[Federal Register Volume 84, Number 63 (Tuesday, April 2, 2019)]
[Proposed Rules]
[Pages 12539-12552]
[FR Doc No: 2019-05878]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, and 266

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

Modernizing Ignitable Liquids Determinations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

and Recovery Act (RCRA) and to modernize the RCRA test methods that
currently require the use of mercury thermometers. These proposed
revisions would provide greater clarity to hazardous waste
identification, provide flexibility in testing requirements, improve
environmental compliance, and, thereby, enhance protection of human
health and the environment.

DATES: Comments must be received on or before June 3, 2019.

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

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

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

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
    D. What are the incremental costs and benefits of this action?
II. Background
    A. What is a hazardous waste?
    B. What is the hazardous waste characteristic of ignitability?
    C. What is the regulatory history of the ignitability
characteristic?
    D. What is a flash point and how is it measured?
    E. What flash point test methods does EPA currently require?
    F. What is the aqueous alcohol exclusion?
    G. Why consider alternatives to mercury thermometers in test
methods?
III. Proposed Revisions to the Ignitability Characteristic Flash
Point Test Methods
    A. Why is EPA proposing new flash point test methods for
ignitable liquids?
    B. What test method is EPA proposing to add to Method 1010A?
    C. What test method is EPA proposing to add to Method 1020B?
    D. How are the proposed test methods equivalent to the currently
required test methods?
    E. Why is EPA not removing the currently required flash point
test methods?
IV. Codification of Guidance Into the Ignitability Characteristic
    A. Aqueous Alcohol Exclusion
    1. Why is EPA proposing a revision to the aqueous alcohol
exclusion?
    2. What are the proposed changes to the aqueous alcohol
exclusion?
    3. Solicitation of Public Input on Other Changes to the Aqueous
Alcohol Exclusion for Ignitability
    B. Multiphase Testing
    1. Why is the Agency proposing a revision to codify sampling
guidance for multiphase wastes?
    2. Proposed Codification of Guidance for Multiphase Waste
Sampling
V. Additional Corrections to Sec.  261.21
    A. What are the proposed changes to the definition of ignitable
compressed gas in Sec.  261.21(a)(3)(ii)?
    B. What are the proposed changes to Sec.  261.21(a)(4)(i)(A)?
    C. What are the proposed changes to the notes section of Sec.
261.21?
VI. Revision to Mercury Thermometer Requirements in the Air Sampling
and Stack Emissions Methods
    A. Why is EPA proposing revisions to the air sampling and stack
emissions methods?
    B. Proposed Changes to Mercury Thermometer Requirements in SW-
846 Method-Defined Parameter Air Sampling and Stack Emissions
Methods
VII. Incorporation by Reference
VIII. State Authorization
    A. Applicability of Proposed Rule in Authorized States
    B. Effect on State Authorization
IX. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. Does this action apply to me?

    The proposed rule to update the test methods for determining if a
liquid waste is ignitable under the ignitability characteristic may
potentially affect any entity (e.g., generator, laboratory) that
currently conducts flash point testing using either SW-846 Method 1010A
(Pensky-Martens) or Method 1020B (Setaflash). The rule may also affect
any entity (e.g., generator, laboratory, combustor) that uses SW-846
air sampling and stack emissions Methods 0010, 0011, 0020, 0023A, or
0051. EPA does not expect the other parts of this proposed action
(i.e., changes to aqueous alcohol exclusion, addition of sampling
guidelines for multiphase mixtures, and technical edits) to affect any
entity because they do not create new requirements or change existing
requirements.
    The universe of facilities affected by the proposed updates to the
ignitability test methods and SW-846 air sampling and stack emissions
methods includes: (1) Commercial laboratories, (2) EPA laboratories,
and (3) state laboratories. EPA identified 217 unique commercial
laboratories that conduct ignitability testing under either Method
1010A or 1020. EPA identified an additional 18 commercial laboratories
accredited to conduct any of the air sampling and stack emissions
methods that would be updated under this proposed rule, for a total of
235 commercial labs affected by the rule. These 235 total laboratories
are part of 177 unique firms, including several large commercial
laboratories with multiple locations. EPA estimates that the total
number of laboratories, including 20 state and nine federal
laboratories, potentially affected by this rule is 264. The analysis
used to identify the potential universe for this proposed rule can be
found in EPA's Regulatory Impact Analysis of the Modernization of
Ignitable Liquid Determination Rule, which is in the docket.

    This discussion is not intended to be exhaustive but rather
provides a guide for readers regarding entities likely to be regulated
by this action. This discussion lists the types of entities that EPA is
now aware could potentially be regulated by this action. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the FOR FURTHER INFORMATION
CONTACT section.

B. What action is the Agency taking?

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

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

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

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

    EPA prepared an economic analysis of the potential costs and
benefits associated with this proposed action. The Regulatory Impact
Analysis of the Modernization of Ignitable Liquid Determinations Rule
is available in the docket. The proposed rule will modify SW-846 test
methods while also retaining the current procedures to provide entities
increased flexibility. For the purpose of the analysis, EPA assumes
that every facility that currently conducts flash point testing: (1) Is
compliant with the current test methods, (2) will adopt the updated
test methods if cost effective, and (3) will continue to conduct flash
point testing. The analysis indicates that the rule, as proposed, is
projected to result in annualized cost savings of about $78,500 to
$477,000 (based on a discount rate of 7 percent). The net present value
of costs over 20 years is estimated to be a cost savings of $832,000 to
$5 million (seven percent discount rate). EPA's analysis shows
qualitative benefits to human health and the environment through the
reduced use of mercury thermometers.

II. Background

A. What is a hazardous waste?

    Subtitle C of RCRA and its implementing regulations establish a
cradle-to-grave regulatory management scheme for certain solid wastes
that qualify as hazardous wastes. RCRA defines solid waste as ``any
garbage, refuse, sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility and other discarded
material, including solid, liquid, semisolid, or contained gaseous
material * * *.'' (See RCRA 1004(27), 42 U.S.C. 6903(27).) EPA has
further defined the term solid waste for purposes of its RCRA hazardous
waste regulations (40 CFR 261.2). To be considered a hazardous waste, a
material first must be classified as a solid waste. Under EPA's
regulations, generators of solid waste are required to determine
whether their wastes are hazardous wastes (40 CFR 262.11). A solid
waste is a hazardous waste if it exhibits any of the four
characteristics of ignitability, corrosivity, reactivity, or toxicity
(40 CFR 261.20-.24), or is a listed waste (40 CFR 261.30-.33). Listed
wastes include wastes from non-specific sources, such as spent
solvents; by-products from specific industries; and discarded, unused
commercial chemical products.

B. What is the hazardous waste characteristic of ignitability?

    The characteristic of ignitability (40 CFR 261.21) identifies solid
waste as hazardous based on the properties of the waste that give it
the potential to cause harm to human health or the environment through
direct or indirect fire hazard, including contributing to or causing
landfill fires. Waste that is identified as hazardous pursuant to 40
CFR 261.21 has the EPA Hazardous Waste Number of D001. Ignitable
hazardous waste (D001) is regulated to minimize its opportunity to
cause or contribute to fires during routine waste management
activities. Solid wastes that are regulated as ignitable hazardous
waste include: (1) Certain liquids with flash points below 60 [deg]C
(140 [deg]F); (2) non-liquid substances that are capable, under
specified conditions, of causing fire through friction, absorption of
moisture, or spontaneous chemical changes and, when ignited, burns so
vigorously and persistently that they create a hazard; (3) ignitable
compressed gases; and (4) oxidizers.

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

    The ignitability characteristic was originally proposed in 1978 (43
FR 58945) with an objective of identifying wastes that present a fire
hazard due to being ignitable under routine waste disposal and storage
conditions. The ignitability characteristic was finalized in 1980 when
EPA promulgated the first phase of regulations under Subtitle C of RCRA
to protect human health and the environment from the improper
management of hazardous waste (45 FR 33066, May 19, 1980). These
regulations included 40 CFR part 261, which in part, defined the
ignitability characteristic and incorporated by reference ASTM \1\ D
93-79 (Pensky-Martens) and ASTM D 3278-78 (Setaflash) as the required
tests for ignitable liquid hazardous waste determinations. In a 1981
revision, EPA

revised SW-846 Method 1010 to allow the use of D 93-79 or D 93-80 (46
FR 35246, July 7, 1981).
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    \1\ ASTM International (ASTM) is a nonprofit organization, made
up of producers, users, consumers, government, and academia, that
develops and publishes consensus-based standards (https://www.astm.org/).
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    ASTM standards D 3278-78, D 93-79, and D 93-80 were the methods
available for flash point testing at the time of the 1980 and 1981
rulemakings. Since that time, ASTM International (ASTM) has updated D
93 and D 3278 multiple times to improve the standards and incorporate
new technology. EPA previously proposed to update the flash point test
methods for ignitability in the 2002 proposed Methods Innovation Rule
(67 FR 66252, Oct 30, 2002) by replacing ASTM standard D 3278-78 with D
3278-96 and ASTM standards D 93-79 and D 93-80 with D 93-99c. In that
proposed rule, EPA also requested comment on whether D 93-00 should
instead replace D 93-79 and D 93-80. The public raised concerns that
the sampling procedures of the proposed versions of D 93 may lead to a
loss of flammable volatile constituents from a sample due to greater
headspace in the sampling container. The Agency made the decision to
not revise flash point testing when the Methods Innovation Rule was
finalized in 2005, agreeing with public comments that EPA further study
the changes in flash point testing standards (70 FR 34550, June 14,
2005).
    EPA later made corrections to the ignitability characteristic to
replace obsolete references to DOT regulations related to definitions
of ignitable compressed gases and oxidizers (see July 14, 2006 Federal
Register; 71 FR 40254). That final rule amended Sec.  261.21 by
revising paragraphs (a)(3) and (a)(4) and adding notes 1 through 4 to
the end of the section. No change was made to Sec.  261.21(a)(1). The
current language in Sec.  261.21(a)(1) is substantively the same as it
was in 1980.

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

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

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

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

F. What is the aqueous alcohol exclusion?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. Codification of Guidance Into the Ignitability Characteristic

A. Aqueous Alcohol Exclusion

1. Why is EPA proposing a revision to the aqueous alcohol exclusion?
    As part of its effort to update the ignitability methods, the
Agency reviewed the exclusion for aqueous solutions containing
ignitable alcohols to determine if the exclusion should be revised.
Since 1980, questions regarding the scope of the exclusion have been
raised. As discussed in more detail in Section II.F. of this notice,
EPA has provided clarification by interpreting the exclusion to include
any alcohol or combination of alcohols (except if the alcohol has been
used for its solvent properties and is one of the alcohols specified in
EPA Hazardous Waste No. F003 or F005) that contains less than 24
percent alcohol by volume, even if additional non-alcoholic components
are present, and at least 50 percent water by weight.
    EPA has since become aware that the aqueous alcohol exclusion may
inadvertently exclude certain wastes from the ignitibility
characteristic--aqueous liquids with small amounts of alcohol, where
these wastes are ignitable due primarily to non-alcoholic components--
contrary to the intent of the exclusion. For example, the exclusion may
apply to an aqueous waste stream that contains a small concentration of
an ignitable alcohol and a large concentration of an ignitable non-
alcoholic component. This waste would be excluded from the ignitability
characteristic despite potentially exhibiting the same hazards as
ignitable wastes that do not fall within the scope of the exclusion.
    EPA is currently unaware of existing mismanagement or damage cases
resulting from this interpretation, and it may only affect a small
number of (currently unknown) waste streams. The Agency solicits
information on the experience of the regulated community, state
authorized programs, and others in implementing this provision of the
ignitability characteristic (See Section IV.A.3. in this notice).
2. What are the proposed changes to the aqueous alcohol exclusion?
    Due to questions received about the alcohol exclusion under the
RCRA hazardous waste ignitibility characteristic, EPA wants to use this
opportunity to clarify the exclusion's scope by proposing to codify the
existing guidance into the regulatory text. Specifically, EPA is
proposing to revise the aqueous alcohol exclusion from ``other than an
aqueous solution containing less than 24 percent alcohol by volume'' to
``other than a solution containing less than 24 percent of any alcohol
or combination of alcohols (except if the alcohol has been used for its
solvent properties and is one of the alcohols specified in EPA
Hazardous Waste No. F003 or F005) by volume and at least 50 percent
water by weight.'' This proposed change removes the term ``aqueous''
from Sec.  261.21(a)(1), which is currently undefined in the RCRA
hazardous waste regulations, and specifies what percentage of water
defines the scope of this exclusion. The Agency notes that the water
content of a waste is not a method-defined parameter and more than one
method or procedure may be appropriate for measuring the water content
of a sample. Existing SW-846 methods for water quantification include
EPA SW-846 Methods 9000 and 9001. An analyst should choose the most
appropriate method for measuring water content based on the physical
and chemical properties of their waste.
    Codifying the guidance into the regulatory text would provide
clarity and certainty for the regulated community and will remove the
need for generators and laboratories or managers of waste to rely on
multiple documents to understand the intended scope of the alcohol
exclusion.
    Today's proposed action would have no effect on 40 CFR 403.5(b)(1),
which prohibits ``pollutants which create a fire or explosion hazard in
the POTW [publicly owned treatment work], including, but not limited
to, wastestreams [sic] with a closed cup flash point of less than 140
degrees Fahrenheit or 60 degrees Centigrade using the test methods
specified in 40

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

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

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

B. Multiphase Testing

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

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

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

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

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

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

V. Additional Corrections to Sec.  261.21

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

    As part of its effort to modernize and update the RCRA ignitability
characteristic regulations in Sec.  261.21, the Agency is proposing
corrections to the ignitable compressed gas definitions in Sec.
261.21(a)(3)(ii), where EPA has determined that particular Department
of Transportation (DOT) regulations originally relied upon by EPA have
subsequently changed, or certain guidance is no longer available.
    First, EPA is proposing to update Sec.  261.21(a)(3)(ii)(A) to
replace outdated references to the Bureau of Explosives and DOT. The
current EPA regulation at Sec.  261.21(a)(3)(ii)(A) establishes that a
waste compressed gas is ignitable under RCRA when certain flammability
concentration criteria are met, as determined ``using a test acceptable
to the Bureau of Explosives and approved by the director of the
Pipeline and Hazardous Materials Technology, U.S. Department of
Transportation''. However, subsequent to the EPA's original
promulgation of this provision, DOT modified their regulations to
require ASTM standard E 681-85 or ``other equivalent method approved by
the [PHMSA] Associate Administrator'' as an approved test for this
purpose (55 FR 52433). See 49 CFR 173.115(a). EPA also notes that the
Bureau of Explosives is no longer the delegated authority from DOT to
determine this testing requirement. (See communications with Bureau of
Explosives in the docket to this proposed rule.) Therefore, EPA is
proposing to revise Sec.  261.21(a)(3)(ii)(A) to specify the ASTM
standard E 681-85 as the approved test for determining whether any
waste that is an ignitable compressed gas exhibits the RCRA
ignitability characteristic, and to remove reference to the Bureau of
Explosives as an approving agency for sampling and test methods.
Consistent with the current DOT regulations, EPA is also proposing to
correct in its own regulations the reference identifying the agency
responsible for approving other tests as equivalent for this purpose,
by adding the phrase ``approved by the Associate Administrator,
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation.''
    EPA is also proposing to revise Sec.  261.21(a)(3)(ii)(B)-(D) to
align with the existing DOT regulations for flammable gases. Paragraphs
(B), (C) and (D) in Sec.  261.21(a)(3)(ii) reference ``Flame Projection
Apparatus,'' ``Open Drum Apparatus,'' and ``Closed Drum Apparatus,''
all of which are described as methods from the Bureau of Explosives.
EPA inquired with the Bureau of Explosives about the continued
availability of these test methods and found that the methods were
unavailable. (See correspondence with the Bureau of Explosives in the
docket to this proposed rule.) In 1980, the Agency incorporated these
Bureau of Explosives test methods into its RCRA regulations to be
consistent with how flammable gases were defined by DOT requirements.
(See 45 FR 33108, May 19, 1980 Federal Register; see also Ignitability
Background Document, U.S. EPA, May 2, 1980 in the docket to this
proposed rule.) However, as discussed earlier, DOT subsequently updated
their definition and testing requirements. Therefore, the Agency is
proposing to update the definition of ignitable compressed gas within
Sec.  261.21(a)(3)(ii)(B)-(D), by removing references to Bureau of
Explosives methods, and to mirror the definition and testing that DOT
now requires. This change will allow generators to determine if their
waste meets the definition of an ignitable compressed gas by
determining if it meets the definition of a Division 2.1 flammable gas
or a flammable aerosol (see 49 CFR 173.115(a) and (l)).
    EPA believes that these updates are necessary to ensure that the
RCRA definition reflects the current DOT regulations for evaluating
ignitable compressed gases, consistent with EPA's longstanding approach
to incorporate certain DOT requirements when establishing definitions
(and associated test methods) that reflect routine waste management
conditions for these types of wastes.

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

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

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

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

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

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

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

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

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

    EPA has identified five SW-846 method-defined parameter test
methods for air sampling and stack emissions methods that require the
use of mercury thermometers: Methods 0010, 0011, 0020, 0023A, and 0051
(see Section VI.A.). These sampling methods cover emissions from
stationary sources, such as hazardous waste incinerators and boilers
and industrial furnaces. Many of these sampling methods are
modifications of, or are similar to, EPA Method 5 of Appendix A-3 of 40
CFR 60, Determination of Particulate Matter Emissions from Stationary
Sources. For Method 5, EPA proposed (77 FR 1130, Jan 9, 2012), and
finalized (79 FR 11228, Feb 27, 2014), the use of alternative mercury-
free thermometers if the thermometers are, at a minimum, equivalent in
terms of performance or are suitably effective for the specific
temperature measurement application. EPA is proposing to add similar
language, where appropriate, in SW-846 Methods 0010, 0011, 0020, 0023A,
and 0051. The removal of the requirement to use mercury thermometers
does not change the underlying technology of the methods. Therefore, in
accordance with the SW-846 methods policy statement, the method numbers
and letters are not being revised due to these changes (see https://www.epa.gov/hw-sw846/policy-statement-about-test-methods-evaluating-solid-waste-physicalchemical-methods). The Agency anticipates that the
addition of mercury thermometer alternatives to these methods (i.e.,
the mirroring of changes made to regulatory requirements under Method
5) should result in a minimal impact to the regulated community. For
example, analytical laboratories that offer these air sampling and
stack emissions methods also likely offer Method 5 testing, which
already allows for non-mercury thermometer usage. Labs that have non-
mercury thermometers for calibrating Method 5 should recognize the
benefits of reduced mercury thermometer usage while incurring no
additional costs. Alternatively, laboratories may continue using
mercury thermometers in the updated methods (see Section III.E.).

VII. Incorporation by Reference

    The Methods Innovation Rule, which was finalized on June 14, 2005,
revised 40 CFR 260.11 to remove the incorporation by reference of all
SW-846 methods except those SW-846

methods that are also regulatory required method-defined parameters.
Those methods remain incorporated by reference when used as method-
defined parameters under the RCRA regulations and, thus, can only be
amended through a regulatory effort.\13\
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    \13\ It is important to note that while a method listed in Sec.
260.11 is a method-defined parameter, that method also may be used
for non-mandatory purposes. For example, the Pensky-Martens method
described in Method 1010A could also be used as part of quality
control to test a product for purity, which is unrelated to Sec.
261.21 and, otherwise, not required under RCRA. In this case, the
method would not be a method-defined parameter. In order to be a
method-defined parameter, a method must be part of a regulatory
requirement under RCRA.
---------------------------------------------------------------------------

    The Agency is proposing to incorporate by reference ASTM D 8174-18,
ASTM D 8175-18, ASTM E 681-85, SW-846 Method 1010B and SW-846 Method
1020C into Sec.  261.21 and as applicable into Appendix IX to part 261.
These test methods are described in detail in Section III and Section
V, above. The Agency is also proposing to incorporate by reference SW-
846 Test Methods 0010, 0011, 0020, 0023A, and 0051. These test methods
are updated versions of currently incorporated by reference SW-846
Methods 0010, 0011, 0020, 0023A, and 0051, as described in Section VI,
above. The Agency is proposing to incorporate by reference Method 0010
into Sec.  260.11(c)(3)(i) and Appendix IX to part 261. The Agency is
proposing to incorporate by reference Method 0011 into Sec.
260.11(c)(3)(viii) and Appendix IX to part 261. The Agency is proposing
to incorporate by reference Method 0020 into Sec.  260.11(c)(3)(ii) and
Appendix IX to part 261. The Agency is proposing to incorporate by
reference Method 0023A intoSec.  260.11(c)(3)(ix) Appendix IX to part
261, Sec.  266.104(e)(1), and Appendix IX to part 266. The Agency is
proposing to incorporate by reference Method 0051 into Sec.
260.11(c)(3)(xiii), Appendix IX to part 261, Sec.  266.107(f), and
Appendix IX to part 266. The Agency is also proposing to incorporate by
reference Method 0011 into Sec.  260.11(c)(3)(viii) and Appendix IX to
part 266. The ASTM standards proposed for incorporation by reference
are available for purchase from ASTM International, 100 Barr Harbor
Drive, P.O. Box C700, West Conshohocken, PA 19428-2959, www.astm.org,
877-909-2786. To obtain ASTM E 681-85, call<PHONE_NUMBER>. The SW-846
Test Methods proposed for incorporation by reference are published in
the test methods compendium known as ``Test Methods for Evaluating
Solid Waste, Physical/Chemical Methods,'' EPA Publication SW-846, Third
Edition, available at https://www.epa.gov/hw-sw846.

VIII. State Authorization

A. Applicability of Proposed Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to
administer and enforce the RCRA hazardous waste program within the
state. Following authorization, EPA retains enforcement authority under
sections 3008, 3013, and 7003 of RCRA, although authorized states have
primary enforcement responsibility. The standards and requirements for
state authorization are found at 40 CFR part 271. Prior to enactment of
the Hazardous and Solid Waste Amendments of 1984 (HSWA), a state with
final RCRA authorization administered its hazardous waste program
entirely in lieu of EPA administering the federal program in that
state. The federal requirements no longer applied in the authorized
state, and EPA could not issue permits for any facilities in that
state, since only the state was authorized to issue RCRA permits. When
EPA promulgated new, more stringent federal requirements for these pre-
HSWA regulations, the state was obligated to enact equivalent
authorities within specified time frames. However, the new federal
requirements did not take effect in an authorized state, until the
state adopted the federal requirements as state law. In contrast, under
RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new
requirements and prohibitions imposed under HSWA authority take effect
in authorized states at the same time that they take effect in
unauthorized states. EPA is directed by the statute to implement these
requirements and prohibitions in authorized states, including the
issuance of permits, until the state is granted authorization to do so.
While states must still adopt HSWA related provisions as state law to
retain final authorization, EPA implements the HSWA provisions in
authorized states until the states do so.
    Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than existing federal requirements.\14\ RCRA section 3009 allows
the states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
---------------------------------------------------------------------------

    \14\ EPA notes that decisions regarding whether a state rule is
more stringent or broader in scope than the federal program are made
when the Agency authorizes a state program for a particular rule.
---------------------------------------------------------------------------

B. Effect on State Authorization

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

IX. Statutory and Executive Orders Reviews

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

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

    This action is not a significant regulatory action because it does
not have a significant economic impact nor does it raise novel legal or
policy issues. The Office of Management and Budget (OMB) waived review.

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

    This action is expected to be an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this proposed rule can
be found in EPA's Regulatory Impact Analysis of the Modernization of
Ignitable Liquid Determination Rule, which is in the docket.

C. Paperwork Reduction Act (PRA)

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

control numbers 2050-0053 and 2050-0073.

D. Regulatory Flexibility Act (RFA)

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

E. Unfunded Mandates Reform Act (UMRA)

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

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

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

    This proposed action does not have tribal implications as specified
in Executive Order 13175. Because the proposed rule is expected to
result in minimal costs and possibly net cost savings, EPA does not
expect that it would result in any adverse impacts on tribal entities.
Thus, Executive Order 13175 does not apply to this rule.

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

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

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

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

J. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. The EPA proposes to use
ASTM D 8175-18 and ASTM D 8174-18. These test methods were adopted by
ASTM in March 2018. These standards are available for purchase from
ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West
Conshohocken, PA 19428-2959. EPA worked with ASTM to specifically
develop these consensus-based standards to better suit waste testing by
modifying existing ASTM standards. EPA worked with a member of the ASTM
D02.08 Subcommittee (who also represents Stanhope-Seta) to modify
existing ASTM methods D 93-16 and D 3828-16a, which were developed by
the ASTM D02.08 Subcommittee. These new draft methods were then
submitted to ASTM's review process and were approved by the ASTM D34
Committee to become new ASTM methods.

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

    The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
This proposed rule would only modernize testing and codify guidance for
the characterization of ignitable hazardous waste, it would not affect
how such waste is disposed of. EPA therefore does not expect it to
result in any adverse environmental justice impacts.

List of Subjects

40 CFR Part 260

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

40 CFR Part 261

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

40 CFR Part 266

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

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

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

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

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

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

Sec.  260.11  Incorporation by reference.

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

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

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

Sec.  261.21  Characteristic of ignitability.

    (a) * * *
    (1) It is a liquid, other than a solution containing less than 24
percent of any alcohol or combination of alcohols (except if the
alcohol has been used for its solvent properties and is one of the
alcohols specified in EPA Hazardous Waste No. F003 or F005 in 40 CFR
261.31) by volume and at least 50 percent water by weight, that has a
flash point less than 60 [deg]C (140 [deg]F), as determined by using
one of the following ASTM standards: ASTM D 93-79, D 93-80, D 3278-78,
D 8174-18 or D 8175-18 as specified in SW-846 Test Methods 1010B or
1020C (incorporated by reference, see Sec.  260.11 of this subchapter).
* * * * *
    (3) * * *
    (ii) A compressed gas shall be characterized as ignitable if any
one of the following occurs:
    (A) Either a mixture of 13 percent or less (by volume) with air
forms a flammable mixture or the flammable range with air is wider than
12 percent regardless of the lower limit. These limits shall be
determined at atmospheric temperature and pressure. The method of
sampling and test procedure shall be the ASTM E 681-85 (incorporated by
reference, see Sec.  260.11 of this subchapter), or other equivalent
methods approved by the Associate Administrator, Pipeline and Hazardous
Materials Safety Administration, U.S. Department of Transportation.
    (B) It is determined to be flammable or extremely flammable using
49 CFR 173.115(l).
    (4) * * *
    (i) * * *
    (A) The material meets the definition of a Division1.1, 1.2, or 1.3
explosive, as defined in Sec.  261.23(a)(8), in which case it must be
classed as an explosive,
* * * * *
    (5) It is a multiphase mixture, where any liquid phase has the
flash point described in paragraph (a)(1) of this section, or any non-
liquid phase has the properties described in paragraph (a)(2) of this
section.
* * * * *
    5. Amend Tables 1 and 2 of Appendix IX to Part 261 by removing the
text ``1010A'' and adding ``1010B'' in its place, wherever it appears
(56 occurrences); and removing the text ``1020B'' and adding ``1020C''
in its place, wherever it appears (56 occurrences).

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


[Federal Register Volume 85, Number 164 (Monday, August 24, 2020)]
[Notices]
[Pages 52178-52179]
[FR Doc No: 2020-18498]

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SECURITIES AND EXCHANGE COMMISSION

[SEC File No. 270-203, OMB Control No. 3235-0195]

Submission for OMB Review; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736.

Extension:
    Rule 17Ab2-1, Form CA-1.

    Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (``PRA'') (44 U.S.C. 3501 et seq.), the Securities and
Exchange Commission (``Commission'') has submitted to the Office of
Management and Budget (``OMB'') a request for approval of extension of
the previously approved collection of information provided for in Rule
17Ab2-1 (17 CFR 240.17Ab2-1) and Form CA-1: Registration of Clearing
Agencies (17 CFR 249b.200) under the Securities Exchange Act of 1934
(``Exchange Act'') (15 U.S.C. 78a et seq.).
    Rule 17Ab2-1 and Form CA-1 require clearing agencies to register
with the

Commission and to meet certain requirements with regard to, among other
things, the clearing agency's organization, capacities, and rules. The
information is collected from the clearing agency upon the initial
application for registration on Form CA-1. Thereafter, information is
collected by amendment to the initial Form CA-1 when changes in
circumstances that render certain information on Form CA-1 inaccurate,
misleading, or incomplete necessitate modification of the information
previously provided to the Commission.
    The Commission uses the information disclosed on Form CA-1 to (i)
determine whether an applicant meets the standards for registration set
forth in Section 17A of the Exchange Act, (ii) enforce compliance with
the Exchange Act's registration requirement, and (iii) provide
information about specific registered clearing agencies for compliance
and investigatory purposes. Without Rule 17Ab2-1, the Commission could
not perform these duties as statutorily required.
    The Commission staff estimates that the average Form CA-1 requires
approximately 340 hours to complete and submit for approval, and that
on average, the Commission receives one application each year. The
Commission staff estimates that completion of an initial Form CA-1 will
result in an internal cost of compliance of approximately $132,140 per
year. The Commission staff estimates that it receives one amendment per
year, and that an amendment requires approximately 60 hours of the
exempt or registered clearing agency's staff time. The Commission staff
estimates that amendment of a filed Form CA-1 will result in an
internal cost of compliance of approximately $25,480 per year.
Therefore, the aggregate hour burden is approximately 400 hours per
year (340 + 60) and the aggregate internal cost of compliance is
approximately $157,620 per year ($132,140 + $25,480).
    The external costs associated with work on Form CA-1 include fees
charged by outside lawyers and accountants to assist the applicant or
registrant to collect and prepare the information sought by the form
(though such consultations are not required by the Commission). The
Commission staff estimates that these external costs are more likely
when novel questions arise under a new application, rather than under
periodic review and amendment. The staff estimates an annual external
cost of 45 hours of an Attorney's time (estimated at $420 per hour) and
10 hours of a Senior Accountant's time (estimated at $219 per hour) for
preparation of the Form CA-1, resulting in an aggregate external cost
of approximately $21,090 per year (18,900 + 2,190).
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
    The public may view background documentation for this information
collection at the following website: www.reginfo.gov. Find this
particular information collection by selecting ``Currently under 30-day
Review--Open for Public Comments'' or by using the search function.
Written comments and recommendations for the proposed information
collection should be sent within 30 days of publication of this notice
to (i) www.reginfo.gov/public/do/PRAMain and (ii) David Bottom,
Director/Chief Information Officer, Securities and Exchange Commission,
c/o Cynthia Roscoe, 100 F Street NE, Washington, DC 20549, or by
sending an email to<EMAIL_ADDRESS>
    Dated: August 19, 2020.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-18498 Filed 8-21-20; 8:45 am]
BILLING CODE 8011-01-P