40 C.F.R. § 261.21

Characteristic of ignitability

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(a) A solid waste exhibits the characteristic of ignitability if a representative sample of the waste has any of the following properties:

(1) It is a liquid, other than a solution containing less than 24 percent alcohol by volume and at least 50 percent water by weight, that has a flash point less than 60 °C (140 °F), as determined by using one of the following ASTM standards: ASTM D93-79, D93-80, D3278-78, D8174-18, or D8175-18 as specified in SW-846 Test Methods 1010B or 1020C (all incorporated by reference, see § 260.11 of this subchapter).

(2) It is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and, when ignited, burns so vigorously and persistently that it creates a hazard.

(3) It is an ignitable compressed gas.

(i) The term “compressed gas” shall designate any material or mixture having in the container an absolute pressure exceeding 40 p.s.i. at 70 °F or, regardless of the pressure at 70 °F, having an absolute pressure exceeding 104 p.s.i. at 130 °F; or any liquid flammable material having a vapor pressure exceeding 40 p.s.i. absolute at 100 °F as determined by ASTM Test D-323.

(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 § 260.11 of this subchapter), or other equivalent methods approved by the Associate Administrator, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation.

(B) It is determined to be flammable or extremely flammable using 49 CFR 173.115(l).

(4) It is an oxidizer. An oxidizer for the purpose of this subchapter is a substance such as a chlorate, permanganate, inorganic peroxide, or a nitrate, that yields oxygen readily to stimulate the combustion of organic matter.

(i) An organic compound containing the bivalent -O-O- structure and which may be considered a derivative of hydrogen peroxide where one or more of the hydrogen atoms have been replaced by organic radicals must be classed as an organic peroxide unless:

(A) The material meets the definition of a Division 1.1, 1.2, or 1.3 explosive, as defined in § 261.23(a)(8), in which case it must be classed as an explosive,

(B) The material is forbidden to be offered for transportation according to 49 CFR 172.101 and 49 CFR 173.21,

(C) It is determined that the predominant hazard of the material containing an organic peroxide is other than that of an organic peroxide, or

(D) According to data on file with the Pipeline and Hazardous Materials Safety Administration in the U.S. Department of Transportation, it has been determined that the material does not present a hazard in transportation.

(b) A solid waste that exhibits the characteristic of ignitability has the EPA Hazardous Waste Number of D001.

[45 FR 33119, May 19, 1980, as amended at 46 FR 35247, July 7, 1981; 55 FR 22684, June 1, 1990; 70 FR 34561, June 14, 2005; 71 FR 40259, July 14, 2006; 85 FR 40608, July 7, 2020]

Notes of Decisions

Cited in 18 cases, 1983–2017 · leading case: Am. Petroleum Inst. v. Env't Prot. Agency, 862 F.3d 50 (D.C. Cir. 2017).

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Am. Petroleum Inst. v. Env't Prot. Agency, 862 F.3d 50 (D.C. Cir. 2017). · cites it 2× “This criterion—fenced in as it is by the definitions of those characteristics, see 40 C.F.R. §§ 261.21 -.24—also seems reasonable: one would expect analogous products to have similar attributes.”

United States v. Steven M. Self, 2 F.3d 1071 (10th Cir. 1993). · cites it 2× “See 40 C.F.R. § 261.21 (a) (1992). Solvent ink, on the other hand, has a flash point well below 140° F and is, therefore, considered hazardous due to ignitability.”

United States v. Christian A. Hansen, 262 F.3d 1217 (11th Cir. 2001). “40 C.F.R. §§ 261.21 , 261.22, 261.23, and 261.”

24 Leggett Street Ltd. P'ship v. Beacon Indus., Inc., 685 A.2d 305 (Conn. 1996). · cites it 2× “4 (1988) (listing hazardous substances for purposes of Comprehensive Environmental Response, Compensation and Liability Act of 1980); 40 C.F.R. §§ 261.21 through 261.24 (1988) (listing characteristics of hazardous waste for purposes of Resource Conservation and Recovery Act of…”

United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984 (D.S.C. 1986). “The wastes also contained cyclohexylamine, a hazardous substance because it exhibits the characteristic of ignitability under 40 C.F.R. § 261.21 . Waste which could not be reclaimed, recycled, and sold were stored and disposed of on the Bluff Road site.”

United States v. Douglas Hoflin, 880 F.2d 1033 (9th Cir. 1989). “(See 40 C.F.R. § 261.21 ). Such hazardous materials can only be disposed of at facilities with EPA permits.”

ABC Holdings, Inc. v. Kittitas Cnty., 348 P.3d 1222 (Wash. Ct. App. 2015). “” The county informed the hearing examiner that D016 was listed as a dangerous waste per WAC 173-303-090(8)(c) and 40 C.F.R. § 261.21 . ¶5 The hearing examiner found the county had allowed CSE to operate its waste facility during the application process but the county was not…”

United States v. Hayes Int'l Corp. & Louis H. Beasley, 786 F.2d 1499 (11th Cir. 1986). “1 40 C.F.R. § 261.21 . Beasley and Hayes each were convicted of eight counts 2 of violating 42 U.”

United States v. Jg-24, Inc., 331 F. Supp. 2d 14 (D.P.R. 2004). “These categories of hazardous wastes include, inter alia, ignitable wastes (D001), 40 C.F.R. § 261.21 . The terms “treatment,” “storage,” and “disposal,” for purposes of RCRA, are defined in 42 U.”

United States v. William Dee Robert Lentz Carl Gepp, 912 F.2d 741 (4th Cir. 1990). “See 40 C.F.R. § 261.21 . 13 . It is perhaps worth noting that RCRA does not require disposal of hazardous wastes.”

United States v. WCI Steel, Inc., 72 F. Supp. 2d 810 (N.D. Ohio 1999). “40 C.F.R. §§ 261.21 -.24. Here, the United States claims that WCI stored or disposed of corrosive waste.”

Gallagher v. T v. Spano Bldg. Corp., 805 F. Supp. 1120 (D. Del. 1992). · cites it 2× “§ 6921 and 40 C.F.R. § 261.21 (a)(2) as follows: “A solid waste exhibits the characteristic of ignitability if a representative sample of the waste has any of the following properties_” (Emphasis added).”

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