Proposed Rule2024-02328
Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units
Primary source
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Published
February 8, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 27 (Thursday, February 8, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> (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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
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: <a href="https://rcrapublic.epa.gov/files/13461.pdf">https://rcrapublic.epa.gov/files/13461.pdf</a>, 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: <a href="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">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</a>, 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: <a href="https://www.epa.gov/system/files/documents/2021-09/peer_pfas_rulemaking_petition_metadata_added.pdf">https://www.epa.gov/system/files/documents/2021-09/peer_pfas_rulemaking_petition_metadata_added.pdf</a>, 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: <a href="https://www.epa.gov/system/files/documents/2021-09/pfas_petition_for_haz_waste_jan_2020_metadata_added.pdf">https://www.epa.gov/system/files/documents/2021-09/pfas_petition_for_haz_waste_jan_2020_metadata_added.pdf</a> and in the
docket for this rulemaking.
\22\ EPA Response to New Mexico Governor's Petition on PFAS,
October 26, 2021, available at: <a href="https://www.epa.gov/system/files/documents/2021-10/oct_2021_response_to_nm_governor_pfas_petition_corrected.pdf">https://www.epa.gov/system/files/documents/2021-10/oct_2021_response_to_nm_governor_pfas_petition_corrected.pdf</a>, 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, <a href="https://www.epa.gov/sites/default/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf">https://www.epa.gov/sites/default/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf</a>.
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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 <a href="https://www.epa.gov/sites/default/files/2016-10/documents/rcra3008h-aoc-mod-mem-2016.pdf">https://www.epa.gov/sites/default/files/2016-10/documents/rcra3008h-aoc-mod-mem-2016.pdf</a>. 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: <a href="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">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</a>;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.
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\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).
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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).
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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).
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\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.
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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\
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\37\ For example, PFAS Strategic Roadmap, EPA's Commitment to
Action 2021-2024, <a href="https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf">https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf</a>.
\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.
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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.
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\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.
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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.
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\40\ Public Law 112-195, October 5, 2012.
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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.
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\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.
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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 <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
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.
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\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.
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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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</html>Indexed from Federal Register on February 8, 2024.
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