[Federal Register Volume 84, Number 63 (Tuesday, April 2, 2019)]
[Proposed Rules]
[Pages 12539-12552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05878]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, and 266

[EPA-HQ-OLEM-2018-0830; FRL-9991-43-OLEM]
RIN 2050-AG93


Modernizing Ignitable Liquids Determinations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
proposing to update the regulations for the identification of ignitable 
hazardous waste under the Resource Conservation

[[Page 12540]]

and Recovery Act (RCRA) and to modernize the RCRA test methods that 
currently require the use of mercury thermometers. These proposed 
revisions would 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: Comments must be received on or before June 3, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2018-0830, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Daniel Fagnant, Office of Land and 
Emergency Management (5304P), Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC 20460; telephone number 703-308-
0319; email address: [email protected] or Melissa Kaps, Office of 
Land and Emergency Management (5304P), Environmental Protection Agency, 
1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number 
703-308-6787; email address: [email protected].

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency'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. What is a flash point and how is it measured?
    E. What flash point test methods does EPA currently require?
    F. What is the aqueous alcohol exclusion?
    G. Why consider alternatives to mercury thermometers in test 
methods?
III. Proposed Revisions to the Ignitability Characteristic Flash 
Point Test Methods
    A. Why is EPA proposing new flash point test methods for 
ignitable liquids?
    B. What test method is EPA proposing to add to Method 1010A?
    C. What test method is EPA proposing to add to Method 1020B?
    D. How are the proposed test methods equivalent to the currently 
required test methods?
    E. Why is EPA not removing the currently required flash point 
test methods?
IV. Codification of Guidance Into the Ignitability Characteristic
    A. Aqueous Alcohol Exclusion
    1. Why is EPA proposing a revision to the aqueous alcohol 
exclusion?
    2. What are the proposed changes to the aqueous alcohol 
exclusion?
    3. Solicitation of Public Input on Other Changes to the Aqueous 
Alcohol Exclusion for Ignitability
    B. Multiphase Testing
    1. Why is the Agency proposing a revision to codify sampling 
guidance for multiphase wastes?
    2. Proposed Codification of Guidance for Multiphase Waste 
Sampling
V. Additional Corrections to Sec.  261.21
    A. What are the proposed changes to the definition of ignitable 
compressed gas in Sec.  261.21(a)(3)(ii)?
    B. What are the proposed changes to Sec.  261.21(a)(4)(i)(A)?
    C. What are the proposed changes to the notes section of Sec.  
261.21?
VI. Revision to Mercury Thermometer Requirements in the Air Sampling 
and Stack Emissions Methods
    A. Why is EPA proposing revisions to the air sampling and stack 
emissions methods?
    B. Proposed Changes to Mercury Thermometer Requirements in SW-
846 Method-Defined Parameter Air Sampling and Stack Emissions 
Methods
VII. Incorporation by Reference
VIII. State Authorization
    A. Applicability of Proposed Rule in Authorized States
    B. Effect on State Authorization
IX. Statutory and Executive Orders 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 
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

I. General Information

A. Does this action apply to me?

    The proposed rule to update the test methods for determining if a 
liquid waste is ignitable under the ignitability characteristic may 
potentially affect any entity (e.g., generator, laboratory) that 
currently conducts flash point testing using either SW-846 Method 1010A 
(Pensky-Martens) or Method 1020B (Setaflash). The rule may also affect 
any entity (e.g., generator, laboratory, combustor) that uses SW-846 
air sampling and stack emissions Methods 0010, 0011, 0020, 0023A, or 
0051. EPA does not expect the other parts of this proposed action 
(i.e., changes to aqueous alcohol exclusion, addition of sampling 
guidelines for multiphase mixtures, and technical edits) to affect any 
entity because they do not create new requirements or change existing 
requirements.
    The universe of facilities affected by the proposed updates to the 
ignitability test methods and SW-846 air sampling and stack emissions 
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 
methods that would be updated under this proposed 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 analysis 
used to identify the potential universe for this proposed rule can be 
found in EPA's Regulatory Impact Analysis of the Modernization of 
Ignitable Liquid Determination Rule, which is in the docket.

[[Page 12541]]

    This discussion is not intended to be exhaustive but rather 
provides a guide for readers regarding entities likely to be regulated 
by this action. This discussion lists the types of entities that EPA is 
now aware could potentially be regulated by this action. 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.

B. What action is the Agency taking?

    First, EPA proposes to update the flash point test methods required 
for determining if a liquid waste is an ignitable hazardous waste. 
Second, EPA is proposing to codify existing guidance regarding the 
regulatory exclusion in the ignitable characteristic for aqueous 
liquids containing alcohols and is requesting comment on whether 
additional changes may be warranted. Third, EPA is proposing to codify 
existing sampling guidance regarding waste mixtures having multiple 
phases when determining whether a waste exhibits the ignitability 
characteristic. Fourth, EPA is proposing to update cross references to 
Department of Transportation regulations and to remove obsolete 
information. Finally, EPA is proposing to provide alternatives to the 
use of mercury thermometers in the air sampling and stack emissions 
methods in Test Methods for Evaluating Solid Waste: Physical/Chemical 
Methods (SW-846). Adding the option of using non-mercury thermometers 
in place of mercury thermometers would provide the regulated community 
with increased flexibility in their implementation of these required 
test methods. The use of alternatives to mercury thermometers is 
consistent with previous Agency actions and helps achieve the Agency's 
goal of minimizing the use of mercury.
    The EPA is proposing and requesting comment on revisions to 
modernize the ignitability flash point test methods (Methods 1010A and 
1020B) and air sampling and stack emissions methods (Methods 0010, 
0011, 0020, 0023A, and 0051) to allow the use of non-mercury 
thermometers. The Agency is also proposing to update the ignitability 
regulation (40 CFR 261.21) by codifying guidance for aqueous alcohol 
solutions and multiphase mixtures, as well as making technical 
corrections. EPA expects this proposed rulemaking to improve hazardous 
waste identification, reduce testing costs, improve laboratory safety, 
and improve environmental compliance, thereby enhancing protection of 
human health and the environment.

C. What is the Agency's authority for taking this action?

    The authority to propose 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.

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 proposed action. The Regulatory Impact 
Analysis of the Modernization of Ignitable Liquid Determinations Rule 
is available in the docket. The proposed 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 adopt the updated 
test methods if cost effective, and (3) will continue to conduct flash 
point testing. The analysis indicates that the rule, as proposed, is 
projected to result in annualized cost savings of about $78,500 to 
$477,000 (based on a discount rate of 7 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.

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. RCRA defines solid waste as ``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 * * *.'' (See RCRA 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. Under EPA's 
regulations, generators of solid waste are required to determine 
whether their wastes are hazardous wastes (40 CFR 262.11). A solid 
waste is a hazardous waste if it exhibits any of the four 
characteristics of ignitability, corrosivity, reactivity, or toxicity 
(40 CFR 261.20-.24), or is a listed waste (40 CFR 261.30-.33). Listed 
wastes include wastes from non-specific sources, such as spent 
solvents; by-products from specific industries; and discarded, unused 
commercial chemical products.

B. What is the hazardous waste characteristic of ignitability?

    The characteristic of ignitability (40 CFR 261.21) 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 below 60 [deg]C 
(140 [deg]F); (2) non-liquid substances that are capable, under 
specified conditions, of 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) 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 in part, defined the 
ignitability characteristic and incorporated by reference ASTM \1\ D 
93-79 (Pensky-Martens) and ASTM D 3278-78 (Setaflash) as the required 
tests for ignitable liquid hazardous waste determinations. In a 1981 
revision, EPA

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revised SW-846 Method 1010 to allow the use of D 93-79 or D 93-80 (46 
FR 35246, July 7, 1981).
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    \1\ ASTM International (ASTM) is a nonprofit organization, made 
up of producers, users, consumers, government, and academia, that 
develops and publishes consensus-based standards (https://www.astm.org/).
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    ASTM standards D 3278-78, D 93-79, and D 93-80 were the methods 
available for flash point testing at the time of the 1980 and 1981 
rulemakings. Since that time, ASTM International (ASTM) has updated D 
93 and D 3278 multiple times to improve the standards and incorporate 
new technology. EPA previously proposed to update the flash point test 
methods for ignitability in the 2002 proposed Methods Innovation Rule 
(67 FR 66252, Oct 30, 2002) by replacing ASTM standard D 3278-78 with D 
3278-96 and ASTM standards D 93-79 and D 93-80 with D 93-99c. In that 
proposed rule, EPA also requested comment on whether D 93-00 should 
instead replace D 93-79 and D 93-80. The public raised concerns that 
the sampling procedures of the proposed versions of D 93 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, agreeing with public comments that EPA further study 
the changes in flash point testing standards (70 FR 34550, June 14, 
2005).
    EPA later made corrections to the ignitability characteristic to 
replace obsolete references to DOT regulations related to definitions 
of ignitable compressed gases and oxidizers (see July 14, 2006 Federal 
Register; 71 FR 40254). That final rule amended Sec.  261.21 by 
revising paragraphs (a)(3) and (a)(4) and adding notes 1 through 4 to 
the end of the section. No change was made to Sec.  261.21(a)(1). The 
current language in Sec.  261.21(a)(1) is substantively the same as it 
was in 1980.

D. What is a flash point and how is it measured?

    The Kirk-Othmer Encyclopedia of Chemical Technology defines a flash 
point as the lowest temperature, corrected to normal atmospheric 
pressure (101.3kPa), at which the application of an ignition source 
causes the vapors of a liquid specimen to ignite under the specific 
conditions of the test (Solvents. Kirk-Othmer Encyclopedia of Chemical 
Technology. 1-40). A flash point can be measured using a specifically 
designed apparatus operated under specified procedures. In general, 
these procedures involve incrementally heating a liquid sample to a 
specified temperature in an open or closed cup and then exposing the 
vapors above the liquid to a flame or electric spark ignition source. 
The person performing the test looks for a flash caused by the vapor 
phase igniting; if no flash is observed, the sample is heated to a 
higher temperature and the experiment is repeated. When used for RCRA 
regulatory purposes, the test is repeated until the temperature 
surpasses 60 [deg]C (140 [deg]F) using specified procedures and 
apparatuses to ensure that accurate and precise waste determinations 
are being made.

E. What flash point test methods does EPA currently require?

    EPA currently requires the use of one of two flash point test 
methods when making an ignitability hazardous waste determination for 
liquid wastes, if generator knowledge is not used. (For more 
information on the use of generator knowledge, see Agency guidance, 
Waste Analysis at Facilities that Generate, Treat, Store and Dispose of 
Hazardous Wastes, available in the docket.) The required test methods 
to determine the method-defined parameter for the flash point of 
ignitable hazardous waste are SW-846 Methods 1010A and 1020B, which are 
listed in 40 CFR 260.11 and required by 40 CFR 261.21(a)(1). EPA 
requires the use of a specific method to obtain a method-defined 
parameter when the particular procedures and/or equipment of that 
method are necessary to achieve the property measurement required by 
regulation. Therefore, to determine whether a liquid waste is ignitable 
hazardous waste under RCRA (i.e., has a flash point less than 60 [deg] 
C (140 [deg]F )), its flash point must be assessed according to the 
procedures and instrumentation set forth in Methods 1010A or 1020B. 
While other methods may exist that can measure the flash point of a 
liquid waste, only the test methods set forth in Methods 1010A or 1020B 
may be used for determining whether a liquid waste is ignitable under 
40 CFR 261.21(a)(1). Because using Method 1010A or 1020B yields results 
that are driven by the particular technical specifications in those 
methods, the measures and outcomes from these methods are known as 
method-defined parameters, and their required use in section Sec.  
261.21 can only be amended through a regulatory effort.
    Method 1010A is a test method for flash point measurement using a 
procedure and instrumentation commonly referred to as the Pensky-
Martens method. Method 1010A, or the Pensky-Martens method, 
incorporates by reference ASTM standards D 93-79 and D 93-80. The last 
two digits at the end of these ASTM standards indicate the year of 
publication for these standards (i.e., 1979 and 1980, respectively). 
ASTM standard D 93 is an actively maintained standard under the ASTM 
Committee D02 on Petroleum Products, Liquid Fuels, and Lubricants. The 
most recent update to the D 93 standard is D 93-16a, which was 
published in 2016.
    Alternatively, SW-846 Method 1020B can be used for determining the 
hazardous waste characteristic of ignitability for liquids. Method 
1020B is a test method for flash point measurement using the Setaflash, 
or small-scale closed-cup, device and method. Method 1020B incorporates 
by reference ASTM standard D 3278-78, which is maintained by the ASTM 
Committee D01 on Paint and Related Coatings, Materials, and 
Applications. The last update to this ASTM standard was in 1996. 
However, the standard was reaffirmed in 2011 as ASTM D 3278-96(2011).
    In making an ignitable liquid hazardous waste determination, either 
the Pensky-Martens or the Setaflash method may be used for most wastes. 
The Pensky-Martens test is more appropriate for liquids that are 
nonhomogenous, form films, have high viscosities, or are slurries 
because it uses an instrument that can mechanically mix wastes. The 
Setaflash method, however, provides a practical advantage of reduced 
sample size and, therefore, reduced lab waste generation when compared 
to the Pensky-Martens method. Generators and laboratories should choose 
to use the test method that is most suitable to their needs.

F. What is the aqueous alcohol exclusion?

    The ignitability characteristic in Sec.  261.21(a)(1) excludes 
``aqueous solution[s] containing less than 24 percent alcohol by 
volume'' from the scope of liquids subject to Sec.  261.21. When EPA 
originally proposed the ignitability characteristic in 1978, the 
proposed rule did not contain an exclusion for aqueous alcohols (43 FR 
58945). Commenters on the 1978 proposed rule ``argued that the 
ignitability characteristic improperly includes many liquid wastes such 
as wine, latex paint and other water borne coatings which contain low 
concentrations of volatile organics such as alcohol and will 
consequently exhibit flash points below 100 [deg]F but will not sustain 
combustion because of the high percentage of water present.'' 
(Background Document for the Characteristic of Ignitability, US EPA, 
May 2, 1980, page 38.) In response, EPA modified the ignitability 
characteristic in the final rule with ``an exclusion similiar [sic] to 
that prescribed by DOT

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[Department of Transportation] and exempt from the ignitability 
characteristic aqueous solutions with alcohol concentrations of less 
than 24 percent by volume. This exclusion will remove from the 
ignitability characteristic such things as wine and latex paint which 
flash at less than 100 [deg]F but will not sustain combustion.'' 
(ibid., 39.) Thus, the 1980 final rule codified the following text in 
the definition of ignitability at Sec.  261.21(a)(1): ``It is a liquid, 
other than an aqueous solution containing less than 24 percent alcohol 
by volume, and has a flash point less than 60 [deg]C (140 [deg]F).'' 
\2\ (45 FR 33121; May 19, 1980.)
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    \2\ Note that even if this waste stream falls within the scope 
of the aqueous alcohol exclusion and, thus, would not be regulated 
as an ignitable hazardous waste, this waste stream could still be 
regulated as a hazardous waste if it exhibits other hazardous 
characteristics or is listed. In addition, once a waste stream no 
longer meets the requirements of the exclusion or is likely to not 
meet the requirements during normal management (e.g., the water or 
alcohol content changed), the waste would be subject to regulation 
under the ignitability characteristic.
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    EPA later clarified the alcohol exclusion in several ways. In the 
preamble to a later rulemaking (55 FR 22543, June 1, 1990), EPA stated 
that ``the term alcohol [in Sec.  261.21(a)(1)] refers to any alcohol 
or combination of alcohols'' and noted that ``[i]f the alcohol has been 
used for solvent properties and is one of the alcohols specified in EPA 
Hazardous Waste No. F003 or F005, the waste must be coded with these 
Hazardous Waste Numbers.'' In addition, in 1992, the EPA clarified that 
the ``alcohol exclusion in 40 CFR 261.21(a)(1), however, is not limited 
to those wastes mentioned in the May 19, 1980, Federal Register. It 
applies to all aqueous solutions containing less than 24 percent 
alcohol, even if additional non-alcoholic components are present.'' 
(EPA Monthly Hotline Report, EPA530-R-92-014g, July 1992, page 3.) \3\ 
In that clarification, EPA stated that the ``alcohol exclusion for the 
ignitability characteristic was adopted from the Department of 
Transportation's (DOT) definition of ``combustible liquids'' in 49 CFR 
173.115(b). The alcohol exclusion in 49 CFR 173.115(b)(2)(ii) applies 
to aqueous solutions containing 24 percent or less alcohol by volume 
which contain no less than 50 percent water. Since EPA originally 
intended to be consistent with DOT regulations when promulgating the 
alcohol exclusion in Sec.  261.21(a)(1), the 50 percent water 
stipulation may be applied to the ignitability characteristic.'' \4\ 
Thus, for the purpose of the ignitability characteristic in Sec.  
261.21(a)(1), EPA stated that ``aqueous'' means a ``solution continuing 
at least 50 percent water by weight.'' (ibid., 4.)
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    \3\ A copy of this Question and Answer has been placed into the 
docket for this proposal. A version is also available at 
www.epa.gov/rcraonline, RCRA Online Number 13548.
    \4\ In developing this proposed rule, EPA reviewed how the 
ignitability characteristic's aqueous alcohol exclusion related to 
the alcohol exclusion under DOT's Hazardous Materials Regulations 
(HMR). A summary of DOT's HMR's exemption of alcoholic beverages and 
aqueous solutions of alcohol has been placed into the docket for 
reference.
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G. Why consider alternatives to mercury thermometers in test methods?

    Today, EPA is proposing to remove the requirement to use mercury 
thermometers in several EPA analytical methods by revising the method 
or by adding modern alternative methods that may be used. Because of 
its unique properties, elemental mercury has been used in many 
applications, including thermometers, fluorescent light bulbs, and some 
electrical switches. However, mercury from these devices can enter the 
environment through breakage or spills during use and during recycling 
or disposal. Mercury is a potent neurotoxin with a variety of well-
documented negative health effects. For more information on the 
negative health effects of mercury exposure, see https://www.epa.gov/mercury/health-effects-exposures-mercury#self.
    Government agencies continue to phase out the use of mercury 
devices, including efforts by EPA (see 76 FR 2056, January 12, 2011; 77 
FR 2456, January 18, 2012; and the September 30, 2008 memorandum, 
Phasing Out Mercury Filled Thermometers \5\), the National Institute of 
Standards and Technology (NIST) (see User-Friendly Guidance on the 
Replacement of Mercury Thermometers \6\), and the Agency for Toxic 
Substances and Disease Registry (ATSDR) (see report on Children's 
Exposure to Elemental Mercury: A National Review of Exposure Events 
\7\). Organizations, including ASTM International (see ASTM and the 
Mercury Initiative \8\) and the United Nations Environment Programme 
(UNEP) (see Minamata Convention \9\), have also worked to phase out 
mercury thermometer usage. EPA maintains information on efforts to 
reduce mercury exposures and to address mercury pollution in the 
environment at https://www.epa.gov/mercury. In the majority of uses, 
mercury thermometers can be replaced with safer, technically 
appropriate, readily available non-mercury temperature measurement 
devices (Ripple and Strouse J. ASTM International 2005).
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    \5\ This memorandum is available at https://www.epa.gov/mercury/2008-memo-requiring-all-epa-labs-phase-out-use-mercury-filled-thermometers and in the docket.
    \6\ This document is available at https://www.epa.gov/sites/production/files/2015-10/documents/nistuserfriendlyguide.pdf and in 
the docket.
    \7\ This report is available at https://www.atsdr.cdc.gov/mercury/mercury_report.html and in the docket.
    \8\ See https://www.astm.org/SNEWS/SO_2008/mercury_so08.html and 
the docket.
    \9\ See http://www.mercuryconvention.org/.
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III. Proposed Revisions to the Ignitability Characteristic Flash Point 
Test Methods

A. Why is EPA proposing new flash point test methods for ignitable 
liquids?

    Although the flash point test methods currently required by Sec.  
261.21(a)(1) provide accurate determinations of whether a liquid waste 
is characteristic for ignitability, these methods were published about 
40 years ago, and newer technology is now available. As explained in 
Section II.E. in this notice, SW-846 Method 1010A currently 
incorporates by reference ASTM standards D 93-79 and D 93-80, which are 
known as the Pensky-Martens method. SW-846 Method 1020B currently 
incorporates by reference ASTM standard D 3278-78, otherwise known as 
the Setaflash method. These test methods represented technology and 
best practices developed in 1978, 1979, and 1980. Since then, the ASTM 
committees that maintain these standards have updated these test 
methods to incorporate modernized technology and practices, but the 
RCRA regulations still require the use of the 1978, 1979, and 1980 
versions.
    Due to the scientific and technological advances over the last few 
decades, these methods have become outdated and their use presents 
several challenges to the regulated community. For instance, these 
standards require mercury thermometers, which are being phased out 
because of the environmental health and safety concerns of mercury. The 
Agency's mercury thermometer requirements have become more difficult to 
meet as organizations, such as NIST (NIST, 2011), discontinue 
calibration services for mercury thermometers; consensus-based bodies, 
such as ASTM (ASTM, 2008), phase out mercury thermometers from their 
standards; and instrument manufacturers phase out mercury thermometers 
from commercially available equipment. As part of its efforts to reduce 
mercury usage and release, and in the interest of providing the 
regulated community with modern, readily available options for 
compliance, EPA has already revised

[[Page 12544]]

SW-846 methods that require the use of mercury thermometers to allow 
for the use of non-mercury-containing temperature measuring devices (77 
FR 2456, Jan 18, 2012; 79 FR 11228, Feb 27, 2014).
    The decreased use of mercury thermometers and new technology in 
modern instrumentation combined with the decreased availability of 
calibration services limit commercially available flash point devices 
that meet the current EPA testing requirements for ignitable waste. 
First, the flash point standards required by EPA use reference 
materials that, as EPA understands, are no longer commercially 
available as certified reference materials, such as para-xylene for D 
3278-78. Second, new technologies, such as electric spark ignition 
sources in place of flame ignition sources, offer improved lab safety 
and are available in modern instruments. Third, the Agency believes 
that new instruments may not be able to increase temperature at the 
specified rate (temperature ramping rate) in SW-846 Method 1020B.
    EPA is proposing to revise the existing required Flash Point Test 
Methods 1010A and 1020B by adding modern consensus-based standards that 
reflect the improvements and modernization of flash point testing that 
has occurred since 1978 to the methods currently required by 261.21(a). 
EPA understands that many generators and laboratories already have 
instrumentation capable of modern flash point testing. Therefore, the 
proposed update adds the flexibility of using modern test methods, 
provides the potential for cost savings, and enhances the protection of 
human health and the environment while providing equivalent results 
(See Section III.D. for information on how the proposed test methods 
are equivalent to the currently required test methods).

B. What test method is EPA proposing to add to Method 1010A?

    EPA is proposing to revise 40 CFR 261.21 and update Method 1010A to 
Method 1010B to incorporate by reference ASTM standard D 8175-18 as an 
alternative to ASTM standards D 93-79 and D 93-80 (Pensky-Martens 
method) (see Table 1). The D 8175-18 standard is maintained by the ASTM 
Committee D34 on Waste Management, with whom the Agency worked to 
modify the existing D 93-16 standard for waste testing. The creation of 
the D 8175-18 standard utilized the existing knowledge and practices of 
the flash point testing community to develop a standard specifically 
suited for flash point testing of waste matrices.
    The Agency initially considered proposing to incorporate by 
reference ASTM standard D 93-16 as a required flash point test method. 
ASTM standard D 93, has been updated numerous times between 1980 and 
2017. The 1979, 1980, 2016, and 2017 versions of D 93 all achieve the 
same fundamental measurement; the newest versions incorporate newer 
technology, provide more detailed procedures, and include quality 
control measures, such as instrument verification using certified 
reference materials. However, the D 93-16 standard was written for the 
testing of petroleum products, and EPA, after reviewing the standard, 
had concerns that the standard was not ideally suited for flash point 
testing of waste forms. The matrices of discarded chemicals, lab 
wastes, liquids from emergency response, free products, and other 
wastes that might make up a waste mixture are often more complex and 
varied than petroleum products. The Agency is concerned about the 
appropriateness of some aspects of the D 93-16 sampling procedures when 
applied to waste analysis. The D 93-16 standards were developed 
primarily to test the flash point of products while RCRA testing 
requirements are often for more complex mixtures. For example, heating 
a sample to lower the viscosity before placing it in the closed cup 
device for measurement of the flash point may produce results that are 
not representative when testing waste mixtures with relatively small 
concentrations of volatile components that easily ignite and readily 
evaporate at elevated temperatures. The Agency notes that the public 
raised similar concerns in comments regarding the Agency's proposal to 
incorporate D 93-99c by reference as part of the Methods Innovation 
Rule (See comments by the American Chemistry Council, EPA Docket Number 
EPA-HQ-RCRA-2002-0025). The D 93-16 standard is also designed to 
measure petroleum products in a temperature range from 40 [deg]C to 370 
[deg]C. As the regulatory criteria for flash point of ignitable liquids 
is 60 [deg]C and below, EPA worked with ASTM to modify the D 93-16 test 
procedure to measure flash points of waste matrices in a narrower 
temperature range and closer to room temperature. The lower but 
narrower temperature range required for RCRA ignitability testing also 
allows for a slower temperature ramp rate in the method. The Agency 
notes that it is possible that the lowest temperature of the apparatus 
is significantly higher than the actual flash point of the sample. Some 
liquids such as gasoline, pentane, hexane, natural gas condensate, drip 
oil, etc. have flash points below -20 C, the lower limit of the small 
scale closed cup test method. Conditions can exceed the fire point (see 
ASTM D92) and a significant enlargement of the test flame is observed. 
In such situations, it is to be concluded that the flash point is below 
the range of the tester and hence below 60 C.

    Table 1--Summary of Current and Proposed SW-846 Flash Point Tests and the ASTM Standards Incorporated by
                                                    Reference
----------------------------------------------------------------------------------------------------------------
 ASTM Standard incorporated                                                         EPA SW-846      Publication
        by reference                 Common name                 Status            method number       year
----------------------------------------------------------------------------------------------------------------
D 93-79.....................  Pensky-Martens..........  Current flash point test           1010A            1979
                                                         method used in Sec.
                                                         261.21(a)(1).
D 93-80.....................  Pensky-Martens..........  Current flash point test           1010A            1980
                                                         method used in Sec.
                                                         261.21(a)(1).
D 8175-18...................  Pensky-Martens..........  Proposed modern,                   1010B            2018
                                                         alternative flash point
                                                         test method.
D 3278-78...................  Setaflash, Small Scale    Current flash point test           1020B            1978
                               Closed Cup.               method used in Sec.
                                                         261.21(a)(1).
D 8174-18...................  Setaflash, Small Scale    Proposed modern,                   1020C            2018
                               Closed Cup.               alternative flash point
                                                         test method.
----------------------------------------------------------------------------------------------------------------


[[Page 12545]]

C. What test method is EPA proposing to add to Method 1020B?

    EPA similarly worked with ASTM to modify the current version of the 
small-scale closed-cup flash point test. EPA is proposing to revise 
Sec.  261.21 and update Method 1020B to Method 1020C, incorporating by 
reference the resulting ASTM standard D 8174-18 as an alternative to 
ASTM standard D 3278-78 (Setaflash method) (see Table 1). The D 8174-18 
standard is an updated version of the D 3828-16a standard that has been 
modified to be more appropriate for waste testing. EPA first considered 
incorporating by reference D 3278-96(2011), which is the most current 
version of the standard that is in Method 1020B. However, this standard 
does not use the most modern technology available for Setaflash closed-
cup testing, having been last updated in 1996 (and last reaffirmed in 
2011). As ASTM has multiple standards for closed-cup flash point 
testing, EPA also considered the suitability of ASTM standards D 7236-
16 and D 3828-16a. Due to EPA's understanding that D 3828 is a 
preferred method in the analytical community, EPA focused on ASTM 
standard D 3828-16a as a new test for ignitable liquids. After further 
review of ASTM D 3828-16a standard, the Agency identified concerns with 
the sampling procedures similar to the Agency's concerns with D 93-16 
as stated in Section III.B. The sampling procedures in 3828-16a are 
refined and optimized for petroleum products. Waste matrices can be 
mixtures of a wide variety of chemical compounds with varying physical 
properties and may present sampling challenges not often found in 
petroleum products. As a result, EPA worked with ASTM to adapt the 
standard to waste samples.
    Additionally, EPA was interested in a testing procedure that 
minimized sampling requirements and waste generation. The use of a 
finite flash method would require that samples with unknown flash point 
temperatures be measured in a series of tests until a flash was 
detected. Each test in the series would require a new sample be placed 
in the tester, increasing the amount of sample required for analysis 
and waste generated by testing. Therefore, EPA worked with ASTM to 
develop a modified version of ASTM standard D 3828-16a that also 
includes a non-mandatory ramp test. This ramp test procedure (found in 
the appendix of D 8174-18) can be used to determine an estimated flash 
point when working with an unknown sample. The estimated flash point 
can then be used to perform the finite flash test procedure, limiting 
the total number of tests needed when the expected flash point of a 
sample is not known.

D. How are the proposed test methods equivalent to the currently 
required test methods?

    Technical changes between the currently required SW-846 Methods 
1010A and 1020B and the proposed test methods include the allowance for 
an automatic method with electronic flash point detection, the option 
to use a flame ignition source or an electric ignition source, and use 
of non-mercury temperature devices. The changes in instrumentation that 
have occurred over time as new technology was developed present 
opportunities for improvements to a method but also may affect 
precision, accuracy, or bias of an instrument or method. In the process 
of adapting these new technologies, ASTM and other organizations have 
conducted a number of studies to verify that these technological 
changes present equivalent testing results, as discussed below.
    The use of automated instrumentation for flash point testing has 
been a widely accepted practice for decades. In 1992, ASTM completed a 
round robin study (see Research Report S15-1008 in docket) using ASTM 
standards D 92 and D 93 to determine the precision and accuracy of 
automatic and manual flash point instruments. This round robin study 
found no statistical difference between the reproducibility variances 
of automatic and manual Pensky-Martens flash point methods.
    The use of electric ignition sources in flash point testing 
improves lab safety. The Energy Institute funded a round robin study to 
determine the precision for ASTM D 3828-9 using both gas and electric 
igniters (see Energy Institute Research Report, August 15, 2010 in 
docket). The round robin study found that while there was bias between 
the electric and gas ignition sources, the bias was small relative to 
the repeatability of the method. ASTM took this information into 
consideration and decided to publish a combined precision applicable to 
both gas and electric ignitors for ASTM standard D 3828.
    Both of the new ASTM standards that will be incorporated by 
reference, D 8175-18 and D 8174-18, allow for the use of temperature 
measuring devices that are either digital or liquid-in-glass. The 
digital temperature measuring devices and liquid-in-glass thermometers 
must meet the specifications listed in Annex A1 and A2 of D 8175-18 and 
Annex A4 of D 8174-18. These performance-based specifications may allow 
for the use of mercury-containing thermometers but do not require them. 
The performance requirements of temperature measurement devices are set 
by manufacturers to meet certification standards set by NIST and other 
standards organizations. The use of calibrated and certified non-
mercury temperature measurement devices in flash point testing is 
expected to provide equivalent results (See User Friendly Guidance on 
the Replacement of Mercury Thermometers from NIST/EPA in docket).
    The changes in instrumentation to incorporate new technology are 
already reflected in the modern versions of the ASTM standards that are 
currently required by EPA for flash point testing pursuant to 261.21 
(e.g., modern versions of D 93-79, such as D 93-16a, have electric 
ignition sources). The repeatability and reproducibility of the modern 
standards are similar to that of the standards currently required by 
EPA.\10\ This similarity, for the purposes of flash point testing, 
indicates that the results from either test method should be similar.
---------------------------------------------------------------------------

    \10\ Repeatability and Reproducibility are terms defined by ASTM 
and other organizations. Repeatability is precision determined from 
multiple test results by a single, well trained operator in a single 
lab with one set of equipment. Reproducibility is precision 
determined from multiple tests in several laboratories. See ASTM 
E177-14 for more information.
---------------------------------------------------------------------------

    For example, ASTM standard D 93-80 lists a repeatability of 2 
[deg]C and a reproducibility of 3.5 [deg]C for flash point measurements 
of 104 [deg]C and under. For modern versions of D 93, repeatability and 
reproducibility are dependent upon the flash point temperature 
measured. Therefore, using EPA's regulatory value for flash point of 60 
[deg]C in the temperature-dependent equation given by ASTM D 93-16, 
repeatability is 1.74 [deg]C and reproducibility is 4.26 [deg]C. ASTM 
standard D 3278-78 gives a repeatability of 1.7 [deg]C and a 
reproducibility of 3.3 [deg]C. D 3278-96(11), which is the modern 
version of D 3278-78, lists a repeatability of 1.7 [deg]C and a 
reproducibility of 3.3 [deg]C. The similar values for repeatability and 
reproducibility in the modern standards and the 1978 to 1980 standards 
that EPA currently requires shows that the accuracy of these methods 
has remained relatively unchanged despite the adoption of new 
technology into the standard as discussed above.
    These precision and accuracy statements from ASTM are based on 
testing relatively pure reference chemicals. To confirm these results 
for more complex waste forms (e.g., those

[[Page 12546]]

consisting of multiple components and multiple phases), a single lab 
study was conducted. In ASTM standards D 8175-18 and D 8174-18, a 
single lab study using simulated waste matrices determined 
repeatability for these standards. The simulated waste matrices were 
single phases consisting of an equal volume mixture of xylenes and 1-
butanol, a mixture (by volume) of 60% 1-butanol and 40% n-decane, a 
mixture (by volume) of 70% n-decane and 30% n-undecane, and a mixture 
(by volume) of 10% acetone and 90% n-heptane. A multiphase mixture (by 
volume) of 50% diesel, 47.5% water, and 2.5% acetone was also studied 
(see D 8175-18 and D 8174-18 in the docket for specific results). Based 
on these studies, D 8175-18 repeatability is between 0.88 [deg]C and 
2.26 [deg]C for the five samples tested. D 8174-18 repeatability is 
between 0.88 [deg]C and 2.34 [deg]C for the five waste forms tested. 
The repeatability values of D 8175-18 and D 8174-18 are consistent with 
the stated repeatability of the ASTM standards currently required by 
SW-846 Methods 1010A and 1020B (i.e., ASTM standards D 3278-78, D 93-
79, and D 93-80). EPA understands that future updates to ASTM standards 
D 8175-18 and D 8174-18 will have more robust precision and accuracy 
values when ASTM completes interlaboratory validation of the methods. 
EPA will update the regulation or revisit the accuracy of these test 
methods, if necessary.

E. Why is EPA not removing the currently required flash point test 
methods?

    ASTM standards D 93-79, D 93-80, and D 3278-78 remain technically 
acceptable methods for determinations of flash point for ignitable 
liquids. The Agency strongly encourages generators and laboratories to 
use alternatives to mercury thermometers whenever possible but is also 
proposing flexibility by not requiring that existing equipment be 
modified or replaced to remove mercury thermometers already in use. 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 methods over 
time. This shift toward using the new methods will result in the 
reduction and eventual end of mercury thermometer use in flash point 
testing as part of the normal process of upgrading or replacing 
laboratory equipment.
    The Agency is interested in input from the public on whether it 
would be more appropriate to remove the incorporation by reference of D 
93-79, D 93-80, and D 3828-78 from SW-846 and 40 CFR 261.21 at this 
time. The SW-846 Test Methods program states a preference for the 
regulated community to use the most up-to-date version of SW-846 
methods. However, to provide flexibility, both the current and proposed 
methods would need to be specified in the regulation. By leaving ASTM 
standards D 93-79, D 93-80, and D 3278-78 incorporated by reference 
within SW-846 Methods 1010 and 1020 and the ignitability regulation, 
the Agency intends to provide the regulated community the time it needs 
to transition between the old and new test standards. The Agency may 
remove ASTM standards D 93-79, D 93-80, and D 3278-78 from SW-846 
Methods 1010 and 1020 and the ignitability regulation in a future 
update.

IV. Codification of Guidance Into the Ignitability Characteristic

A. Aqueous Alcohol Exclusion

1. Why is EPA proposing a revision to the aqueous alcohol exclusion?
    As part of its effort to update the ignitability methods, the 
Agency reviewed the exclusion for aqueous solutions containing 
ignitable alcohols to determine if the exclusion should be revised. 
Since 1980, questions regarding the scope of the exclusion have been 
raised. As discussed in more detail in Section II.F. of this notice, 
EPA has provided clarification by interpreting the exclusion to include 
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) that contains less than 24 
percent alcohol by volume, even if additional non-alcoholic components 
are present, and at least 50 percent water by weight.
    EPA has since become aware that the aqueous alcohol exclusion may 
inadvertently exclude certain wastes from the ignitibility 
characteristic--aqueous liquids with small amounts of alcohol, where 
these wastes are ignitable due primarily to non-alcoholic components--
contrary to the intent of the exclusion. For example, the exclusion may 
apply to an aqueous waste stream that contains a small concentration of 
an ignitable alcohol and a large concentration of an ignitable non-
alcoholic component. This waste would be excluded from the ignitability 
characteristic despite potentially exhibiting the same hazards as 
ignitable wastes that do not fall within the scope of the exclusion.
    EPA is currently unaware of existing mismanagement or damage cases 
resulting from this interpretation, and it may only affect a small 
number of (currently unknown) waste streams. The Agency solicits 
information on the experience of the regulated community, state 
authorized programs, and others in implementing this provision of the 
ignitability characteristic (See Section IV.A.3. in this notice).
2. What are the proposed changes to the aqueous alcohol exclusion?
    Due to questions received about the alcohol exclusion under the 
RCRA hazardous waste ignitibility characteristic, EPA wants to use this 
opportunity to clarify the exclusion's scope by proposing to codify the 
existing guidance into the regulatory text. Specifically, EPA is 
proposing to revise the aqueous alcohol 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.'' This proposed change removes the term ``aqueous'' 
from Sec.  261.21(a)(1), which is currently undefined in the RCRA 
hazardous waste regulations, and specifies what percentage of water 
defines the scope of this exclusion. The Agency notes that the water 
content of a waste is not a method-defined parameter and more than one 
method or procedure may be appropriate for measuring the water content 
of a sample. Existing SW-846 methods for water quantification include 
EPA SW-846 Methods 9000 and 9001. An analyst should choose the most 
appropriate method for measuring water content based on the physical 
and chemical properties of their waste.
    Codifying the guidance into the regulatory text would provide 
clarity and certainty for the regulated community and will remove the 
need for generators and laboratories or managers of waste to rely on 
multiple documents to understand the intended scope of the alcohol 
exclusion.
    Today's proposed action would have no effect on 40 CFR 403.5(b)(1), 
which prohibits ``pollutants which create a fire or explosion hazard in 
the POTW [publicly owned treatment work], including, but not limited 
to, wastestreams [sic] with a closed cup flash point of less than 140 
degrees Fahrenheit or 60 degrees Centigrade using the test methods 
specified in 40

[[Page 12547]]

CFR 261.21'' with no exemption for aqueous alcohol solutions (July 24, 
1990 Federal Register; 55 FR 30082).\11\ Any revisions made to the 
aqueous alcohol exclusion in Sec.  261.21(a)(1) from this rule would 
not change its inapplicability to 40 CFR 403.5(b)(1).
---------------------------------------------------------------------------

    \11\ EPA evaluated whether the aqueous alcohol exclusion in 
Sec.  261.21 should apply to 40 CFR 403.5(b)(1) and concluded that 
extending the exclusion to 40 CFR 403.5(b)(1) is not appropriate. 
(July 24, 1990 Federal Register; 55 FR at 30086). ``POTW collection 
systems are an ideal environment for generation of flammable/
ignitable atmospheres . . . allowing an exemption from the flash 
point prohibition for aqueous solutions containing less than 24 
percent alcohol by volume would not sufficiently protect POTWs.'' 
(ibid.)
---------------------------------------------------------------------------

3. Solicitation of public input on other changes to the aqueous alcohol 
exclusion for ignitability
    Because the aqueous alcohol exclusion could be interpreted to be 
more broadly applicable than originally intended (See Section IV.A.1. 
in this notice), EPA is seeking input on whether any additional 
revisions should be made to the aqueous alcohol exclusion in Sec.  
261.21(a)(1). The Agency is interested in the experiences of state 
authorized programs that manage excluded aqueous alcohols as solid 
waste and whether state programs have more stringent requirements. The 
Agency is also interested in input from waste generators, laboratories, 
and other members of the public who may have information regarding the 
specific hazards, or lack thereof, of managing waste streams pursuant 
to the current exclusion. This information might include: How much 
waste is generated and managed under the exclusion for aqueous alcohol 
solutions, how specific waste is currently managed, what waste-specific 
or industry-specific management standards or established practices for 
solutions of aqueous alcohol waste already exist, what waste forms are 
not currently excluded but may warrant exclusion due to a lack of risk 
to human health or the environment, what specific waste forms may 
currently be excluded despite presenting risks to human health or the 
environment, and any examples of waste mismanagement, damage, or injury 
resulting from waste managed under the aqueous alcohol exclusion. This 
information may help identify appropriate revisions to the aqueous 
alcohol exclusion for ignitable liquids to limit the exclusion to its 
original intent.
    Possible revisions to the aqueous alcohol exclusion could include 
explicitly identifying specific waste streams in the regulation to 
which the exclusion would apply to remove the uncertainty regarding the 
current scope of the exclusion and narrowing the types of alcohol that 
would qualify for the aqueous alcohol exclusion. Other considerations 
could include adding a minimum alcohol content as a requirement for 
excluded wastes to better target potential waste streams that flash 
primarily from their alcoholic components or adding to or improving the 
existing criteria a waste must meet to be eligible for the exclusion 
(e.g., raise the minimum water content for aqueous alcohol solutions) 
to decrease the likelihood that a liquid waste excluded from the 
ignitability characteristic would be able to sustain combustion or 
otherwise contribute to an ongoing fire. The Agency seeks information 
that can be used to determine appropriate revisions to the aqueous 
alcohol exclusion.

B. Multiphase Testing

1. Why is the Agency proposing a revision to codify sampling guidance 
for multiphase wastes?
    The Agency has received questions in the past on sampling wastes 
that are multiple phases or may become multiple phases during normal 
management. The proposed and current test methods for ignitability 
contain instructions and procedures specific to that ASTM standard. The 
Agency is proposing to add new language to 261.21(a) to clarify that 
EPA's existing sampling procedures for multiphase samples would be 
applicable to all liquid wastes tested under 261.21. Existing guidance 
from the Agency states that multiphase mixtures should be separated so 
that each phase is analyzed individually (discussed further below).
2. Proposed Codification of Guidance for Multiphase Waste Sampling
    The Agency is proposing to add a new paragraph to Sec.  261.21(a) 
that clarifies how to properly test multiphase wastes containing 
multiple liquid(s) with or without solids for ignitability 
determinations. This added language would codify EPA's long-standing 
sampling guidance for multiphase wastes, which are wastes that, due to 
differences in density (e.g., oil/water) or physical form (e.g., solid/
liquid), separate into two or more phases. EPA's long-standing sampling 
guidance states that for multiphase mixtures, a generator and 
laboratory should separate the sample into all of its different solid 
and/or liquid phases, to the extent practicable, and analyze each one 
individually in accordance with Sec.  261.21(a) to determine whether 
that phase exhibits the characteristic of ignitability. However, care 
should be taken to avoid loss of volatiles during separation, and it 
may not be possible to remove solids in all multiphase wastes. If the 
individual phases cannot be separated without an appreciable loss of 
volatiles such that the ignitability test results may be affected, then 
the multiphase waste should be tested for flash point as a whole.
    The Agency notes that some waste mixtures may initially be one 
phase upon generation and later separate into two or more phases during 
the course of normal management. The requirement to make hazardous 
waste determinations upon generation and at any time during the course 
of management (including if phase separation occurs) is already clearly 
stated in 40 CFR 262.11(a). ``The hazardous waste determination for 
each [RCRA] solid waste must be made at the point of waste generation, 
before any dilution, mixing, or other alteration of the waste occurs, 
and at any time in the course of its management that it has, or may 
have, changed its properties as a result of exposure to the environment 
or other factors that may change the properties of the waste such that 
the RCRA classification of the waste may change.'' This policy was 
reaffirmed in the hazardous waste generator proposed and final rules 
(80 FR 57938 and 81 FR 85751).
    EPA's existing guidance on multiphase mixtures, which applies at 
initial generation and during the course of normal management, as 
applicable, in SW-846 states to break up and separate phases when 
possible (SW-846 Chapter 2, pp 8-9). For example, the Agency has 
explained that a hazardous waste determination is required for both 
phases of a multiphase liquid and that the RCRA sampling protocol 
called the COLIWASA (Composite Liquid Waste Sampler, ASTM D-5495), 
found in Chapter Nine of EPA's waste testing guidance, ``Test Methods 
for Evaluating Solid Waste (SW-846),'' can be used for this 
purpose.\12\ The proposed regulatory language in this notice would 
clarify that multiphase wastes should be separated out into its 
different liquid and/or solid phases, to the extent possible, before 
then testing each individual phase for ignitability in accordance with 
Sec.  261.21.
---------------------------------------------------------------------------

    \12\ Letter dated November 20, 2012 from Betsy Devlin, USEPA, to 
Gary Jones, Printing Industries of America, available at 
www.epa.gov/rcraonline (RCRA Online Number 14834). A copy of this 
letter is available in the docket to today's proposed rule.
---------------------------------------------------------------------------

    Related to this issue, EPA notes that determining that a waste 
contains liquid and separating liquid from solid may be relatively 
straightforward through

[[Page 12548]]

observation, decanting, pipetting, or simple gravity filtration (i.e., 
EPA Method 9095, Paint Filter Liquids Test or PFLT). However, 
confirming that a waste does not contain liquid might not be possible 
using these techniques for some wastes. In 1993, the Agency proposed 
Update II to SW-846, which included modified language in SW-846 to 
state that the pressure filtration technique specified in SW-846 Method 
1311 (Toxicity Characteristic Leaching Procedure or TCLP; see Section 
7.1.1) should be used to determine if a waste contains a free liquid as 
part of making hazardous waste characteristics determinations such as 
ignitability or corrosivity (August 31, 1993 Federal Register; 58 FR 
46052). The Agency did not finalize this proposed modification due to 
commenters' concerns that the proposed action would discourage the use 
of Method 9095 (PFLT) in demonstrating that a free liquid exists. In 
the preamble to the final rule, EPA clarified that the pressure 
filtration technique should be used to definitively determine that a 
free liquid did not exist (January 13, 1995 Federal Register; 60 FR 
---------------------------------------------------------------------------
3089). EPA stated,

    ``The definitive procedure for determining if a waste contains a 
liquid for the purposes of the ignitability and corrosivity 
characteristics is the pressure filtration technique specified in 
Method 1311. However, if one obtains a free liquid phase using 
Method 9095, then that liquid may instead be used for purposes of 
determining ignitability and corrosivity. However, wastes that do 
not yield a free liquid phase using Method 9095 should then be 
assessed for the presence of an ignitable or corrosive liquid using 
the pressure filtration technique specified in Method 1311.'' (60 FR 
3092, January 13, 1995).

    EPA also stated that it may re-propose modifying its guidance in 
Chapter 7 to reflect its stated position. Therefore, we are requesting 
comment on adding this language--which reflects EPA's position on 
determining free liquids--to SW-846 as guidance. Finally, with regard 
to separating multiphase wastes for purposes of testing, we note that 
Method 9095B or the pressure filtration technique in Method 1311 can be 
used to remove solids in multiple phase mixtures, whenever practical.

V. Additional Corrections to Sec.  261.21

A. What are the proposed changes to the definition of ignitable 
compressed gas in Sec.  261.21(a)(3)(ii)?

    As part of its effort to modernize and update the RCRA ignitability 
characteristic regulations in Sec.  261.21, the Agency is proposing 
corrections to the ignitable compressed gas definitions in Sec.  
261.21(a)(3)(ii), where EPA has determined that particular Department 
of Transportation (DOT) regulations originally relied upon by EPA have 
subsequently changed, or certain guidance is no longer available.
    First, EPA is proposing to update Sec.  261.21(a)(3)(ii)(A) to 
replace outdated references to the Bureau of Explosives and DOT. The 
current EPA regulation at Sec.  261.21(a)(3)(ii)(A) establishes that a 
waste compressed gas is ignitable under RCRA when certain flammability 
concentration criteria are met, as determined ``using a test acceptable 
to the Bureau of Explosives and approved by the director of the 
Pipeline and Hazardous Materials Technology, U.S. Department of 
Transportation''. However, subsequent to the EPA's original 
promulgation of this provision, DOT modified their regulations to 
require ASTM standard E 681-85 or ``other equivalent method approved by 
the [PHMSA] Associate Administrator'' as an approved test for this 
purpose (55 FR 52433). See 49 CFR 173.115(a). EPA also notes that the 
Bureau of Explosives is no longer the delegated authority from DOT to 
determine this testing requirement. (See communications with Bureau of 
Explosives in the docket to this proposed rule.) Therefore, EPA is 
proposing to revise Sec.  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 an ignitable 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, EPA is also proposing to 
correct in its own regulations the 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.''
    EPA is also proposing to revise Sec.  261.21(a)(3)(ii)(B)-(D) to 
align with the existing DOT regulations for flammable gases. Paragraphs 
(B), (C) and (D) in Sec.  261.21(a)(3)(ii) reference ``Flame Projection 
Apparatus,'' ``Open Drum Apparatus,'' and ``Closed Drum Apparatus,'' 
all of which are described as methods from the Bureau of Explosives. 
EPA inquired with the Bureau of Explosives about the continued 
availability of these test methods and found that the methods were 
unavailable. (See correspondence with the Bureau of Explosives in the 
docket to this proposed rule.) In 1980, the Agency incorporated these 
Bureau of Explosives test methods into its RCRA regulations to be 
consistent with how flammable gases were defined by DOT requirements. 
(See 45 FR 33108, May 19, 1980 Federal Register; see also Ignitability 
Background Document, U.S. EPA, May 2, 1980 in the docket to this 
proposed rule.) However, as discussed earlier, DOT subsequently updated 
their definition and testing requirements. Therefore, the Agency is 
proposing to update the definition of ignitable compressed gas within 
Sec.  261.21(a)(3)(ii)(B)-(D), by removing references to Bureau of 
Explosives methods, and to mirror the definition and testing that DOT 
now requires. This change will 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)).
    EPA believes that these updates are necessary to ensure that the 
RCRA definition reflects the current DOT regulations for evaluating 
ignitable compressed gases, consistent with EPA's longstanding approach 
to incorporate certain DOT requirements when establishing definitions 
(and associated test methods) that reflect routine waste management 
conditions for these types of wastes.

B. What are the proposed changes to Sec.  261.21(a)(4)(i)(A)?

    In 40 CFR part 261, EPA is amending this paragraph to read, ``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.''
    Currently, Sec.  261.21(a)(4)(i)(A) references ``a Class A 
explosive or a Class B explosive.'' The terms Class A and B explosives 
came from the classification system for explosives used by DOT before 
1991. However, DOT revised its classification system for explosives, 
based on the United Nations Recommendations on the Transport of 
Dangerous Goods, as part of a final rule issued on December 21, 1990 
amending the Hazardous Materials Regulations (55 FR 52402). The new 
system replaced the use of explosive classes A, B, and C with the 
classification codes of 1.1, 1.2, 1.3, and 1.4 (49 CFR 173.53). EPA 
issued a direct final rule on March 18, 2010 that, in part, 
incorporated these changes into the RCRA hazardous waste regulations. 
(75 FR 12989). This direct rule amended 40 CFR 261.23(a)(8) to read, 
``It is a forbidden explosive as defined in 49 CFR 173.54, or is a 
Division 1.1, 1.2 or 1.3 explosive as defined in 49 CFR 173.50 and 
173.53.'' (75 FR 13002). Before this revision, 40

[[Page 12549]]

CFR 261.23(a)(8) referenced DOT's regulations addressing Class A 
explosives and Class B explosives. However, as the preamble to the rule 
pointed out, ``these cross-references are out of date with the current 
DOT regulations, and the referenced sections either no longer exist or 
no longer address these explosives. This change modifies the rule to 
provide the correct citations.'' (75 FR 12993). Section 
261.21(a)(4)(i)(A) was overlooked by the 2010 EPA rulemaking, and this 
proposed change corrects that by updating Sec.  261.21(a)(4)(i)(A) with 
the correct references.

C. What are the proposed changes to the notes section of Sec.  261.21?

    EPA proposes to delete the four notes at the end of 40 CFR 261.21, 
which are outdated or unnecessary to understanding the regulation.
    EPA intends to delete Note 1 because the Bureau of Explosives will 
no longer be the source for the methods identified in 
261.21(a)(3)(ii)(B)-(D). The current language for Note 1 states that a 
``description of the Bureau of Explosives' Flame Projection Apparatus, 
Open Drum Apparatus, Closed Drum Apparatus, and method of tests may be 
procured from the Bureau of Explosives.''
    EPA proposes to delete Notes 2 and 3. Notes 2 and 3, respectively, 
state that as part of a U.S. Department of Transportation (DOT) 
reorganization, the Office of Hazardous Materials Technology (OHMT), 
which was the office listed in the 1980 publication of 49 CFR 173.300 
for the purposes of approving sampling and test procedures for a 
flammable gas, and the Research and Special Programs Administration 
(RSPA), which was the office listed in the 1980 publication of 49 CFR 
173.151a for the purposes of determining that a material does not 
present a hazard in transport, ceased operations on February 20, 2005. 
OHMT and RSPA programs have moved to the Pipeline and Hazardous 
Materials Safety Administration (PHMSA) in the DOT. This historical 
information is no longer necessary to understanding the regulation.
    EPA also proposes to delete Note 4. Note 4 was added in a 2006 EPA 
rulemaking to provide referential information to the change made to 40 
CFR 261.21(a)(4) in the same action (71 FR 40254). Before the 2006 
rule, 40 CFR 261.21(a)(4) incorporated by reference the DOT regulation 
that defined an oxidizer, 49 CFR 173.151. In 1990, DOT revised its 
regulations governing transportation of hazardous materials (55 FR 
52402), including 49 CFR 173.151. However, 40 CFR 261.21(a)(4) retained 
the original DOT definition of an oxidizer, causing the DOT section it 
referenced to become irrelevant after 1990. EPA's 2006 final rule 
replaced the obsolete DOT reference in 40 CFR 261.21(a)(4) with the 
actual language from 49 CFR 173.151 as it existed at the time 40 CFR 
261.21 was finalized in 1980. Note 4 states that ``[t]he DOT regulatory 
definition of an oxidizer was contained in Sec.  173.151 of 49 CFR, and 
the definition of an organic peroxide was contained in paragraph 
173.151a. An organic peroxide is a type of oxidizer.'' EPA proposes to 
remove Note 4 in this rulemaking to avoid possible confusion, 
particularly because it can be difficult to obtain copies of the CFR 
from 1980.

VI. Revision to Mercury Thermometer Requirements in the Air Sampling 
and Stack Emissions Methods

A. Why is EPA proposing revisions to the air sampling and stack 
emissions methods?

    Earlier in this action, EPA proposed to modernize flash point 
determinations for ignitable liquids by revising Methods 1010A and 
1020B to adopt modern consensus-based standards that allow flexibility 
in temperature measurement devices (see Section III.A.). Similarly, EPA 
is proposing to update the SW-846 air sampling and stack emissions 
methods that use mercury thermometers and are method-defined 
parameters. These methods are Methods 0010, 0011, 0020, 0023A, and 
0051. This update would provide current users of these methods the 
flexibility to use alternative temperature-measuring devices instead of 
the currently required mercury thermometers. The current users of 
Methods 0010, 0011, 0020, 0023A, and 0051 would be able to continue 
using mercury thermometers if desired. While the test methods for flash 
point of ignitable liquids and test methods for air sampling and stack 
emissions methods are unrelated in the hazard and matrix of waste they 
analyze, the underlying rationale and environmental benefits of 
providing the flexibility to use alternatives to mercury thermometers 
are the same. As a result, EPA is proposing these method revisions in 
the same action. See Section II.G. above for more information on the 
effects of mercury on human health and the environment.

B. Proposed Changes to Mercury Thermometer Requirements in SW-846 
Method-Defined Parameter Air Sampling and Stack Emissions Methods

    EPA has identified five SW-846 method-defined parameter test 
methods for air sampling and stack emissions methods that require the 
use of mercury thermometers: Methods 0010, 0011, 0020, 0023A, and 0051 
(see Section VI.A.). These sampling methods cover emissions from 
stationary sources, such as hazardous waste incinerators and boilers 
and industrial furnaces. Many of these sampling 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 proposed (77 FR 1130, Jan 9, 2012), and 
finalized (79 FR 11228, Feb 27, 2014), 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 is proposing 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 methods. Therefore, in 
accordance with the SW-846 methods policy statement, the method numbers 
and letters are not being revised due to these changes (see https://www.epa.gov/hw-sw846/policy-statement-about-test-methods-evaluating-solid-waste-physicalchemical-methods). The Agency anticipates that the 
addition of mercury thermometer alternatives to these methods (i.e., 
the mirroring of changes made to regulatory requirements under Method 
5) should result in a minimal impact to the regulated community. For 
example, analytical laboratories that offer these air sampling and 
stack emissions methods also likely offer Method 5 testing, which 
already allows for non-mercury thermometer usage. Labs that have non-
mercury thermometers for calibrating Method 5 should recognize the 
benefits of reduced mercury thermometer usage while incurring no 
additional costs. Alternatively, laboratories may continue using 
mercury thermometers in the updated methods (see Section III.E.).

VII. 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 methods except those SW-846

[[Page 12550]]

methods that are also regulatory required method-defined parameters. 
Those methods remain incorporated by reference when used as method-
defined parameters under the RCRA regulations and, thus, can only be 
amended through a regulatory effort.\13\
---------------------------------------------------------------------------

    \13\ It is important to note that while a method listed in Sec.  
260.11 is a method-defined parameter, that 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 
method would not be a method-defined parameter. In order to be a 
method-defined parameter, a method must be part of a regulatory 
requirement under RCRA.
---------------------------------------------------------------------------

    The Agency is proposing to incorporate by reference ASTM D 8174-18, 
ASTM D 8175-18, ASTM E 681-85, SW-846 Method 1010B and SW-846 Method 
1020C into Sec.  261.21 and as applicable into Appendix IX to part 261. 
These test methods are described in detail in Section III and Section 
V, above. The Agency is also proposing to incorporate by reference SW-
846 Test Methods 0010, 0011, 0020, 0023A, and 0051. These test methods 
are updated versions of currently incorporated by reference SW-846 
Methods 0010, 0011, 0020, 0023A, and 0051, as described in Section VI, 
above. The Agency is proposing to incorporate by reference Method 0010 
into Sec.  260.11(c)(3)(i) and Appendix IX to part 261. The Agency is 
proposing to incorporate by reference Method 0011 into Sec.  
260.11(c)(3)(viii) and Appendix IX to part 261. The Agency is proposing 
to incorporate by reference Method 0020 into Sec.  260.11(c)(3)(ii) and 
Appendix IX to part 261. The Agency is proposing to incorporate by 
reference Method 0023A intoSec.  260.11(c)(3)(ix) Appendix IX to part 
261, Sec.  266.104(e)(1), and Appendix IX to part 266. The Agency is 
proposing to incorporate 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 Agency is also proposing to incorporate by 
reference Method 0011 into Sec.  260.11(c)(3)(viii) and Appendix IX to 
part 266. The ASTM standards proposed for incorporation 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, 
877-909-2786. To obtain ASTM E 681-85, call 877-909-2786. The SW-846 
Test Methods proposed for incorporation 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, available at https://www.epa.gov/hw-sw846.

VIII. State Authorization

A. Applicability of Proposed 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 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.\14\ 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.
---------------------------------------------------------------------------

    \14\ 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 proposes regulations that, if finalized, would not 
be promulgated under the authority of HSWA. Thus, the standards, if 
finalized, 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 proposed revisions to several 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.

IX. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://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 because it does 
not have a significant economic impact nor does it raise novel legal or 
policy issues. The Office of Management and Budget (OMB) waived review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is expected to be an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this proposed 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)

    The use of the proposed methods or the existing methods impose the 
same information collection burden as the existing regulation. OMB has 
previously approved the information collection activities contained in 
the existing regulations and has assigned OMB

[[Page 12551]]

control numbers 2050-0053 and 2050-0073.

D. Regulatory Flexibility Act (RFA)

    I certify that this proposed action will not have a significant 
economic impact on a substantial number of small entities under the 
RFA. 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 proposal, 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 proposed 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 this proposal, this proposed 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. 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 proposed action does not have tribal implications as specified 
in Executive Order 13175. Because the proposed rule is expected to 
result in minimal costs and possibly net cost savings, EPA does not 
expect that it would 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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the 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.

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. The EPA proposes to use 
ASTM D 8175-18 and ASTM D 8174-18. 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 D 93-16 and D 3828-16a, which were developed by 
the ASTM D02.08 Subcommittee. These new draft methods were then 
submitted to ASTM's review process and were approved by the ASTM D34 
Committee to become new ASTM methods.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The 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). 
This proposed rule would only modernize testing and codify guidance for 
the characterization of ignitable hazardous waste, it would not affect 
how such waste is disposed of. EPA therefore does not expect it to 
result in any adverse environmental justice impacts.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Incorporation by 
reference, Reporting and recordkeeping requirements.

40 CFR Part 261

    Environmental protection, Hazardous waste, Incorporation by 
reference, Recycling, Reporting and recordkeeping requirements.

40 CFR Part 266

    Environmental protection, Energy, Hazardous waste, Incorporation by 
reference, Recycling, Reporting and recordkeeping requirements.

    Dated: March 21, 2019.
Andrew R. Wheeler,
Administrator.
    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR parts 260 and 261 as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
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.

0
2. Amend Sec.  260.11 by:
0
a. Adding new paragraphs (b)(11) through (13); and
0
b. Revising paragraphs (c)(3)(i), (ii), (viii), (ix), (xiii), (xvii), 
and (xviii).
    The additions and revisions read as follows:


Sec.  260.11  Incorporation by reference.

* * * * *
    (b) * * *
* * * * *
    (11) ASTM D 8175-18 ``Test Method for Finite Flash Point 
Determination of Liquid Wastes by Pensky-Martens Closed Cup Tester.'' 
IBR approved for Sec.  261.21.
    (12) ASTM D 8174-18 ``Test Method for Finite Flash Point 
Determination of Liquid Wastes by Small Scale Closed Cup Tester.'' IBR 
approved for Sec.  261.21.
    (13) ASTM E 681-85 ``Standard Test Method for Concentration Limits 
of Flammability of Chemicals (Vapors and gases).'' IBR approved for 
Sec.  261.21.
    (c) * * *

[[Page 12552]]

    (3) * * *
    (i) Method 0010, dated [TBD] and in the Basic Manual, IBR approved 
for appendix IX to part 261.
    (ii) Method 0020, dated [TBD] and in the Basic Manual, IBR approved 
for appendix IX to part 261.
* * * * *
    (viii) Method 0011, dated [TBD] and in Update III, IBR approved for 
appendix IX to part 261 and appendix IX to part 266,.
    (ix) Method 0023A, dated [TBD] and in Update III, IBR approved for 
appendix IX to part 261, Sec.  266.104, and appendix IX to part 266, ,.
* * * * *
    (xiii) Method 0051, dated [TBD] and in Update III, IBR approved for 
appendix IX to part 261, Sec.  266.107, and appendix IX to part 266,
* * * * *
    (xvii) Method 1010B, dated December 2018 and in Update VII, IBR 
approved for Sec.  261.21 and appendix IX to part 261.
    (xviii) Method 1020C, dated December 2018 and in Update VII, IBR 
approved for Sec.  261.21 and appendix IX to part 261.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
3.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
4. Amend Sec.  261.21 by:
0
a. Revising paragraphs (a)(1), (3)(ii), and (4)(i)(A) adding paragraph 
(a)(5); and
0
b. Removing Notes 1, 2, 3, and 4 to read as follows:


Sec.  261.21  Characteristic of ignitability.

    (a) * * *
    (1) It is a liquid, 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 in 40 CFR 
261.31) 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 D 93-79, D 93-80, D 3278-78, 
D 8174-18 or D 8175-18 as specified in SW-846 Test Methods 1010B or 
1020C (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) * * *
    (i) * * *
    (A) The material meets the definition of a Division1.1, 1.2, or 1.3 
explosive, as defined in Sec.  261.23(a)(8), in which case it must be 
classed as an explosive,
* * * * *
    (5) It is a multiphase mixture, where any liquid phase has the 
flash point described in paragraph (a)(1) of this section, or any non-
liquid phase has the properties described in paragraph (a)(2) of this 
section.
* * * * *
    5. Amend Tables 1 and 2 of 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).

[FR Doc. 2019-05878 Filed 4-1-19; 8:45 am]
BILLING CODE 6560-50-P