[Federal Register Volume 89, Number 27 (Thursday, February 8, 2024)]
[Proposed Rules]
[Pages 8598-8606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02328]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, and 270

[EPA-HQ-OLEM-2023-0085; FRL-9247-01-OLEM]
RIN 2050-AH27


Definition of Hazardous Waste Applicable to Corrective Action for 
Releases From Solid Waste Management Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the definition of hazardous 
waste applicable to corrective action to address releases from solid 
waste management units at RCRA-permitted treatment, storage, and 
disposal facilities and make related conforming amendments, thereby 
providing clear regulatory authority to fully implement the Resource 
Conservation and Recovery Act (RCRA) statutory requirement that 
permitted facilities conduct corrective action to address releases not 
only of substances listed or identified as hazardous waste in the 
regulations but of any substance that meets the statutory definition of 
hazardous waste. The proposed rule would also provide notice of EPA's 
interpretation that the statutory definition of hazardous waste applies 
to corrective action for releases from solid waste management units at 
permitted and interim status facilities.

DATES: Comments must be received on or before March 11, 2024.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2023-0085, by any of the following methods:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
    <bullet> Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, RCRA Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
    <bullet> Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.
    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2023-
0085, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section of this document. 
Once submitted, comments cannot be edited or removed from the docket. 
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. 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: Barbara Foster, Program Information 
and Implementation Division, Office of Resource Conservation and 
Recovery (5303T)) Environmental Protection Agency, 1200 Pennsylvania 
Ave. NW, Washington DC, 20460, 202-566-0382, <a href="/cdn-cgi/l/email-protection#e0868f93948592ce82819282819281a0859081ce878f96"><span class="__cf_email__" data-cfemail="1d7b726e69786f337f7c6f7f7c6f7c5d786d7c337a726b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Authority

    These regulations are promulgated under the authority of sections 
2002(a), 3004(u) and (v), and 3008(h) of the Resource Conservation and 
Recovery Act, as amended, 42 U.S.C. 6912(a), 6924(u) and (v), and 
6928(h).

II. Background

A. Overview of RCRA Corrective Action Requirements Applicable to 
Releases From Solid Waste Management Units

    The 1984 Hazardous and Solid Waste Amendments (HSWA) to the 
Resource Conservation and Recovery Act (RCRA) expanded EPA's authority 
to address releases of hazardous waste and constituents at RCRA 
treatment, storage, and disposal facilities.
    Sections 3004(u) and (v) of RCRA, added to the statute by HSWA, 
provided for corrective action requirements at permitted facilities. 
Section 3004(u) directed EPA to require corrective action for ``all 
releases of hazardous waste or constituents from any solid waste 
management unit'' at permitted hazardous waste treatment, storage, or 
disposal facilities regardless of the time at which waste was placed in 
the units. Section 3004(v) directed EPA to require that corrective 
action be taken beyond facility boundaries where necessary to protect 
human health and the environment unless facility owners/operators 
demonstrate to the Agency's satisfaction that, despite their best 
efforts, they were unable to obtain the necessary permission to 
undertake off-site corrective action.
    Section 3008(h), also added by HSWA, provided EPA authority to 
require corrective action for ``a release of hazardous waste into the 
environment from a facility'' authorized to operate under interim 
status.

B. Brief History of Regulatory Actions Implementing HSWA and Leading to 
This Proposed Rule

    Prior to HSWA, regulatory requirements for corrective action to 
address releases of hazardous waste and constituents were limited in 
scope. The regulations in 40 CFR part 264 Subpart F imposed 
requirements on owners and

[[Page 8599]]

operators of regulated units \1\ to address releases to groundwater. 
These regulations included a corrective action requirement for releases 
to groundwater of those hazardous waste and hazardous constituents that 
are identified in the regulations. This corrective action requirement 
did not extend to releases to other media, or to other solid waste 
management units.
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    \1\ A regulated unit is defined in Sec.  264.90 as a surface 
impoundment, waste pile, and land treatment unit or landfill that 
receives hazardous waste after July 26, 1982.
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    HSWA expanded EPA's corrective action authority to address not only 
releases to the groundwater from regulated units but all releases of 
hazardous waste and constituents from solid waste management units and 
authorized the Agency to issue regulations. On July 15, 1985, EPA 
issued a final rule that amended EPA's hazardous waste regulations to 
reflect certain of the new statutory provisions of HSWA (referred to as 
the 1985 Codification Rule because it codified a number of HSWA 
requirements).\2\ That final rule added to the regulations in Part 264 
a new Sec.  264.101, which largely mirrored the language in section 
3004(u) and required that permits require facility-wide corrective 
action to address releases of hazardous waste and constituents from 
solid waste management units. The Agency later amended Sec.  264.101 to 
implement section 3004(v), which requires owners and operators to 
institute corrective action beyond the facility boundary where 
necessary to protect human health and the environment unless the owner 
or operator is denied access to adjacent lands despite their best 
efforts.\3\
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    \2\ Hazardous Waste Management System; Final Codification Rule, 
50 FR 28702, July 15, 1985.
    \3\ Hazardous Waste; Codification Rule for the 1984 Amendments 
52 FR 45788, December 1, 1987.
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    Section 260.10 provides definitions for terms used in 40 CFR parts 
260 through 273. The definition of ``hazardous waste'' in Sec.  260.10 
refers to the definition in Sec.  261.3, that is, it applies the 
regulatory definition to those parts. Under that definition, only solid 
wastes that are listed in the regulations or exhibit one of the four 
regulatory hazardous waste characteristics (ignitability, corrosivity, 
reactivity, and toxicity) are hazardous waste. When EPA codified 
section 3004(u) in the final 1985 Codification Rule, the Agency did not 
discuss the question of whether the regulatory definition of hazardous 
waste, generally applicable to 40 CFR part 264, should also apply to 
the new corrective action authority.
    On July 1, 1990,\4\ EPA proposed requirements for a new Subpart S 
in 40 CFR part 264 that would establish in detail the procedures and 
standards for implementing sections 3004(u) and (v) including 
requirements for conducting remedial investigations, evaluating 
potential remedies, and selecting and implementing remedies at RCRA 
facilities.\5\ In that proposed rule, EPA addressed the question of 
what definition of hazardous waste applies to corrective action for 
releases from solid waste management units.\6\ In the preamble, EPA 
stated its interpretation that ``hazardous waste'' in section 3004(u) 
denotes ``hazardous waste'' as defined in RCRA section 1004(5).\7\ EPA 
explained that the term ``hazardous waste'' appearing in section 
3004(u) is distinguished from the phrase ``hazardous waste listed and 
identified,'' which is used elsewhere in the statute to denote that 
subset of hazardous wastes specifically listed and identified by the 
Agency pursuant to section 3001 of RCRA. EPA stated that, under that 
interpretation, the remedial authority under section 3004(u) is not 
limited to releases of wastes identified as hazardous waste in 40 CFR 
part 261. Rather, it extends potentially to any substance meeting the 
statutory definition. EPA further stated that the use of the phrase 
``hazardous waste or constituents'' in section 3004(u) indicated that 
Congress was particularly concerned that the Agency use the corrective 
action authority to address hazardous constituents.\8\ EPA proposed to 
define hazardous constituents for purposes of Subpart S as those 
constituents listed on Appendix VIII of Part 261--Hazardous 
Constituents, or on Appendix IX of Part 264--Groundwater Monitoring 
List. EPA proposed moving Sec.  264.101 to the new Subpart S and 
proposed a definition of hazardous waste that repeated the language in 
RCRA section 1004(5) and would be applicable to the new subpart. That 
proposed rule thus would have expressly applied the statutory 
definition of hazardous waste to corrective action for releases from 
solid waste management units required under EPA's regulations.
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    \4\ Corrective Action for Solid Waste Management Units at 
Hazardous waste Management Facilities; Proposed Rule, July 27, 1990, 
55 FR 30798.
    \5\ As discussed below, many provisions of this proposed rule 
were not made final.
    \6\ 1990 Subpart S Proposed Rule, 55 FR 30798 at 30809 (July 27, 
1990).
    \7\ Section 1004(5) provides--(5) The term ``hazardous waste'' 
means a solid waste, or combination of solid wastes, which because 
of its quantity, concentration, or physical, chemical, or infectious 
characteristics may:
    (A) cause, or significantly contribute to an increase in 
mortality or an increase in serious irreversible, or incapacitating 
reversible, illness; or
    (B) pose a substantial present or potential hazard to human 
health or the environment when improperly treated, stored, 
transported, or disposed of, or otherwise managed.
    \8\ 1990 Subpart S Proposed Rule, 55 FR 30798 at 30809.
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    The Agency promulgated a few elements of the 1990 Subpart S 
proposed rule on February 16, 1993.\9\ These elements included final 
provisions for Corrective Action Management Units (CAMUs) and Temporary 
Units, and a definition of ``facility'' for corrective action. The 
remainder of the 1990 Subpart S proposed rule was not made final. 
However, EPA and authorized States began using the proposed rule and 
preamble as the primary guidance for the corrective action program soon 
after it was published.\10\
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    \9\ Corrective Action Management Units and Temporary Units; 
Corrective Action Provisions Under Subtitle C, 58 FR 8658, February 
16, 1993.
    \10\ Memorandum from Lisa K. Friedman to Regional Counsel RCRA 
Branch Chiefs, Regions 1-10 entitled ``Use of Proposed Subpart S 
Corrective Action Rule as Guidance Pending Promulgation of the Final 
Rule, March 27, 1991, available at: https://rcrapublic.epa.gov/files/13461.pdf, and in the docket for this rulemaking.
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    On May 1, 1996, EPA issued an Advance Notice of Proposed Rulemaking 
(``Subpart S ANPR'') that, among other things, solicited comment on 
whether to issue detailed regulations along the lines of the 1990 
Subpart S proposal to implement the Corrective Action Program. In the 
1996 Subpart S ANPR, EPA repeated its interpretation that the term 
``hazardous waste'' in section 3004(u) includes all wastes that are 
hazardous within the statutory definition in RCRA section 1004(5), not 
just those that are identified by EPA in regulation.\11\ EPA again 
stated its position regarding the importance of addressing hazardous 
constituents through corrective action in the 1996 Subpart S ANPR.\12\ 
The 1996 Subpart S ANPR replaced the 1990 Subpart S proposed rule as 
the primary guidance for much of the Corrective Action Program.\13\
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    \11\ Corrective Action for Releases from Solid Waste Management 
Units at Hazardous Waste Management Facilities, May 1, 1996, 61 FR 
19432 at 19443.
    \12\ Subpart S ANPR, May 1, 1996, 85 FR at 19432 at 19443.
    \13\ Memorandum from Elliott P. Laws and Steven A. Herman to 
RCRA/CERCLA Senior Policy Managers entitled ``Use of the Corrective 
Action Advance Notice of Proposed Rulemaking as Guidance,'' January 
17, 1997, found in the docket for this rulemaking.
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    On October 7, 1999, the Agency issued a Federal Register notice 
withdrawing the 1990 Subpart S

[[Page 8600]]

proposed rule in part.\14\ EPA explained that experience implementing 
the Corrective Action Program to date had demonstrated that more 
detailed regulations were not necessary to carry out the Agency's 
duties under RCRA 3004(u) and (v).\15\ EPA did not withdraw the 
proposal with respect to two corrective action jurisdictional issues, 
because it concluded that those were issues about which the Agency had 
expressed concern regarding the status quo or raised questions that had 
not been definitively answered by the Agency.\16\ The notice expressly 
contrasted those issues with the definition of hazardous waste or 
constituents, as to which EPA had not expressed concerns or raised 
questions that it had not definitively answered.\17\
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    \14\ Corrective Action for Solid Waste Management Units at 
Hazardous Waste Management Facilities, Partial Withdrawal of 
Rulemaking Proposal, 64 FR 54604 (October 7, 1999).
    \15\ EPA stated several reasons for its decision to withdraw 
provisions of the 1990 Subpart S proposed rule. EPA had learned that 
additional final regulations were not necessary to authorize State 
programs and was concerned that regulations would disrupt State 
programs that had been authorized. EPA also recognized that its 
early goal of consistent application of rules and standards at all 
sites is not always appropriate given the diversity of facilities 
subject to corrective action. See the discussion of this issue in 
the 1990 Subpart S proposed rule 64 FR 54604 at 54605. The proposal 
to codify the statutory definition of hazardous waste was among the 
provisions of the proposed rule that was withdrawn.
    \16\ 64 FR at 54606-7. The two aspects of the proposal EPA 
preserved were the definition of ``facility'' for corrective action 
purposes and the question of who is responsible for corrective 
action when there is a transfer of facility property.
    \17\ Id.
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C. Litigation Pertaining to the Scope of Hazardous Waste Subject to 
Corrective Action

    In December 2018, the New Mexico Environment Department issued a 
hazardous waste facility permit to Cannon Air Force Base under its 
RCRA-authorized hazardous waste authorities.\18\ The permit, among 
other things, imposed corrective action requirements for perfluoroalkyl 
substances at the facility. Per- and polyfluoroalkyl substances (PFAS) 
are not listed or identified as hazardous wastes or hazardous 
constituents in EPA or New Mexico authorized regulations. In January 
2019, the United States, on behalf of Air Force, challenged the permit 
in the Federal District Court for the District of New Mexico. In the 
complaint, the United States took the position that New Mexico's 
corrective action regulation--which mirrors the federal regulation--
does not authorize corrective action for substances that are not listed 
or characteristic hazardous wastes under the State's regulations, even 
if they might be hazardous under the broader statutory definition.\19\
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    \18\ New Mexico is one of the 44 States (along with one 
territory) authorized to implement corrective action (1985 
Codification Rule provisions).
    \19\ The New Mexico Hazardous Waste Act (HWA) contains a 
provision defining corrective action as ``an action taken in 
accordance with rules of the [New Mexico environmental improvement 
board] to investigate, minimize, eliminate or clean up a release. . 
. .'' N.M. Stat. Ann. Section 74-4-3-C. RCRA does not contain a 
comparable provision, so the laws governing corrective action under 
RCRA and the HWA are not identical.
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    The case caused EPA to take a fresh look at its regulations.\20\ As 
further described below, EPA now recognizes that, as a result of EPA's 
decision not to make final the hazardous waste definition portion of 
the Subpart S proposal, EPA's corrective action regulation does not 
fully and clearly reflect the scope of corrective action as required by 
RCRA 3004(u) and (v)). This proposed regulation would better align the 
regulation with the statutory requirement.
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    \20\ The court dismissed the case on jurisdictional grounds in 
August 2022. The United States, on behalf of Air Force, has appealed 
the case to the United States Court of Appeals for the Tenth 
Circuit.
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D. New Mexico Rulemaking Petition

    On June 23, 2021, the Governor of New Mexico filed a petition with 
EPA requesting a timely listing of PFAS, as a class of chemicals, as 
hazardous wastes under the RCRA Subtitle C regulations, or in the 
alternative, a listing of individual PFAS chemicals as hazardous wastes 
under the regulations.\21\ EPA acted upon the Governor of New Mexico's 
petition with an October 26, 2021, letter. EPA indicated in that letter 
that it would be initiating the rulemaking process for two 
rulemakings.\22\ This proposal, along with EPA's proposal titled 
Listing of Specific PFAS as RCRA Hazardous Constituents, constitutes 
initiation of those rulemakings. While this proposed rule would not 
directly address PFAS, it would facilitate the use of RCRA corrective 
action authority to address emerging contaminants such as PFAS, as well 
as other non-regulatory hazardous waste, at RCRA permitted treatment, 
storage, and disposal facilities.
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    \21\ Petition from the Governor of New Mexico to the 
Administrator of EPA concerning action on PFAS under RCRA. June 23, 
2021, available at: https://www.epa.gov/system/files/documents/2021-10/508compliant_ezd5442262_2021-06-23-governor-letter-to-epa-for-pfas-petition.pdf-incoming-document.pdf, and in the docket for this 
rulemaking. The New Mexico petition incorporated by reference two 
earlier petitions submitted to EPA by Public Employees for 
Environmental Responsibility (PEER), submitted on September 19, 
2019, available at: https://www.epa.gov/system/files/documents/2021-09/peer_pfas_rulemaking_petition_metadata_added.pdf, and in the 
docket for this rulemaking; and Environmental Law Clinic of 
University of California, Berkeley (UC Berkeley), submitted on 
January 15, 2020, available at: https://www.epa.gov/system/files/documents/2021-09/pfas_petition_for_haz_waste_jan_2020_metadata_added.pdf and in the 
docket for this rulemaking.
    \22\ EPA Response to New Mexico Governor's Petition on PFAS, 
October 26, 2021, available at: https://www.epa.gov/system/files/documents/2021-10/oct_2021_response_to_nm_governor_pfas_petition_corrected.pdf, and in 
the docket for this rulemaking.
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III. Summary of This Proposed Rule

    This proposed rule would amend the regulations applicable to RCRA 
treatment, storage, and disposal facilities in two related respects. 
First, it would amend the definition of hazardous waste applicable to 
corrective action. Specifically, it would amend the definition in Sec.  
260.10 to expressly apply the RCRA section 1004(5) statutory definition 
of hazardous waste to corrective action requirements under Sec.  
264.101 and 40 CFR part 264 Subpart S. Similarly, it would amend the 
identical definition in the hazardous waste facility permitting 
regulations, Sec.  270.2, to expressly apply the statutory definition 
of hazardous waste to the requirements relating to corrective action in 
Sec.  270.14(d). These proposed revisions would more clearly provide 
EPA authority to address, through corrective action for solid waste 
management units, releases of the full universe of substances that the 
statute intended--not only hazardous waste and hazardous constituents 
listed or identified in the regulations, but all substances that meet 
the definition of hazardous waste in RCRA section 1004(5) at a 
facility.
    Second, this proposed rule would add RCRA sections 3004(u) and (v) 
and 3008(h) to the statutory authorities identified in Sec.  
261.1(b)(2). That section provides that the statutory definitions of 
solid and hazardous waste govern the scope of EPA's authority under 
certain sections of RCRA, not the more limited 40 CFR part 261 
regulatory definitions. These revisions provide notice of and codify 
the Agency's interpretation of the statute--that it provides authority 
to address releases from solid waste management units of all substances 
that meet the definition of hazardous waste under the statute.

IV. Section-by-Section Analysis

A. Revisions to the Definitions in Sec. Sec.  260.10 and 270.2

    The definitions in 40 CFR 260.10 apply to 40 CFR parts 260 thru 
273. The Sec.  260.10 definition of hazardous waste refers to the 
definition in Sec.  261.3 of the regulations, that is, the regulatory

[[Page 8601]]

definition. Because the Sec.  260.10 definition is the regulatory 
definition, when the Agency codified sections 3004(u) and (v) in Sec.  
264.101, the regulatory definition of hazardous waste became linked to 
solid waste management unit corrective action. That result is not 
consistent with EPA's longstanding interpretation of the scope of 
sections 3004(u) and (v).
    That result also is not consistent with the direction EPA has 
provided to Corrective Action Program implementers, with EPA statements 
regarding its authority, or with implementation of the Corrective 
Action Program to date. As described above, the primary guidance for 
the Corrective Action Program--the 1990 Subpart S proposed rule and 
later the 1996 Subpart S ANPR--interpret EPA's authority under sections 
3004(u) and (v) and 3008(h) as extending to releases of any substance 
that meets the statutory definition of hazardous waste. EPA has 
consistently maintained this interpretation. For example, in explaining 
a decision not to list used oil as hazardous waste, EPA observed that 
``[u]sed oils are subject to the corrective action requirements of RCRA 
subtitle C, including sections 3004(u) and (v) and 3008(h) . . .'' \23\ 
In addition, a July 24, 2002, final rule that, among other things, 
excluded hazardous secondary materials used to make zinc fertilizers 
from the regulatory definition of solid waste, again stated EPA's 
position that section 3004(u) uses the broader statutory definition of 
hazardous waste and is not limited by the regulatory definition.\24\ 
More recently, the Agency PFAS Action Plan cited RCRA sections 3004(u) 
and (v) and section 3008(h) as potential authorities to use to address 
or prevent PFAS contamination.\25\
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    \23\ 57 FR 21524, 21529 (May 20, 1992).
    \24\ Zinc Fertilizers Made From Recycled Hazardous Secondary 
Materials, 67 FR 48393 at 48398.
    \25\ EPA's Per- and Polyfluoroalkyl Substances (PFAS) Action 
Plan, February 2019 Page 27, https://www.epa.gov/sites/default/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf.
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    EPA's model order developed for implementation of corrective action 
under section 3008(h) also relies on the statutory definition.\26\ EPA 
and authorized States have included conditions in RCRA permits and 
section 3008(h) orders requiring corrective action to address 
substances that were not regulatory hazardous wastes or hazardous 
constituents.\27\ Further, EPA has issued a limited number of RCRA 
permits that expressly apply the statutory hazardous waste definition 
to corrective action.\28\
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    \26\ Model Resource Conservation and Recovery Act Section 
3008(h) Administrative Order on Consent, September 2016 can be 
found, with transmittal memo, at https://www.epa.gov/sites/default/files/2016-10/documents/rcra3008h-aoc-mod-mem-2016.pdf. The 2016 
model order updated a model order issued in 1993, which also relied 
on the statutory hazardous waste definition. Available in the docket 
for this rulemaking and at: https://nepis.epa.gov/Exe/ZyNET.exe/9100UF01.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1991+Thru+1994&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C91thru94%5CTxt%5C00000026%5C9100UF01.txt&User=ANONYMOUSamp;Password=anonymous&SortMethod
=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/
x150y150g16/
i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&;Back=ZyActionS&
BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL 
on page 4).
    \27\ For example: (1) Permits issued to ATK Bacchus (2019), ATK 
Bacchus-Nirop (2020), and ATK Promontory OP (2018) by the State of 
Utah; requirements to address perchlorate, which is not a regulatory 
hazardous waste or on EPA or Utah's hazardous constituent list; (2) 
Permit Modification issued to Chemours Washington Works by the West 
Virginia Department of Environmental Protection June 15, 2016, 
included requirements to address PFOA; and (3) Part I Permit issued 
to Expert Management Inc. Missouri Hazardous waste Management 
Facility, August 31, 2020, imposes corrective action requirements on 
several substances that are not regulatory hazardous wastes or 
included in EPA's or Missouri's regulatory constituent lists: 
ammonia, fluoride, nitrate, perchlorate, and sulfate. These 
documents are available in the docket for this rulemaking.
    \28\ For example, a 2020 permit for the Penick Forest Products 
facility (title ``HWSA Permit and Trans'') and a 2019 permit for the 
Chemours DeLisle Plant, both in Mississippi--define ``hazardous 
waste'' using the statutory definition text for corrective action 
purposes. See pp 11-12 of the first two attachments. These permits 
are available in the docket for this rulemaking.
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    As discussed above, when the Agency issued the 1999 Federal 
Register notice withdrawing most provisions of the 1990 Subpart S 
proposed rule, EPA determined that those provisions were not necessary 
to carry out EPA's duties under RCRA sections 3004(u) and (v). EPA has 
now concluded, however, that the regulatory provision of the Subpart S 
proposal that would have expressly applied the statutory definition of 
hazardous waste to the regulatory corrective action requirements for 
solid waste management units is necessary to facilitate implementation 
of the Agency's full authority under the statute.
    EPA has come to realize that despite clear statements regarding the 
Agency's interpretation of the term ``hazardous waste'' in section 
3004(u), the 40 CFR part 264 regulations can cause difficulties for 
program implementers issuing permit conditions for corrective action. 
The applicability of the regulatory definition of hazardous waste to 40 
CFR part 264 may create confusion and thereby invite challenges to 
corrective action permit conditions that address releases of substances 
not listed or identified in the regulations as hazardous waste or 
constituents. Moreover, as a matter of good government, EPA's 
regulation should accurately and clearly reflect the requirements of 
the implementing statute, as interpreted by EPA. Therefore, EPA is 
proposing \29\ to modify the regulations in Sec.  260.10 to make clear 
that the statutory definition of hazardous waste applies to corrective 
action for releases of hazardous waste from solid waste management 
units.
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    \29\ Because the proposed statutory definition of hazardous 
waste is among the provisions of the 1990 Subpart S proposed rule 
that was withdrawn in the 1996 withdrawal notice, EPA is reproposing 
that the statutory definition of hazardous waste apply to corrective 
action to address solid waste management units.
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    EPA also is proposing a conforming definitional amendment. 
Specifically, in Sec.  270.2, EPA is proposing to expressly apply the 
statutory definition of hazardous waste to the permitting requirements 
in Sec.  270.14(d), which support Sec.  264.101. Section 270.14(d) sets 
forth the information that is required in permit applications for each 
solid waste management unit at a facility.
    EPA's interpretation of RCRA sections 3004(u) and (v) implements 
the plain language of RCRA. ``Hazardous waste'' is a defined term, and 
RCRA section 3004(u) uses that term. This usage contrasts with other 
provisions of RCRA Subtitle C, whose scope is limited to hazardous 
waste identified or listed under Subtitle C.\30\ While EPA has referred 
to its reading of RCRA section 3004(u) as an interpretation, it is 
arguably compelled by the language of the statute, since it simply 
applies the statutory definition to a term used in the provision. RCRA 
section 3004(v) does not expressly speak to the scope of corrective 
action required beyond the facility boundary,\31\ but there is no 
textual or logical basis to believe that the phrase ``corrective 
action'' in that section means something other than the

[[Page 8602]]

phrase as used in the preceding, simultaneously enacted section.
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    \30\ For example, RCRA sections 3002(a), 3003(a), 3004(a), and 
3005(a)--which, respectively, govern the generation of hazardous 
waste; transportation of such waste; treatment, storage, and 
disposal of such waste; and permitting of facilities for the 
treatment, storage, and disposal of such waste--are limited in scope 
to hazardous waste identified or listed under Subtitle C.
    \31\ Section 3004(v) correctly limits the facilities subject to 
beyond-the-boundary corrective action to ``facilities for the 
treatment, storage, or disposal, of hazardous waste listed or 
identified under section 3001,'' but it does not speak to the scope 
of substances subject to such corrective action.
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    To the extent EPA's reading is not compelled, it is clearly the 
best reading of the statute. As used in RCRA, the phrase ``hazardous 
waste'' governs the scope of investigative and response authorities 
that are developed and applied on a case-by-case basis. In addition to 
section 3004(u), the phrase is used, among other places, in section 
3008(h), to define the scope of EPA's authority to order corrective 
action at interim status facilities; section 3007, to define the scope 
of EPA's Subtitle C inspection and information gathering authorities; 
section 3013, to define the scope of EPA's Subtitle C authority to 
order monitoring, analysis, and testing; and section 7003, to define 
the scope of EPA's imminent hazard authority. As discussed briefly 
below, EPA codified its interpretation of ``hazardous waste'' as used 
in sections 3007, 3013, and 7003 decades ago. In contrast, the phrase 
``hazardous waste identified or listed'' under Subtitle C is used to 
define the scope of the uniform regulatory requirements applicable to 
the generation, transportation, treatment, storage, and disposal of 
hazardous wastes that EPA has identified or listed by regulation, 
pursuant to RCRA section 3001.
    In imposing corrective action requirements on a non-regulatory 
substance under the amended regulation, a permit writer would need to 
develop, and present for public comment, an administrative record 
supporting any conclusion that the substance meets or may meet the 
statutory hazardous waste definition, as briefly discussed below in 
Section IV.B of this preamble. Any final permit conditions would be 
subject to administrative and/or judicial challenge to the same extent 
as other permit conditions.
    EPA solicits comment on its proposed revisions to the definition of 
hazardous waste in Sec.  260.10 for purposes of corrective action.

B. Revisions to Sec.  261.1(b)(2)

    Section 261.1(b)(2) \32\ provides notice that the Agency's 
authority under sections 3007, 3013, and 7003 of RCRA is not limited to 
solid waste and hazardous waste identified in the regulations but 
extends to include solid and hazardous wastes under the definitions in 
the statute. This proposed rule would add RCRA sections 3004(u) and (v) 
and RCRA section 3008(h) to Sec.  261.1(b)(2) to clarify that the 
statutory definitions of solid waste and hazardous waste apply to those 
RCRA sections as well.
---------------------------------------------------------------------------

    \32\ This section of the regulations provides: ``This part 
identifies only some of the materials which are solid wastes and 
hazardous wastes under sections 3007, 3013, and 7003 of RCRA. A 
material which is not defined as a solid waste in this part, or is 
not a hazardous waste identified or listed in this part, is still a 
solid waste and a hazardous waste for purposes of these sections if:
    (i) In the case of sections 3007 and 3013, EPA has reason to 
believe that the material may be a solid waste within the meaning of 
section 1004(27) of RCRA and a hazardous waste within the meaning of 
section 1004(5) of RCRA; or
    (ii) In the case of section 7003, the statutory elements are 
established'' (emphasis added).
---------------------------------------------------------------------------

    EPA established Sec.  261.1(b)(2), in a final rule issued in May 
1980,\33\ to avoid confusion on several points. The provision made 
clear that the scope of the Agency's authority under the statutory 
provisions identified in that section is determined by the statutory 
definitions of solid and hazardous waste, not by the 40 CFR part 261 
definitions that govern the Subtitle C hazardous waste management 
program. With respect to the hazardous waste definition, EPA explained: 
``Unlike Sections 3002 through 3004 and Section 3010, Congress did not 
confine the operations of Sections 3007 and 7003 \34\ to ``hazardous 
wastes `identified or listed under this subtitle'. . . . To avoid 
future confusion on this point, EPA has stated it explicitly in Sec.  
261.1(b).'' \35\
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    \33\ Hazardous Waste Management System: General, 45 FR 33084, 
May 19, 1980. EPA revised this section in 1985 see 50 FR 614, 
January 4, 1985.
    \34\ The reference to RCRA 3013 was added to this section in a 
1985 rulemaking. 50 FR 614, January 4, 1985.
    \35\ 45 FR 33084, 33090 (May 19, 1980) (emphasis in original).
---------------------------------------------------------------------------

    Because Sec.  261.1(b)(2)(i) identifies information-gathering 
authorities and Sec.  261.1(b)(2)(ii) identifies remediation and other 
response authorities, and consequently a different level of finding is 
required under each of these sections, EPA is proposing to add sections 
3004(u) and (v) and section 3008(h) to both sections.
    Section 261.1(b)(2)(i) states that a material that is not a 
regulatory solid waste or a regulatory hazardous waste is still a solid 
waste and a hazardous waste for purposes of sections 3007 and 3013 if 
EPA has reason to believe that the material may be a solid waste within 
the meaning of 1004(27) or a hazardous waste within the meaning of 
section 1004(5). This provision describes EPA's authority to use the 
investigative and information gathering authorities provided in those 
statutory sections, which, among other things, enable EPA to gather 
information to determine if a substance is in fact a solid waste or a 
hazardous waste under the statute. Consistent with this regulatory 
text, EPA is proposing to add sections 3004(u) and (v) and section 
3008(h) to the existing Sec.  261.1(b)(2)(i) to explicitly state EPA's 
authority to impose requirements to implement the investigative stages 
of corrective action where the findings required by the provision are 
met. EPA would not rely solely on the findings described in this 
provision to require remediation activities.
    Section 261.1(b)(2)(ii) states that a material is a solid waste and 
a hazardous waste for purposes of RCRA section 7003 if the statutory 
elements are established. This paragraph describes EPA's authority to 
require remediation activities or other response measures under this 
section where the statutory definition of solid waste or hazardous 
waste is established. EPA is proposing to add sections 3004(u) and (v) 
and section 3008(h) to existing Sec.  261.1(b)(2)(ii) to explicitly 
state EPA's authority to require remediation activities beyond the 
investigative stages of corrective action where the findings required 
by that section are met.
    EPA does not believe that the addition of sections 3004(u) and (v) 
and section 3008(h) to Sec.  261.1(b) would impose additional 
requirements on facilities. As described above, these amendments to 
Sec.  261.1(b) would provide clarity by expressly stating the Agency's 
statutory authority under the specific RCRA sections listed.
    EPA solicits comment on the proposed revisions to Sec.  261.1(b).

V. Impact of the Proposed Rule on Corrective Action Program 
Implementation

    In developing this proposed rule, EPA anticipated how the rule 
might affect implementation of the Corrective Action Program, for 
example, whether it would increase the issuance of permit conditions to 
address releases of substances not identified or listed in the 
regulations, and/or whether it would redirect the program away from its 
current focus on releases of identified or listed substances. EPA does 
not expect these impacts.
    EPA expects that the proposed rule would facilitate corrective 
action to address substances that meet the statutory definition of 
hazardous waste, but are not regulatory hazardous waste, by providing 
clear regulatory authority and would thereby minimize the likelihood of 
challenges to corrective action requirements. EPA does not, however, 
expect that an increase in permit conditions to address corrective 
action will be attributable to the regulatory authority proposed in 
this rule. EPA has long held the position that

[[Page 8603]]

section 3004(u) provides authority to address statutory hazardous waste 
and, since 1990, has consistently instructed regional and State 
implementers that the corrective action authority reaches such waste. 
In addition, Corrective Action Program implementers have had authority 
to include corrective action conditions in permits either through State 
cleanup regulations or through the authority provided by Sec.  
270.32(b)(2), EPA's omnibus authority, and authorized State 
analogues.\36\ In addition, as was discussed above, EPA has corrective 
action authority under section 3008(h) to address releases of statutory 
hazardous waste. Moreover, cleanup at RCRA treatment, storage, and 
disposal facilities also can be required or conducted pursuant to the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA).
---------------------------------------------------------------------------

    \36\ Section 270.32(b)(2) provides: ``Each permit issued under 
section 3005 of this act shall contain terms and conditions as the 
administrator or State Director determines necessary to protect 
human health and the environment.'' EPA has long recognized the 
appropriateness of use of the omnibus authority to ensure the 
objectives of section 3004(u) are realized. In the 1996 Subpart S 
ANPR, EPA pointed out that Congress enacted the two authorities in 
the same HSWA amendments, 61 FR at 19433. EPA cited to the omnibus 
provision in explaining EPA's authority to require cleanup of 
releases from areas that do not qualify as solid waste management 
units. EPA stated: ``Given the legislative history of RCRA section 
3004(u), which emphasizes that RCRA facilities should be adequately 
cleaned up, in part, to prevent creation of new Superfund sites, EPA 
believes that corrective action authorities can be used to address 
all unacceptable risks to human health or the environment from RCRA 
facilities. In the permitting context, remediation of non-SWMU 
related releases may be required under the `omnibus' authority.'' 
Id. at 19443.
---------------------------------------------------------------------------

    In the process of developing this proposed rule, the Corrective 
Action Program gathered permits that impose corrective action 
requirements to address substances not listed or identified in the 
regulations as hazardous waste or constituents and found very few. 
EPA's understanding is that, although permit writers possess authority 
to require investigation and cleanup of substances that are not 
regulatory hazardous wastes or constituents, they have generally 
focused the Corrective Action Program on addressing releases of 
substances that are identified in the regulations. Given that the 
ability to address substances that are not regulatory hazardous waste 
has been available to program implementers in the past, EPA has no 
reason to expect that those substances, in general, would be addressed 
through corrective action more frequently in the future as a result of 
this proposed rule.
    At the same time, EPA expects that the Agency's attention on 
addressing risks associated with PFAS \37\ will likely result in 
additional corrective action to address releases of those substances. 
EPA also expects that such increased corrective action activity would 
be supported principally not by this rule, but by the companion rule 
that EPA is developing to list a set of those substances as hazardous 
constituents in 40 CFR part 261 Appendix VIII.\38\
---------------------------------------------------------------------------

    \37\ For example, PFAS Strategic Roadmap, EPA's Commitment to 
Action 2021-2024, https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.
    \38\ The PFAS addressed in the proposed rule are: 
Perfluorobutanoic acid (PFBA), Perfluorobutanesulfonic acid (PFBS), 
Perfluorodecanoic acid (PFDA), Perfluorohexanoic acid (PFHxA), 
Perfluorohexanesulfonic acid (PFHxS), Perfluorononanoic acid (PFNA), 
Perfluorooctanoic acid (PFOA), Perfluorooctanesulfonic acid (PFOS), 
and Hexafluoropropylene oxide-dimer acid (HFPO-DA or GenX. All 
references to the nine PFAS in this notice are meant to include 
their salts and linear and branched structural isomers. EPA intends 
to process these two rulemakings in tandem, and EPA's expectation 
that increased corrective action activity for these nine PFAS would 
be supported by the Appendix VIII rule is premised on the assumption 
that the two rules will be made final at or around the same time.
---------------------------------------------------------------------------

    In the 1990 Subpart S proposed rule discussed above, EPA stated its 
belief that the use of the phrase ``hazardous waste or constituents'' 
in section 3004(u) indicates that Congress was particularly concerned 
that the Agency use its corrective action authority to address 
hazardous constituents and stated that the term ``hazardous 
constituents'' in section 3004(u) means those constituents found in 40 
CFR part 261 Appendix VIII.\39\ Thus, hazardous constituents listed on 
40 CFR part 261 Appendix VIII are routinely assessed for and addressed 
as part of the corrective action process.
---------------------------------------------------------------------------

    \39\ EPA also proposed in that rule to include within the 
definition of hazardous constituents those constituents identified 
in Appendix IX to 40 CFR part 264. See: 55 FR 30798 at 30809.
---------------------------------------------------------------------------

    As a result of the PFAS Appendix VIII rulemaking, nine PFAS would 
be among the hazardous constituents expressly identified for 
consideration in RCRA facility assessments and investigations and, 
where necessary, cleanup through the corrective action process. EPA 
expects that this set of PFAS are those most likely to be addressed 
through corrective action, and that, if these specific PFAS are listed 
as hazardous constituents, corrective action to address those 
substances will be supported by their 40 CFR part 261 Appendix VIII 
listing, rather than the regulatory authority that would be provided by 
this proposed rule. EPA solicits comment on that expectation.
    EPA also solicits comment on whether the potential impacts of this 
rulemaking may be affected by the availability of other authorities 
that program implementers might rely on to satisfy corrective action 
requirements to address PFAS at RCRA facilities including other RCRA 
authorities such as omnibus permitting authority and RCRA section 7003, 
and CERCLA.
    As discussed above, EPA is proposing this rule to more clearly 
provide EPA authority to address, through RCRA corrective action for 
solid waste management units, releases of the full universe of 
substances that the statute intended. EPA believes that the regulations 
would, as a result of this rule, accurately reflect what the statute 
authorizes and requires, as interpreted by EPA. Finally, EPA believes 
that by providing clear regulatory authority, the proposed rule, if 
made final, would minimize the likelihood of challenges to corrective 
action requirements. EPA solicits comment on its understanding of the 
impact of this proposed rulemaking on its ability to effectively issue 
permit conditions to address statutory hazardous waste, and on whether 
there are possible alternatives that would achieve the benefits of this 
regulation, in light of the other actions and authorities described 
above.
    EPA has presented this impacts discussion consistent with Executive 
Order 12866. The potential impacts of this rulemaking and the potential 
for associated benefits and costs do not form any part of the basis of 
EPA's decision to propose the amendments in this notice. As described 
above, the amendments proposed today implement the plain language of 
RCRA and reflect what EPA believes was Congress' intent as to the scope 
of RCRA sections 3004(u) and (v) and 3008(h). EPA believes its 
regulations should accurately reflect what the statute authorizes and 
requires, as interpreted by EPA. EPA's estimate as to the potential 
impact of the amendments is not relevant either to what Congress 
intended in enacting these provisions or to whether EPA's regulations 
should accurately reflect that intent. In any event, even if potential 
impacts were relevant to today's proposal, EPA would proceed with the 
proposed amendments because, as explained above, EPA does not expect 
that the rule would result in any impacts.

VI. State Implementation

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to

[[Page 8604]]

administer their own hazardous waste programs in lieu of the federal 
program within the State. Following authorization, EPA retains 
enforcement authority under section 3008, 3013, and 7003 of RCRA, 
although authorized States have primary enforcement responsibility. The 
standards and requirements for State authorization are found in 40 CFR 
part 271.
    Prior to the enactment of the Hazardous and Solid Waste Amendments 
of 1984 (HSWA) and of the Hazardous Waste Electronic Manifest 
Establishment Act,\40\ 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 administer the program and issue RCRA permits. 
When new, more stringent federal requirements were promulgated, the 
State was obligated to adopt 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.
---------------------------------------------------------------------------

    \40\ Public Law 112-195, October 5, 2012.
---------------------------------------------------------------------------

    In contrast, with the adoption of RCRA section 3006(g), which was 
added by HSWA, new requirements and prohibitions imposed under the HSWA 
authority take effect in authorized States at the same time that they 
take effect in unauthorized States. EPA is directed by section 3006(g) 
to implement HSWA based requirements and prohibitions in authorized 
States 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 when EPA 
promulgates federal requirements that are more stringent or broader in 
scope than existing federal requirements. RCRA section 3009 allows the 
States to impose standards more stringent than those in the federal 
program (see also Sec.  271.1). If EPA promulgates a federal 
requirement that is less stringent than an existing requirement, 
authorized States may, but are not required to, adopt the requirement 
regardless of whether it is a HSWA or a non-HSWA requirement.

B. Effect on State Authorization

    The regulations proposed in this notice would be promulgated under 
the authority of HSWA. Thus, the standards would be applicable on the 
rule's effective date in all States and would be implemented by EPA 
until the States receive authorization.
    Moreover, as stated in Section A above, authorized States are 
required to modify their programs when EPA promulgates federal 
regulations that are more stringent or broader in scope than the 
authorized State regulations. The revisions in this proposed rule are 
considered to be more stringent than the existing federal 
requirements.\41\ Therefore, authorized States would be required to 
modify their programs to adopt regulations equivalent to the provisions 
contained in this proposed rule.
---------------------------------------------------------------------------

    \41\ As explained above, EPA does not expect this proposed rule 
to drive additional corrective action activity. However, it would 
amend the regulations in a way that makes them facially more 
stringent than the existing regulations. Because State regulations 
must be equivalent to and consistent with EPA regulations (RCRA 
section 3006(b); 40 CFR 271.3(a)), EPA believes that authorized 
State regulations will need to reflect the changes proposed today if 
those changes are made final, and EPA therefore considers the 
proposed revised rules to be more stringent than the existing rules.
---------------------------------------------------------------------------

    As discussed earlier in this preamble, although the regulatory 
provisions would be new, these proposed amendments are consistent with 
EPA's longstanding interpretation of the RCRA statute. States with 
authorized RCRA programs already may have regulations similar to those 
in this proposed rule. These State regulations have not been assessed 
against the Federal regulations proposed today to determine whether 
they meet the tests for authorization. Thus, even after promulgation of 
final rules, a State would not be authorized to implement these 
regulations as RCRA requirements until State program modifications are 
submitted to EPA and approved, pursuant to Sec.  271.21. Of course, 
States with existing regulations that are more stringent than or 
broader in scope than existing Federal regulations may continue to 
administer and enforce their regulations as a matter of State law. In 
implementing the HSWA requirements, EPA will work with the States under 
agreements to avoid duplication of effort.

VII. Statutory and Executive Order Reviews

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

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

    Under section 3(f)(4) of Executive Order 12866, this action is a 
significant regulatory action that was submitted to the Office of 
Management and Budget (OMB) for review. Any changes made in response to 
recommendations received as part of Executive Order 12866 review have 
been documented in the docket.
    Additionally, EPA prepared an analysis of the potential costs and 
benefits associated with this action. This draft analysis, Economic 
Assessment for the Definition of Hazardous Waste Applicable to 
Corrective Action for Releases from Solid Waste Management Units 
(Economic Assessment), is available in the docket for this action.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA, 5 
U.S.C. 601, et seq. EPA projects zero direct costs to regulated 
entities associated with the proposed rule. As explained in Section V, 
EPA does not expect that the rule would result in any impacts. While 
this analysis finds that this rule would not change costs for the 
regulated community, any unexpected costs would be indirect costs. For 
a given facility, the specific corrective measures required to address 
any statutory hazardous waste would depend on several facility-specific 
factors to be considered by EPA or authorized State permitting 
authorities, including the extent and magnitude of contamination. 
Because cleanups associated with any statutory hazardous waste would be 
implemented by either EPA or an authorized State permitting authority 
under the general corrective action standard in Sec.  264.101, which 
requires corrective action be instituted ``as necessary to protect 
human health or the environment,'' relevant corrective action cost 
impacts that may be incurred at certain TSDFs are considered indirect.
    Because the proposed rule is not expected to result in any 
additional costs (including direct costs), it is also not expected to 
result in a significant economic impact for a substantial

[[Page 8605]]

number of small entities. The number of small entities within the 
universe are estimated within the Economic Assessment for the 
Definition of Hazardous Waste Applicable to Corrective Action at Solid 
Waste Management Units. We have therefore concluded that this action 
will not have a significant regulatory burden for all directly 
regulated small entities. However, EPA solicits comment on its 
conclusion that the proposed rule would not result in any additional 
costs, including to small entities, along with any data bearing on that 
conclusion. Details of our economic analysis are presented in the 
Economic Assessment for the Definition of Hazardous Waste Applicable to 
Corrective Action for Releases from Solid Waste Management Units, 
available in the public docket for this action.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any State, 
local or Tribal governments or the private sector.

E. 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.

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

    This action does not have Tribal implications as specified in 
Executive Order 13175 because it does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal Government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
EPA does not expect that it would result in any adverse impacts on 
Tribal entities. Thus, Executive Order 13175 does not apply to this 
action.
    Consistent with the EPA Policy on Consultation with Indian Tribes, 
EPA intends to coordinate with Tribal officials.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) directs federal 
agencies to include an evaluation of the health and safety effects of 
the planned regulation on children in federal health and safety 
standards and explain why the regulation is preferable to potentially 
effective and reasonably feasible alternatives. This action is not 
subject to Executive Order 13045 because it is not deemed to be a 
significant regulatory action under section 3(f)(1) of Executive Order 
12866, and because EPA does not believe the environmental health or 
safety risks addressed by this action present a disproportionate risk 
to children. Because the proposed rule is not expected to change the 
frequency, scale, or location of corrective action, EPA does not expect 
the proposed rule to result in, or reduce, disproportionate adverse 
impacts on children's health.
    However, EPA's Policy on Children's Health applies to this action. 
Information on how the Policy was applied is available under 
``Children's Environmental Health'' in the Economic Assessment, which 
is included in the docket for this rulemaking.

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

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This action proposes to amend the 
regulatory definition of hazardous waste applicable to corrective 
action to address releases from solid waste management units at RCRA-
permitted treatment, storage, and disposal facilities and make related 
conforming amendments, and thus, does not involve the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    EPA believes that the human health or environmental conditions that 
exist prior to this action result in or have the potential to result in 
disproportionate and adverse human health or environmental effects on 
communities with environmental justice concerns.\42\ A screening 
analysis of six existing permitted facilities was conducted and 
revealed that two facilities appear to be sited such that EJ indices 
from EPA's EJScreen generally exceed the 70th percentile on both a 
State and national basis. This limited data and analysis indicate that 
conditions prior to a potential action could result in disproportionate 
and adverse human health or environmental effects to communities with 
environmental justice concerns.
---------------------------------------------------------------------------

    \42\ Based on data from EPA's RCRAInfo database, 1,740 
treatment, storage, and disposal facilities have RCRA permits as of 
February 2023. The count of 1,740 includes all TSDFs with at least 
one permitted treatment, storage, or disposal unit. See the Economic 
Assessment for this rule, available in the docket, for a more 
detailed discussion of the universe of permitted facilities that 
would be subject to this rulemaking.
---------------------------------------------------------------------------

    EPA believes that this action is not likely to change existing 
disproportionate and adverse effects on people in communities with 
environmental justice concerns. As described in Chapter 3 of the 
Economic Assessment, EPA does not expect the proposed rule to change 
the frequency or scale of corrective action; further, EPA does not 
expect the proposed rule to alter the siting of RCRA treatment, 
storage, and disposal facilities in any way. Given that the ability to 
address substances that are not regulatory hazardous waste has been 
available to program implementers in the past, EPA has no reason to 
expect that those substances, in general, would be addressed through 
corrective action more frequently in the future as a result of this 
proposed rule.

List of Subjects in Parts 260, 261, and 270

    Environmental protection, Hazardous waste.

Michael S. Regan,
Administrator.

    For the reasons set out in the preamble, the Environmental 
Protection Agency proposes to amend 40 CFR parts 260, 261, and 270 as 
follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

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

    Authority: 42 U.S.C. 6903(5), 6905, 6912(a), 6921-6927, 6930, 
6934, 6935, 6937, 6938, 6939, and 6974.

0
2. Section 260.10 is amended by revising the definition ``Hazardous 
waste'' to read as follows:

[[Page 8606]]

Sec.  260.10  Definitions.

* * * * *
    Hazardous waste means a hazardous waste as defined in Sec.  261.3 
of this chapter, except that, for purposes of Sec. Sec.  264.101 and 
270.14(d), ``hazardous waste'' means a waste that is subject to the 
requirements of RCRA section 3004(u) and (v) as provided in 40 CFR 
261.1(b)(2).
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

    Authority:  42 U.S.C 6903(5), 6905, 6912(a), 6921, 6922, 
6924(u), 6924(v), 6924(y), 6928(h), and 6938.

0
4. Section 261.1 is amended by revising the first sentence of paragraph 
(b)(2) and paragraphs (b)(2)(i) and (ii) to read as follows:


Sec.  261.1  Purpose and scope.

* * * * *
    (b)(2) This part identifies only some of the materials which are 
solid wastes and hazardous wastes under sections 3004(u) and (v), 3007, 
3008(h), 3013, and 7003 of RCRA. * * *
    (i) In the case of sections 3007 and 3013, and in the case of 
activities, such as investigation and analysis, conducted to determine 
the need for and the extent of remediation necessary under sections 
3004(u) and (v) and 3008(h), EPA has reason to believe that the 
material may be a solid waste within the meaning of section 1004(27) of 
RCRA and a hazardous waste within the meaning of section 1004(5) of 
RCRA; or
    (ii) in the case of section 7003, and in the case of activities 
conducted for purposes of remediation under sections 3004(u) and (v) 
and 3008(h), including remediation conducted as an interim measure, the 
statutory elements are established.
* * * * *

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

0
5. The authority citation for part 270 is revised to read as follows:

    Authority:  42 U.S.C 6903(5), 6905, 6912, 6924, 6925, 6927, 
6939, and 6974.

0
6. Section 270.2 is amended by revising the definition of ``Hazardous 
waste'' to read as follows:


Sec.  270.2  Definitions.

* * * * *
    Hazardous waste means a hazardous waste as defined in 40 CFR 261.3 
except that, for purposes of Sec.  270.14(d), ``hazardous waste'' means 
a waste that is subject to the requirements of RCRA section 3004(u) and 
(v) as provided in 40 CFR 261.1(b)(2).
* * * * *

[FR Doc. 2024-02328 Filed 2-7-24; 8:45 am]
BILLING CODE 6560-50-P


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