportunity to
cause or contribute to fires during routine waste management
activities. Solid wastes that are regulated as ignitable hazardous
waste include: (1) Certain liquids with flash points less than 60
[deg]C (140 [deg]F); (2) non-liquid substances that are capable, under
standard temperature and pressure, of
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causing fire through friction, absorption of moisture, or spontaneous
chemical changes and, when ignited, burns so vigorously and
persistently that they create a hazard; (3) ignitable compressed gases;
and (4) oxidizers.
C. What is the regulatory history of the ignitability characteristic?
The ignitability characteristic was originally proposed in 1978 (43
FR 58945, December 18, 1978) with an objective of identifying wastes
that present a fire hazard due to being ignitable under routine waste
disposal and storage conditions. The ignitability characteristic was
finalized in 1980 when EPA promulgated the first phase of regulations
under Subtitle C of RCRA to protect human health and the environment
from the improper management of hazardous waste (45 FR 33066, May 19,
1980). These regulations included 40 CFR part 261, which defined
hazardous waste including the ignitability characteristic and
incorporated two ASTM International (``ASTM'') voluntary consensus
standards by reference as the required flash point tests for ignitable
liquid hazardous waste determinations: ASTM D93-79 (Pensky-Martens) and
ASTM D3278-78 (Setaflash). In a 1981 revision, EPA revised SW-846
Method 1010 to allow the use of D93-79 or D93-80 (46 FR 35246, July 7,
1981).
ASTM standards D3278-78, D93-79, and D93-80 were the test methods
available for flash point testing at the time of the 1980 and 1981
rulemakings. Since that time, ASTM has updated D93 and D3278 multiple
times to improve the standards and incorporate new technology.\1\ EPA
previously proposed to update the flash point test methods for
ignitability in the 2002 proposed Methods Innovation Rule by replacing
ASTM standard D3278-78 with D3278-96 and ASTM standards D93-79 and D93-
80 with D93-99c (67 FR 66252, October 30, 2002). In that proposed rule,
EPA also requested comment on whether D93-00 should instead replace
D93-79 and D93-80. The public commenters raised concerns that the
sampling procedures of the proposed versions of D93 may lead to a loss
of flammable volatile constituents from a sample due to greater
headspace in the sampling container. The Agency made the decision to
not revise flash point testing when the Methods Innovation Rule was
finalized in 2005 (70 FR 34550, June 14, 2005), agreeing with public
comments that EPA further study the changes in flash point testing
standards.
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\1\ The Agency notes that while ASTM standards are subject to
review and revision (a process that occurs every five years) because
the regulation incorporates by reference the year-specific version
of an ASTM standard, the version in the regulation remains in effect
until changed by an EPA action. See 84 FR 12539 for more information
about the use of method-defined parameters.
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EPA later issued a final rule to correct the ignitability
characteristic at 40 CFR 261 by replacing obsolete references to DOT
regulations related to definitions of ignitable compressed gases and
oxidizers (71 FR 40254, July 14, 2006). That final rule amended the
regulation by revising paragraphs (a)(3) and (a)(4) of Sec. 261.21 and
adding notes 1 through 4 to the end of that section. No change was made
to Sec. 261.21(a)(1).
D. Summary of the Proposed Rule
On April 2, 2019, EPA published a proposed rule to modernize
standards for ignitable liquids determinations (84 FR 12539). EPA
proposed to update the flash point test methods for the determination
of characteristically ignitable hazardous waste along with other minor
changes. EPA proposed to update required test methods that refer to
outdated standards developed by ASTM and that require instrumentation
that is no longer readily commercially available. For example, the
standards require the use of mercury thermometers, which are becoming
more difficult to acquire and calibrate due to their use and
availability being phased out for environmental, health, and safety
concerns. EPA also proposed to remove the requirements for mercury
thermometers in the SW-846 air sampling and stack emissions test
methods. In addition, EPA proposed to codify existing guidance
regarding the regulatory exclusion in the ignitability characteristic
for aqueous liquids containing alcohols and proposed to codify existing
sampling guidance regarding waste mixtures having multiple phases when
determining whether a waste exhibits the ignitability characteristic.
Finally, EPA proposed to update cross references to DOT regulations, to
remove obsolete information, and make certain technical corrections.
The specific amendments and corrections proposed by EPA are summarized
below.
1. Flash point test methods. EPA proposed to revise 40 CFR 261.21
to incorporate by reference ASTM standard D8175-18 as an alternative to
ASTM standards D93-79 and D93-80 in Method 1010B (Pensky-Martens test
method) (84 FR 12539, April 2, 2019). EPA similarly proposed to revise
40 CFR 261.21 to incorporate by reference the ASTM standard D8174-18 as
an alternative to ASTM standard D3278-78 in Method 1020C (Setaflash
test method). The Agency also proposed to retain the ASTM standards
D93-79, D93-80, and D3278-78 within Methods 1010B and 1020C. The Agency
proposed that the original ASTM standards and the new ASTM standards
referenced in Methods 1010 and 1020 are all technically acceptable for
determinations of flash point for ignitable liquids. Therefore, a
generator or laboratory may choose to use any of the ASTM standards
listed in Methods 1010B and 1020C, which are being finalized today. The
Agency anticipates that domestic and international efforts to reduce
mercury usage, the environmental benefits of removing mercury from the
workplace, and the economic benefits from reduced testing costs will
result in generators and laboratories adopting the new test methods
over time. The Agency also solicited comments from the public on
whether it would be more appropriate to remove the older ASTM standards
from the test methods at this time due to their required use of mercury
thermometers.
2. Air sampling and stack emissions requiring mercury thermometers.
EPA proposed to update the SW-846 air sampling and stack emissions test
methods that presently require the use of mercury thermometers. These
test methods are Methods 0010, 0011, 0020, 0023A, and 0051. The
proposed rule provided users of these test methods the flexibility to
use alternative temperature-measuring devices, while still allowing the
use of mercury thermometers. Many of these air sampling and stack
emissions test methods are modifications of, or are similar to, EPA
Method 5 of Appendix A-3 of 40 CFR 60, Determination of Particulate
Matter Emissions from Stationary Sources. For Method 5, EPA issued the
proposed rule ``Revisions to Test Methods and Testing Regulations at
(77 FR 1130, January 9, 2012), and later finalized the rule at (79 FR
11228, February 27, 2014) for the use of alternative mercury-free
thermometers if the thermometers are, at a minimum, equivalent in terms
of performance or are suitably effective for the specific temperature
measurement application. EPA proposed to add similar language, where
appropriate, in SW-846 Methods 0010, 0011, 0020, 0023A, and 0051. The
removal of the requirement to use mercury thermometers does not change
the underlying technology of the test methods and is not expected to
affect the precision or accuracy of the test methods. Therefore, in
accordance with the SW-846 methods policy statement, the test method
numbers and letters EPA uses to identify test methods,
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including subsequent versions, are not being revised due to these
changes.\2\
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\2\ See https://www.epa.gov/hw-sw846/policy-statement-about-test-methods-evaluating-solid-waste-physicalchemical-methods.
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3. Aqueous alcohol exclusion. EPA proposed to revise the aqueous
alcohol exclusion in 40 CFR 261.21(a)(1) by codifying existing guidance
into the regulatory text to clarify the exclusion's scope. As stated in
the proposed rule, EPA proposed to change the text of the exclusion
from ``other than an aqueous solution containing less than 24 percent
alcohol by volume'' to ``other than a solution containing less than 24
percent of any alcohol or combination of alcohols (except if the
alcohol has been used for its solvent properties and is one of the
alcohols specified in EPA Hazardous Waste No. F003 or F005) by volume
and at least 50 percent water by weight.'' Specifically, EPA proposed
the following revisions to the exclusion: (1) Replace the undefined
term ``aqueous'' with ``at least 50 percent water by weight'' and (2)
clarify that ``alcohol'' meant ``any alcohol or combination of
alcohols'' except for alcohol that had ``been used for its solvent
properties and is one of the alcohols specified in EPA Hazardous Waste
No. F003 or F005.'' These two proposed revisions to the current
regulatory text for the aqueous alcohol exclusion are contained in
existing EPA guidance published in the EPA Monthly Hotline Report,
EPA530-R-92-014g (July 1992), pages 3-4. The Hotline Report states for
the purpose of the ignitability characteristic in 40 CFR 261.21(a)(1),
``aqueous'' means a solution containing at least 50 percent water by
weight. and that the term ``alcohol'' in 40 CFR 261.21(a)(1) refers to
any alcohol or combination of alcohols. EPA also explained in the
Hotline Report that, if the alcohol is one of those alcohols specified
in EPA hazardous waste codes F001-F005 and has been used for its
solvent properties, the waste must be evaluated to determine if it
should be classified as an F-listed spent solvent waste.'' (55 FR
22543, June 1, 1990.)
In the proposed rule, EPA also asked for input on whether any
additional revisions should be made to the aqueous alcohol exclusion in
40 CFR 261.21(a)(1) to limit the exclusion to its original intent. EPA
suggested the following possible revisions to the exclusion: Explicitly
identifying specific waste streams, narrowing the types of alcohol that
would qualify, adding a minimum alcohol content, and raising the
minimum water content for aqueous alcohol solutions. Also, EPA noted
that any revisions made to the aqueous alcohol exclusion in 40 CFR
261.21(a)(1) would have no effect on the applicability of the discharge
prohibitions presented in the Agency's Clean Water Act (CWA) national
pretreatment standards for existing and new sources of pollution (40
CFR 403.5). Section 403.5(b)(1) of the discharge prohibitions addresses
waste streams with a closed cup flash point of less than 140 degrees
Fahrenheit or 60 degrees Centigrade using the test methods specified in
40 CFR 261.21 and provides no exemption for aqueous alcohol solutions
(55 FR 30082, July 24, 1990). The Agency's rationale for not exempting
aqueous alcohol solutions under the CWA discharge prohibitions is
explained in the final rule entitled ``EPA Administered Permit
Programs; the National Pollutant Discharge Elimination System; General
Pretreatment Regulations for Existing and New Sources; Regulations To
Enhance Control of Toxic Pollutant and Hazardous Waste Discharges to
Publicly Owned Treatment Works'' (55 FR 30082, July 24, 1990). Thus,
EPA's proposed revisions to the aqueous alcohol exclusion in 40 CFR
261.21(a)(1) would not change its inapplicability to 40 CFR
403.5(b)(1).
4. Sampling multiple phase wastes. EPA proposed to codify its
existing sampling guidance for multiphase wastes tested for
ignitability in 40 CFR 261.21(a). EPA's proposed codification sought to
put into regulatory text its existing policy on how to properly test
multiphase wastes containing liquid(s) with or without solids for
ignitability determinations. EPA's long-standing sampling guidance
applies at initial generation and during the course of normal
management of a waste. The Agency's existing guidance explains that a
generator or laboratory (i.e., those conducting the analysis) should
separate multiphase waste samples into all of their different solid
and/or liquid phases for individual evaluation, to the extent
practicable. Each separated phase should be evaluated individually in
accordance with 40 CFR 261.21(a) to determine whether that phase
exhibits the characteristic of ignitability. The Agency's existing
guidance further explains that the multiphase waste should be tested
for flash point as a whole if the individual phases cannot be separated
without an appreciable loss of volatiles such that the ignitability
test results may be affected.
In the proposed rule, EPA also requested comment on whether
language should be added to Chapter 7 of SW-846 as guidance regarding
the use of the pressure filtration technique specified in Method 1311
for assessing the presence of an ignitable liquid for wastes that do
not yield a free liquid phase using Method 9095 (i.e., Paint Filter
Liquids Test or PFLT).
5. Technical corrections.
a. Definition of ignitable compressed gas. The Agency also proposed
corrections to the ignitable compressed gas definitions in 40 CFR
261.21(a)(3)(ii). EPA proposed to revise 40 CFR 261.21(a)(3)(ii)(A) to
specify the ASTM standard E 681-85 as the approved test for determining
whether any waste that is a compressed gas exhibits the RCRA
ignitability characteristic, and to remove reference to the Bureau of
Explosives as an approving agency for sampling and test methods.
Consistent with the current DOT regulations (49 CFR 173.115), EPA also
proposed to correct its own regulations that reference identifying the
agency responsible for approving other tests as equivalent for this
purpose, by adding the phrase ``approved by the Associate
Administrator, Pipeline and Hazardous Materials Safety Administration,
U.S. Department of Transportation.'' to 40 CFR 261.21(a)(3)(ii).
EPA also proposed to revise 40 CFR 261.21(a)(3)(ii)(B)-(D) to align
with the existing DOT regulations for flammable gases. The Agency
proposed to update the definition of ignitable compressed gas within 40
CFR 261.21(a)(3)(ii)(B)-(D), by removing references to Bureau of
Explosives test methods and mirroring the definition and testing that
DOT now requires. This change would allow generators to determine if
their waste meets the definition of an ignitable compressed gas by
determining if it meets the definition of a Division 2.1 flammable gas
or a flammable aerosol (see 49 CFR 173.115(a) and (l)).
b. Cross-reference to DOT explosives. EPA proposed revising 40 CFR
261.21(a)(4)(i)(A) to replace the currently referenced ``Class A
explosive or a Class B explosive'' with ``Division 1.1, 1.2, or 1.3
explosive'' to be consistent with DOT's revised classification system
for explosives (55 FR 52402, December 21, 1990). In 2010, EPA
incorporated into the RCRA hazardous waste regulations DOT's changes to
its classification system for explosives (75 FR 12989, March 18, 2010).
However, that rulemaking overlooked the reference to Class A and Class
B explosives in 40 CFR 261.21(a)(4)(i)(A). This proposed change
corrects that inadvertent omission by updating 40 CFR
261.21(a)(4)(i)(A) with the correct references.
c. Deletion of notes. EPA also proposed to delete the four notes at
the end of 40 CFR 261.21, which are
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outdated or unnecessary to understanding the regulation. For example,
the Bureau of Explosives will no longer be the source for the test
methods identified in 40 CFR 261.21(a)(3)(ii)(B)-(D), which makes Note
1 outdated. Notes 2 and 3 provide unnecessary historical information
explaining that the Office of Hazardous Materials Technology (OHMT) and
the Research and Special Programs Administration (RSPA), respectively,
ceased operations on February 20, 2005 due to a DOT reorganization, and
their programs were moved to the Pipeline and Hazardous Materials
Safety Administration (PHMSA) in the DOT. Finally, Note 4, which
provides the source of the definition of an oxidizer in 40 CFR
261.21(a)(4), may now be confusing because it references a DOT
regulation as it existed in 1980 rather than its current form.
III. Discussion of the Final Rule and Public Comments
A. Flash Point Test Methods
1. Summary of the public comments. The majority of public comments
supported the Agency's proposal to add ASTM standards D8174-18 and
D8175-18 to 40 CFR 261.21 as new, additional test methods options for
flash point testing of ignitable liquids. Several public commenters
requested that the Agency also continue to allow use of the currently
required ASTM standards in the test methods. Some public commenters
also asked the Agency to clarify whether results from any of the
required flash point tests giving a nonhazardous determination for
flash point are conclusive if test results from another flash point
test would determine the waste to be hazardous. Commenters presented
concerns that if conflicting test results are possible for a waste,
then the public would be required to use all five ASTM standards
referenced in the test methods for a waste determination.
2. Provisions in the final rule. The Agency is finalizing the
proposed language in 40 CFR 261.21 that updates Methods 1010A and 1020B
to include ASTM standards D8175-18 and D8174-18, respectively. This
regulation will retain the three previously required flash point ASTM
standards as part of a hazardous waste determination for ignitable
liquids. The regulated community can continue to use the existing test
methods or begin using the new flash point ASTM standards referenced in
Methods 1010B and 1020C. Updates to cross-referenced language in 40 CFR
260.11 and Appendix IX of 40 CFR part 261 are also being finalized in
this action.
3. Response to comments on waste determinations with conflicting
flash point test results. The Agency clarifies that generators are not
required to use all of the ASTM standards specified in EPA Methods
1010B and 1020C when making a hazardous waste determination on a
specific waste, and this remains unchanged under this rulemaking. The
generator is responsible for making an accurate hazardous waste
determination using testing or knowledge of the waste (40 CFR 262.11).
If a generator does not have adequate knowledge to complete a hazardous
waste identification and must test their waste, the generator should
use the test method most appropriate for their waste based on knowledge
of the waste. The ASTM standards referenced within EPA Methods 1010B
and 1020C have similar precision and accuracy values. In many cases,
use of any of the required test methods will be appropriate for a
hazardous waste determination. The Agency expects that differences in
test method results are more likely to occur due to uniquely
challenging waste forms, differences in sampling or laboratory
practices, or operator experience than with use of the different test
methods. The Agency will revisit the required test methods if it is
found that inconsistent results occur for specific wastes.
In some cases, the generator may be able to readily determine one
test method is more appropriate. In the event that a generator of a
waste does determine that multiple test methods would provide
contrasting waste identifications, the generator should select and rely
upon the test method that more accurately characterizes the hazards of
the waste instead of selecting all of the test methods. If a generator
suspects their waste presents unique challenges in identification
through flash point testing, they may benefit from consulting with
their authorized state program to avoid excessive testing.
B. Mercury Thermometer Requirements in Air Sampling and Stack Emissions
Methods
1. Summary of the public comments. Public commenters supported the
Agency's proposal to remove mercury thermometer requirements from the
air sampling and stack emissions test methods. One commenter provided
input that this change improves worker safety and reduces costs by
avoiding potential mercury spills and cleanup. A second commenter
indicated that replacement of mercury thermometers is already ongoing
with similar test methods, such as Method 5. A third commenter
supported leaving the flexibility to use either mercury or non-mercury
thermometers so that the transition to non-mercury thermometers can
occur over time with normal equipment replacement.
2. Provisions in the final rule. The Agency is finalizing the
proposed changes to Methods 0010, 0011, 0020, 0023A and 0051 and the
proposed language incorporating these test methods by reference in 40
CFR 260.11 and 40 CFR part 261 Appendix IX, Tables 1 and 2 as proposed
and discussed above. The changes will allow the use of non-mercury
thermometers or mercury thermometers in these particular test methods,
providing flexibility.
C. Technical Corrections to 40 CFR 261.21
1. Summary of the public comments. The Agency received several
comments of broad support for these regulatory changes and no comments
opposing these changes.
2. Provisions in the final rule. The Agency is finalizing the
proposed changes to 40 CFR 261.21(a)(3) and 40 CFR 261.21(a)(4) and
deleting the four notes at the end of 40 CFR 261.21 as proposed.
D. Revised Definition of Aqueous and Comments on the Aqueous Alcohol
Exclusion
1. Summary of the public comments. Public comments on the Agency's
proposed revisions to the aqueous alcohol exclusion supported some
revisions while opposing others. The majority of commenters agreed with
and supported the Agency's proposal to define ``aqueous'' within 40 CFR
261.21(a)(1) as ``at least 50 percent weight by water.'' No commenters
specifically addressed replacing the term alcohol in 40 CFR
261.21(a)(1) with the phrase ``any alcohol or combination of alcohols''
language; however, many commenters opposed the Agency's proposed
revision to insert the statement, ``(except if the alcohol has been
used for its solvent properties and is one of the alcohols specified in
EPA Hazardous Waste No. F003 or F005).'' Public commenters expressed
concerns that the proposed language created a new exception to the
aqueous alcohol exclusion, describing several interpretations of the
revised text that differ from the Agency's intended interpretation of
the proposed regulatory language.\3\ Commenters
[[Page 40599]]
suggested that one interpretation of the proposed regulation was as a
new exception to the exclusion that would bring into regulation F003
spent solvents that are otherwise excluded from the ignitability
characteristic as an aqueous alcohol.
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\3\ See comments from The American Fuel & Petrochemical
Manufacturers, The Retail Association, The American Chemistry
Council, and Stericylce, Inc. EPA-HQ-OLEM-830-0178, -0175, and -
0176.
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Commenters also suggested a second interpretation could be a
narrowing of the definition of ``alcohol'' within the aqueous alcohol
exclusion to no longer include alcohols in the F003 and F005 listing
descriptions. A related concern was whether an alcohol used for its
solvent purposes is the same as a spent solvent and whether existing
guidance on the scope of the spent solvent listings applied to both. An
additional concern within this second interpretation involved cases
where multiple alcohols were contained in the aqueous alcohol exclusion
and whether the waste would be excluded if one alcohol met the F003 or
F005 listing description while a second did not. Public commenters also
stated that the Agency had provided little to no rationale for
narrowing the aqueous alcohol exclusion in the proposed rule.
The public also commented on other potential changes to the aqueous
alcohol exclusion.\4\ One commenter suggested that the Agency should
revisit excluded aqueous alcohols that contain a small concentration of
ignitable alcohol and a large concentration of an ignitable non-alcohol
component. The commenter referred to the original justification for the
aqueous alcohol exclusion and suggested adding qualifiers to the
regulation consistent with the intended scope of the regulation. It was
suggested that the exclusion should not apply if the flash point of
less than 60 [deg]C (140 [deg]F) is attributable solely to the non-
alcohol component. A commenter also submitted data indicating ethanol
and water mixtures will not flash below 4% ethanol. Commenters also
suggested that EPA should implement a sustained combustion test to
either exclude more waste from regulation or add the test as a
condition to meet for exclusion as an aqueous alcohol. Another comment
suggested that any liquid could be excluded if the liquid did not
sustain combustion and met criteria similar to Department of
Transportation (DOT) flammability requirements in 49 CFR 173.120(a)(3).
Other commenters suggested EPA should propose more specific changes and
allow for public comment before making any other changes to the aqueous
alcohol exclusion other than the replacement of aqueous with ``at least
50 percent water by weight.''
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\4\ See comments from the Retail Association, Maryland
Department of the Environment, Setricycle. Inc., and The
Environmental Technology Council. EPA-HQ-OLEM-2018-0830-0175, -0166,
and -0170.
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2. Provisions in the final rule. The Agency is finalizing the
revision to define aqueous as ``at least 50 percent water by weight''
but is not finalizing any other changes to the aqueous alcohol
exclusion, including the other proposed changes to the exclusion. The
regulatory change that is being finalized is specific to the term
aqueous within 40 CFR 261.21. Other RCRA regulations that also use the
term aqueous are unaffected by this final rule. EPA is not finalizing
the proposed changes to the definition of alcohol in the alcohol
exclusion because those changes did not provide clarification as EPA
intended, as indicated by the comments.
3. Response to comments that EPA is narrowing the exclusion. In
proposing to amend 40 CFR 261.21(a)(1) to include the language ``except
if the alcohol has been used for its solvent properties and is one of
the alcohols specified in EPA Hazardous Waste No. F003 or F005,'' the
Agency had intended to clarify that generators are still responsible to
consider relevant listing descriptions when making a hazardous waste
determination on waste managed under the aqueous alcohol exclusion. In
particular, the Agency considered it most likely that F003 or F005
wastes would most commonly share a waste code with ignitable aqueous
alcohols. It is not EPA's intent to narrow the aqueous alcohol waste
exclusion.
Even though EPA is not finalizing the language ``except if the
alcohol has been used for its solvent properties and is one of the
alcohols specified in EPA Hazardous Waste No. F003 or F005,'' the
Agency notes that generators of aqueous alcohol-excluded waste are
still responsible for verifying that their waste does not meet a
listing description or exhibit other characteristics as part of the
regulations for generators of hazardous waste (e.g., requirements under
40 CFR 262.11). Some commenters suggested that the Agency's proposed
language conflicted with application of 40 CFR 261.3(g). Specifically,
a commenter raised concern that ignitable wastes meeting the F003
listing and meeting the exclusion for aqueous alcohols would have to be
managed as F003 despite being a decharacterized waste at the point of
generation.\5\ The Agency's proposed language was not intended to
revise the regulations in 40 CFR 261.3(g) to limit applicability of
F003 or F005 wastes. The Agency clarified in the final rule
implementing 40 CFR 261.3(g) that in the case of wastes listed solely
for ignitability, corrosivity, and reactivity that do not exhibit a
characteristic at the point of generation, these wastes are considered
to never have been hazardous and are not subject to 40 CFR part 268. A
waste that would otherwise be listed for F003 but is excluded at the
point of generation due to being an aqueous alcohol would not be
considered ignitable hazardous waste. Wastes that are characteristic at
the point of generation and then are subsequently decharacterized are
still subject to LDR requirements (66 FR 27266, May 16, 2001).
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\5\ See comments by the American Chemical Council. EPA-HQ-OLEM-
0830-0166.
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With this proposed language, EPA had intended to clarify the
regulation. The public comments have instead suggested additional
interpretations and raised additional questions regarding the
definition of alcohol and the application of the mixture and derived
from rule to the proposed language. As a result, the Agency is not
finalizing this specific part of the proposed language.
4. Response to comments that other changes may be warranted. The
Agency requested comments on whether additional changes to the aqueous
alcohol exclusion may be warranted. One potential change suggested by
commenters was for the Agency to consider a lower limit on alcohol
concentrations eligible for exclusion. These comments are supported by
the rationale and supporting data that aqueous alcohols in a low enough
concentration will not flash below 60 [deg]C due to the alcoholic
component alone.\6\ The Agency agrees with the commenter that at very
low concentrations of alcohol, an aqueous alcohol will not flash due to
the alcohol alone. Implementing a lower limit to the aqueous alcohol
exclusion may work for simple wastes that only have two chemical
components but presents a challenge when any number of combinations of
alcohols and wastes are considered. Setting a lower limit for each and
every alcohol and their combinations would require further study by the
Agency.
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\6\ See comments from the Maryland Department of the
Environment. EPA-HQ-OLEM-2018-0830-0169.
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Commenters also suggested implementation of a sustained combustion
test for the aqueous alcohol exclusion. The Agency does not currently
require this by regulation. However, the Agency notes that the public
is already capable of utilizing
[[Page 40600]]
existing tests for sustained combustion as part of their generator
knowledge of the waste. A generator making a waste determination using
knowledge should be confident that their determination would agree with
testing requirements under 261.21(a) if tested. Generators can also
manage their waste in a more stringent manner.
Additionally, commenters suggested that the aqueous alcohol
exclusion should be modified to be more consistent with the original
intent of the exclusion, which was beverage alcohols and latex paints
that do not sustain combustion. The alcohol exclusion in 261.21(a)(1)
was originally an incorporation of the aqueous alcohol exclusion
already present in DOT regulations. Since 1980, the DOT has updated
their regulations while EPA has issued guidance on its own exclusion.
The DOT exclusion for aqueous alcohols does not apply if another
hazardous material is present.\7\ In some cases, the definition of an
aqueous alcohol in the DOT regulations may be narrower than the
definition of an aqueous alcohol in EPA's regulation that was intended
to mirror the DOT definition. A waste managed under the EPA defined
aqueous alcohol exclusion may bear other hazardous waste codes that
would not be excluded from ignitability and must be appropriately
managed when other hazardous materials are present. Alternatively,
wastes that meet EPA's definition of an aqueous alcohol under 40 CFR
261.21 but have additional requirements for packaging and handling in
order to be made ready for transportation may support more stringent
management. The Agency also notes that authorized state programs may be
more stringent or broader in scope on these determinations.
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\7\ See Summary of DOT Exemption of Alcoholic Beverages and
Aqueous Solutions of Alcohol. EPA-HQ-OLEM-2018-0830-0163.
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Other commenters suggested that if the Agency were to modify the
aqueous alcohol exclusion beyond the specific language proposed in this
rulemaking, then the Agency should first propose those changes and
provide another opportunity for the public to further comment. The
suggested changes by the public warrant further consideration due to
their scientific and technical merits. The aqueous alcohol exclusion
has applicability to a broad category of wastes and changes to the
definition of alcohol, the concentration of alcohol, or implementation
of testing requirements could result in unintended impacts to the scope
of the exclusion.
The Agency needs to further consider the scope and impacts of the
potential changes discussed in this section and is also interested in
the experience of authorized state programs that may be implementing
the exclusion in a different manner. Therefore, the Agency is not
making any changes at this time as a result of these comments. The
Agency agrees with the commenters that any other changes beyond EPA's
specific proposed language would warrant further discussion and public
input, and therefore is not finalizing any other changes based on
comments at this time, including replacing ``alcohol'' with ``any
alcohol or combination of alcohols'' in the regulatory text. Other than
finalizing EPA's proposed language of ``at least 50 percent water by
weight,'' the Agency intends to seek additional public input before
finalizing any other changes to the alcohol exclusions suggested by the
public in this rulemaking.
The Agency maintains that it is ultimately the responsibility of
the waste generator to make an accurate hazardous waste determination.
The flash point test method results of less than 60 [deg]C (140 [deg]F)
are definitive results for a waste determination. A generator must
determine whether their waste is eligible to be excluded from
ignitability as an aqueous alcohol. When making a determination for
eligibility as an aqueous alcohol, a generator should consider the
regulatory language itself as well as guidance that the agency has
provided in the past. The Agency has provided guidance in preamble to
allow for a broad range of alcohols to be eligible for exemption as an
aqueous alcohol (55 FR 22520, June 1, 1990). The Agency has also stated
through guidance that a solution of seventy seven percent water,
thirteen percent alcohol, and ten percent non-alcoholic liquid
component is eligible for exemption.\8\
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\8\ See July 1992 RCRA/Superfund/OUST/EPCRA Monthly Hotline
Report. EPA-HQ-OLEM-2018-0830-0037.
---------------------------------------------------------------------------
A generator must determine whether their waste is an aqueous
alcohol for the purpose of the aqueous alcohol exclusion based on
testing or knowledge of the waste and its properties (see 40 CFR
262.11). The Agency's existing guidances on waste analysis and sampling
may be helpful to generators in their waste determinations.\9\ The
Agency believes a good indicator for a generator that their waste is
eligible for exclusion as an aqueous alcohol is if their waste is
similar in nature to a beverage alcohol or to an aqueous latex paint.
The more a generator's waste diverges from being comparable to a
beverage alcohol or latex paint, the more carefully a generator should
consider whether the waste stream is eligible for exclusion. For
example, in cases where the aqueous liquid waste contains almost no
alcohol, EPA does not generally consider that waste to be an aqueous
alcohol. If a generator is unsure whether their specific waste is
eligible for exclusion as an aqueous alcohol, they should consult with
their appropriate regulatory agency to discuss the specific nature of
their waste. Additionally, state programs authorized to implement RCRA
may be broader in scope or more stringent in implementation of
ignitable liquids and aqueous alcohol wastes excluded from
ignitability.
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\9\ Waste Analysis at Facilities that Generate, Treat, Store and
Dispose of Hazardous Wastes--Final, EPA 530-R-12-001, April 2015.
RCRA Waste Sampling Draft Technical Guidance, EPA 530-D-02-002,
August 2002.
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E. Sampling of Multiple Phase Wastes
1. Summary of the public comments. The Agency's proposal to codify
existing guidance on sampling multiple phase wastes received mixed
comments, with some commenters supporting and others opposing the
proposal. One commenter stated support for separating phases before
analyzing as laboratories already appear to be following this
procedure. Another commenter stated that separating phases is
appropriate and that doing otherwise would provide inconsistent
results. However, that commenter stated that the Agency needs to
provide sufficient guidance on how to determine if a waste contains
multiple phases and is therefore subject to analysis of both phases.
The commenter stated, ``It is not clear how much separation must occur
in a waste for it to be considered ``multi-phase,'' and whether the
waste must be capable of achieving such separation on its own, without
additional processes. Wastes such as stable emulsions, or small amounts
of liquids contained within a solid would not likely separate on their
own through normal management practices and handling time.'' \10\
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\10\ See comments from the American Petroleum Institute. EPA-HQ-
OLEM-2018-0830-0168.
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Other commenters opposed the proposal to require sampling of each
phase of a multiple phase waste, insisting that EPA's proposed approach
is too rigid and current guidance allows for more flexibility in
sampling. The comments stated, ``For example, the Agency's guidance
merely suggests these actions for particular types of mixtures, not all
existing and possible mixtures. EPA's proposal presumes that since
guidance has suggested both phases be separated and tested
[[Page 40601]]
separately under some circumstances, that a requirement to do so for
all mixtures would be more beneficial and would comport with all
existing and future scientific standards.'' \11\ A second commenter
expressed similar concerns that the Agency proposal should not be
interpreted as requiring all phases to be tested and provided examples
of wastes that were identifiable by analysis of a single phase or
through knowledge of the waste and identified practical limitations of
testing certain wastes.\12\ A third commenter suggested alternative
regulatory language for multiple phase mixtures and asked the Agency to
clarify in the preamble that all three sampling approaches listed in
SW-846 Chapter 2 (Section 2.3.1.5) are allowed. The commenter expressed
concern that the proposed regulatory language and the Agency preamble
language were less flexible than existing Agency guidance.\13\
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\11\ See comments from the American Chemistry Council. EPA-HQ-
OLEM-2081-0839-0166.
\12\ See comments from the Environmental Technology Council.
EPA-HQ-OLEM-2018-0830-0170.
\13\ See comments from the Coalition for Responsible Waste
Incineration. EPA-HQ-OLEM-2018-0830-0172.
---------------------------------------------------------------------------
One commenter expressed concern that the proposal was not clear on
whether a multiple phase waste is the same as mixtures of solid and
hazardous waste under the hazardous waste ``mixture rule'' in 40 CFR
261.3(a)(2)(iv). The commenter also raised concern that the preamble
indicated that 40 CFR 261.21 only applied to wastes that separate on
their own and did not apply to wastes that can be separated by the
generator, for example, by filtration. The comment also raised concerns
that the proposal brought into regulation discarded manufactured
articles (e.g., a few drops of lubricating liquid in a small mechanical
device) that are primarily non-ignitable solids containing small
amounts of ignitable liquids. The commenter stated that these discarded
manufactured articles do not meet the EPA definition of a liquid for
ignitable liquids (e.g., through analysis with the Paint Filter Liquids
Test.\14\)
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\14\ See comments from the Retail Association. EPA-HQ-OLEM-2018-
0830-0175.
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An additional concern from the public questioned whether the
alcohol exclusion as written in 40 CFR 261.21(a)(1) was included within
the proposed regulatory language of 261.21(a)(5). That is, the
regulatory language of 261.21(a)(5) referenced flash point requirements
from 261.21(a)(1) but did not clarify whether the aqueous alcohol
exclusion applied.\15\
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\15\ See comments from the Coalition for Responsible Waste
Incineration. EPA-HQ-OLEM-2018-0830-0172.
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2. Provisions in the final rule. After consideration of the public
comments, EPA is not finalizing the proposed language for 40 CFR Sec.
261.21(a)(5) as part of today's final action because it created more
confusion, which was the opposite of the Agency's intent. The Agency
agrees that some of the issues described by commenters may not be
clearly addressed in the specific regulatory text proposed for multiple
phase sampling. Therefore, the Agency is instead reiterating and
clarifying in preamble the existing Agency guidance for hazardous waste
determinations of ignitable liquids with multiple phases.
A generator of a waste should consider the individual liquid phases
of a multiple phase waste under the criteria in 40 CFR Sec.
261.21(a)(1) and non-liquid phases of a multiple phase waste under the
criteria of 40 CFR Sec. 261.21(a)(2) when those liquid or solid phases
are representative samples of the waste as a whole. A ``representative
sample'' is defined by regulation (40 CFR 260.10) as ``a sample of a
universe or whole (e.g., waste pile, lagoon, ground water) which can be
expected to exhibit the average properties of the universe or whole.''
When determining whether a waste contains multiple phases, the
generator should consider the waste's physical properties during its
likely management. For example, if a waste is generated as one phase
but based on the generator's knowledge of the waste is likely to
separate from one to two or more liquid phases during management (e.g.,
while stored or during transport), the generator is ultimately
responsible for identifying the characteristics of the waste at the
point of generation and also through the normal management of the
waste. Alternatively, some wastes would not normally separate into
multiple phases during management. In these cases, a generator might
not find it necessary to take measures to separate the waste even if
the waste could separate under certain conditions (e.g., changes in
temperature, pressure, or composition) provided these conditions are
unlikely to occur during normal management of the waste. Generators
must consider testing and/or knowledge of individual phases of multiple
phase wastes when any individual phase likely exhibits the ignitable
characteristic and therefore may cause the entire waste to pose a risk
of fire during treatment, storage, and/or disposal. This is consistent
with the fundamental obligation for generators to accurately determine
whether a waste is hazardous under RCRA (as required in 262.11).
The Agency's existing guidance on sampling and responses to
questions and comments from the public are discussed below.
3. Response to comments on sampling and analysis.
The Agency agrees with the public commenters who indicated that
current practices in analytical laboratories are to separate the phases
of multiple phase wastes and analyze each phase separately. The Agency
believes the measurement of the flash point of multiple phase mixtures
within a flash point apparatus would present significant analytical
challenges. In responding within this section to the more specific
comments and concerns raised by public comment, the Agency is providing
guidance on identification of hazardous waste exhibiting the
ignitability characteristic. This guidance may need further
consideration before application to other characteristic or listed
waste streams.
Two concerns raised by the public were that the Agency needs to
provide sufficient guidance on how to determine if a waste contains
multiple phases and when separation of a multiple phase waste is
necessary. When determining if a waste contains multiple phases, a
generator has to consider the properties of the waste as generated and
the properties of the waste under the conditions that it is likely to
encounter during normal management (e.g., during initial accumulation,
storage, transport, treatment and disposal). A generator should also
consider the Paint Filter Liquids Test to be the minimum requirement
for determining whether a solid phase waste contains a liquid
phase.\16\ Therefore, a generator should consider their waste to be a
multiple phase waste if at any time during the generation or likely
management of the waste, a portion is determined by the generator to
meet the definition of a liquid (e.g., as determined visually, by the
Paint Filter Liquids Test, or through generator knowledge) and also has
another phase consisting of a solid or a liquid.\17\ This includes
instances when
[[Page 40602]]
waste may be generated in stratified layers, and multiple samples may
need to be collected using test methods such as COLIWASA.\18\
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\16\ A generator may also determine through knowledge that their
waste is a liquid or contains a liquid phase. The Agency would also
encourage the use of other tests such as the Pressure Filtration
Procedure within SW-846 Method 1311 if the generator determines the
liquid resulting from pressure filtration more accurately represents
their waste.
\17\ The Agency considers it unlikely that a generator would be
able to separate a non-liquid waste from a second non-liquid waste
but does not prohibit a generator from doing so if it is possible
and appropriate for their waste management.
\18\ See SW-846 Chapter 9. EPA-HQ-OLEM-2018-0830-0162.
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The second concern from the commenter relates to when a waste must
be separated once a generator has made a determination that their waste
consists of multiple phases. The Agency notes that in the waste
identification process, the generator of a waste can rely on testing or
knowledge of a waste and does not have to test or separate their waste
if knowledge of the waste results in an accurate waste determination.
For example, a generator may determine one phase of a waste is
hazardous and manage the entire waste as hazardous without additional
testing of a second phase. A generator may also conduct no testing when
there is sufficient knowledge of the properties of the waste to make a
hazardous waste identification. A generator is not required to separate
all wastes as a normal part of waste management. The Agency had
intended separating in the proposed regulatory language to mean that
the generator would be subsampling a multiple phase waste so that each
phase was analyzed separately in a flash point apparatus. The testing
of a waste requires a sample representative of the hazards of the
waste. A ``representative sample'' is defined by regulation (40 CFR
260.10) as ``a sample of a universe or whole (e.g., waste pile, lagoon,
ground water) which can be expected to exhibit the average properties
of the universe or whole.'' For ignitable liquids, the hazard is
exhibited by the vapor phase generated from the ignitable liquid. In
the context of ignitable liquids, a sample of a waste that generates a
vapor phase consistent with the vapor phase generated by the waste on
average would be considered representative of the waste as a whole.
In determining when to separate (or subsample) wastes, a generator
must consider what sampling strategy will result in a representative
sample or will result in knowledge of the potential hazards exhibited
by a representative sample. In some cases, the individual liquid phases
of a multiple phase waste will be in equilibrium with each other and
will resultingly have the same vapor phase. In this case a generator
could sample either phase and obtain the same flash point value. This
scenario is supported by public comments explaining that sampling and
analysis of the organic phase is often sufficient for identification of
a multiple phase waste containing organic and aqueous phases.\19\
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\19\ See comments from the Environmental Technology Council.
EPA-HQ-OLEM-2018-0830-170.
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In other cases, the multiple phases of a waste will not be at
equilibrium during management of the waste. This presents an analytical
challenge as multiple phase wastes cannot readily be analyzed in a
flash point apparatus without separating the phases and analyzing each
phase separately. A generator who has separated each phase for analysis
must then determine whether that phase is representative of the waste
as a whole. Attempting to average (or predict) the vapor phases
generated by multiple phases of a chemically complex waste through
analysis of individual phases may present a significant challenge in
some instances. In situations where a generator has determined that a
single phase of a multiple phase waste is not representative of the
waste as a whole, the generator should use the results of testing a
single phase as part of the knowledge of the waste even though testing
of an individual phase alone is not necessarily conclusive for making
their hazardous waste determination.
The Agency also agrees with the commenters that a subset of
mixtures should not or do not always require separation for analysis of
each phase. One example is mixtures with a low concentration of a
highly volatile, ignitable constituent. The process of separating
phases using the Paint Filter Liquids Test may allow the volatile
constituents to evaporate and alter the flash point test result. The
Agency considers wastes that lose a significant portion of volatile
constituents during filtration with the Paint Filter Liquids Test to
not be separable by this test method.
A commenter suggested that the guidance within Chapter 2 of SW-846
allows for broad discretion in choosing to sample one or multiple
phases of a multiple phase sample and asked the Agency to better
explain the applicability of this guidance to ignitable liquids.\20\
Section 2.3.1.5 Multiphase Samples of Chapter 2 provides three
approaches that are applicable to analyzing a sample for the total
concentration of a constituent where the waste exists in multiple
phases.
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\20\ See comment from the Coalition for Responsible Waste
Incineration. EPA-HQ-OLEM-2018-0830-0172.
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The first of three approaches in Section 2.3.1.5 states, ``With a
sample in which some of the phases tend to separate rapidly, the
percent weight or volume of each phase should be calculated, and each
phase should be individually analyzed for the required analytes.'' The
Agency considers that when a generator of a waste has multiple phases
that separate rapidly, analysis of each phase may be appropriate (or,
alternatively, may not be necessary if generator knowledge is
sufficient to characterize the waste). The analysis of each phase
provides an accurate analysis of the potential hazards of the vapor
phase generated by that liquid phase. However, the guidance to measure
the weight or volume of each phase has limited applicability to
determining a flash point or identifying an ignitability hazard. A
flash point measurement depends upon the concentration of ignitable
constituents in the vapor phase above a waste. The concentration of
constituents in the vapor phase is not necessarily linear with the
concentration of ignitables in the multiple liquid or solid phases.
Ultimately, the determination made by the generator must consider
whether the sample is representative of a waste and what hazards are
exhibited by the waste.
The second of three approaches in Section 2.3.1.5 states, ``An
alternate approach is to obtain a homogeneous sample and attempt a
single analysis on the combination of phases. This approach will give
no information on the abundance of the analytes in the individual
phases other than what can be implied by solubility.'' The Agency
believes this may have some limited applicability with the use of
Pensky-Martens testing of non-filterable suspended solids in liquids.
If the waste has a more substantial second phase than nonfilterable
solids, the Agency questions how a multiple phase sample can be
homogenized and maintained as one phase inside the flash point
apparatus unless the long term behavior of the waste were to be a one
phase waste. The Agency is concerned this approach would yield highly
inconsistent results due to the analytical challenges of measuring the
flash point of a sample inside a flash point apparatus that would need
to equilibrate multiple liquid or solid phases with the vapor phase at
various temperatures. The Agency has also explained in the past that if
a waste contains filterable solids, then the solids and liquids must be
separated and then analyzed against the respective criteria for
ignitable solids and ignitable liquids.\21\
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\21\ See Letter to Mr. Nebrich. EPA-HQ-OLEM-2018-0830-0011.
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[[Page 40603]]
The third approach in Section 2.3.1.5 states, ``A third alternative
is to select phases of interest and to analyze only those selected
phases. This tactic must be consistent with the sampling/analysis
objectives or it will yield insufficient information for the time and
resources expended. The phases selected should be compared with Figure
21 and Table 241[in SW-846 Chapter 2] for further guidance.'' The
Agency generally agrees with this approach when combined with generator
knowledge of the waste. For example, a generator may make a
determination through knowledge that an aqueous phase does not exhibit
ignitability but rely on flash point testing to determine whether an
organic phase of the same waste exhibits ignitability.
Therefore, EPA believes that the sampling approaches outlined in
Section 2.3.1.5, while providing useful guidance in certain
circumstances, have limitations, as described. Ultimately, the sampling
approach should be designed to obtain a representative sample of a
waste or to provide additional knowledge of the waste when an
individual sample does not wholly represent the hazards of a waste.
The same commenter also raised concerns over what the Agency
considered to be a separated waste and whether a separation must occur
by the waste itself or whether a generator must attempt to force
separation. This concern included the potential application of the
ignitable liquids criteria to manufactured articles containing minute
amounts of ignitable liquid. The commenter indicated that the waste
would not yield a liquid when tested with the Paint Filter Liquids
Test. The Agency does not consider the public comment to be
sufficiently detailed to make a broad hazardous waste determination for
all manufactured articles containing small amounts of liquid. In this
scenario, if a generator has determined that their waste yields no
liquid when subject to the Paint Filter Liquids Test, then that waste
is likely not subject to the ignitable liquids regulation.
In some limited situations, a waste may present as a liquid in
nature but not pass through a paint filter due to viscosity or due to
oversized particulates preventing flow through pores. In these
situations, the Agency recommends that the generator consider the
possibility to decant, pipette, or use other physical means to collect
a sample. Additionally, a generator would also be required to consider
the identification of ignitable non-liquids under 261.21(a)(2) when
materials are not determined to be a liquid via the Paint Filter
Liquids Test. The Agency recommends that the generator also carefully
consider the conditions under which their waste is likely to be managed
and any other characteristics or listings that may apply.
Taking into account the confusion caused by the Agency's proposal
to codify existing guidance for multiple phase mixtures into
regulation, the Agency has decided not to finalize the proposed
language for 40 CFR 261.21(a)(5) at this time. The discussion in this
preamble clarifies the Agency's position regarding testing of multiple
phases of a waste. Individual phases of a multiple phase waste that
exhibit ignitability and are representative of the multiple phase waste
are subject to evaluation under the criteria in 40 CFR 261.21(a)(1) or
40 CFR 261.21(a)(2). Generators of multiple phases wastes where either
phase is identified as exhibiting the characteristic of ignitability
would be required to manage the entire waste as hazardous waste. A
sample from a multiple phase waste that is not representative of the
waste as a whole is not always conclusive for a waste identification.
The Agency notes that 40 CFR 261.21(a) identifies waste based on the
properties of a representative sample and that generators of a waste
remain able to complete a waste identification through testing or
knowledge. Testing of a waste may or may not require analysis of all
phases to complete a hazardous waste determination.
F. Pressure Filtration and Ignitable Liquids
In the proposed rule, EPA requested comment on whether the Agency
should revisit adding language to Chapter 7 of SW-846 as guidance
regarding the use of the Pressure Filtration Technique (PFT) specified
in Method 1311 for assessing the presence of an ignitable liquid for
wastes that do not yield a free liquid phase using Method 9095 (i.e.,
Paint Filter Liquids Test or PFLT). Currently, generators may rely on
the Paint Filter Liquids Test if they are separating a liquid from a
solid for subsequent analysis. A generator may also be aware that a
waste contains multiple phases through knowledge, testing, or visual
observation. In these cases, a generator may sample individual phases
without having to apply the Paint Filter Liquids Test. For example, a
generator may be able to pipette, decant, pump, or use a COLIWASA
apparatus to obtain a representative sample of the phase(s).
Several commenters raised concerns that the application of the
Pressure Filtration Technique would be inconsistent with the Agency's
rulemaking in 2013 that promulgated exclusions from solid and hazardous
waste for solvent-contaminated wipes (see 78 FR 46448). Commenters also
suggested that because the 2013 rulemaking provided guidance to use the
Paint Filter Liquids Test for no free liquids, the 2013 rulemaking
guidance would take precedence over any new guidance.
The Agency notes that the 2013 final rule for solvent-contaminated
wipes provided guidance in preamble that generators should use the
Paint Filter Test to determine no free liquids for solvent contaminated
wipes under the finalized exclusions. The Agency considered whether a
list of solvent extraction technologies might be more appropriate than
a test to determine no free liquids and also considered the multiple
tests state agencies were already using to verify compliance with the
``no free liquids'' conditions. The Agency was aware that the majority
of the state agencies required the Paint Filter Liquids Tests and
clarified that for the 2013 rulemaking, ``EPA is using the Paint Filter
Liquids Test for determining whether solvent-contaminated wipes contain
free liquids.'' The Agency also noted that authorized state programs
are able to define ``no free liquids'' differently provided they are no
less stringent. The Agency provided this guidance via rulemaking within
the scope of solvent-contaminated wipes eligible for exclusion under
261.4(a)(26) or 261.4(b)(18).
The universe of ignitable liquids wastes is broader than the
universe of solvent-contaminated wipes. The Agency expects some wastes
are better represented by the pressure filtration procedure within EPA
Method 1311 or by other analysis and requested comment regarding the
use of Pressure Filtration Technique and Paint Filter Liquids Test
since it was interested in learning from the experiences of the
generators and regulators who have been identifying ignitable hazardous
waste under the existing program. However, for most wastes that are not
readily apparent to be a liquid through observation, the Agency
believes the Paint Filter Liquids Test is an appropriate analysis. As
noted by other commenters, the Agency clarified in 1995 that the Paint
Filter Liquids Test is the minimum testing requirement to determine
that a waste has no free liquids.\22\ Commenters also noted that
[[Page 40604]]
some wastes may present difficulties in being pressure filtered, such
as liquid wastes with fine particles that prevent filtering or other
hard to manage wastes.\23\ Wastes that readily flow and take the shape
of their container may not readily filter but may still be identified
as ignitable liquids. The Agency is taking no final action specific to
the application of the Pressure Filtration Procedure in this
rulemaking.
---------------------------------------------------------------------------
\22\ See Letter from David Brussard. EPA-HQ-OLEM-0830-0039.
\23\ See comments by the Environmental Technology Council. EPA-
HQ-OLEM-2018-0830-0170
---------------------------------------------------------------------------
G. Additional Conforming Amendments
The Agency has become aware that several additional conforming
amendments to the regulations in Parts 63, 260, and 278 are necessary.
Consistent with the other conforming amendments that EPA had proposed
and is finalizing today, EPA is also finalizing these additional
conforming amendments.
1. 40 CFR 63. Part 63 incorporates Method 0023A by reference in 40
CFR 63.14 and 40 CFR 63.1208. As the Agency has updated Method 0023A to
allow for alternatives to mercury thermometer usage in this rule,
failing to update the reference in Part 63 would require the continued
use of mercury thermometers when using Method 0023A to meet testing
requirements in Part 63.
2. 40 CFR 260.11. EPA is making non-substantive amendments to the
centralized incorporated by reference section in part 260 for
conformity with 1 CFR 51. EPA is revising part 260 such that the test
methods identified in 40 CFR 260.11 are listed alphabetically and
numerically and the language explaining incorporation by reference in
40 CFR 260.11(a) is updated to meet current style and formatting
requirements of the Federal Register.
3. 40 CFR 278. Additionally, the incorporation by reference of
Method 1312 into the regulations at 40 CFR 278.3(b)(1) should now be
located in 40 CFR 260.11 to meet style and formatting requirements of
the Federal Register.
IV. Incorporation by Reference
The Methods Innovation Rule, which was finalized on June 14, 2005,
revised 40 CFR 260.11 to remove the incorporation by reference of all
SW-846 test methods except those SW-846 test methods that are also
regulatory required method-defined parameters under the RCRA
regulations and thus, can only be amended through a regulatory
effort.\24\
---------------------------------------------------------------------------
\24\ It is important to note that while a test method listed in
Sec. 260.11 is a method-defined parameter, that test method also
may be used for non-mandatory purposes. For example, the Pensky-
Martens method described in Method 1010A could also be used as part
of quality control to test a product for purity, which is unrelated
to Sec. 261.21 and, otherwise, not required under RCRA. In this
case, the test method would not be a method-defined parameter. In
order to be a method-defined parameter, a test method must be part
of a regulatory requirement under RCRA.
---------------------------------------------------------------------------
The Agency is incorporating by reference SW-846 Method 1010B, SW-
846 Method 1020C, ASTM D8174-18, ASTM D8175-18, and ASTM E681-85 into
Sec. 261.21 and as applicable into Appendix IX to part 261. SW-846
Method 1010B and SW-846 Method 1020C list the required methods to
determine flashpoint for ignitable hazardous waste. SW-846 Method 1010B
lists the Pensky-Martens flash point methods, which are ASTM Standards
D93-79, D93-80, and D8175-18. SW-846 Method 1020C lists the Setaflash
(small-scale) closed cup flash point methods, which are the ASTM
Standards D3278-78 and D8174-18. ASTM D8174-18 is a test method to
determine the flash point of liquid wastes using a small-scale
(Setaflash) apparatus. ASTM D8175-18 is a test method used to determine
the flash point of liquid wastes using a Pensky-Martens apparatus. ASTM
E681-85 is a test method used to determine the upper and lower
concentration limits of flammability for chemicals having sufficient
vapor pressure to form flammable mixtures with air.
The Agency is also incorporating by reference SW-846 Test Methods
0010, 0011, 0020, 0023A, and 0051. SW-846 Method 0010 is a sampling
method for collection of gaseous and particulate pollutants from an
emission source. SW-846 Method 0011 is a method for collection of
selected ketones and aldehydes from an emission source. SW-846 Method
0020 is a method to collect gaseous and particulate pollutants from an
emission source and into a multicomponent sampling train. SW-846 Method
0023A is a method for collection of polychlorinated dibenzo-p-dioxins
and polychlorinated dibenzofuran from an emission source. SW-846 Method
0051 is a method for collection of hydrogen chloride and chlorine in
stack gas emission samples from hazardous waste incinerators and
combustors. The Agency is incorporating by reference Method 0010 into
Sec. 260.11(c)(3)(i), Appendix IX to part 261, and Appendix IX to part
266. The Agency is incorporating by reference Method 0011 into Sec.
260.11(c)(3)(viii), Appendix IX to part 261, and Appendix IX to part
266. The Agency is incorporating by reference Method 0020 into Sec.
260.11(c)(3)(ii) and Appendix IX to part 261. The Agency is
incorporating by reference Method 0023A into Sec. 260.11(c)(3)(ix),
Appendix IX to part 261, and Appendix IX to part 266. The Agency is
incorporating by reference Method 0051 into Sec. 260.11(c)(3)(xiii),
Appendix IX to part 261, Sec. 266.107(f), and Appendix IX to part 266.
The finalization of the proposed incorporation by reference of the
above test methods is as described in the proposed rule and as
discussed in Section III above.
The ASTM standards incorporated by reference are available for
purchase from ASTM International, 100 Barr Harbor Drive, P.O. Box C700,
West Conshohocken, PA 19428-2959, www.astm.org, call 877-909-2786. The
SW-846 Test Methods incorporated by reference are published in the test
methods compendium known as ``Test Methods for Evaluating Solid Waste,
Physical/Chemical Methods,'' EPA Publication SW-846, Third Edition,
which can be found at https://www.epa.gov/hw-sw846.
V. State Authorization
A. Applicability of Final Rule in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified states to
administer and enforce the RCRA hazardous waste program within the
state. Following authorization, EPA retains enforcement authority under
sections 3008, 3013, and 7003 of RCRA, although authorized states have
primary enforcement responsibility. The standards and requirements for
state authorization are found at 40 CFR part 271. Prior to enactment of
the Hazardous and Solid Waste Amendments of 1984 (HSWA), a state with
final RCRA authorization administered its hazardous waste program
entirely in lieu of EPA administering the federal program in that
state. The federal requirements no longer applied in the authorized
state, and EPA could not issue permits for any facilities in that
state, since only the state was authorized to issue RCRA permits. When
EPA promulgated new, more stringent federal requirements for these pre-
HSWA regulations, the state was obligated to enact equivalent
authorities within specified time frames. However, the new federal
requirements did not take effect in an authorized state, until the
state adopted the federal requirements as state law. In contrast, under
RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new
requirements and prohibitions imposed under HSWA authority take effect
in authorized states at the same
[[Page 40605]]
time that they take effect in unauthorized states. EPA is directed by
the statute to implement these requirements and prohibitions in
authorized states, including the issuance of permits, until the state
is granted authorization to do so. While states must still adopt HSWA
related provisions as state law to retain final authorization, EPA
implements the HSWA provisions in authorized states until the states do
so.
Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than existing federal requirements.\25\ RCRA section 3009 allows
the states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
---------------------------------------------------------------------------
\25\ EPA notes that decisions regarding whether a state rule is
more stringent or broader in scope than the federal program are made
when the Agency authorizes a state program for a particular rule.
---------------------------------------------------------------------------
B. Effect on State Authorization
Today's notice finalizes regulations that would not be promulgated
under the authority of HSWA. Thus, the standards would be applicable on
the effective date only in those states that do not have final
authorization of their base RCRA programs. Moreover, authorized states
are required to modify their programs only when EPA promulgates federal
regulations that are more stringent or broader in scope than the
authorized state regulations. For those changes that are less
stringent, states are not required to modify their programs. This is a
result of section 3009 of RCRA, which allows states to impose more
stringent regulations than the federal program.
The revisions to these test methods are considered to be neither
more nor less stringent than the existing test methods. Thus,
authorized states may, but are not required to, adopt these changes.
VI. Statutory and Executive Order (E.O.) Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review under Executive Orders 12866 (58 FR 51735, October 4, 1993)
and 13563 (76 FR 3821, January 21, 2011).
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is a deregulatory action as specified in Executive
Order 13771 (82 FR 9339, February 3, 2017). Details on the estimated
cost savings of the final rule can be found in EPA's Regulatory Impact
Analysis of the Modernization of Ignitable Liquid Determination Rule,
which is in the docket.
C. Paperwork Reduction Act (PRA)
According to PRA, 44 U.S.C. 3501 et seq., an agency may not conduct
or sponsor, and a person is not required to respond to a collection of
information that requires OMB approval under the PRA, unless it has
been approved by OMB and displays a currently valid OMB control number.
The OMB control numbers for EPA's regulations in Title 40 of the CFR,
after appearing in the Federal Register, are listed in 40 CFR part 9,
and included on the related collection instrument, or form, as
applicable. This action does not impose any burden requiring additional
OMB approval because it neither imposes new paperwork requirements nor
amends existing paperwork requirements. Burden is defined in 5 CFR
1320.3(b). OMB previously approved the information collection
activities contained in the existing regulations and assigned OMB
control numbers 2050-0053 and 2050-0073.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA, 5
U.S.C. 601 et seq. In making this determination, the impact of concern
is any significant adverse economic impact on small entities. An agency
may certify that a rule will not have a significant economic impact on
a substantial number of small entities if the rule relieves regulatory
burden, has no net burden or otherwise has a positive economic effect
on the small entities subject to the rule. As documented in the
Regulatory Impact Analysis of the Modernization of Ignitable Liquid
Determinations Rule found in the docket for this final rule, EPA does
not expect the rule to result in an adverse impact to a significant
number of small entities. For commercial labs, the analysis presented
in Chapter 3 indicates either no change in costs or a cost savings, due
to the flexibility afforded by the rule. Therefore, out of the 128
firms defined as small under the Small Business Administration size
standards, no firms have costs greater than one percent of annual
revenues. EPA has therefore concluded that this action will either
relieve regulatory burden or have no net regulatory burden for all
directly regulated small entities.
E. Unfunded Mandates Reform Act (UMRA)
As documented in the Regulatory Impact Analysis of the
Modernization of Ignitable Liquid Determinations Rule found in the
docket for the final rule, this action does not contain an unfunded
mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-
1538, and does not significantly or uniquely affect small governments.
F. Executive Order 13132: Federalism
This action does not have ``federalism implications'' as that term
is defined in Executive Order 13132 (64 FR 43255, August 10, 1999). It
will not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. The final rule is not expected to result in any
adverse impacts on tribal entities. Thus, Executive Order 13175 does
not apply to this rule.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
[[Page 40606]]
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This action involves technical standards. EPA is adopting the use
of ASTM D8175-18 and ASTM D8174-18. These test methods were adopted by
ASTM in March 2018. These standards are available for purchase from
ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West
Conshohocken, PA 19428-2959. EPA worked with ASTM to specifically
develop these consensus-based standards to better suit waste testing by
modifying existing ASTM standards. EPA worked with a member of the ASTM
D02.08 Subcommittee (who also represents Stanhope-Seta) to modify
existing ASTM methods D93-16 and D3828-16a, which were developed by the
ASTM D02.08 Subcommittee. These new draft test methods were then
submitted to ASTM's review process and were approved by the ASTM D34
Committee to become new ASTM test methods.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
final rule modernizes testing and codifies guidance for the
characterization of ignitable hazardous waste; it does not affect the
disposal of such waste. Therefore, the final rule is not expected to
result in any adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects
40 CFR Part 63
Environmental protection, Incorporation by reference.
40 CFR Part 260
Environmental protection, Hazardous waste, Incorporation by
reference.
40 CFR Part 261
Environmental protection, Hazardous waste, Incorporation by
reference, Recycling.
40 CFR 278
Environmental protection, Incorporation by reference.
Andrew Wheeler,
Administrator.
For the reasons set forth in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Amend Sec. 63.14 by revising the paragraph (a) and paragraph
(q)(2)(i) to read as follows:
Sec. 63.14 Incorporations by reference.
(a) The materials listed in this section are incorporated by
reference into this part with the approval of the Director of the
Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce
any edition other than that specified in this section, a document must
be published in the Federal Register and the material must be available
to the public. All approved materials are available for inspection at
the Air and Radiation Docket and Information Center (Air Docket) in the
EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301
Constitution Ave. NW, Washington, DC. The EPA/DC Public Reading Room
hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number of the EPA/DC Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742. These approved materials are also available
for inspection at the National Archives and Records Administration
(NARA). For information on the availability of this material at NARA,
email [email protected] or go to www.archives.gov/federal-register/cfr/ibr-locations.html. In addition, these materials are available from
the following sources:
* * * * *
(q) * * *
(2) * * *
(i) Method 0023A, ``Sampling Method for Polychlorinated Dibenzo-p-
Dioxins and Polychlorinated Dibenzofuran Emissions from Stationary
Sources,'' Revision 2, dated August 2018, IBR approved for Sec.
63.1208(b).
* * * * *
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
3. The authority citation for part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934,
6935, 6937, 6938, 6939, and 6974.
0
4. Revise Sec. 260.11 to read as follows:
Sec. 260.11 Incorporation by reference.
When used in parts 260 through 268 of this chapter, the following
materials are incorporated by reference with the approval of the
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part
51. All approved materials are available for inspection at the OLEM
Docket in the Environmental Protection Agency Docket Center (EPA/DC),
West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave.
NW, Washington, DC. The EPA/DC Public Reading Room hours of operation
are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number of the EPA/DC Public Reading room is
(202) 566-1744, and the telephone number for the OLEM Docket is (202)
566-0270. These approved materials are also available for inspection at
the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email
[email protected] or go to www.archives.gov/federal-register/cfr/ibr-locations.html. In addition, these materials are available from the
following sources:
(a) American Petroleum Institute (API). 1220 L Street Northwest,
Washington, DC 20005, (855) 999-9870, www.api.org.
(1) API Publication 2517, Third Edition, February 1989,
``Evaporative Loss from External Floating-Roof Tanks,'' IBR approved
for Sec. 265.1084.
(2) [Reserved]
(b) ASTM International (ASTM). 100 Barr Harbor Drive, P.O. Box
C700, West Conshohocken, PA 19428-2959, (877) 909-ASTM, www.astm.org.
(1) ASTM D93-79, ``Standard Test Methods for Flash Point by Pensky-
Martens Closed Cup Tester,'' IBR approved for Sec. 261.21(a).
(2) ASTM D93-80, ``Standard Test Methods for Flash Point by Pensky-
Martens Closed Cup Tester,'' IBR approved for Sec. 261.21(a).
[[Page 40607]]
(3) ASTM D1946-82, ``Standard Method for Analysis of Reformed Gas
by Gas Chromatography,'' IBR approved for Sec. Sec. 264.1033 and
265.1033.
(4) ASTM D2267-88, ``Standard Test Method for Aromatics in Light
Naphthas and Aviation Gasolines by Gas Chromatography,'' IBR approved
for Sec. 264.1063.
(5) ASTM D2382-83, ``Standard Test Method for Heat of Combustion of
Hydrocarbon Fuels by Bomb Calorimeter (High-Precision Method),'' IBR
approved for Sec. Sec. 264.1033 and 265.1033.
(6) ASTM D2879-92, ``Standard Test Method for Vapor Pressure--
Temperature Relationship and Initial Decomposition Temperature of
Liquids by Isoteniscope,'' IBR approved for Sec. 265.1084.
(7) ASTM D3278-78, ``Standard Test Methods for Flash Point for
Liquids by Setaflash Closed Tester,'' IBR approved for Sec. 261.21(a).
(8) ASTM D8174-18 ``Standard Test Method for Finite Flash Point
Determination of Liquid Wastes by Small Scale Closed Cup Tester.''
Approved March 15, 2018, IBR approved for Sec. 261.21(a).
(9) ASTM D8175-18 ``Standard Test Method for Finite Flash Point
Determination of Liquid Wastes by Pensky-Martens Closed Cup Tester.''
Approved March 15, 2018, IBR approved for Sec. 261.21(a).
(10) ASTM E168-88, ``Standard Practices for General Techniques of
Infrared Quantitative Analysis,'' IBR approved for Sec. 264.1063.
(11) ASTM E169-87, ``Standard Practices for General Techniques of
Ultraviolet-Visible Quantitative Analysis,'' IBR approved for Sec.
264.1063.
(12) ASTM E260-85, ``Standard Practice for Packed Column Gas
Chromatography,'' IBR approved for Sec. 264.1063.
(13) ASTM E681-85 ``Standard Test Method for Concentration Limits
of Flammability of Chemicals (Vapors and gases),'' Approved November
14, 1985, IBR approved for Sec. 261.21(a).
(c) Environmental Protection Agency (EPA). Material cited in
paragraphs (d)(1) through (3) is available from: National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161; the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, (202) 512-1800; EPA's National Service Center for
Environmental Publications at https://www.epa.gov/nscep. Material cited
in paragraph (d)(4) of this section is available at https://www.epa.gov/hw-sw846.
(1) ``APTI Course 415: Control of Gaseous Emissions,'' EPA
Publication EPA-450/2-81-005, December 1981, IBR approved for
Sec. Sec. 264.1035 and 265.1035.
(2) Method 1664, n-Hexane Extractable Material (HEM; Oil and
Grease) and Silica Gel Treated n-Hexane Extractable Material SGT-HEM;
Non-polar Material) by Extraction and Gravimetry:
(i) Revision A, EPA-821-R-98-002, February 1999, IBR approved for
appendix IX to part 261.
(ii) Revision B, EPA-821-R-10-001, February 2010, IBR approved for
appendix IX to part 261.
(3) ``Screening Procedures for Estimating the Air Quality Impact of
Stationary Sources, Revised'', October 1992, EPA Publication No. EPA-
450/R-92-019, IBR approved for appendix IX to part 266.
(4) The following methods as published in the test methods
compendium known as ``Test Methods for Evaluating Solid Waste,
Physical/Chemical Methods,'' EPA Publication SW-846, Third Edition.
(i) Method 0010, Modified Method 5 Sampling Train, Revision 1,
dated August 2018, IBR approved for appendix IX to part 261.
(ii) Method 0011, Sampling for Selected Aldehyde and Ketone
Emissions from Stationary Sources, Revision 1, dated August 2018, IBR
approved for appendix IX to part 261 and appendix IX to part 266
(iii) Method 0020, Source Assessment Sampling System (SASS),
Revision 1, dated August 2018, IBR approved for appendix IX to part
261.
(iv) Method 0023A, Sampling Method for Polychlorinated Dibenzo-p-
Dioxins and Polychlorinated Dibenzofuran Emissions from Stationary
Sources, Revision 2, dated August 2018, IBR approved for appendix IX to
part 261, Sec. 266.104(e), and appendix IX to part 266.
(v) Method 0030, Volatile Organic Sampling Train, dated September
1986 and in the Basic Manual, IBR approved for appendix IX to part 261.
(vi) Method 0031, Sampling Method for Volatile Organic Compounds
(SMVOC), dated December 1996 and in Update III, IBR approved for
appendix IX to part 261.
(vii) Method 0040, Sampling of Principal Organic Hazardous
Constituents from Combustion Sources Using Tedlar[supreg] Bags, dated
December 1996 and in Update III, IBR approved for appendix IX to part
261.
(viii) Method 0050, Isokinetic HCl/Cl2 Emission Sampling
Train, dated December 1996 and in Update III, IBR approved for appendix
IX to part 261, Sec. 266.107, and appendix IX to part 266.
(ix) Method 0051, Midget Impinger HCl/Cl2 Emission Sampling Train,
Revision 1, dated August 2018, IBR approved for appendix IX to part
261, Sec. 266.107, and appendix IX to part 266.
(x) Method 0060, Determination of Metals in Stack Emissions, dated
December 1996 and in Update III, IBR approved for appendix IX to part
261, Sec. 266.106, and appendix IX to part 266.
(xi) Method 0061, Determination of Hexavalent Chromium Emissions
from Stationary Sources, dated December 1996 and in Update III, IBR
approved for appendix IX to part 261 Sec. 266.106, and appendix IX to
part 266.
(xii) Method 1010B, Test Methods for Flash Point by Pensky-Martens
Closed-Cup Tester, dated December 2018, IBR approved for Sec. 261.21
and appendix IX to part 261.
(xiii) Method 1020C, Standard Test Methods for Flash Point by
Setaflash (Small Scale) Closed-Cup Apparatus, dated December 2018, IBR
approved for Sec. 261.21 and appendix IX to part 261.
(xiv) Method 1110A, Corrosivity Toward Steel, dated November 2004
and in Update IIIB, IBR approved for Sec. 261.22 and appendix IX to
part 261.
(xv) Method 1310B, Extraction Procedure (EP) Toxicity Test Method
and Structural Integrity Test, dated November 2004 and in Update IIIB,
IBR approved for appendix IX to part 261.
(xvi) Method 1311, Toxicity Characteristic Leaching Procedure,
dated July 1992 and in Update I, IBR approved for appendix IX to part
261, and Sec. Sec. 261.24, 268.7, 268.40.
(xvii) Method 1312, Synthetic Precipitation Leaching Procedure,
dated September 1994 and in Update III, IBR approved for appendix IX to
part 261.
(xviii) Method 1320, Multiple Extraction Procedure, dated September
1986 and in the Basic Manual, IBR approved for appendix IX to part 261.
(xix) Method 1330A, Extraction Procedure for Oily Wastes, dated
July 1992 and in Update I, IBR approved for appendix IX to part 261.
(xx) Method 9010C, Total and Amenable Cyanide: Distillation, dated
November 2004 and in Update IIIB, IBR approved for appendix IX to part
261 and Sec. Sec. 268.40, 268.44, 268.48.
(xxi) Method 9012B, Total and Amenable Cyanide (Automated
Colorimetric, with Off-Line Distillation), dated November 2004 and in
Update IIIB, IBR approved for appendix IX to part 261 and Sec. Sec.
268.40, 268.44, 268.48.
(xxii) Method 9040C, pH Electrometric Measurement, dated November
2004 and in Update IIIB, IBR
[[Page 40608]]
approved for appendix IX to part 261 and Sec. 261.22.
(xxiii) Method 9045D, Soil and Waste pH, dated November 2004 and in
Update IIIB, IBR approved for appendix IX to part 261.
(xxiv) Method 9060A, Total Organic Carbon, dated November 2004 and
in Update IIIB, IBR approved for appendix IX to part 261, and
Sec. Sec. 264.1034, 264.1063, 265.1034, 265.1063.
(xxv) Method 9070A, n-Hexane Extractable material (HEM) for Aqueous
Samples, dated November 2004 and in Update IIIB, IBR approved for
appendix IX to part 261.
(xxvi) Method 9071B, n-Hexane Extractable Material (HEM) for
Sludge, Sediment, and Solid Samples, dated April 1998 and in Update
IIIA, IBR approved for appendix IX to part 261.
(xxvii) Method 9095B, Paint Filter Liquids Test, dated November
2004 and in Update IIIB, IBR approved, appendix IX to part 261, and
Sec. Sec. 264.190, 264.314, 265.190, 265.314, 265.1081, 267.190(a),
268.32.
(d) National Fire Protection Association (NFPA). 1 Batterymarch
Park, P.O. Box 9101, Quincy, MA 02269-9101, (800) 344-3555,
www.nfpa.org/.
(1) NFPA 30, ``Flammable and Combustible Liquids Code,'' 1977
Edition, IBR approved for Sec. Sec. 262.16(b), 264.198(b), 265.198(b),
and 267.202(b).
(2) NFPA 30, ``Flammable and Combustible Liquids Code,'' 1981
Edition, IBR approved for Sec. Sec. 262.16(b), 264.198(b), 265.198(b),
and 267.202(b).
(e) Organization for Economic Cooperation and Development (OECD).
Economic Cooperation and Development, Environment Directorate, 2 rue
Andr[eacute] Pascal, F-75775 Paris Cedex 16, France, owww.oecd-ilibrary.org/.
(1) Guidance Manual for the Control of Transboundary Movements of
Recoverable Wastes, copyright 2009, Annex B: OECD Consolidated List of
Wastes Subject to the Green Control Procedure and Annex C: OECD
Consolidated List of Wastes Subject to the Amber Control Procedure, IBR
approved for Sec. Sec. 262.82(a), 262.83(b), (d), and (g), and
262.84(b) and (d).
(2) [Reserved]
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
5. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
0
6. Amend Sec. 261.21 by:
0
a. Revising paragraphs (a)(1), (3)(ii), (4) introductory text, and
(4)(i)(A), and (D); and
0
b. Removing Notes 1, 2, 3, and 4.
The revisions read as follows:
Sec. 261.21 Characteristic of ignitability.
(a) * * *
(1) It is a liquid, other than a solution containing less than 24
percent alcohol by volume and at least 50 percent water by weight, that
has a flash point less than 60 [deg]C (140 [deg]F), as determined by
using one of the following ASTM standards: ASTM D93-79, D93-80, D3278-
78, D8174-18, or D8175-18 as specified in SW-846 Test Methods 1010B or
1020C (all incorporated by reference, see Sec. 260.11 of this
subchapter).
* * * * *
(3) * * *
(ii) A compressed gas shall be characterized as ignitable if any
one of the following occurs:
(A) Either a mixture of 13 percent or less (by volume) with air
forms a flammable mixture or the flammable range with air is wider than
12 percent regardless of the lower limit. These limits shall be
determined at atmospheric temperature and pressure. The method of
sampling and test procedure shall be the ASTM E 681-85 (incorporated by
reference, see Sec. 260.11 of this subchapter), or other equivalent
methods approved by the Associate Administrator, Pipeline and Hazardous
Materials Safety Administration, U.S. Department of Transportation.
(B) It is determined to be flammable or extremely flammable using
49 CFR 173.115(l).
* * * * *
(4) It is an oxidizer. An oxidizer for the purpose of this
subchapter is a substance such as a chlorate, permanganate, inorganic
peroxide, or a nitrate, that yields oxygen readily to stimulate the
combustion of organic matter.
(i) * * *
(A) The material meets the definition of a Division 1.1, 1.2, or
1.3 explosive, as defined in Sec. 261.23(a)(8), in which case it must
be classed as an explosive,
* * * * *
(D) According to data on file with the Pipeline and Hazardous
Materials Safety Administration in the U.S. Department of
Transportation, it has been determined that the material does not
present a hazard in transportation.
* * * * *
Appendic IX to Part 261 [Amended]
0
7. Amend Appendix IX to Part 261 by removing the text ``1010A'' and
adding ``1010B'' in its place, wherever it appears (56 occurrences);
and removing the text ``1020B'' and adding ``1020C'' in its place,
wherever it appears (56 occurrences).
PART 278--CRITERIA FOR THE MANAGEMENT OF GRANULAR MINE TAILINGS
(CHAT) IN ASPHALT CONCRETE AND PORTLAND CEMENT CONCRETE IN
TRANSPORTATION CONSTRUCTION PROJECTS FUNDED IN WHOLE OR IN PART BY
FEDERAL FUNDS
0
8. The authority citation for part 278 continues to read as follows:
Authority: 42 U.S.C. 6961 et seq.
0
9. Amend Sec. 278.3 by revising paragraph (b)(1) and adding paragraph
(d) to read as follows:
Sec. 278.3 Criteria for use of chat in Federally funded
transportation projects.
* * * * *
(b) * * *
(1) Synthetic Precipitation Leaching Procedure (SPLP) tests are
conducted on the proposed material using EPA SW-846 Method 1312, and
the leachate testing results show that concentrations in the leachate
do not exceed the National Primary Drinking Water Standards for lead
and cadmium and the fresh water chronic National Recommended Water
Quality Criterion for zinc of 120 [micro]g/l; or
* * * * *
(d) EPA SW-846 Method 1312, ``Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods,'' Third Edition, September 1994, is
incorporated by reference into this section with the approval of the
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part
51. It is available at www.epa.gov/hw-sw846/. All approved material is
available for inspection at the OLEM Docket in the Environmental
Protection Agency Docket Center (EPA/DC), West William Jefferson
Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC. The
EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number of the EPA/DC Public Reading room is (202) 566-1744, and the
telephone number for the OLEM Docket is (202) 566-0270. It is also
available for inspection at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, email [email protected] or go to
www.archives.gov/federal-register/cfr/ibr-locations.html.
[FR Doc. 2020-12695 Filed 7-6-20; 8:45 am]
BILLING CODE 6560-50-P