en
en
to-
           /?#,!'
                         ENVIRONMENTAL PROTECTION AGENCY
 Ov        .  .                    40  CFR Part  260

 U   •       •         •          '  RIN    '	'      '  •.    '   ,    ,
 S»            '                "                  >                i
 (U                    Hazardous Waste Management  System;
 fy               .      . .         .    ,
(V)                ,     Testing and Monitoring Activities

        AGENCY:   Environmental Protection Agency.

        ACTION:   Final rule.                     ,

        SUMMARY:   The Environmental Protection Agency (EPA or Agency) is
        amending its hazardous waste regulations under subtitle C of the
        Resource Conservation and Recovery Act (RCRA),for testing and
        monitoring activities.  This amendment clarifies the temperature
        requirement for pH measurements of highly alkaline wastes and
        adds  Method 904OB (pH Electrometric Measurement) and Method 9045G
        (Soil and Waste pH)  to "Test Methods, for Evaluating Solid Waste,
      •  Physical/Chemical Methods," EPA Publication-SW-846.  This
        amendment will 'provide a better and more complete analytical
        technology for RCRA testing in support of hazardous waste
        identification under the corrosivity characteristic (40 CFR §
        261.22).                              ,

        EFFECTIVE DATE: [Insert date of publication in the Federal
        Register}.  The incorporation by reference of the publication
       .listed in the regulations is approved by the Director of the
        Federal Register as of fInsert date  of publication in the Federal
        Register).                                 ,
        ADDRESSES:  The official record for this rulemaking (Docket No.
        F-95-W2TF-FFFFF) is located at the U. S. Environmental  Protection
_                 .                                 US EPA Headquarters Library
.m           • "         -            '                401MSt,SW   (3404)
                                                   Washington, DC 20460

-------
Agency, 401 M  Street,  SW, Washington,  DC   20460  (room M-2616),
and  is available  for viewing  from  9 a.m. to  4 p.m., Monday
through Friday, excluding Federal  holidays.  The public must  make
an appointment to review docket materials  by calling  (202)
260-9327.  The public  may copy a maximum of  100 pages of material
from any one regulatory docket at  no cost; additional copies  cost
$0.15 per page.

      Copies of the Third Edition  of SW-846  as amended by Updates
I, II, IIA, and IIB are part  of the official docket for this
rulemaking, and also are available from the  Superintendent of
Documents, Government  Printing Office:(GPO), Washington, DC
20402, (202) 512-1800.  The GPO document number is 955-001-00000-
1.   New subscriptions  to SW-846 may be ordered from GPO at a  cost
of $319.00 (subject to change).  There is a  25% surcharge for
foreign subscriptions  and renewals.

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

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

-------
 II.   Background and Regulatory Framework Summary

       EPA Publication SW-846, "Test Methods for Evaluating Solid
 Waste, Physical/Chemical Methods" contains the analytical and
 test methods that EPA has evaluated and found to be among those
 acceptable for testing.under subtitle C of the Resource     ,
 Conservation and Recovery Act of 1976 (RCRA), as amended.  Use of
 some of these methods is required by some of the hazardous waste
, regulations under subtitle C or RCRA.  In other situations, SW-
 846 functions as a guidance document setting forth acceptable,
 although not required, methods to be implemented by the user, as
 appropriate, in satisfying RCRA-related sampling and analysis
                                                         \
.requirements. , All of these methods are intended to promote
 accuracy, sensitivity, specificity, precision, and comparability
 of analyses and test results. ,

       SW-846 is a document that changes, over time as new
 information and data are developed.  Advances in analytical
 instrumentation and techniques are continually reviewed by the
 Agency's Office of Solid Waste (OSW)  and periodically
 incorporated into SW-846 to support changes in the regulatory
 program and to improve method performance.   Update IIB (Methods
 9040B and 9045CJ  represents such an incorporation..

 III.   Overview of Proposal                            '
               /                  '
       On August 31,  1993 (58 FR 46052),  the Agency proposed to
 amend its.hazardous waste testing and monitoring regulations
 under subtitle C of RCRA by adding Update II to SW-846 and
 incorporating the Third Edition as amended by Updates I and II,
 in 40 CFR § 260.11(a)  for use in complying with the requirements
 of subtitle C of RCRA.  In section III.D of the proposed rule,
 the Agency also proposed .the addition of language to SW-846
                                        i
 Methods 9040A and 9045B to clarify regulatory requirements as to

-------
the temperature for pH measurements of highly alkaline wastes
during corrosivity characteristic testing.
      On January 13, 1995  (60 FR 3089), the Agency published a
final rule which added Update II to SW-846.  As noted in that
final rule, the Agency was still responding to public comments
regarding the pH temperature clarification issue and, therefore,
took no action on that topic in the January 13, 1995 Final Rule.
The Agency, did not want to delay promulgation of Update II as a
result of its ongoing deliberations on the temperature
clarification.  Therefore, Methods 9040A and 9045B were finalized
as part of Update II without the technical clarification
regarding temperature control during the pH measurement of highly
alkaline materials.                                          >
                                                      \
IV.   Public Comments Regarding Section III.D of the Proposed
      Rule

      The majority of the commenters were in favor of specifying
a temperature of 25±l°C in Method 9040A instead of specifying
that the pH test be performed at a temperature relevant to the
waste management site temperature.  Only one commenter supported
a requirement that the testing temperature be relevant to the
waste management site.  A few commenters were against the
addition of any temperature clarification at this time.
      This section summarizes several of the most significant
comments on the proposal, and EPA's responses.  Detailed Agency
responses to all significant comments are provided in the
background document,' entitled "Responses to Public Comments
Submitted in Response to Section III.D, pH Testing, 58 FR 46054,
August 31, 1993", which is located in the official record for
this rulemaking (Docket No. F-95-W2TF-FFFFF).

-------
      One commenter argued that a scientific basis does not exist
for a temperature clarification only for alkalinity
determinations.  The Agency believes that a valid scientific
                                        . t
basis does exist to include a temperature clarification which
applies only when pH approaches the upper corrosivity
characteristic limit.  An inverse, non-linear, relationship
exists between temperature and pH whereby pH readings at the
basic end significantly increase as temperature levels decrease.
At high pH levels, a physical difference exists in relation 'to
ion dissociation which cannot be compensated by pH meters, and
which requires additional temperature control if the objective is
to obtain an accurate, and comparable, pH measurement at that end
of the scale.-

      The Agency did not propose a temperature clarification for
acidic wastes because the temperature effect on pH is not     ,
sufficiently significant at the acidic end of the scale to
warrant such a clarification.   It is highly unlikely that a pH
change at the low end of the scale due to temperature variation
 '                          ,                                    t
will affect the regulatory status of the .waste.  Therefore, a
specification that wastes with pH levels at the acidic end of the
scale must be analyzed at a standard temperature is unnecessary.
               ,        '           '\
      One commenter stated that, if a standard must be set, it
should be 24°C because that is the closest practical temperature
which will yield a 0 to 14 pH. scale (and a pKH of  14.0).   Another
commenter claimed that 25°C,  and not 24°C,  is the closest
practical temperature for a 
-------
       The Agency recognizes  that some  inconsistencies  exist
between some literature regarding whether  24°C or 25°C is the
closest practical temperature  for a,pH scale  of 0 to 14 with a
pKw of  14.0.  -However, based on public comment,• 'it appears that
25°C  is the most accepted  standard temperature for the pH scale
of  0  to 14.   Also,  as  explained  in the background document/1 to
this  rule,  based on certain  calculations and  a work  published in
1981  on pH  theory , 25°C and not 24°C appears to be the closest
practical temperature  for  a  pKH of 14.0. ,

       One commenter claimed  that  the Agency always contemplated
that  pH be  taken at environmental  or field temperatures because
Method 9040A employs language  which refers to "field pH
measurements".   The commenter  also claimed that Method 9040A
endorses the common approach of pH testing at site temperatures
because it  requires that the temperature be noted at measurement.
                                                           I
       The Agency agrees that pH testing in the field is common,
but disagrees with  any  finding that EPA intended that  all pH
measurements in  support of the corrosivity characteristic be  .
taken  at site temperatures just because Method 9040A refers to
field  measurements  and the recording of temperature.   By use  of
the phrase  "field pH measurements", the Agency simply  recognizes
that pH  measurements are often taken in the field, and  that in
most cases  (e.g., all except those limited cases where  the waste
is both  being tested for corrosivity ;and its  pH is above 12.0),
field test results  are adequate.   The field measurement reference
       "Responses to Public Comments Submitted in Response to
Section III.D, pH Testing, 58 FR 46054, August 31, 1993", located
in the official record for this rulemaking (Docket No. F-95-W2TF-
FFFFF).
     2 Marshall and Franck,  "Ion Product of Water Substance,  0-
1000°C, 1-10,000 Bars:  New International Formulation and its
Background", Journal of Physical and Chemical Reference Data,
10f2). pp. 295-304, 1981.

-------
 in no way precludes  laboratory pH measurements at a specific
 temperature, nor does  it  implicitly or otherwise mean that all
 measurements by the  method must be done at site temperatures. •

      The Agency believes that a standard temperature of  25 °C
 offers a consistent  way to measure pH and thus assures consistent
                                                     \       '
 environmental protection.  Without a standard temperature for
 testing the pH of at least highly alkaline wastes, test data may
hot be directly comparable/ because, as explained above,  the
 effect of temperature on pH is particularly pronounced at the
                                         '
 alkaline end of the  scale.
                                             \.
                       f           •               \_           '
V.  Overview of Final Rule

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

     '"(..'.  . also,  for corrosivity characterization,  the
      sample must be measured at 25±1°C if the pH of the .
    '
      waste is above 12.0)"
                                                            *
      The Agency believes that the addition of this language to
Method 9040A is appropriate based on:

 (1)    A demonstrated need to1clarify the analytical procedures
      for pH determinations of highly alkaline materials  in
      order:  to facilitate consistent application of the
      procedures during corrosivity characteristic  ,
      determinations; and to remove any confusion on the part of
      the regulated community when making such determinations;
        '         '           l
 (2)    Scientific facts regarding the effect of temperature on pH,
      including the effect of temperature on pH readings at the
      alkaline end ,of the pH scale;

-------
(3)   Agency actions during promulgation of the corrosivity
      characteristic, particularly with respect to the exclusion
      of otherwise nonhazardous line wastes, and the public's
      interpretation of those actions based on the majority of
      the public comments; and
            '           -        i

(4)   Historical practices by the Agency during enforcement of
      the characteristic.

      The Agency notes that the technical change in Method 904OB
only applies to pH determinations for wastes with pH levels above
12.0 (which is explicit in the added language).  To avoid
imposing an unnecessary analytical burden, pH determinations for
the corrosivity characteristic (when analysis is chosen by the
generator) can be, performed .at a temperature other than 25±l°C
for wastes with pH levels less than 12.

      Although Method 9045B (Soil and Waste pH) is not used for
corrosivity characteristic determinations, it involves a pH
measurement procedure similar to that found in Method 9040A.
Therefore, the Agency is adding similar, although not identical,
language to Method 9045B.  Specifically, the Agency is adding the
following language to section 7.1.2 of Method 9045B (now revised
Method 9045C of Update IIB):

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

      This rule makes final the addition of Methods 904OB and
9045C as Update IIB to SW-846, and incorporates the Third Edition
of SW-846 as amended by Updates I, II, IIA, and IIB into 40 CFR §
                                8

-------
260.11(a) for use in complying with the requirements of subtitle
C of RCRA.                                  ^

VI.   State Authority                                  -

                                              i                '" '
      Today's rule promulgates standards that are not effective
in authorized States since the requirements are being imposed
pursuant to pre-HSWA authority.  See RCRA Section 3006.
Therefore,, this rule is not immediately effective in authorized
States.  The requirements will be applicable only in those States
that do not have interim or final authorization.  In authorized
                                           *
States, the requirements will not be applicable until the State
revises its program to adopt equivalent requirements under State
law.  Procedures and deadlines for State program revisions are
set forth in 40 CFR 271.21.  40 CFR 27.1.3 sets forth the
requirements a State must meet when submitting its final
authorization application.         \

Vli.  Effective Date                     ,

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

-------
VIII. Regulatory Analyses

A.    Executive Order 12866
 •i.
      Under Executive Order 12866  [58 PR 51735  {October 4,
1993)], EPA must determine whether a regulatory action is
?significant" and therefore subject to OMB review and the
requirements of the Executive Order.  The Order defines
"significant regulatory action" as one that is likely to result
in a rule that may:

       (1) have.an annual effect on the economy of $100 million or
      more or adversely affect in a material way the economy, a
      sector.of the economy, productivity, competition, jobs, the
      environment, public health or safety, or State, local, or
      tribal governments or communities/   .      ...

       (2).create a serious inconsistency or otherwise interfere
      with an action taken or planned by another agency;
                           \
       (3) materially alter the budgetary impact of entitlements,
      grants, user fees, or loan programs or the rights and
      obligations of recipients thereof; or

       (4) raise novel legal or policy issues arising out of legal
      mandates,  the President's priorities, or the principles set
      forth in the Executive Order..

      This regulation will not have an adverse economic impact on
industry since its effect will be to provide clarification to all
of the regulated community.  This rule does not require the.
purchase of new instruments or equipment and does not'require new
reports beyond those presently required.  Thus, this rule is not
a "significant regulatory action" under the terms of Executive
Order 12866 and is therefore not. subject to OMB review.
                        .        10

-------
B.     Unfunded Mandates

       Under Section 202 of  the Unfunded Mandates Reform Act  of  .
1995,  signed into law on March 22, .19.95, EPA must prepare a
statement to accompany any  rule where the estimated costs to
State, local,.or tribal governments in the aggregate, or to  the
private sector, will be $ 100 million or more in any one year.
Under  Section  205, EPA must select the most cost-effective and
least  burdensome alternative that achieves the objective of  the
rule and is consistent with statutory requirements.  Section 203
requires EPA to establish a plan for informing and advising.any
small  governments that may be significantly impacted by the  rule.

       EPA has  determined that this rule does not include a
Federal mandate that may result in estimated costs of $100
                                          *
million or more to either State, local, or tribal governments in -
the aggregate,  or to the private sector.
                •\
C.    .Regulatory Flexibility Act
                       I      •
       Pursuant to the Regulatory Flexibility Act (5 U.S.C.
section 601-612, Pub. L. 96-354, September 19, 1'980) , whenever  an
agency publishes a General Notice of Rulemaking for any proposed
or final rule,  it must prepare and make available for public
comment a regulatory flexibility analysis (RFA)  that describes
the impact of  the rule on small entities (i.e.,  small businesses,
small organizations,  and small governmental jurisdictions).  No
regulatory flexibility analysis is required, however, if the head
of the Agency  certifies that the .rule will not have a significant
impact on a substantial number of small entities.
           ^
      This rule will not require the purchase of new instruments
or equipment.   The regulation requires no new reports beyond
those now required.   This rule will not have an adverse economic
impact on small entities since its effect will be to provide
                                11        -

-------
 clarification  to  all  of  the  regulated community,  including small
 entities.  Therefore,  in accordance  with 5  U.S.C.  section 605(b),
 I hereby certify  that this rule  will not have  a significant
 economic impact on  a  substantial number of•small  entities (as
 defined by the Regulatory Flexibility Act).  Thus,  the regulation
 does not require  an RFA:

 D.     Paperwork Reduction Act

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

 List of Subjects  in 40 CFR Part  260

'Administrative practice  and  procedure,  Confidential business
 information, Hazardous waste,  Incorporation by reference.
         1  MAR  29 1995
 Dated:
                                         Elliott  P.f Lawn
                                         Assistant Administrator
                                         Office of Solid.Waste and
                                         Emergency Response
                                12

-------
       For.the reasons set out in the preamble, title 40, Chapter
 I,  of the- Code of Federal Regulations is amended as set forth
 below: ,
                                        *
 PART 260 -  HAZARDOUS WASTE MANAGEMENT SYSTEM:  GENERAL      ,

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

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

 Subpart B - Definitions                      .
                                              > 1 ' ' .   -.
                                     \
      .2.  Section  260.11 (a)  is amended by revising the "Test
 Methods for Evaluating Solid' Waste,  Physical/Chemical  Methods"
 reference to read  as follows:    ,                        ,
                                  X      '                 ,'
 §260.11 References.

    •   (a) **-.*,              .  •            "

       "Test Methods  for Evaluating Solid Waste,  Physical/Chemical
 Methods," EPA Publication SW-846 [Third Edition  (November,  1986),
 as  amended  by Updates  I (July,  1992),  II (September, 1994), IIA
 (August,  1993),  and  IIB (January,  1995)].   The Third Edition-of
 SW-846  and  Updates I,  II,  IIA,  and IIB (document  number 955-001-
 00000-1)  are available from  the Superintendent of Documents,  U.S.
'Government  Printing  Office,  Washington,  DC,  20402,  (202)  512-
                                                    *.
 1800.  .Copies may.j  be inspected  at the  Library, U.S.  Environmental
 Protection  Agency, 401 M Street, SW,.Washington,  DC 20460.
    ) .         t
       *  * *  * *         >          •                ^    •
                                13

-------


-------