8598 Federal Register / Vol. 89, No. 27 / Thursday, February 8, 2024 / Proposed Rules 

Chromatography (CIC). EPA–821–D–22– 

0202. Office of Research and 

Development, Cincinnati, OH. April 

2022. Available at https://www.epa.gov/ 

system/files/documents/2022-04/draftmethod-1621-for-screening-aof-inaqueous-matrices-by-cic_0.pdf. 

(lxxxiii) USEPA. 2022b. Drinking Water

Contaminant Candidate List 5—Final.

Federal Register. Vol. 87, No. 218, p.

68060, November 14, 2022.

(lxxxiv) USEPA. 2023. Comptox Chemicals

Dashboard v2.3.0. https://

comptox.epa.gov/dashboard/chemicallists/PFASSTRUCT (accessed January 24,

2024) PFAS Structure Lists.

(lxxxv) Wong, C. & Coffin, S. 2022. Standard

Operating Procedures for Extraction and 

Measurement by Infrared Spectroscopy 

of Microplastic Particles in Drinking 

Water. California State Water Resources 

Control Board. May 27, 2022. Available 

at https://www.waterboards.ca.gov/ 

drinking_water/certlic/drinkingwater/ 

documents/microplastics/swb-mp1- 

rev1.pdf. 

Jennifer L. McLain, 

Director, Office of Ground Water and Drinking 

Water. 

[FR Doc. 2024–02247 Filed 2–7–24; 8:45 am] 

BILLING CODE P 

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. 

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: 

• Federal eRulemaking Portal:

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Mail: U.S. Environmental

Protection Agency, EPA Docket Center, 

RCRA Docket, Mail Code 28221T, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460. 

• 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, 

foster.barbara@epa.gov. 

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 offsite 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 


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1A regulated unit is defined in § 264.90 as a 

surface impoundment, waste pile, and land 

treatment unit or landfill that receives hazardous 

waste after July 26, 1982. 

2Hazardous Waste Management System; Final 

Codification Rule, 50 FR 28702, July 15, 1985. 

3Hazardous Waste; Codification Rule for the 1984 

Amendments 52 FR 45788, December 1, 1987. 

4Corrective Action for Solid Waste Management 

Units at Hazardous waste Management Facilities; 

Proposed Rule, July 27, 1990, 55 FR 30798. 

5As 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). 

7Section 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. 

9Corrective Action Management Units and 

Temporary Units; Corrective Action Provisions 

Under Subtitle C, 58 FR 8658, February 16, 1993. 

10Memorandum 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. 

11Corrective Action for Releases from Solid 

Waste Management Units at Hazardous Waste 

Management Facilities, May 1, 1996, 61 FR 19432 

at 19443. 

12Subpart S ANPR, May 1, 1996, 85 FR at 19432 

at 19443. 

13Memorandum 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. 

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. 

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 § 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 § 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

Section 260.10 provides definitions 

for terms used in 40 CFR parts 260 

through 273. The definition of 

‘‘hazardous waste’’ in § 260.10 refers to 

the definition in § 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 

§ 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. 

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

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

On October 7, 1999, the Agency 

issued a Federal Register notice 

withdrawing the 1990 Subpart S 


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14Corrective Action for Solid Waste Management 

Units at Hazardous Waste Management Facilities, 

Partial Withdrawal of Rulemaking Proposal, 64 FR 

54604 (October 7, 1999). 

15EPA 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. 

18New Mexico is one of the 44 States (along with 

one territory) authorized to implement corrective 

action (1985 Codification Rule provisions). 

19The 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. 

20The 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. 

21Petition 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.pdfincoming-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. 

22EPA 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. 

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

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 RCRAauthorized 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

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. 

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. 

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 § 260.10 to expressly apply 

the RCRA section 1004(5) statutory 

definition of hazardous waste to 

corrective action requirements under 

§ 264.101 and 40 CFR part 264 Subpart 

S. Similarly, it would amend the 

identical definition in the hazardous 

waste facility permitting regulations, 

§ 270.2, to expressly apply the statutory 

definition of hazardous waste to the 

requirements relating to corrective 

action in § 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 § 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 

§§ 260.10 and 270.2 

The definitions in 40 CFR 260.10 

apply to 40 CFR parts 260 thru 273. The 

§ 260.10 definition of hazardous waste 

refers to the definition in § 261.3 of the 

regulations, that is, the regulatory 


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23 57 FR 21524, 21529 (May 20, 1992). 

24Zinc Fertilizers Made From Recycled 

Hazardous Secondary Materials, 67 FR 48393 at 

48398. 

25EPA’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. 

26Model 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-aocmod-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=&Search

Method=1&TocRestrict=n&Toc=&Toc

Entry=&QField=&QFieldYear=&QFieldMonth=

&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0

&XmlQuery=&File=D%3A%5Czyfiles%

5CIndex%20Data%5C91thru94%5CTxt%5C0000

0026%5C9100UF01.txt&User=ANONYMOUS

amp;Password=anonymous&SortMethod=h%7C-&

MaximumDocuments=1&FuzzyDegree=0&Image

Quality=r75g8/r75g8/x150y150g16/i425&Display=

hpfr&DefSeekPage=x&SearchBack=ZyActionL&

;Back=ZyActionS&BackDesc=Results

%20page&MaximumPages=1&ZyEntry=1&Seek

Page=x&ZyPURL on page 4). 

27For 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. 

28For 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. 

29Because 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. 

30For 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. 

31Section 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. 

definition. Because the § 260.10 

definition is the regulatory definition, 

when the Agency codified sections 

3004(u) and (v) in § 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

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

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 § 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. 

EPA also is proposing a conforming 

definitional amendment. Specifically, in 

§ 270.2, EPA is proposing to expressly

apply the statutory definition of

hazardous waste to the permitting

requirements in § 270.14(d), which

support § 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 


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32This 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). 

33Hazardous Waste Management System: 

General, 45 FR 33084, May 19, 1980. EPA revised 

this section in 1985 see 50 FR 614, January 4, 1985. 

34The 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). 

phrase as used in the preceding, 

simultaneously enacted section. 

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 § 260.10 for purposes of 

corrective action. 

B. Revisions to § 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 

§ 261.1(b)(2) to clarify that the statutory 

definitions of solid waste and hazardous 

waste apply to those RCRA sections as 

well. 

EPA established § 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 § 261.1(b).’’ 35

Because § 261.1(b)(2)(i) identifies 

information-gathering authorities and 

§ 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 § 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 

§ 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 § 261.1(b) would impose 

additional requirements on facilities. As 

described above, these amendments to 

§ 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 § 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 


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36Section 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. 

37For 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. 

38The 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. 

39EPA 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. 

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 § 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). 

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

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. 

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 


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40Public Law 112–195, October 5, 2012. 

41As 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. 

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. 

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 

§ 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. 

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 § 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/lawsregulations/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 § 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 


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42Based 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. 

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. 

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 

■ 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. 

■ 2. Section 260.10 is amended by 

revising the definition ‘‘Hazardous 

waste’’ to read as follows: 


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8606 Federal Register / Vol. 89, No. 27 / Thursday, February 8, 2024 / Proposed Rules 

§ 260.10 Definitions. 

* * * * * 

Hazardous waste means a hazardous 

waste as defined in § 261.3 of this 

chapter, except that, for purposes of 

§§ 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 

■ 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. 

■ 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: 

§ 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 

■ 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. 

■ 6. Section 270.2 is amended by 

revising the definition of ‘‘Hazardous 

waste’’ to read as follows: 

§ 270.2 Definitions. 

* * * * * 

Hazardous waste means a hazardous 

waste as defined in 40 CFR 261.3 except 

that, for purposes of § 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 261 and 271 

[EPA–HQ–OLEM–2023–0278; FRL–9248– 

01–OLEM] 

RIN 2050–AH26 

Listing of Specific PFAS as Hazardous 

Constituents 

AGENCY: Environmental Protection 

Agency (EPA) 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

proposing to amend its regulation under 

the Resource Conservation and 

Recovery Act (RCRA) by adding nine 

specific per-and polyfluoroalkyl 

substances (PFAS), their salts, and their 

structural isomers, to its list of 

hazardous constituents. These nine 

PFAS are perfluorooctanoic acid 

(PFOA), perfluorooctanesulfonic acid 

(PFOS), perfluorobutanesulfonic acid 

(PFBS), hexafluoropropylene oxidedimer acid (HFPO–DA or GenX), 

perfluorononanoic acid (PFNA), 

perfluorohexanesulfonic acid (PFHxS), 

perfluorodecanoic acid (PFDA), 

perfluorohexanoic acid (PFHxA), and 

perfluorobutanoic acid (PFBA). EPA’s 

criteria for listing substances as 

hazardous constituents under RCRA 

require that they have been shown in 

scientific studies to have toxic, 

carcinogenic, mutagenic, or teratogenic 

effects on humans or other life forms. 

EPA reviewed and evaluated key 

toxicity and epidemiological studies 

and assessments for the nine PFAS to 

determine whether the available data for 

these PFAS meet the Agency’s criteria 

for listing substances as hazardous 

constituents under RCRA. Based on 

EPA’s evaluation, the above nine PFAS, 

their salts, and their structural isomers 

meet the criteria for being listed as 

RCRA hazardous constituents. As a 

result of this proposed rule, if finalized, 

when corrective action requirements are 

imposed at a facility, these PFAS would 

be among the hazardous constituents 

expressly identified for consideration in 

RCRA facility assessments and, where 

necessary, further investigation and 

cleanup through the RCRA corrective 

action process at RCRA treatment, 

storage, and disposal facilities. 

DATES: Comments must be received on 

or before April 8, 2024. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OLEM–2023–0278, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

OLEM Docket, Mail Code 28221T, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460. 

• Hand Delivery or 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. For further information 

on EPA Docket Center services and the 

current status, please visit us online at 

https://www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Narendra Chaudhari, Office of Resource 

Conservation and Recovery (5304T), 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460; telephone number 202–566– 

0495; email address: 

Chaudhari.narendra@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

A. Written Comments 

II. General Information 

A. Does this action apply to me? 

B. What action is the Agency taking? 

C. Why is the Agency taking this action? 

D. Impacts of the Proposed Rule 

E. What are the incremental costs and 

benefits of this action? 

III. Legal Authority 

A. What is the Agency’s authority for 

taking this action? 

B. RCRA Sections 3001 and 3004(u) 

Preclude Consideration of Cost in 

Identifying Hazardous Constituents 

IV. Background 

A. What are PFAS? 

B. What has been learned from PFAS 

toxicity studies? 


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