[Federal Register Volume 60, Number 64 (Tuesday, April 4, 1995)]
[Rules and Regulations]
[Pages 17001-17004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8207]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 260

[FRL-5183-5]


Hazardous Waste Management System; Testing and Monitoring 
Activities

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
amending its hazardous waste regulations under subtitle C of the 
Resource Conservation and Recovery Act (RCRA) for testing and 
monitoring activities. This amendment clarifies the temperature 
requirement for pH measurements of highly alkaline wastes and adds 
Method 9040B (pH Electrometric Measurement) and Method 9045C (Soil and 
Waste pH) to ``Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,'' EPA Publication SW-846. This amendment will provide 
a better and more complete analytical technology for RCRA testing in 
support of hazardous waste identification under the corrosivity 
characteristic (40 CFR 261.22).

EFFECTIVE DATE: April 4, 1995. The incorporation by reference of the 
publication listed in the regulations is approved by the Director of 
the Federal Register as of April 4, 1995.

ADDRESSES: The official record for this rulemaking (Docket No. F-95-
W2TF-FFFFF) is located at the U.S. Environmental Protection Agency, 401 
M Street SW., Washington, DC 20460 (room M-2616), and is available for 
viewing from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal 
holidays. The public must make an appointment to review docket 
materials by calling (202) 260-9327. The public may copy a maximum of 
100 pages of material from any one regulatory docket at no cost; 
additional copies cost $0.15 per page.
    Copies of the Third Edition of SW-846 as amended by Updates I, II, 
IIA, and IIB are part of the official docket for this rulemaking, and 
also are available from the Superintendent of Documents, Government 
Printing Office (GPO), Washington, DC 20402, (202) 512-1800. The GPO 
document number is 955-001-00000-1. New subscriptions to SW-846 may be 
ordered from GPO at a cost of $319.00 (subject to change). There is a 
25% surcharge for foreign subscriptions and renewals.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA Hotline at (800) 424-9346 (toll free) or call (703) 920-9810; or, 
for hearing impaired, call TDD (800) 553-7672 or (703) 486-3323. For 
technical information, contact Oliver Fordham, Office of Solid Waste 
(5304), U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460, (202) 260-4761.

SUPPLEMENTARY INFORMATION:

I. Authority

    These regulations are being promulgated under the authority of 
sections 1006, 2002(a), 3001-3007, 3010, 3013, 3014, 3016 through 3018, 
and 7004 of the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act (RCRA) of 1976, as amended [42 U.S.C. 
6905, 6912(a), 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, and 
6974]. [[Page 17002]] 

II. Background and Regulatory Framework Summary

    EPA Publication SW-846, ``Test Methods for Evaluating Solid Waste, 
Physical/Chemical Methods'' contains the analytical and test methods 
that EPA has evaluated and found to be among those acceptable for 
testing under subtitle C of the Resource Conservation and Recovery Act 
of 1976 (RCRA), as amended. Use of some of these methods is required by 
some of the hazardous waste regulations under subtitle C or RCRA. In 
other situations, SW-846 functions as a guidance document setting forth 
acceptable, although not required, methods to be implemented by the 
user, as appropriate, in satisfying RCRA-related sampling and analysis 
requirements. All of these methods are intended to promote accuracy, 
sensitivity, specificity, precision, and comparability of analyses and 
test results.
    SW-846 is a document that changes over time as new information and 
data are developed. Advances in analytical instrumentation and 
techniques are continually reviewed by the Agency's Office of Solid 
Waste (OSW) and periodically incorporated into SW-846 to support 
changes in the regulatory program and to improve method performance. 
Update IIB (Methods 9040B and 9045C) represents such an incorporation.

III. Overview of Proposal

    On August 31, 1993 (58 FR 46052), the Agency proposed to amend its 
hazardous waste testing and monitoring regulations under subtitle C of 
RCRA by adding Update II to SW-846 and incorporating the Third Edition 
as amended by Updates I and II, in 40 CFR 260.11(a) for use in 
complying with the requirements of subtitle C of RCRA. In section III.D 
of the proposed rule, the Agency also proposed the addition of language 
to SW-846 Methods 9040A and 9045B to clarify regulatory requirements as 
to the temperature for pH measurements of highly alkaline wastes during 
corrosivity characteristic testing.
    On January 13, 1995 (60 FR 3089), the Agency published a final rule 
which added Update II to SW-846. As noted in that final rule, the 
Agency was still responding to public comments regarding the pH 
temperature clarification issue and, therefore, took no action on that 
topic in the January 13, 1995 Final Rule. The Agency did not want to 
delay promulgation of Update II as a result of its ongoing 
deliberations on the temperature clarification. Therefore, Methods 
9040A and 9045B were finalized as part of Update II without the 
technical clarification regarding temperature control during the pH 
measurement of highly alkaline materials.

IV. Public Comments Regarding Section III.D of the Proposed Rule

    The majority of the commenters were in favor of specifying a 
temperature of 251  deg.C in Method 9040A instead of 
specifying that the pH test be performed at a temperature relevant to 
the waste management site temperature. Only one commenter supported a 
requirement that the testing temperature be relevant to the waste 
management site. A few commenters were against the addition of any 
temperature clarification at this time.
    This section summarizes several of the most significant comments on 
the proposal, and EPA's responses. Detailed Agency responses to all 
significant comments are provided in the background document, entitled 
``Responses to Public Comments Submitted in Response to Section III.D, 
pH Testing, 58 FR 46054, August 31, 1993'', which is located in the 
official record for this rulemaking (Docket No. F-95-W2TF-FFFFF).
    One commenter argued that a scientific basis does not exist for a 
temperature clarification only for alkalinity determinations. The 
Agency believes that a valid scientific basis does exist to include a 
temperature clarification which applies only when pH approaches the 
upper corrosivity characteristic limit. An inverse, non-linear, 
relationship exists between temperature and pH whereby pH readings at 
the basic end significantly increase as temperature levels decrease. At 
high pH levels, a physical difference exists in relation to ion 
dissociation which cannot be compensated by pH meters, and which 
requires additional temperature control if the objective is to obtain 
an accurate, and comparable, pH measurement at that end of the scale.
    The Agency did not propose a temperature clarification for acidic 
wastes because the temperature effect on pH is not sufficiently 
significant at the acidic end of the scale to warrant such a 
clarification. It is highly unlikely that a pH change at the low end of 
the scale due to temperature variation will affect the regulatory 
status of the waste. Therefore, a specification that wastes with pH 
levels at the acidic end of the scale must be analyzed at a standard 
temperature is unnecessary.
    One commenter stated that, if a standard must be set, it should be 
24  deg.C because that is the closest practical temperature which will 
yield a 0 to 14 pH scale (and a pKW of 14.0). Another commenter 
claimed that 25  deg.C, and not 24  deg.C, is the closest practical 
temperature for a pH scale of 0 to 14 with a pKW of 14.0. Both 
commenters referenced scientific literature in support of their 
position. [Note: Water must be present to measure pH, and water affects 
the pH measurement by ionizing into hydrogen (H+) and hydroxyl (OH-) 
ions. The ``pKW'' is the negative log of the ionization constant 
(KW) for this reaction: pKW = pH + pOH. Neutral water has a 
pH of 7 and a pOH of 7, and thus a pKW of 14.]
    The Agency recognizes that some inconsistencies exist between some 
literature regarding whether 24  deg.C or 25  deg.C is the closest 
practical temperature for a pH scale of 0 to 14 with a pKW of 
14.0. However, based on public comment, it appears that 25  deg.C is 
the most accepted standard temperature for the pH scale of 0 to 14. 
Also, as explained in the background document1 to this rule, based 
on certain calculations and a work published in 1981 on pH 
theory,2 25  deg.C and not 24  deg.C appears to be the closest 
practical temperature for a pKW of 14.0.

    \1\``Responses to Public Comments Submitted in Response to 
Section III.D, pH Testing, 58 FR 46054, August 31, 1993'', located 
in the official record for this rulemaking (Docket No. F-95-W2TF-
FFFFF).
    \2\Marshall and Franck, ``Ion Product of Water Substance, 0-1000 
 deg.C, 1-10,000 Bars: New International Formulation and its 
Background'', Journal of Physical and Chemical Reference Data, 
10(2), pp. 295-304, 1981.
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    One commenter claimed that the Agency always contemplated that pH 
be taken at environmental or field temperatures because Method 9040A 
employs language which refers to ``field pH measurements''. The 
commenter also claimed that Method 9040A endorses the common approach 
of pH testing at site temperatures because it requires that the 
temperature be noted at measurement.
    The Agency agrees that pH testing in the field is common, but 
disagrees with any finding that EPA intended that all pH measurements 
in support of the corrosivity characteristic be taken at site 
temperatures just because Method 9040A refers to field measurements and 
the recording of temperature. By use of the phrase ``field pH 
measurements'', the Agency simply recognizes that pH measurements are 
often taken in the field, and that in most cases (e.g., all except 
those limited cases where the waste is both being tested for 
corrosivity and its pH is above 12.0), field test results are adequate. 
The field measurement reference in no way precludes laboratory pH 
measurements at a specific temperature, nor does it 
[[Page 17003]] implicitly or otherwise mean that all measurements by 
the method must be done at site temperatures.
    The Agency believes that a standard temperature of 25  deg.C offers 
a consistent way to measure pH and thus assures consistent 
environmental protection. Without a standard temperature for testing 
the pH of at least highly alkaline wastes, test data may not be 
directly comparable, because, as explained above, the effect of 
temperature on pH is particularly pronounced at the alkaline end of the 
scale.

V. Overview of Final Rule

    Based on the public comments and the reasons summarized below, the 
Agency is adding the following language to section 7.1.2 of Method 
9040A (now revised Method 9040B of Update IIB):

    (* * * also, for corrosivity characterization, the sample must 
be measured at 251  deg.C if the pH of the waste is 
above 12.0)

    The Agency believes that the addition of this language to Method 
9040A is appropriate based on:
    (1) A demonstrated need to clarify the analytical procedures for pH 
determinations of highly alkaline materials in order: To facilitate 
consistent application of the procedures during corrosivity 
characteristic determinations; and to remove any confusion on the part 
of the regulated community when making such determinations;
    (2) Scientific facts regarding the effect of temperature on pH, 
including the effect of temperature on pH readings at the alkaline end 
of the pH scale;
    (3) Agency actions during promulgation of the corrosivity 
characteristic, particularly with respect to the exclusion of otherwise 
nonhazardous lime wastes, and the public's interpretation of those 
actions based on the majority of the public comments; and
    (4) Historical practices by the Agency during enforcement of the 
characteristic.
    The Agency notes that the technical change in Method 9040B only 
applies to pH determinations for wastes with pH levels above 12.0 
(which is explicit in the added language). To avoid imposing an 
unnecessary analytical burden, pH determinations for the corrosivity 
characteristic (when analysis is chosen by the generator) can be 
performed at a temperature other than 251  deg.C for wastes 
with pH levels less than 12.
    Although Method 9045B (Soil and Waste pH) is not used for 
corrosivity characteristic determinations, it involves a pH measurement 
procedure similar to that found in Method 9040A. Therefore, the Agency 
is adding similar, although not identical, language to Method 9045B. 
Specifically, the Agency is adding the following language to section 
7.1.2 of Method 9045B (now revised Method 9045C of Update IIB):

    If an accurate pH reading based on the conventional pH scale [0 
to 14 at 25  deg.C] is required, the analyst should control sample 
temperature at 251  deg.C when sample pH approaches the 
alkaline end of the scale (e.g., a pH of 11 or above).

    This rule makes final the addition of Methods 9040B and 9045C as 
Update IIB to SW-846, and incorporates the Third Edition of SW-846 as 
amended by Updates I, II, IIA, and IIB into 40 CFR Sec. 260.11(a) for 
use in complying with the requirements of subtitle C of RCRA.

VI. State Authority

    Today's rule promulgates standards that are not effective in 
authorized States since the requirements are being imposed pursuant to 
pre-HSWA authority. See RCRA Section 3006. Therefore, this rule is not 
immediately effective in authorized States. The requirements will be 
applicable only in those States that do not have interim or final 
authorization. In authorized States, the requirements will not be 
applicable until the State revises its program to adopt equivalent 
requirements under State law. Procedures and deadlines for State 
program revisions are set forth in 40 CFR 271.21. 40 CFR 271.3 sets 
forth the requirements a State must meet when submitting its final 
authorization application.

VII. Effective Date

    Section 3010 of RCRA provides that regulations promulgated pursuant 
to subtitle C of RCRA shall take effect six months after the date of 
promulgation. However, HSWA amended section 3010 of RCRA to allow rules 
to become effective in less than six months when, among other things, 
the Agency finds that the regulated community does not need six months 
to come into compliance. Since today's rule provides a clarification 
for the regulated community regarding the testing and monitoring of 
solid waste, the Agency believes the regulated community does not need 
six months to come into compliance. For that same reason, the Agency 
believes that good cause exists under the Administrative Procedure Act, 
5 U.S.C. 553(d), for not delaying the effective date of this rule. 
Therefore, this rule is effective April 4, 1995.

VIII. Regulatory Analyses

A. Executive Order 12866

    Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], EPA 
must determine whether a regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:

    (1) Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    This regulation will not have an adverse economic impact on 
industry since its effect will be to provide clarification to all of 
the regulated community. This rule does not require the purchase of new 
instruments or equipment and does not require new reports beyond those 
presently required. Thus, this rule is not a ``significant regulatory 
action'' under the terms of Executive Order 12866 and is therefore not 
subject to OMB review.

B. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a statement to 
accompany any rule where the estimated costs to State, local, or tribal 
governments in the aggregate, or to the private sector, will be $100 
million or more in any one year. Under Section 205, EPA must select the 
most cost-effective and least burdensome alternative that achieves the 
objective of the rule and is consistent with statutory requirements. 
Section 203 requires EPA to establish a plan for informing and advising 
any small governments that may be significantly impacted by the rule.
    EPA has determined that this rule does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local or tribal governments in the aggregate, or to the 
private sector.

C. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. sections 601-
612, Public [[Page 17004]] Law 96-354, September 19, 1980), whenever an 
agency publishes a General Notice of Rulemaking for any proposed or 
final rule, it must prepare and make available for public comment a 
regulatory flexibility analysis (RFA) that describes the impact of the 
rule on small entities (i.e., small businesses, small organizations, 
and small governmental jurisdictions). No regulatory flexibility 
analysis is required, however, if the head of the Agency certifies that 
the rule will not have a significant impact on a substantial number of 
small entities.
    This rule will not require the purchase of new instruments or 
equipment. The regulation requires no new reports beyond those now 
required. This rule will not have an adverse economic impact on small 
entities since its effect will be to provide clarification to all of 
the regulated community, including small entities. Therefore, in 
accordance with 5 U.S.C. 605(b), I hereby certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities (as defined by the Regulatory Flexibility Act). Thus, the 
regulation does not require an RFA.

D. Paperwork Reduction Act

    There are no additional reporting, notification, or recordkeeping 
provisions in this rule. Such provisions, were they included, would be 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 260

    Administrative practice and procedure, Confidential business 
information, Hazardous waste, Incorporation by reference.

    Dated: March 29, 1995.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.

    For the reasons set out in the preamble, title 40, Chapter I, of 
the Code of Federal Regulations is amended as set forth below:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

    1. 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.

Subpart B--Definitions

    2. Section 260.11 (a) is amended by revising the ``Test Methods for 
Evaluating Solid Waste, Physical/Chemical Methods'' reference to read 
as follows:


Sec. 260.11  References.

    (a) * * *
    ``Test Methods for Evaluating Solid Waste, Physical/Chemical 
Methods,'' EPA Publication SW-846 [Third Edition (November, 1986), as 
amended by Updates I (July, 1992), II (September, 1994), IIA (August, 
1993), and IIB (January, 1995)]. The Third Edition of SW-846 and 
Updates I, II, IIA, and IIB (document number 955-001-00000-1) are 
available from the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402, (202) 512-1800. Copies may be 
inspected at the Library, U.S. Environmental Protection Agency, 401 M 
Street, SW, Washington, DC 20460.
* * * * *
[FR Doc. 95-8207 Filed 4-3-95; 8:45 am]
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