[Federal Register Volume 85, Number 130 (Tuesday, July 7, 2020)]
[Rules and Regulations]
[Pages 40594-40608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12695]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63, 260, 261, and 278

[EPA-HQ-OLEM-2018-0830; FRL-10006-71-OLEM]
RIN 2050-AG93


Modernizing Ignitable Liquids Determinations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
updates to the regulations for the identification of ignitable 
hazardous waste under the Resource Conservation and Recovery Act (RCRA) 
and to modernize the RCRA test methods that currently require the use 
of mercury thermometers. These revisions provide greater clarity to 
hazardous waste identification, provide flexibility in testing 
requirements, improve environmental compliance, and, thereby, enhance 
protection of human health and the environment.

DATES: This final rule is effective on September 8, 2020. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of September 8, 
2020.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OLEM-2018-0830, is available at 
https://www.regulations.gov or at the Office of Land & Emergency 
Management Docket (OLEM Docket), Environmental Protection Agency Docket 
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 
Constitution Ave. NW, Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OLEM Docket is (202) 566-
0270. Please review the visitor instructions and additional information 
about the docket available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Daniel Fagnant, Materials Recovery and 
Waste Management Division, Office of Resource Conservation and Recovery 
(5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460; telephone number 703-308-0319; email address: 
fagnant.daniel@epa.gov; or Melissa Kaps, Materials Recovery and Waste 
Management Division, Office of Resource Conservation and Recovery 
(5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460; telephone number 703-308-6787; email address: 
kaps.melissa@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What action is EPA taking?
    C. What is EPA's authority for taking this action?
    D. What are the incremental costs and benefits of this action?
II. Background
    A. What is a hazardous waste?
    B. What is the hazardous waste characteristic of ignitability?
    C. What is the regulatory history of the ignitability 
characteristic?
    D. Summary of the Proposed Rule
III. Discussion of the Final Rule and Public Comments
    A. Flash Point Test Methods
    B. Mercury Thermometer Requirements in Air Sampling and Stack 
Emissions Methods
    C. Technical Corrections to 40 CFR 261.21
    D. Revised Definition of Aqueous and Comments on the Aqueous 
Alcohol Exclusion
    E. Sampling of Multiple Phase Wastes
    F. Pressure Filtration and Ignitable Liquids
    G. Additional Conforming Amendments
IV. Incorporation by Reference
V. State Authorization
    A. Applicability of Final Rule in Authorized States
    B. Effect on State Authorization
VI. Statutory and Executive Order (E.O.) Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That

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Significantly Affect Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act (CRA)

I. General information

A. Does this action apply to me?

    You may be potentially affected by this action if you conduct 
testing activities to determine the ignitability characteristics of 
certain wastes and/or use SW-846 air sampling and stack emissions 
Methods 0010, 0011, 0020, 0023A, or 0051. The following list of North 
American Industrial Classification System (NAICS) codes is not intended 
to be exhaustive, but rather provides a guide to help readers determine 
whether this document applies to them. If you have questions regarding 
the applicability of this action to a particular entity, consult the 
person listed in the FOR FURTHER INFORMATION CONTACT section. 
Potentially affected entities may include:
     Other Electric Power Generation (NAICS code 221118).
     Petroleum Refineries (NAICS code 324110).
     Engineering Services (NAICS code 541330).
     Testing Laboratories (NAICS code 541380).
     Environmental Consulting Services (NAICS code 541620).
     Research and Development in the Physical, Engineering, and 
Life Sciences (except Biotechnology) (NAICS code 541712).
     All Other Support Services (NAICS code 561990).
     Hazardous Waste Treatment and Disposal (NAICS code 
562211).

B. What action is EPA taking?

    First, EPA is updating the test methods required for measuring the 
flash point of a liquid waste when determining if that waste is an 
ignitable hazardous waste (i.e., SW-846 Method 1010A (Pensky-Martens) 
or Method 1020B (Setaflash)) under 40 CFR 261.21. Second, EPA is 
codifying existing guidance regarding the definition of aqueous for 
purposes of 40 CFR 261.21(a)(1). Third, EPA is updating cross 
references to Department of Transportation (DOT) regulations and also 
making certain other conforming amendments and technical corrections. 
Finally, EPA is adding mercury thermometer alternatives in the air 
sampling and stack emissions test methods in Test Methods for 
Evaluating Solid Waste: Physical/Chemical Methods (SW-846); 
specifically, Methods 0010, 0011, 0020, 0023A, and 0051.

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

    The authority for this rule can be found in sections 1002, 1006, 
2002, 3001-3009, 3013, and 3017 of the Solid Waste Disposal Act (SWDA) 
of 1970, as amended by the Resource Conservation and Recovery Act 
(RCRA) of 1976, as amended by the Hazardous and Solid Waste Amendments 
of 1984 (HSWA), 42 U.S.C. 6901, 6905, 6912, 6921-6929, 6934, and 6938; 
sections 101 et seq. of the Clean Air Act, as amended, 42 U.S.C. 7401 
et seq.

D. What are the incremental costs and benefits of this action?

    EPA prepared an economic analysis of the potential costs and 
benefits associated with this action. The Regulatory Impact Analysis of 
the Modernization of Ignitable Liquid Determinations Rule is available 
in the docket. The final rule will modify SW-846 test methods while 
also retaining the current procedures to provide entities increased 
flexibility. For the purpose of the analysis, EPA assumes that every 
facility that currently conducts flash point testing: (1) Is compliant 
with the current test methods, (2) will use the updated test methods if 
cost effective, and (3) will continue to conduct flash point testing.
    The universe of facilities affected by the updates to the 
ignitability test methods and SW-846 air sampling and stack emissions 
test methods includes: (1) Commercial laboratories, (2) EPA 
laboratories, and (3) state laboratories. EPA identified 217 unique 
commercial laboratories that conduct ignitability testing under either 
Method 1010A or 1020. EPA identified an additional 18 commercial 
laboratories accredited to conduct any of the air sampling and stack 
emissions test methods that would be updated under rule, for a total of 
235 commercial labs affected by the rule. These 235 total laboratories 
are part of 177 unique firms, including several large commercial 
laboratories with multiple locations. EPA estimates that the total 
number of laboratories, including 20 state and nine federal 
laboratories, potentially affected by this rule is 264.
    The economic analysis indicates that the rule is projected to 
result in annualized cost savings of about $78,500 to $477,000 (based 
on a discount rate of seven percent). The net present value of costs 
over 20 years is estimated to be a cost savings of $832,000 to $5 
million (seven percent discount rate). EPA's analysis shows qualitative 
benefits to human health and the environment through the reduced use of 
mercury thermometers. EPA does not expect the other parts of this 
action to affect any entity because they do not create new requirements 
or change existing requirements.

II. Background

A. What is a hazardous waste?

    Subtitle C of RCRA and its implementing regulations establish a 
cradle-to-grave regulatory management scheme for certain solid wastes 
that qualify as hazardous wastes. Any garbage, refuse, sludge from a 
waste treatment plant, water supply treatment plant, or air pollution 
control facility and other discarded material, including solid, liquid, 
semisolid, or contained gaseous material is a ``solid waste'' under 
RCRA section 1004(27) (42 U.S.C. 6903(27)). EPA has further defined the 
term ``solid waste'' for purposes of its RCRA hazardous waste 
regulations (40 CFR 261.2). To be considered a hazardous waste, a 
material first must be classified as a solid waste. Generators of solid 
waste must determine whether their wastes are hazardous wastes (40 CFR 
262.11). A solid waste is a hazardous waste if it exhibits 
characteristics of ignitability, corrosivity, reactivity, or toxicity 
(40 CFR 261.20 through 261.24), or is a listed waste (40 CFR 261.30 
through 261.33). Listed wastes include wastes from non-specific 
sources, such as spent solvents; residuals such as by-products and 
sludges from specific industries; and discarded, unused commercial 
chemical products.

B. What is the hazardous waste characteristic of ignitability?

    Under 40 CFR 261.21, the characteristic of ignitability identifies 
solid waste as hazardous based on the properties of the waste that give 
it the potential to cause harm to human health or the environment 
through direct or indirect fire hazard, including contributing to or 
causing landfill fires. Waste that is identified as hazardous pursuant 
to 40 CFR 261.21 has the EPA Hazardous Waste Number of D001. Ignitable 
hazardous waste (D001) is regulated to minimize its opportunity to 
cause or contribute to fires during routine waste management 
activities. Solid wastes that are regulated as ignitable hazardous 
waste include: (1) Certain liquids with flash points less than 60 
[deg]C (140 [deg]F); (2) non-liquid substances that are capable, under 
standard temperature and pressure, of

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causing fire through friction, absorption of moisture, or spontaneous 
chemical changes and, when ignited, burns so vigorously and 
persistently that they create a hazard; (3) ignitable compressed gases; 
and (4) oxidizers.

C. What is the regulatory history of the ignitability characteristic?

    The ignitability characteristic was originally proposed in 1978 (43 
FR 58945, December 18, 1978) with an objective of identifying wastes 
that present a fire hazard due to being ignitable under routine waste 
disposal and storage conditions. The ignitability characteristic was 
finalized in 1980 when EPA promulgated the first phase of regulations 
under Subtitle C of RCRA to protect human health and the environment 
from the improper management of hazardous waste (45 FR 33066, May 19, 
1980). These regulations included 40 CFR part 261, which defined 
hazardous waste including the ignitability characteristic and 
incorporated two ASTM International (``ASTM'') voluntary consensus 
standards by reference as the required flash point tests for ignitable 
liquid hazardous waste determinations: ASTM D93-79 (Pensky-Martens) and 
ASTM D3278-78 (Setaflash). In a 1981 revision, EPA revised SW-846 
Method 1010 to allow the use of D93-79 or D93-80 (46 FR 35246, July 7, 
1981).
    ASTM standards D3278-78, D93-79, and D93-80 were the test methods 
available for flash point testing at the time of the 1980 and 1981 
rulemakings. Since that time, ASTM has updated D93 and D3278 multiple 
times to improve the standards and incorporate new technology.\1\ EPA 
previously proposed to update the flash point test methods for 
ignitability in the 2002 proposed Methods Innovation Rule by replacing 
ASTM standard D3278-78 with D3278-96 and ASTM standards D93-79 and D93-
80 with D93-99c (67 FR 66252, October 30, 2002). In that proposed rule, 
EPA also requested comment on whether D93-00 should instead replace 
D93-79 and D93-80. The public commenters raised concerns that the 
sampling procedures of the proposed versions of D93 may lead to a loss 
of flammable volatile constituents from a sample due to greater 
headspace in the sampling container. The Agency made the decision to 
not revise flash point testing when the Methods Innovation Rule was 
finalized in 2005 (70 FR 34550, June 14, 2005), agreeing with public 
comments that EPA further study the changes in flash point testing 
standards.
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    \1\ The Agency notes that while ASTM standards are subject to 
review and revision (a process that occurs every five years) because 
the regulation incorporates by reference the year-specific version 
of an ASTM standard, the version in the regulation remains in effect 
until changed by an EPA action. See 84 FR 12539 for more information 
about the use of method-defined parameters.
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    EPA later issued a final rule to correct the ignitability 
characteristic at 40 CFR 261 by replacing obsolete references to DOT 
regulations related to definitions of ignitable compressed gases and 
oxidizers (71 FR 40254, July 14, 2006). That final rule amended the 
regulation by revising paragraphs (a)(3) and (a)(4) of Sec.  261.21 and 
adding notes 1 through 4 to the end of that section. No change was made 
to Sec.  261.21(a)(1).

D. Summary of the Proposed Rule

    On April 2, 2019, EPA published a proposed rule to modernize 
standards for ignitable liquids determinations (84 FR 12539). EPA 
proposed to update the flash point test methods for the determination 
of characteristically ignitable hazardous waste along with other minor 
changes. EPA proposed to update required test methods that refer to 
outdated standards developed by ASTM and that require instrumentation 
that is no longer readily commercially available. For example, the 
standards require the use of mercury thermometers, which are becoming 
more difficult to acquire and calibrate due to their use and 
availability being phased out for environmental, health, and safety 
concerns. EPA also proposed to remove the requirements for mercury 
thermometers in the SW-846 air sampling and stack emissions test 
methods. In addition, EPA proposed to codify existing guidance 
regarding the regulatory exclusion in the ignitability characteristic 
for aqueous liquids containing alcohols and proposed to codify existing 
sampling guidance regarding waste mixtures having multiple phases when 
determining whether a waste exhibits the ignitability characteristic. 
Finally, EPA proposed to update cross references to DOT regulations, to 
remove obsolete information, and make certain technical corrections. 
The specific amendments and corrections proposed by EPA are summarized 
below.
    1. Flash point test methods. EPA proposed to revise 40 CFR 261.21 
to incorporate by reference ASTM standard D8175-18 as an alternative to 
ASTM standards D93-79 and D93-80 in Method 1010B (Pensky-Martens test 
method) (84 FR 12539, April 2, 2019). EPA similarly proposed to revise 
40 CFR 261.21 to incorporate by reference the ASTM standard D8174-18 as 
an alternative to ASTM standard D3278-78 in Method 1020C (Setaflash 
test method). The Agency also proposed to retain the ASTM standards 
D93-79, D93-80, and D3278-78 within Methods 1010B and 1020C. The Agency 
proposed that the original ASTM standards and the new ASTM standards 
referenced in Methods 1010 and 1020 are all technically acceptable for 
determinations of flash point for ignitable liquids. Therefore, a 
generator or laboratory may choose to use any of the ASTM standards 
listed in Methods 1010B and 1020C, which are being finalized today. The 
Agency anticipates that domestic and international efforts to reduce 
mercury usage, the environmental benefits of removing mercury from the 
workplace, and the economic benefits from reduced testing costs will 
result in generators and laboratories adopting the new test methods 
over time. The Agency also solicited comments from the public on 
whether it would be more appropriate to remove the older ASTM standards 
from the test methods at this time due to their required use of mercury 
thermometers.
    2. Air sampling and stack emissions requiring mercury thermometers. 
EPA proposed to update the SW-846 air sampling and stack emissions test 
methods that presently require the use of mercury thermometers. These 
test methods are Methods 0010, 0011, 0020, 0023A, and 0051. The 
proposed rule provided users of these test methods the flexibility to 
use alternative temperature-measuring devices, while still allowing the 
use of mercury thermometers. Many of these air sampling and stack 
emissions test methods are modifications of, or are similar to, EPA 
Method 5 of Appendix A-3 of 40 CFR 60, Determination of Particulate 
Matter Emissions from Stationary Sources. For Method 5, EPA issued the 
proposed rule ``Revisions to Test Methods and Testing Regulations at 
(77 FR 1130, January 9, 2012), and later finalized the rule at (79 FR 
11228, February 27, 2014) for the use of alternative mercury-free 
thermometers if the thermometers are, at a minimum, equivalent in terms 
of performance or are suitably effective for the specific temperature 
measurement application. EPA proposed to add similar language, where 
appropriate, in SW-846 Methods 0010, 0011, 0020, 0023A, and 0051. The 
removal of the requirement to use mercury thermometers does not change 
the underlying technology of the test methods and is not expected to 
affect the precision or accuracy of the test methods. Therefore, in 
accordance with the SW-846 methods policy statement, the test method 
numbers and letters EPA uses to identify test methods,

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including subsequent versions, are not being revised due to these 
changes.\2\
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    \2\ See https://www.epa.gov/hw-sw846/policy-statement-about-test-methods-evaluating-solid-waste-physicalchemical-methods.
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    3. Aqueous alcohol exclusion. EPA proposed to revise the aqueous 
alcohol exclusion in 40 CFR 261.21(a)(1) by codifying existing guidance 
into the regulatory text to clarify the exclusion's scope. As stated in 
the proposed rule, EPA proposed to change the text of the exclusion 
from ``other than an aqueous solution containing less than 24 percent 
alcohol by volume'' to ``other than a solution containing less than 24 
percent of any alcohol or combination of alcohols (except if the 
alcohol has been used for its solvent properties and is one of the 
alcohols specified in EPA Hazardous Waste No. F003 or F005) by volume 
and at least 50 percent water by weight.'' Specifically, EPA proposed 
the following revisions to the exclusion: (1) Replace the undefined 
term ``aqueous'' with ``at least 50 percent water by weight'' and (2) 
clarify that ``alcohol'' meant ``any alcohol or combination of 
alcohols'' except for alcohol that had ``been used for its solvent 
properties and is one of the alcohols specified in EPA Hazardous Waste 
No. F003 or F005.'' These two proposed revisions to the current 
regulatory text for the aqueous alcohol exclusion are contained in 
existing EPA guidance published in the EPA Monthly Hotline Report, 
EPA530-R-92-014g (July 1992), pages 3-4. The Hotline Report states for 
the purpose of the ignitability characteristic in 40 CFR 261.21(a)(1), 
``aqueous'' means a solution containing at least 50 percent water by 
weight. and that the term ``alcohol'' in 40 CFR 261.21(a)(1) refers to 
any alcohol or combination of alcohols. EPA also explained in the 
Hotline Report that, if the alcohol is one of those alcohols specified 
in EPA hazardous waste codes F001-F005 and has been used for its 
solvent properties, the waste must be evaluated to determine if it 
should be classified as an F-listed spent solvent waste.'' (55 FR 
22543, June 1, 1990.)
    In the proposed rule, EPA also asked for input on whether any 
additional revisions should be made to the aqueous alcohol exclusion in 
40 CFR 261.21(a)(1) to limit the exclusion to its original intent. EPA 
suggested the following possible revisions to the exclusion: Explicitly 
identifying specific waste streams, narrowing the types of alcohol that 
would qualify, adding a minimum alcohol content, and raising the 
minimum water content for aqueous alcohol solutions. Also, EPA noted 
that any revisions made to the aqueous alcohol exclusion in 40 CFR 
261.21(a)(1) would have no effect on the applicability of the discharge 
prohibitions presented in the Agency's Clean Water Act (CWA) national 
pretreatment standards for existing and new sources of pollution (40 
CFR 403.5). Section 403.5(b)(1) of the discharge prohibitions addresses 
waste streams with a closed cup flash point of less than 140 degrees 
Fahrenheit or 60 degrees Centigrade using the test methods specified in 
40 CFR 261.21 and provides no exemption for aqueous alcohol solutions 
(55 FR 30082, July 24, 1990). The Agency's rationale for not exempting 
aqueous alcohol solutions under the CWA discharge prohibitions is 
explained in the final rule entitled ``EPA Administered Permit 
Programs; the National Pollutant Discharge Elimination System; General 
Pretreatment Regulations for Existing and New Sources; Regulations To 
Enhance Control of Toxic Pollutant and Hazardous Waste Discharges to 
Publicly Owned Treatment Works'' (55 FR 30082, July 24, 1990). Thus, 
EPA's proposed revisions to the aqueous alcohol exclusion in 40 CFR 
261.21(a)(1) would not change its inapplicability to 40 CFR 
403.5(b)(1).
    4. Sampling multiple phase wastes. EPA proposed to codify its 
existing sampling guidance for multiphase wastes tested for 
ignitability in 40 CFR 261.21(a). EPA's proposed codification sought to 
put into regulatory text its existing policy on how to properly test 
multiphase wastes containing liquid(s) with or without solids for 
ignitability determinations. EPA's long-standing sampling guidance 
applies at initial generation and during the course of normal 
management of a waste. The Agency's existing guidance explains that a 
generator or laboratory (i.e., those conducting the analysis) should 
separate multiphase waste samples into all of their different solid 
and/or liquid phases for individual evaluation, to the extent 
practicable. Each separated phase should be evaluated individually in 
accordance with 40 CFR 261.21(a) to determine whether that phase 
exhibits the characteristic of ignitability. The Agency's existing 
guidance further explains that the multiphase waste should be tested 
for flash point as a whole if the individual phases cannot be separated 
without an appreciable loss of volatiles such that the ignitability 
test results may be affected.
    In the proposed rule, EPA also requested comment on whether 
language should be added to Chapter 7 of SW-846 as guidance regarding 
the use of the pressure filtration technique specified in Method 1311 
for assessing the presence of an ignitable liquid for wastes that do 
not yield a free liquid phase using Method 9095 (i.e., Paint Filter 
Liquids Test or PFLT).
    5. Technical corrections.
    a. Definition of ignitable compressed gas. The Agency also proposed 
corrections to the ignitable compressed gas definitions in 40 CFR 
261.21(a)(3)(ii). EPA proposed to revise 40 CFR 261.21(a)(3)(ii)(A) to 
specify the ASTM standard E 681-85 as the approved test for determining 
whether any waste that is a compressed gas exhibits the RCRA 
ignitability characteristic, and to remove reference to the Bureau of 
Explosives as an approving agency for sampling and test methods. 
Consistent with the current DOT regulations (49 CFR 173.115), EPA also 
proposed to correct its own regulations that reference identifying the 
agency responsible for approving other tests as equivalent for this 
purpose, by adding the phrase ``approved by the Associate 
Administrator, Pipeline and Hazardous Materials Safety Administration, 
U.S. Department of Transportation.'' to 40 CFR 261.21(a)(3)(ii).
    EPA also proposed to revise 40 CFR 261.21(a)(3)(ii)(B)-(D) to align 
with the existing DOT regulations for flammable gases. The Agency 
proposed to update the definition of ignitable compressed gas within 40 
CFR 261.21(a)(3)(ii)(B)-(D), by removing references to Bureau of 
Explosives test methods and mirroring the definition and testing that 
DOT now requires. This change would allow generators to determine if 
their waste meets the definition of an ignitable compressed gas by 
determining if it meets the definition of a Division 2.1 flammable gas 
or a flammable aerosol (see 49 CFR 173.115(a) and (l)).
    b. Cross-reference to DOT explosives. EPA proposed revising 40 CFR 
261.21(a)(4)(i)(A) to replace the currently referenced ``Class A 
explosive or a Class B explosive'' with ``Division 1.1, 1.2, or 1.3 
explosive'' to be consistent with DOT's revised classification system 
for explosives (55 FR 52402, December 21, 1990). In 2010, EPA 
incorporated into the RCRA hazardous waste regulations DOT's changes to 
its classification system for explosives (75 FR 12989, March 18, 2010). 
However, that rulemaking overlooked the reference to Class A and Class 
B explosives in 40 CFR 261.21(a)(4)(i)(A). This proposed change 
corrects that inadvertent omission by updating 40 CFR 
261.21(a)(4)(i)(A) with the correct references.
    c. Deletion of notes. EPA also proposed to delete the four notes at 
the end of 40 CFR 261.21, which are

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outdated or unnecessary to understanding the regulation. For example, 
the Bureau of Explosives will no longer be the source for the test 
methods identified in 40 CFR 261.21(a)(3)(ii)(B)-(D), which makes Note 
1 outdated. Notes 2 and 3 provide unnecessary historical information 
explaining that the Office of Hazardous Materials Technology (OHMT) and 
the Research and Special Programs Administration (RSPA), respectively, 
ceased operations on February 20, 2005 due to a DOT reorganization, and 
their programs were moved to the Pipeline and Hazardous Materials 
Safety Administration (PHMSA) in the DOT. Finally, Note 4, which 
provides the source of the definition of an oxidizer in 40 CFR 
261.21(a)(4), may now be confusing because it references a DOT 
regulation as it existed in 1980 rather than its current form.

III. Discussion of the Final Rule and Public Comments

A. Flash Point Test Methods

    1. Summary of the public comments. The majority of public comments 
supported the Agency's proposal to add ASTM standards D8174-18 and 
D8175-18 to 40 CFR 261.21 as new, additional test methods options for 
flash point testing of ignitable liquids. Several public commenters 
requested that the Agency also continue to allow use of the currently 
required ASTM standards in the test methods. Some public commenters 
also asked the Agency to clarify whether results from any of the 
required flash point tests giving a nonhazardous determination for 
flash point are conclusive if test results from another flash point 
test would determine the waste to be hazardous. Commenters presented 
concerns that if conflicting test results are possible for a waste, 
then the public would be required to use all five ASTM standards 
referenced in the test methods for a waste determination.
    2. Provisions in the final rule. The Agency is finalizing the 
proposed language in 40 CFR 261.21 that updates Methods 1010A and 1020B 
to include ASTM standards D8175-18 and D8174-18, respectively. This 
regulation will retain the three previously required flash point ASTM 
standards as part of a hazardous waste determination for ignitable 
liquids. The regulated community can continue to use the existing test 
methods or begin using the new flash point ASTM standards referenced in 
Methods 1010B and 1020C. Updates to cross-referenced language in 40 CFR 
260.11 and Appendix IX of 40 CFR part 261 are also being finalized in 
this action.
    3. Response to comments on waste determinations with conflicting 
flash point test results. The Agency clarifies that generators are not 
required to use all of the ASTM standards specified in EPA Methods 
1010B and 1020C when making a hazardous waste determination on a 
specific waste, and this remains unchanged under this rulemaking. The 
generator is responsible for making an accurate hazardous waste 
determination using testing or knowledge of the waste (40 CFR 262.11). 
If a generator does not have adequate knowledge to complete a hazardous 
waste identification and must test their waste, the generator should 
use the test method most appropriate for their waste based on knowledge 
of the waste. The ASTM standards referenced within EPA Methods 1010B 
and 1020C have similar precision and accuracy values. In many cases, 
use of any of the required test methods will be appropriate for a 
hazardous waste determination. The Agency expects that differences in 
test method results are more likely to occur due to uniquely 
challenging waste forms, differences in sampling or laboratory 
practices, or operator experience than with use of the different test 
methods. The Agency will revisit the required test methods if it is 
found that inconsistent results occur for specific wastes.
    In some cases, the generator may be able to readily determine one 
test method is more appropriate. In the event that a generator of a 
waste does determine that multiple test methods would provide 
contrasting waste identifications, the generator should select and rely 
upon the test method that more accurately characterizes the hazards of 
the waste instead of selecting all of the test methods. If a generator 
suspects their waste presents unique challenges in identification 
through flash point testing, they may benefit from consulting with 
their authorized state program to avoid excessive testing.

B. Mercury Thermometer Requirements in Air Sampling and Stack Emissions 
Methods

    1. Summary of the public comments. Public commenters supported the 
Agency's proposal to remove mercury thermometer requirements from the 
air sampling and stack emissions test methods. One commenter provided 
input that this change improves worker safety and reduces costs by 
avoiding potential mercury spills and cleanup. A second commenter 
indicated that replacement of mercury thermometers is already ongoing 
with similar test methods, such as Method 5. A third commenter 
supported leaving the flexibility to use either mercury or non-mercury 
thermometers so that the transition to non-mercury thermometers can 
occur over time with normal equipment replacement.
    2. Provisions in the final rule. The Agency is finalizing the 
proposed changes to Methods 0010, 0011, 0020, 0023A and 0051 and the 
proposed language incorporating these test methods by reference in 40 
CFR 260.11 and 40 CFR part 261 Appendix IX, Tables 1 and 2 as proposed 
and discussed above. The changes will allow the use of non-mercury 
thermometers or mercury thermometers in these particular test methods, 
providing flexibility.

C. Technical Corrections to 40 CFR 261.21

    1. Summary of the public comments. The Agency received several 
comments of broad support for these regulatory changes and no comments 
opposing these changes.
    2. Provisions in the final rule. The Agency is finalizing the 
proposed changes to 40 CFR 261.21(a)(3) and 40 CFR 261.21(a)(4) and 
deleting the four notes at the end of 40 CFR 261.21 as proposed.

D. Revised Definition of Aqueous and Comments on the Aqueous Alcohol 
Exclusion

    1. Summary of the public comments. Public comments on the Agency's 
proposed revisions to the aqueous alcohol exclusion supported some 
revisions while opposing others. The majority of commenters agreed with 
and supported the Agency's proposal to define ``aqueous'' within 40 CFR 
261.21(a)(1) as ``at least 50 percent weight by water.'' No commenters 
specifically addressed replacing the term alcohol in 40 CFR 
261.21(a)(1) with the phrase ``any alcohol or combination of alcohols'' 
language; however, many commenters opposed the Agency's proposed 
revision to insert the statement, ``(except if the alcohol has been 
used for its solvent properties and is one of the alcohols specified in 
EPA Hazardous Waste No. F003 or F005).'' Public commenters expressed 
concerns that the proposed language created a new exception to the 
aqueous alcohol exclusion, describing several interpretations of the 
revised text that differ from the Agency's intended interpretation of 
the proposed regulatory language.\3\ Commenters

[[Page 40599]]

suggested that one interpretation of the proposed regulation was as a 
new exception to the exclusion that would bring into regulation F003 
spent solvents that are otherwise excluded from the ignitability 
characteristic as an aqueous alcohol.
---------------------------------------------------------------------------

    \3\ See comments from The American Fuel & Petrochemical 
Manufacturers, The Retail Association, The American Chemistry 
Council, and Stericylce, Inc. EPA-HQ-OLEM-830-0178, -0175, and -
0176.
---------------------------------------------------------------------------

    Commenters also suggested a second interpretation could be a 
narrowing of the definition of ``alcohol'' within the aqueous alcohol 
exclusion to no longer include alcohols in the F003 and F005 listing 
descriptions. A related concern was whether an alcohol used for its 
solvent purposes is the same as a spent solvent and whether existing 
guidance on the scope of the spent solvent listings applied to both. An 
additional concern within this second interpretation involved cases 
where multiple alcohols were contained in the aqueous alcohol exclusion 
and whether the waste would be excluded if one alcohol met the F003 or 
F005 listing description while a second did not. Public commenters also 
stated that the Agency had provided little to no rationale for 
narrowing the aqueous alcohol exclusion in the proposed rule.
    The public also commented on other potential changes to the aqueous 
alcohol exclusion.\4\ One commenter suggested that the Agency should 
revisit excluded aqueous alcohols that contain a small concentration of 
ignitable alcohol and a large concentration of an ignitable non-alcohol 
component. The commenter referred to the original justification for the 
aqueous alcohol exclusion and suggested adding qualifiers to the 
regulation consistent with the intended scope of the regulation. It was 
suggested that the exclusion should not apply if the flash point of 
less than 60 [deg]C (140 [deg]F) is attributable solely to the non-
alcohol component. A commenter also submitted data indicating ethanol 
and water mixtures will not flash below 4% ethanol. Commenters also 
suggested that EPA should implement a sustained combustion test to 
either exclude more waste from regulation or add the test as a 
condition to meet for exclusion as an aqueous alcohol. Another comment 
suggested that any liquid could be excluded if the liquid did not 
sustain combustion and met criteria similar to Department of 
Transportation (DOT) flammability requirements in 49 CFR 173.120(a)(3). 
Other commenters suggested EPA should propose more specific changes and 
allow for public comment before making any other changes to the aqueous 
alcohol exclusion other than the replacement of aqueous with ``at least 
50 percent water by weight.''
---------------------------------------------------------------------------

    \4\ See comments from the Retail Association, Maryland 
Department of the Environment, Setricycle. Inc., and The 
Environmental Technology Council. EPA-HQ-OLEM-2018-0830-0175, -0166, 
and -0170.
---------------------------------------------------------------------------

    2. Provisions in the final rule. The Agency is finalizing the 
revision to define aqueous as ``at least 50 percent water by weight'' 
but is not finalizing any other changes to the aqueous alcohol 
exclusion, including the other proposed changes to the exclusion. The 
regulatory change that is being finalized is specific to the term 
aqueous within 40 CFR 261.21. Other RCRA regulations that also use the 
term aqueous are unaffected by this final rule. EPA is not finalizing 
the proposed changes to the definition of alcohol in the alcohol 
exclusion because those changes did not provide clarification as EPA 
intended, as indicated by the comments.
    3. Response to comments that EPA is narrowing the exclusion. In 
proposing to amend 40 CFR 261.21(a)(1) to include the language ``except 
if the alcohol has been used for its solvent properties and is one of 
the alcohols specified in EPA Hazardous Waste No. F003 or F005,'' the 
Agency had intended to clarify that generators are still responsible to 
consider relevant listing descriptions when making a hazardous waste 
determination on waste managed under the aqueous alcohol exclusion. In 
particular, the Agency considered it most likely that F003 or F005 
wastes would most commonly share a waste code with ignitable aqueous 
alcohols. It is not EPA's intent to narrow the aqueous alcohol waste 
exclusion.
    Even though EPA is not finalizing the language ``except if the 
alcohol has been used for its solvent properties and is one of the 
alcohols specified in EPA Hazardous Waste No. F003 or F005,'' the 
Agency notes that generators of aqueous alcohol-excluded waste are 
still responsible for verifying that their waste does not meet a 
listing description or exhibit other characteristics as part of the 
regulations for generators of hazardous waste (e.g., requirements under 
40 CFR 262.11). Some commenters suggested that the Agency's proposed 
language conflicted with application of 40 CFR 261.3(g). Specifically, 
a commenter raised concern that ignitable wastes meeting the F003 
listing and meeting the exclusion for aqueous alcohols would have to be 
managed as F003 despite being a decharacterized waste at the point of 
generation.\5\ The Agency's proposed language was not intended to 
revise the regulations in 40 CFR 261.3(g) to limit applicability of 
F003 or F005 wastes. The Agency clarified in the final rule 
implementing 40 CFR 261.3(g) that in the case of wastes listed solely 
for ignitability, corrosivity, and reactivity that do not exhibit a 
characteristic at the point of generation, these wastes are considered 
to never have been hazardous and are not subject to 40 CFR part 268. A 
waste that would otherwise be listed for F003 but is excluded at the 
point of generation due to being an aqueous alcohol would not be 
considered ignitable hazardous waste. Wastes that are characteristic at 
the point of generation and then are subsequently decharacterized are 
still subject to LDR requirements (66 FR 27266, May 16, 2001).
---------------------------------------------------------------------------

    \5\ See comments by the American Chemical Council. EPA-HQ-OLEM-
0830-0166.
---------------------------------------------------------------------------

    With this proposed language, EPA had intended to clarify the 
regulation. The public comments have instead suggested additional 
interpretations and raised additional questions regarding the 
definition of alcohol and the application of the mixture and derived 
from rule to the proposed language. As a result, the Agency is not 
finalizing this specific part of the proposed language.
    4. Response to comments that other changes may be warranted. The 
Agency requested comments on whether additional changes to the aqueous 
alcohol exclusion may be warranted. One potential change suggested by 
commenters was for the Agency to consider a lower limit on alcohol 
concentrations eligible for exclusion. These comments are supported by 
the rationale and supporting data that aqueous alcohols in a low enough 
concentration will not flash below 60 [deg]C due to the alcoholic 
component alone.\6\ The Agency agrees with the commenter that at very 
low concentrations of alcohol, an aqueous alcohol will not flash due to 
the alcohol alone. Implementing a lower limit to the aqueous alcohol 
exclusion may work for simple wastes that only have two chemical 
components but presents a challenge when any number of combinations of 
alcohols and wastes are considered. Setting a lower limit for each and 
every alcohol and their combinations would require further study by the 
Agency.
---------------------------------------------------------------------------

    \6\ See comments from the Maryland Department of the 
Environment. EPA-HQ-OLEM-2018-0830-0169.
---------------------------------------------------------------------------

    Commenters also suggested implementation of a sustained combustion 
test for the aqueous alcohol exclusion. The Agency does not currently 
require this by regulation. However, the Agency notes that the public 
is already capable of utilizing

[[Page 40600]]

existing tests for sustained combustion as part of their generator 
knowledge of the waste. A generator making a waste determination using 
knowledge should be confident that their determination would agree with 
testing requirements under 261.21(a) if tested. Generators can also 
manage their waste in a more stringent manner.
    Additionally, commenters suggested that the aqueous alcohol 
exclusion should be modified to be more consistent with the original 
intent of the exclusion, which was beverage alcohols and latex paints 
that do not sustain combustion. The alcohol exclusion in 261.21(a)(1) 
was originally an incorporation of the aqueous alcohol exclusion 
already present in DOT regulations. Since 1980, the DOT has updated 
their regulations while EPA has issued guidance on its own exclusion. 
The DOT exclusion for aqueous alcohols does not apply if another 
hazardous material is present.\7\ In some cases, the definition of an 
aqueous alcohol in the DOT regulations may be narrower than the 
definition of an aqueous alcohol in EPA's regulation that was intended 
to mirror the DOT definition. A waste managed under the EPA defined 
aqueous alcohol exclusion may bear other hazardous waste codes that 
would not be excluded from ignitability and must be appropriately 
managed when other hazardous materials are present. Alternatively, 
wastes that meet EPA's definition of an aqueous alcohol under 40 CFR 
261.21 but have additional requirements for packaging and handling in 
order to be made ready for transportation may support more stringent 
management. The Agency also notes that authorized state programs may be 
more stringent or broader in scope on these determinations.
---------------------------------------------------------------------------

    \7\ See Summary of DOT Exemption of Alcoholic Beverages and 
Aqueous Solutions of Alcohol. EPA-HQ-OLEM-2018-0830-0163.
---------------------------------------------------------------------------

    Other commenters suggested that if the Agency were to modify the 
aqueous alcohol exclusion beyond the specific language proposed in this 
rulemaking, then the Agency should first propose those changes and 
provide another opportunity for the public to further comment. The 
suggested changes by the public warrant further consideration due to 
their scientific and technical merits. The aqueous alcohol exclusion 
has applicability to a broad category of wastes and changes to the 
definition of alcohol, the concentration of alcohol, or implementation 
of testing requirements could result in unintended impacts to the scope 
of the exclusion.
    The Agency needs to further consider the scope and impacts of the 
potential changes discussed in this section and is also interested in 
the experience of authorized state programs that may be implementing 
the exclusion in a different manner. Therefore, the Agency is not 
making any changes at this time as a result of these comments. The 
Agency agrees with the commenters that any other changes beyond EPA's 
specific proposed language would warrant further discussion and public 
input, and therefore is not finalizing any other changes based on 
comments at this time, including replacing ``alcohol'' with ``any 
alcohol or combination of alcohols'' in the regulatory text. Other than 
finalizing EPA's proposed language of ``at least 50 percent water by 
weight,'' the Agency intends to seek additional public input before 
finalizing any other changes to the alcohol exclusions suggested by the 
public in this rulemaking.
    The Agency maintains that it is ultimately the responsibility of 
the waste generator to make an accurate hazardous waste determination. 
The flash point test method results of less than 60 [deg]C (140 [deg]F) 
are definitive results for a waste determination. A generator must 
determine whether their waste is eligible to be excluded from 
ignitability as an aqueous alcohol. When making a determination for 
eligibility as an aqueous alcohol, a generator should consider the 
regulatory language itself as well as guidance that the agency has 
provided in the past. The Agency has provided guidance in preamble to 
allow for a broad range of alcohols to be eligible for exemption as an 
aqueous alcohol (55 FR 22520, June 1, 1990). The Agency has also stated 
through guidance that a solution of seventy seven percent water, 
thirteen percent alcohol, and ten percent non-alcoholic liquid 
component is eligible for exemption.\8\
---------------------------------------------------------------------------

    \8\ See July 1992 RCRA/Superfund/OUST/EPCRA Monthly Hotline 
Report. EPA-HQ-OLEM-2018-0830-0037.
---------------------------------------------------------------------------

    A generator must determine whether their waste is an aqueous 
alcohol for the purpose of the aqueous alcohol exclusion based on 
testing or knowledge of the waste and its properties (see 40 CFR 
262.11). The Agency's existing guidances on waste analysis and sampling 
may be helpful to generators in their waste determinations.\9\ The 
Agency believes a good indicator for a generator that their waste is 
eligible for exclusion as an aqueous alcohol is if their waste is 
similar in nature to a beverage alcohol or to an aqueous latex paint. 
The more a generator's waste diverges from being comparable to a 
beverage alcohol or latex paint, the more carefully a generator should 
consider whether the waste stream is eligible for exclusion. For 
example, in cases where the aqueous liquid waste contains almost no 
alcohol, EPA does not generally consider that waste to be an aqueous 
alcohol. If a generator is unsure whether their specific waste is 
eligible for exclusion as an aqueous alcohol, they should consult with 
their appropriate regulatory agency to discuss the specific nature of 
their waste. Additionally, state programs authorized to implement RCRA 
may be broader in scope or more stringent in implementation of 
ignitable liquids and aqueous alcohol wastes excluded from 
ignitability.
---------------------------------------------------------------------------

    \9\ Waste Analysis at Facilities that Generate, Treat, Store and 
Dispose of Hazardous Wastes--Final, EPA 530-R-12-001, April 2015. 
RCRA Waste Sampling Draft Technical Guidance, EPA 530-D-02-002, 
August 2002.
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E. Sampling of Multiple Phase Wastes

    1. Summary of the public comments. The Agency's proposal to codify 
existing guidance on sampling multiple phase wastes received mixed 
comments, with some commenters supporting and others opposing the 
proposal. One commenter stated support for separating phases before 
analyzing as laboratories already appear to be following this 
procedure. Another commenter stated that separating phases is 
appropriate and that doing otherwise would provide inconsistent 
results. However, that commenter stated that the Agency needs to 
provide sufficient guidance on how to determine if a waste contains 
multiple phases and is therefore subject to analysis of both phases. 
The commenter stated, ``It is not clear how much separation must occur 
in a waste for it to be considered ``multi-phase,'' and whether the 
waste must be capable of achieving such separation on its own, without 
additional processes. Wastes such as stable emulsions, or small amounts 
of liquids contained within a solid would not likely separate on their 
own through normal management practices and handling time.'' \10\
---------------------------------------------------------------------------

    \10\ See comments from the American Petroleum Institute. EPA-HQ-
OLEM-2018-0830-0168.
---------------------------------------------------------------------------

    Other commenters opposed the proposal to require sampling of each 
phase of a multiple phase waste, insisting that EPA's proposed approach 
is too rigid and current guidance allows for more flexibility in 
sampling. The comments stated, ``For example, the Agency's guidance 
merely suggests these actions for particular types of mixtures, not all 
existing and possible mixtures. EPA's proposal presumes that since 
guidance has suggested both phases be separated and tested

[[Page 40601]]

separately under some circumstances, that a requirement to do so for 
all mixtures would be more beneficial and would comport with all 
existing and future scientific standards.'' \11\ A second commenter 
expressed similar concerns that the Agency proposal should not be 
interpreted as requiring all phases to be tested and provided examples 
of wastes that were identifiable by analysis of a single phase or 
through knowledge of the waste and identified practical limitations of 
testing certain wastes.\12\ A third commenter suggested alternative 
regulatory language for multiple phase mixtures and asked the Agency to 
clarify in the preamble that all three sampling approaches listed in 
SW-846 Chapter 2 (Section 2.3.1.5) are allowed. The commenter expressed 
concern that the proposed regulatory language and the Agency preamble 
language were less flexible than existing Agency guidance.\13\
---------------------------------------------------------------------------

    \11\ See comments from the American Chemistry Council. EPA-HQ-
OLEM-2081-0839-0166.
    \12\ See comments from the Environmental Technology Council. 
EPA-HQ-OLEM-2018-0830-0170.
    \13\ See comments from the Coalition for Responsible Waste 
Incineration. EPA-HQ-OLEM-2018-0830-0172.
---------------------------------------------------------------------------

    One commenter expressed concern that the proposal was not clear on 
whether a multiple phase waste is the same as mixtures of solid and 
hazardous waste under the hazardous waste ``mixture rule'' in 40 CFR 
261.3(a)(2)(iv). The commenter also raised concern that the preamble 
indicated that 40 CFR 261.21 only applied to wastes that separate on 
their own and did not apply to wastes that can be separated by the 
generator, for example, by filtration. The comment also raised concerns 
that the proposal brought into regulation discarded manufactured 
articles (e.g., a few drops of lubricating liquid in a small mechanical 
device) that are primarily non-ignitable solids containing small 
amounts of ignitable liquids. The commenter stated that these discarded 
manufactured articles do not meet the EPA definition of a liquid for 
ignitable liquids (e.g., through analysis with the Paint Filter Liquids 
Test.\14\)
---------------------------------------------------------------------------

    \14\ See comments from the Retail Association. EPA-HQ-OLEM-2018-
0830-0175.
---------------------------------------------------------------------------

    An additional concern from the public questioned whether the 
alcohol exclusion as written in 40 CFR 261.21(a)(1) was included within 
the proposed regulatory language of 261.21(a)(5). That is, the 
regulatory language of 261.21(a)(5) referenced flash point requirements 
from 261.21(a)(1) but did not clarify whether the aqueous alcohol 
exclusion applied.\15\
---------------------------------------------------------------------------

    \15\ See comments from the Coalition for Responsible Waste 
Incineration. EPA-HQ-OLEM-2018-0830-0172.
---------------------------------------------------------------------------

    2. Provisions in the final rule. After consideration of the public 
comments, EPA is not finalizing the proposed language for 40 CFR Sec.  
261.21(a)(5) as part of today's final action because it created more 
confusion, which was the opposite of the Agency's intent. The Agency 
agrees that some of the issues described by commenters may not be 
clearly addressed in the specific regulatory text proposed for multiple 
phase sampling. Therefore, the Agency is instead reiterating and 
clarifying in preamble the existing Agency guidance for hazardous waste 
determinations of ignitable liquids with multiple phases.
    A generator of a waste should consider the individual liquid phases 
of a multiple phase waste under the criteria in 40 CFR Sec.  
261.21(a)(1) and non-liquid phases of a multiple phase waste under the 
criteria of 40 CFR Sec.  261.21(a)(2) when those liquid or solid phases 
are representative samples of the waste as a whole. A ``representative 
sample'' is defined by regulation (40 CFR 260.10) as ``a sample of a 
universe or whole (e.g., waste pile, lagoon, ground water) which can be 
expected to exhibit the average properties of the universe or whole.''
    When determining whether a waste contains multiple phases, the 
generator should consider the waste's physical properties during its 
likely management. For example, if a waste is generated as one phase 
but based on the generator's knowledge of the waste is likely to 
separate from one to two or more liquid phases during management (e.g., 
while stored or during transport), the generator is ultimately 
responsible for identifying the characteristics of the waste at the 
point of generation and also through the normal management of the 
waste. Alternatively, some wastes would not normally separate into 
multiple phases during management. In these cases, a generator might 
not find it necessary to take measures to separate the waste even if 
the waste could separate under certain conditions (e.g., changes in 
temperature, pressure, or composition) provided these conditions are 
unlikely to occur during normal management of the waste. Generators 
must consider testing and/or knowledge of individual phases of multiple 
phase wastes when any individual phase likely exhibits the ignitable 
characteristic and therefore may cause the entire waste to pose a risk 
of fire during treatment, storage, and/or disposal. This is consistent 
with the fundamental obligation for generators to accurately determine 
whether a waste is hazardous under RCRA (as required in 262.11).
    The Agency's existing guidance on sampling and responses to 
questions and comments from the public are discussed below.
    3. Response to comments on sampling and analysis.
    The Agency agrees with the public commenters who indicated that 
current practices in analytical laboratories are to separate the phases 
of multiple phase wastes and analyze each phase separately. The Agency 
believes the measurement of the flash point of multiple phase mixtures 
within a flash point apparatus would present significant analytical 
challenges. In responding within this section to the more specific 
comments and concerns raised by public comment, the Agency is providing 
guidance on identification of hazardous waste exhibiting the 
ignitability characteristic. This guidance may need further 
consideration before application to other characteristic or listed 
waste streams.
    Two concerns raised by the public were that the Agency needs to 
provide sufficient guidance on how to determine if a waste contains 
multiple phases and when separation of a multiple phase waste is 
necessary. When determining if a waste contains multiple phases, a 
generator has to consider the properties of the waste as generated and 
the properties of the waste under the conditions that it is likely to 
encounter during normal management (e.g., during initial accumulation, 
storage, transport, treatment and disposal). A generator should also 
consider the Paint Filter Liquids Test to be the minimum requirement 
for determining whether a solid phase waste contains a liquid 
phase.\16\ Therefore, a generator should consider their waste to be a 
multiple phase waste if at any time during the generation or likely 
management of the waste, a portion is determined by the generator to 
meet the definition of a liquid (e.g., as determined visually, by the 
Paint Filter Liquids Test, or through generator knowledge) and also has 
another phase consisting of a solid or a liquid.\17\ This includes 
instances when

[[Page 40602]]

waste may be generated in stratified layers, and multiple samples may 
need to be collected using test methods such as COLIWASA.\18\
---------------------------------------------------------------------------

    \16\ A generator may also determine through knowledge that their 
waste is a liquid or contains a liquid phase. The Agency would also 
encourage the use of other tests such as the Pressure Filtration 
Procedure within SW-846 Method 1311 if the generator determines the 
liquid resulting from pressure filtration more accurately represents 
their waste.
    \17\ The Agency considers it unlikely that a generator would be 
able to separate a non-liquid waste from a second non-liquid waste 
but does not prohibit a generator from doing so if it is possible 
and appropriate for their waste management.
    \18\ See SW-846 Chapter 9. EPA-HQ-OLEM-2018-0830-0162.
---------------------------------------------------------------------------

    The second concern from the commenter relates to when a waste must 
be separated once a generator has made a determination that their waste 
consists of multiple phases. The Agency notes that in the waste 
identification process, the generator of a waste can rely on testing or 
knowledge of a waste and does not have to test or separate their waste 
if knowledge of the waste results in an accurate waste determination. 
For example, a generator may determine one phase of a waste is 
hazardous and manage the entire waste as hazardous without additional 
testing of a second phase. A generator may also conduct no testing when 
there is sufficient knowledge of the properties of the waste to make a 
hazardous waste identification. A generator is not required to separate 
all wastes as a normal part of waste management. The Agency had 
intended separating in the proposed regulatory language to mean that 
the generator would be subsampling a multiple phase waste so that each 
phase was analyzed separately in a flash point apparatus. The testing 
of a waste requires a sample representative of the hazards of the 
waste. A ``representative sample'' is defined by regulation (40 CFR 
260.10) as ``a sample of a universe or whole (e.g., waste pile, lagoon, 
ground water) which can be expected to exhibit the average properties 
of the universe or whole.'' For ignitable liquids, the hazard is 
exhibited by the vapor phase generated from the ignitable liquid. In 
the context of ignitable liquids, a sample of a waste that generates a 
vapor phase consistent with the vapor phase generated by the waste on 
average would be considered representative of the waste as a whole.
    In determining when to separate (or subsample) wastes, a generator 
must consider what sampling strategy will result in a representative 
sample or will result in knowledge of the potential hazards exhibited 
by a representative sample. In some cases, the individual liquid phases 
of a multiple phase waste will be in equilibrium with each other and 
will resultingly have the same vapor phase. In this case a generator 
could sample either phase and obtain the same flash point value. This 
scenario is supported by public comments explaining that sampling and 
analysis of the organic phase is often sufficient for identification of 
a multiple phase waste containing organic and aqueous phases.\19\
---------------------------------------------------------------------------

    \19\ See comments from the Environmental Technology Council. 
EPA-HQ-OLEM-2018-0830-170.
---------------------------------------------------------------------------

    In other cases, the multiple phases of a waste will not be at 
equilibrium during management of the waste. This presents an analytical 
challenge as multiple phase wastes cannot readily be analyzed in a 
flash point apparatus without separating the phases and analyzing each 
phase separately. A generator who has separated each phase for analysis 
must then determine whether that phase is representative of the waste 
as a whole. Attempting to average (or predict) the vapor phases 
generated by multiple phases of a chemically complex waste through 
analysis of individual phases may present a significant challenge in 
some instances. In situations where a generator has determined that a 
single phase of a multiple phase waste is not representative of the 
waste as a whole, the generator should use the results of testing a 
single phase as part of the knowledge of the waste even though testing 
of an individual phase alone is not necessarily conclusive for making 
their hazardous waste determination.
    The Agency also agrees with the commenters that a subset of 
mixtures should not or do not always require separation for analysis of 
each phase. One example is mixtures with a low concentration of a 
highly volatile, ignitable constituent. The process of separating 
phases using the Paint Filter Liquids Test may allow the volatile 
constituents to evaporate and alter the flash point test result. The 
Agency considers wastes that lose a significant portion of volatile 
constituents during filtration with the Paint Filter Liquids Test to 
not be separable by this test method.
    A commenter suggested that the guidance within Chapter 2 of SW-846 
allows for broad discretion in choosing to sample one or multiple 
phases of a multiple phase sample and asked the Agency to better 
explain the applicability of this guidance to ignitable liquids.\20\ 
Section 2.3.1.5 Multiphase Samples of Chapter 2 provides three 
approaches that are applicable to analyzing a sample for the total 
concentration of a constituent where the waste exists in multiple 
phases.
---------------------------------------------------------------------------

    \20\ See comment from the Coalition for Responsible Waste 
Incineration. EPA-HQ-OLEM-2018-0830-0172.
---------------------------------------------------------------------------

    The first of three approaches in Section 2.3.1.5 states, ``With a 
sample in which some of the phases tend to separate rapidly, the 
percent weight or volume of each phase should be calculated, and each 
phase should be individually analyzed for the required analytes.'' The 
Agency considers that when a generator of a waste has multiple phases 
that separate rapidly, analysis of each phase may be appropriate (or, 
alternatively, may not be necessary if generator knowledge is 
sufficient to characterize the waste). The analysis of each phase 
provides an accurate analysis of the potential hazards of the vapor 
phase generated by that liquid phase. However, the guidance to measure 
the weight or volume of each phase has limited applicability to 
determining a flash point or identifying an ignitability hazard. A 
flash point measurement depends upon the concentration of ignitable 
constituents in the vapor phase above a waste. The concentration of 
constituents in the vapor phase is not necessarily linear with the 
concentration of ignitables in the multiple liquid or solid phases. 
Ultimately, the determination made by the generator must consider 
whether the sample is representative of a waste and what hazards are 
exhibited by the waste.
    The second of three approaches in Section 2.3.1.5 states, ``An 
alternate approach is to obtain a homogeneous sample and attempt a 
single analysis on the combination of phases. This approach will give 
no information on the abundance of the analytes in the individual 
phases other than what can be implied by solubility.'' The Agency 
believes this may have some limited applicability with the use of 
Pensky-Martens testing of non-filterable suspended solids in liquids. 
If the waste has a more substantial second phase than nonfilterable 
solids, the Agency questions how a multiple phase sample can be 
homogenized and maintained as one phase inside the flash point 
apparatus unless the long term behavior of the waste were to be a one 
phase waste. The Agency is concerned this approach would yield highly 
inconsistent results due to the analytical challenges of measuring the 
flash point of a sample inside a flash point apparatus that would need 
to equilibrate multiple liquid or solid phases with the vapor phase at 
various temperatures. The Agency has also explained in the past that if 
a waste contains filterable solids, then the solids and liquids must be 
separated and then analyzed against the respective criteria for 
ignitable solids and ignitable liquids.\21\
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    \21\ See Letter to Mr. Nebrich. EPA-HQ-OLEM-2018-0830-0011.

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[[Page 40603]]

    The third approach in Section 2.3.1.5 states, ``A third alternative 
is to select phases of interest and to analyze only those selected 
phases. This tactic must be consistent with the sampling/analysis 
objectives or it will yield insufficient information for the time and 
resources expended. The phases selected should be compared with Figure 
21 and Table 241[in SW-846 Chapter 2] for further guidance.'' The 
Agency generally agrees with this approach when combined with generator 
knowledge of the waste. For example, a generator may make a 
determination through knowledge that an aqueous phase does not exhibit 
ignitability but rely on flash point testing to determine whether an 
organic phase of the same waste exhibits ignitability.
    Therefore, EPA believes that the sampling approaches outlined in 
Section 2.3.1.5, while providing useful guidance in certain 
circumstances, have limitations, as described. Ultimately, the sampling 
approach should be designed to obtain a representative sample of a 
waste or to provide additional knowledge of the waste when an 
individual sample does not wholly represent the hazards of a waste.
    The same commenter also raised concerns over what the Agency 
considered to be a separated waste and whether a separation must occur 
by the waste itself or whether a generator must attempt to force 
separation. This concern included the potential application of the 
ignitable liquids criteria to manufactured articles containing minute 
amounts of ignitable liquid. The commenter indicated that the waste 
would not yield a liquid when tested with the Paint Filter Liquids 
Test. The Agency does not consider the public comment to be 
sufficiently detailed to make a broad hazardous waste determination for 
all manufactured articles containing small amounts of liquid. In this 
scenario, if a generator has determined that their waste yields no 
liquid when subject to the Paint Filter Liquids Test, then that waste 
is likely not subject to the ignitable liquids regulation.
    In some limited situations, a waste may present as a liquid in 
nature but not pass through a paint filter due to viscosity or due to 
oversized particulates preventing flow through pores. In these 
situations, the Agency recommends that the generator consider the 
possibility to decant, pipette, or use other physical means to collect 
a sample. Additionally, a generator would also be required to consider 
the identification of ignitable non-liquids under 261.21(a)(2) when 
materials are not determined to be a liquid via the Paint Filter 
Liquids Test. The Agency recommends that the generator also carefully 
consider the conditions under which their waste is likely to be managed 
and any other characteristics or listings that may apply.
    Taking into account the confusion caused by the Agency's proposal 
to codify existing guidance for multiple phase mixtures into 
regulation, the Agency has decided not to finalize the proposed 
language for 40 CFR 261.21(a)(5) at this time. The discussion in this 
preamble clarifies the Agency's position regarding testing of multiple 
phases of a waste. Individual phases of a multiple phase waste that 
exhibit ignitability and are representative of the multiple phase waste 
are subject to evaluation under the criteria in 40 CFR 261.21(a)(1) or 
40 CFR 261.21(a)(2). Generators of multiple phases wastes where either 
phase is identified as exhibiting the characteristic of ignitability 
would be required to manage the entire waste as hazardous waste. A 
sample from a multiple phase waste that is not representative of the 
waste as a whole is not always conclusive for a waste identification. 
The Agency notes that 40 CFR 261.21(a) identifies waste based on the 
properties of a representative sample and that generators of a waste 
remain able to complete a waste identification through testing or 
knowledge. Testing of a waste may or may not require analysis of all 
phases to complete a hazardous waste determination.

F. Pressure Filtration and Ignitable Liquids

    In the proposed rule, EPA requested comment on whether the Agency 
should revisit adding language to Chapter 7 of SW-846 as guidance 
regarding the use of the Pressure Filtration Technique (PFT) specified 
in Method 1311 for assessing the presence of an ignitable liquid for 
wastes that do not yield a free liquid phase using Method 9095 (i.e., 
Paint Filter Liquids Test or PFLT). Currently, generators may rely on 
the Paint Filter Liquids Test if they are separating a liquid from a 
solid for subsequent analysis. A generator may also be aware that a 
waste contains multiple phases through knowledge, testing, or visual 
observation. In these cases, a generator may sample individual phases 
without having to apply the Paint Filter Liquids Test. For example, a 
generator may be able to pipette, decant, pump, or use a COLIWASA 
apparatus to obtain a representative sample of the phase(s).
    Several commenters raised concerns that the application of the 
Pressure Filtration Technique would be inconsistent with the Agency's 
rulemaking in 2013 that promulgated exclusions from solid and hazardous 
waste for solvent-contaminated wipes (see 78 FR 46448). Commenters also 
suggested that because the 2013 rulemaking provided guidance to use the 
Paint Filter Liquids Test for no free liquids, the 2013 rulemaking 
guidance would take precedence over any new guidance.
    The Agency notes that the 2013 final rule for solvent-contaminated 
wipes provided guidance in preamble that generators should use the 
Paint Filter Test to determine no free liquids for solvent contaminated 
wipes under the finalized exclusions. The Agency considered whether a 
list of solvent extraction technologies might be more appropriate than 
a test to determine no free liquids and also considered the multiple 
tests state agencies were already using to verify compliance with the 
``no free liquids'' conditions. The Agency was aware that the majority 
of the state agencies required the Paint Filter Liquids Tests and 
clarified that for the 2013 rulemaking, ``EPA is using the Paint Filter 
Liquids Test for determining whether solvent-contaminated wipes contain 
free liquids.'' The Agency also noted that authorized state programs 
are able to define ``no free liquids'' differently provided they are no 
less stringent. The Agency provided this guidance via rulemaking within 
the scope of solvent-contaminated wipes eligible for exclusion under 
261.4(a)(26) or 261.4(b)(18).
    The universe of ignitable liquids wastes is broader than the 
universe of solvent-contaminated wipes. The Agency expects some wastes 
are better represented by the pressure filtration procedure within EPA 
Method 1311 or by other analysis and requested comment regarding the 
use of Pressure Filtration Technique and Paint Filter Liquids Test 
since it was interested in learning from the experiences of the 
generators and regulators who have been identifying ignitable hazardous 
waste under the existing program. However, for most wastes that are not 
readily apparent to be a liquid through observation, the Agency 
believes the Paint Filter Liquids Test is an appropriate analysis. As 
noted by other commenters, the Agency clarified in 1995 that the Paint 
Filter Liquids Test is the minimum testing requirement to determine 
that a waste has no free liquids.\22\ Commenters also noted that

[[Page 40604]]

some wastes may present difficulties in being pressure filtered, such 
as liquid wastes with fine particles that prevent filtering or other 
hard to manage wastes.\23\ Wastes that readily flow and take the shape 
of their container may not readily filter but may still be identified 
as ignitable liquids. The Agency is taking no final action specific to 
the application of the Pressure Filtration Procedure in this 
rulemaking.
---------------------------------------------------------------------------

    \22\ See Letter from David Brussard. EPA-HQ-OLEM-0830-0039.
    \23\ See comments by the Environmental Technology Council. EPA-
HQ-OLEM-2018-0830-0170
---------------------------------------------------------------------------

G. Additional Conforming Amendments

    The Agency has become aware that several additional conforming 
amendments to the regulations in Parts 63, 260, and 278 are necessary. 
Consistent with the other conforming amendments that EPA had proposed 
and is finalizing today, EPA is also finalizing these additional 
conforming amendments.
    1. 40 CFR 63. Part 63 incorporates Method 0023A by reference in 40 
CFR 63.14 and 40 CFR 63.1208. As the Agency has updated Method 0023A to 
allow for alternatives to mercury thermometer usage in this rule, 
failing to update the reference in Part 63 would require the continued 
use of mercury thermometers when using Method 0023A to meet testing 
requirements in Part 63.
    2. 40 CFR 260.11. EPA is making non-substantive amendments to the 
centralized incorporated by reference section in part 260 for 
conformity with 1 CFR 51. EPA is revising part 260 such that the test 
methods identified in 40 CFR 260.11 are listed alphabetically and 
numerically and the language explaining incorporation by reference in 
40 CFR 260.11(a) is updated to meet current style and formatting 
requirements of the Federal Register.
    3. 40 CFR 278. Additionally, the incorporation by reference of 
Method 1312 into the regulations at 40 CFR 278.3(b)(1) should now be 
located in 40 CFR 260.11 to meet style and formatting requirements of 
the Federal Register.

IV. Incorporation by Reference

    The Methods Innovation Rule, which was finalized on June 14, 2005, 
revised 40 CFR 260.11 to remove the incorporation by reference of all 
SW-846 test methods except those SW-846 test methods that are also 
regulatory required method-defined parameters under the RCRA 
regulations and thus, can only be amended through a regulatory 
effort.\24\
---------------------------------------------------------------------------

    \24\ It is important to note that while a test method listed in 
Sec.  260.11 is a method-defined parameter, that test method also 
may be used for non-mandatory purposes. For example, the Pensky-
Martens method described in Method 1010A could also be used as part 
of quality control to test a product for purity, which is unrelated 
to Sec.  261.21 and, otherwise, not required under RCRA. In this 
case, the test method would not be a method-defined parameter. In 
order to be a method-defined parameter, a test method must be part 
of a regulatory requirement under RCRA.
---------------------------------------------------------------------------

    The Agency is incorporating by reference SW-846 Method 1010B, SW-
846 Method 1020C, ASTM D8174-18, ASTM D8175-18, and ASTM E681-85 into 
Sec.  261.21 and as applicable into Appendix IX to part 261. SW-846 
Method 1010B and SW-846 Method 1020C list the required methods to 
determine flashpoint for ignitable hazardous waste. SW-846 Method 1010B 
lists the Pensky-Martens flash point methods, which are ASTM Standards 
D93-79, D93-80, and D8175-18. SW-846 Method 1020C lists the Setaflash 
(small-scale) closed cup flash point methods, which are the ASTM 
Standards D3278-78 and D8174-18. ASTM D8174-18 is a test method to 
determine the flash point of liquid wastes using a small-scale 
(Setaflash) apparatus. ASTM D8175-18 is a test method used to determine 
the flash point of liquid wastes using a Pensky-Martens apparatus. ASTM 
E681-85 is a test method used to determine the upper and lower 
concentration limits of flammability for chemicals having sufficient 
vapor pressure to form flammable mixtures with air.
    The Agency is also incorporating by reference SW-846 Test Methods 
0010, 0011, 0020, 0023A, and 0051. SW-846 Method 0010 is a sampling 
method for collection of gaseous and particulate pollutants from an 
emission source. SW-846 Method 0011 is a method for collection of 
selected ketones and aldehydes from an emission source. SW-846 Method 
0020 is a method to collect gaseous and particulate pollutants from an 
emission source and into a multicomponent sampling train. SW-846 Method 
0023A is a method for collection of polychlorinated dibenzo-p-dioxins 
and polychlorinated dibenzofuran from an emission source. SW-846 Method 
0051 is a method for collection of hydrogen chloride and chlorine in 
stack gas emission samples from hazardous waste incinerators and 
combustors. The Agency is incorporating by reference Method 0010 into 
Sec.  260.11(c)(3)(i), Appendix IX to part 261, and Appendix IX to part 
266. The Agency is incorporating by reference Method 0011 into Sec.  
260.11(c)(3)(viii), Appendix IX to part 261, and Appendix IX to part 
266. The Agency is incorporating by reference Method 0020 into Sec.  
260.11(c)(3)(ii) and Appendix IX to part 261. The Agency is 
incorporating by reference Method 0023A into Sec.  260.11(c)(3)(ix), 
Appendix IX to part 261, and Appendix IX to part 266. The Agency is 
incorporating by reference Method 0051 into Sec.  260.11(c)(3)(xiii), 
Appendix IX to part 261, Sec.  266.107(f), and Appendix IX to part 266. 
The finalization of the proposed incorporation by reference of the 
above test methods is as described in the proposed rule and as 
discussed in Section III above.
    The ASTM standards incorporated by reference are available for 
purchase from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, 
West Conshohocken, PA 19428-2959, www.astm.org, call 877-909-2786. The 
SW-846 Test Methods incorporated by reference are published in the test 
methods compendium known as ``Test Methods for Evaluating Solid Waste, 
Physical/Chemical Methods,'' EPA Publication SW-846, Third Edition, 
which can be found at https://www.epa.gov/hw-sw846.

V. State Authorization

A. Applicability of Final Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer and enforce the RCRA hazardous waste program within the 
state. Following authorization, EPA retains enforcement authority under 
sections 3008, 3013, and 7003 of RCRA, although authorized states have 
primary enforcement responsibility. The standards and requirements for 
state authorization are found at 40 CFR part 271. Prior to enactment of 
the Hazardous and Solid Waste Amendments of 1984 (HSWA), a state with 
final RCRA authorization administered its hazardous waste program 
entirely in lieu of EPA administering the federal program in that 
state. The federal requirements no longer applied in the authorized 
state, and EPA could not issue permits for any facilities in that 
state, since only the state was authorized to issue RCRA permits. When 
EPA promulgated new, more stringent federal requirements for these pre-
HSWA regulations, the state was obligated to enact equivalent 
authorities within specified time frames. However, the new federal 
requirements did not take effect in an authorized state, until the 
state adopted the federal requirements as state law. In contrast, under 
RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new 
requirements and prohibitions imposed under HSWA authority take effect 
in authorized states at the same

[[Page 40605]]

time that they take effect in unauthorized states. EPA is directed by 
the statute to implement these requirements and prohibitions in 
authorized states, including the issuance of permits, until the state 
is granted authorization to do so. While states must still adopt HSWA 
related provisions as state law to retain final authorization, EPA 
implements the HSWA provisions in authorized states until the states do 
so.
    Authorized states are required to modify their programs only when 
EPA enacts federal requirements that are more stringent or broader in 
scope than existing federal requirements.\25\ RCRA section 3009 allows 
the states to impose standards more stringent than those in the federal 
program (see also 40 CFR 271.1). Therefore, authorized states may, but 
are not required to, adopt federal regulations, both HSWA and non-HSWA, 
that are considered less stringent than previous federal regulations.
---------------------------------------------------------------------------

    \25\ EPA notes that decisions regarding whether a state rule is 
more stringent or broader in scope than the federal program are made 
when the Agency authorizes a state program for a particular rule.
---------------------------------------------------------------------------

B. Effect on State Authorization

    Today's notice finalizes regulations that would not be promulgated 
under the authority of HSWA. Thus, the standards would be applicable on 
the effective date only in those states that do not have final 
authorization of their base RCRA programs. Moreover, authorized states 
are required to modify their programs only when EPA promulgates federal 
regulations that are more stringent or broader in scope than the 
authorized state regulations. For those changes that are less 
stringent, states are not required to modify their programs. This is a 
result of section 3009 of RCRA, which allows states to impose more 
stringent regulations than the federal program.
    The revisions to these test methods are considered to be neither 
more nor less stringent than the existing test methods. Thus, 
authorized states may, but are not required to, adopt these changes.

VI. Statutory and Executive Order (E.O.) Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) 
and 13563 (76 FR 3821, January 21, 2011).

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

    This action is a deregulatory action as specified in Executive 
Order 13771 (82 FR 9339, February 3, 2017). Details on the estimated 
cost savings of the final rule can be found in EPA's Regulatory Impact 
Analysis of the Modernization of Ignitable Liquid Determination Rule, 
which is in the docket.

C. Paperwork Reduction Act (PRA)

    According to PRA, 44 U.S.C. 3501 et seq., an agency may not conduct 
or sponsor, and a person is not required to respond to a collection of 
information that requires OMB approval under the PRA, unless it has 
been approved by OMB and displays a currently valid OMB control number. 
The OMB control numbers for EPA's regulations in Title 40 of the CFR, 
after appearing in the Federal Register, are listed in 40 CFR part 9, 
and included on the related collection instrument, or form, as 
applicable. This action does not impose any burden requiring additional 
OMB approval because it neither imposes new paperwork requirements nor 
amends existing paperwork requirements. Burden is defined in 5 CFR 
1320.3(b). OMB previously approved the information collection 
activities contained in the existing regulations and assigned OMB 
control numbers 2050-0053 and 2050-0073.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA, 5 
U.S.C. 601 et seq. In making this determination, the impact of concern 
is any significant adverse economic impact on small entities. An agency 
may certify that a rule will not have a significant economic impact on 
a substantial number of small entities if the rule relieves regulatory 
burden, has no net burden or otherwise has a positive economic effect 
on the small entities subject to the rule. As documented in the 
Regulatory Impact Analysis of the Modernization of Ignitable Liquid 
Determinations Rule found in the docket for this final rule, EPA does 
not expect the rule to result in an adverse impact to a significant 
number of small entities. For commercial labs, the analysis presented 
in Chapter 3 indicates either no change in costs or a cost savings, due 
to the flexibility afforded by the rule. Therefore, out of the 128 
firms defined as small under the Small Business Administration size 
standards, no firms have costs greater than one percent of annual 
revenues. EPA has therefore concluded that this action will either 
relieve regulatory burden or have no net regulatory burden for all 
directly regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

    As documented in the Regulatory Impact Analysis of the 
Modernization of Ignitable Liquid Determinations Rule found in the 
docket for the final rule, this action does not contain an unfunded 
mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-
1538, and does not significantly or uniquely affect small governments.

F. Executive Order 13132: Federalism

    This action does not have ``federalism implications'' as that term 
is defined in Executive Order 13132 (64 FR 43255, August 10, 1999). It 
will not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. The final rule is not expected to result in any 
adverse impacts on tribal entities. Thus, Executive Order 13175 does 
not apply to this rule.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

[[Page 40606]]

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. EPA is adopting the use 
of ASTM D8175-18 and ASTM D8174-18. These test methods were adopted by 
ASTM in March 2018. These standards are available for purchase from 
ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West 
Conshohocken, PA 19428-2959. EPA worked with ASTM to specifically 
develop these consensus-based standards to better suit waste testing by 
modifying existing ASTM standards. EPA worked with a member of the ASTM 
D02.08 Subcommittee (who also represents Stanhope-Seta) to modify 
existing ASTM methods D93-16 and D3828-16a, which were developed by the 
ASTM D02.08 Subcommittee. These new draft test methods were then 
submitted to ASTM's review process and were approved by the ASTM D34 
Committee to become new ASTM test methods.

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

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 
final rule modernizes testing and codifies guidance for the 
characterization of ignitable hazardous waste; it does not affect the 
disposal of such waste. Therefore, the final rule is not expected to 
result in any adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects

40 CFR Part 63

    Environmental protection, Incorporation by reference.

40 CFR Part 260

    Environmental protection, Hazardous waste, Incorporation by 
reference.

40 CFR Part 261

    Environmental protection, Hazardous waste, Incorporation by 
reference, Recycling.

40 CFR 278

    Environmental protection, Incorporation by reference.

Andrew Wheeler,
Administrator.
    For the reasons set forth in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS 
FOR SOURCE CATEGORIES

0
1. The authority citation for part 63 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.


0
2. Amend Sec.  63.14 by revising the paragraph (a) and paragraph 
(q)(2)(i) to read as follows:


Sec.  63.14   Incorporations by reference.

    (a) The materials listed in this section are incorporated by 
reference into this part with the approval of the Director of the 
Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce 
any edition other than that specified in this section, a document must 
be published in the Federal Register and the material must be available 
to the public. All approved materials are available for inspection at 
the Air and Radiation Docket and Information Center (Air Docket) in the 
EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 
Constitution Ave. NW, Washington, DC. The EPA/DC Public Reading Room 
hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number of the EPA/DC Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742. These approved materials are also available 
for inspection at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
email fedreg.legal@nara.gov or go to www.archives.gov/federal-register/cfr/ibr-locations.html. In addition, these materials are available from 
the following sources:
* * * * *
    (q) * * *
    (2) * * *
    (i) Method 0023A, ``Sampling Method for Polychlorinated Dibenzo-p-
Dioxins and Polychlorinated Dibenzofuran Emissions from Stationary 
Sources,'' Revision 2, dated August 2018, IBR approved for Sec.  
63.1208(b).
* * * * *

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
3. The authority citation for part 260 continues to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 
6935, 6937, 6938, 6939, and 6974.


0
4. Revise Sec.  260.11 to read as follows:


Sec.  260.11   Incorporation by reference.

    When used in parts 260 through 268 of this chapter, the following 
materials are incorporated by reference with the approval of the 
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 
51. All approved materials are available for inspection at the OLEM 
Docket in the Environmental Protection Agency Docket Center (EPA/DC), 
West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. 
NW, Washington, DC. The EPA/DC Public Reading Room hours of operation 
are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number of the EPA/DC Public Reading room is 
(202) 566-1744, and the telephone number for the OLEM Docket is (202) 
566-0270. These approved materials are also available for inspection at 
the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, email 
fedreg.legal@nara.gov or go to www.archives.gov/federal-register/cfr/ibr-locations.html. In addition, these materials are available from the 
following sources:
    (a) American Petroleum Institute (API). 1220 L Street Northwest, 
Washington, DC 20005, (855) 999-9870, www.api.org.
    (1) API Publication 2517, Third Edition, February 1989, 
``Evaporative Loss from External Floating-Roof Tanks,'' IBR approved 
for Sec.  265.1084.
    (2) [Reserved]
    (b) ASTM International (ASTM). 100 Barr Harbor Drive, P.O. Box 
C700, West Conshohocken, PA 19428-2959, (877) 909-ASTM, www.astm.org.
    (1) ASTM D93-79, ``Standard Test Methods for Flash Point by Pensky-
Martens Closed Cup Tester,'' IBR approved for Sec.  261.21(a).
    (2) ASTM D93-80, ``Standard Test Methods for Flash Point by Pensky-
Martens Closed Cup Tester,'' IBR approved for Sec.  261.21(a).

[[Page 40607]]

    (3) ASTM D1946-82, ``Standard Method for Analysis of Reformed Gas 
by Gas Chromatography,'' IBR approved for Sec. Sec.  264.1033 and 
265.1033.
    (4) ASTM D2267-88, ``Standard Test Method for Aromatics in Light 
Naphthas and Aviation Gasolines by Gas Chromatography,'' IBR approved 
for Sec.  264.1063.
    (5) ASTM D2382-83, ``Standard Test Method for Heat of Combustion of 
Hydrocarbon Fuels by Bomb Calorimeter (High-Precision Method),'' IBR 
approved for Sec. Sec.  264.1033 and 265.1033.
    (6) ASTM D2879-92, ``Standard Test Method for Vapor Pressure--
Temperature Relationship and Initial Decomposition Temperature of 
Liquids by Isoteniscope,'' IBR approved for Sec.  265.1084.
    (7) ASTM D3278-78, ``Standard Test Methods for Flash Point for 
Liquids by Setaflash Closed Tester,'' IBR approved for Sec.  261.21(a).
    (8) ASTM D8174-18 ``Standard Test Method for Finite Flash Point 
Determination of Liquid Wastes by Small Scale Closed Cup Tester.'' 
Approved March 15, 2018, IBR approved for Sec.  261.21(a).
    (9) ASTM D8175-18 ``Standard Test Method for Finite Flash Point 
Determination of Liquid Wastes by Pensky-Martens Closed Cup Tester.'' 
Approved March 15, 2018, IBR approved for Sec.  261.21(a).
    (10) ASTM E168-88, ``Standard Practices for General Techniques of 
Infrared Quantitative Analysis,'' IBR approved for Sec.  264.1063.
    (11) ASTM E169-87, ``Standard Practices for General Techniques of 
Ultraviolet-Visible Quantitative Analysis,'' IBR approved for Sec.  
264.1063.
    (12) ASTM E260-85, ``Standard Practice for Packed Column Gas 
Chromatography,'' IBR approved for Sec.  264.1063.
    (13) ASTM E681-85 ``Standard Test Method for Concentration Limits 
of Flammability of Chemicals (Vapors and gases),'' Approved November 
14, 1985, IBR approved for Sec.  261.21(a).
    (c) Environmental Protection Agency (EPA). Material cited in 
paragraphs (d)(1) through (3) is available from: National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161; the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402, (202) 512-1800; EPA's National Service Center for 
Environmental Publications at https://www.epa.gov/nscep. Material cited 
in paragraph (d)(4) of this section is available at https://www.epa.gov/hw-sw846.
    (1) ``APTI Course 415: Control of Gaseous Emissions,'' EPA 
Publication EPA-450/2-81-005, December 1981, IBR approved for 
Sec. Sec.  264.1035 and 265.1035.
    (2) Method 1664, n-Hexane Extractable Material (HEM; Oil and 
Grease) and Silica Gel Treated n-Hexane Extractable Material SGT-HEM; 
Non-polar Material) by Extraction and Gravimetry:
    (i) Revision A, EPA-821-R-98-002, February 1999, IBR approved for 
appendix IX to part 261.
    (ii) Revision B, EPA-821-R-10-001, February 2010, IBR approved for 
appendix IX to part 261.
    (3) ``Screening Procedures for Estimating the Air Quality Impact of 
Stationary Sources, Revised'', October 1992, EPA Publication No. EPA-
450/R-92-019, IBR approved for appendix IX to part 266.
    (4) The following methods as published in the test methods 
compendium known as ``Test Methods for Evaluating Solid Waste, 
Physical/Chemical Methods,'' EPA Publication SW-846, Third Edition.
    (i) Method 0010, Modified Method 5 Sampling Train, Revision 1, 
dated August 2018, IBR approved for appendix IX to part 261.
    (ii) Method 0011, Sampling for Selected Aldehyde and Ketone 
Emissions from Stationary Sources, Revision 1, dated August 2018, IBR 
approved for appendix IX to part 261 and appendix IX to part 266
    (iii) Method 0020, Source Assessment Sampling System (SASS), 
Revision 1, dated August 2018, IBR approved for appendix IX to part 
261.
    (iv) Method 0023A, Sampling Method for Polychlorinated Dibenzo-p-
Dioxins and Polychlorinated Dibenzofuran Emissions from Stationary 
Sources, Revision 2, dated August 2018, IBR approved for appendix IX to 
part 261, Sec.  266.104(e), and appendix IX to part 266.
    (v) Method 0030, Volatile Organic Sampling Train, dated September 
1986 and in the Basic Manual, IBR approved for appendix IX to part 261.
    (vi) Method 0031, Sampling Method for Volatile Organic Compounds 
(SMVOC), dated December 1996 and in Update III, IBR approved for 
appendix IX to part 261.
    (vii) Method 0040, Sampling of Principal Organic Hazardous 
Constituents from Combustion Sources Using Tedlar[supreg] Bags, dated 
December 1996 and in Update III, IBR approved for appendix IX to part 
261.
    (viii) Method 0050, Isokinetic HCl/Cl2 Emission Sampling 
Train, dated December 1996 and in Update III, IBR approved for appendix 
IX to part 261, Sec.  266.107, and appendix IX to part 266.
    (ix) Method 0051, Midget Impinger HCl/Cl2 Emission Sampling Train, 
Revision 1, dated August 2018, IBR approved for appendix IX to part 
261, Sec.  266.107, and appendix IX to part 266.
    (x) Method 0060, Determination of Metals in Stack Emissions, dated 
December 1996 and in Update III, IBR approved for appendix IX to part 
261, Sec.  266.106, and appendix IX to part 266.
    (xi) Method 0061, Determination of Hexavalent Chromium Emissions 
from Stationary Sources, dated December 1996 and in Update III, IBR 
approved for appendix IX to part 261 Sec.  266.106, and appendix IX to 
part 266.
    (xii) Method 1010B, Test Methods for Flash Point by Pensky-Martens 
Closed-Cup Tester, dated December 2018, IBR approved for Sec.  261.21 
and appendix IX to part 261.
    (xiii) Method 1020C, Standard Test Methods for Flash Point by 
Setaflash (Small Scale) Closed-Cup Apparatus, dated December 2018, IBR 
approved for Sec.  261.21 and appendix IX to part 261.
    (xiv) Method 1110A, Corrosivity Toward Steel, dated November 2004 
and in Update IIIB, IBR approved for Sec.  261.22 and appendix IX to 
part 261.
    (xv) Method 1310B, Extraction Procedure (EP) Toxicity Test Method 
and Structural Integrity Test, dated November 2004 and in Update IIIB, 
IBR approved for appendix IX to part 261.
    (xvi) Method 1311, Toxicity Characteristic Leaching Procedure, 
dated July 1992 and in Update I, IBR approved for appendix IX to part 
261, and Sec. Sec.  261.24, 268.7, 268.40.
    (xvii) Method 1312, Synthetic Precipitation Leaching Procedure, 
dated September 1994 and in Update III, IBR approved for appendix IX to 
part 261.
    (xviii) Method 1320, Multiple Extraction Procedure, dated September 
1986 and in the Basic Manual, IBR approved for appendix IX to part 261.
    (xix) Method 1330A, Extraction Procedure for Oily Wastes, dated 
July 1992 and in Update I, IBR approved for appendix IX to part 261.
    (xx) Method 9010C, Total and Amenable Cyanide: Distillation, dated 
November 2004 and in Update IIIB, IBR approved for appendix IX to part 
261 and Sec. Sec.  268.40, 268.44, 268.48.
    (xxi) Method 9012B, Total and Amenable Cyanide (Automated 
Colorimetric, with Off-Line Distillation), dated November 2004 and in 
Update IIIB, IBR approved for appendix IX to part 261 and Sec. Sec.  
268.40, 268.44, 268.48.
    (xxii) Method 9040C, pH Electrometric Measurement, dated November 
2004 and in Update IIIB, IBR

[[Page 40608]]

approved for appendix IX to part 261 and Sec.  261.22.
    (xxiii) Method 9045D, Soil and Waste pH, dated November 2004 and in 
Update IIIB, IBR approved for appendix IX to part 261.
    (xxiv) Method 9060A, Total Organic Carbon, dated November 2004 and 
in Update IIIB, IBR approved for appendix IX to part 261, and 
Sec. Sec.  264.1034, 264.1063, 265.1034, 265.1063.
    (xxv) Method 9070A, n-Hexane Extractable material (HEM) for Aqueous 
Samples, dated November 2004 and in Update IIIB, IBR approved for 
appendix IX to part 261.
    (xxvi) Method 9071B, n-Hexane Extractable Material (HEM) for 
Sludge, Sediment, and Solid Samples, dated April 1998 and in Update 
IIIA, IBR approved for appendix IX to part 261.
    (xxvii) Method 9095B, Paint Filter Liquids Test, dated November 
2004 and in Update IIIB, IBR approved, appendix IX to part 261, and 
Sec. Sec.  264.190, 264.314, 265.190, 265.314, 265.1081, 267.190(a), 
268.32.
    (d) National Fire Protection Association (NFPA). 1 Batterymarch 
Park, P.O. Box 9101, Quincy, MA 02269-9101, (800) 344-3555, 
www.nfpa.org/.
    (1) NFPA 30, ``Flammable and Combustible Liquids Code,'' 1977 
Edition, IBR approved for Sec. Sec.  262.16(b), 264.198(b), 265.198(b), 
and 267.202(b).
    (2) NFPA 30, ``Flammable and Combustible Liquids Code,'' 1981 
Edition, IBR approved for Sec. Sec.  262.16(b), 264.198(b), 265.198(b), 
and 267.202(b).
    (e) Organization for Economic Cooperation and Development (OECD). 
Economic Cooperation and Development, Environment Directorate, 2 rue 
Andr[eacute] Pascal, F-75775 Paris Cedex 16, France, owww.oecd-ilibrary.org/.
    (1) Guidance Manual for the Control of Transboundary Movements of 
Recoverable Wastes, copyright 2009, Annex B: OECD Consolidated List of 
Wastes Subject to the Green Control Procedure and Annex C: OECD 
Consolidated List of Wastes Subject to the Amber Control Procedure, IBR 
approved for Sec. Sec.  262.82(a), 262.83(b), (d), and (g), and 
262.84(b) and (d).
    (2) [Reserved]

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
5. The authority citation for part 261 continues to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 
6938.


0
6. Amend Sec.  261.21 by:
0
a. Revising paragraphs (a)(1), (3)(ii), (4) introductory text, and 
(4)(i)(A), and (D); and

0
b. Removing Notes 1, 2, 3, and 4.
    The revisions read as follows:


Sec.  261.21   Characteristic of ignitability.

    (a) * * *
    (1) It is a liquid, other than a solution containing less than 24 
percent alcohol by volume and at least 50 percent water by weight, that 
has a flash point less than 60 [deg]C (140 [deg]F), as determined by 
using one of the following ASTM standards: ASTM D93-79, D93-80, D3278-
78, D8174-18, or D8175-18 as specified in SW-846 Test Methods 1010B or 
1020C (all incorporated by reference, see Sec.  260.11 of this 
subchapter).
* * * * *
    (3) * * *
    (ii) A compressed gas shall be characterized as ignitable if any 
one of the following occurs:
    (A) Either a mixture of 13 percent or less (by volume) with air 
forms a flammable mixture or the flammable range with air is wider than 
12 percent regardless of the lower limit. These limits shall be 
determined at atmospheric temperature and pressure. The method of 
sampling and test procedure shall be the ASTM E 681-85 (incorporated by 
reference, see Sec.  260.11 of this subchapter), or other equivalent 
methods approved by the Associate Administrator, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation.
    (B) It is determined to be flammable or extremely flammable using 
49 CFR 173.115(l).
* * * * *
    (4) It is an oxidizer. An oxidizer for the purpose of this 
subchapter is a substance such as a chlorate, permanganate, inorganic 
peroxide, or a nitrate, that yields oxygen readily to stimulate the 
combustion of organic matter.
    (i) * * *
    (A) The material meets the definition of a Division 1.1, 1.2, or 
1.3 explosive, as defined in Sec.  261.23(a)(8), in which case it must 
be classed as an explosive,
* * * * *
    (D) According to data on file with the Pipeline and Hazardous 
Materials Safety Administration in the U.S. Department of 
Transportation, it has been determined that the material does not 
present a hazard in transportation.
* * * * *

Appendic IX to Part 261 [Amended]

0
7. Amend Appendix IX to Part 261 by removing the text ``1010A'' and 
adding ``1010B'' in its place, wherever it appears (56 occurrences); 
and removing the text ``1020B'' and adding ``1020C'' in its place, 
wherever it appears (56 occurrences).

PART 278--CRITERIA FOR THE MANAGEMENT OF GRANULAR MINE TAILINGS 
(CHAT) IN ASPHALT CONCRETE AND PORTLAND CEMENT CONCRETE IN 
TRANSPORTATION CONSTRUCTION PROJECTS FUNDED IN WHOLE OR IN PART BY 
FEDERAL FUNDS

0
8. The authority citation for part 278 continues to read as follows:

    Authority:  42 U.S.C. 6961 et seq.


0
9. Amend Sec.  278.3 by revising paragraph (b)(1) and adding paragraph 
(d) to read as follows:


Sec.  278.3   Criteria for use of chat in Federally funded 
transportation projects.

* * * * *
    (b) * * *
    (1) Synthetic Precipitation Leaching Procedure (SPLP) tests are 
conducted on the proposed material using EPA SW-846 Method 1312, and 
the leachate testing results show that concentrations in the leachate 
do not exceed the National Primary Drinking Water Standards for lead 
and cadmium and the fresh water chronic National Recommended Water 
Quality Criterion for zinc of 120 [micro]g/l; or
* * * * *
    (d) EPA SW-846 Method 1312, ``Test Methods for Evaluating Solid 
Waste, Physical/Chemical Methods,'' Third Edition, September 1994, is 
incorporated by reference into this section with the approval of the 
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 
51. It is available at www.epa.gov/hw-sw846/. All approved material is 
available for inspection at the OLEM Docket in the Environmental 
Protection Agency Docket Center (EPA/DC), West William Jefferson 
Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC. The 
EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number of the EPA/DC Public Reading room is (202) 566-1744, and the 
telephone number for the OLEM Docket is (202) 566-0270. It is also 
available for inspection at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email fedreg.legal@nara.gov or go to 
www.archives.gov/federal-register/cfr/ibr-locations.html.
[FR Doc. 2020-12695 Filed 7-6-20; 8:45 am]
BILLING CODE 6560-50-P


