August 31, 2026

EPA Withdraws Proposal to Modify the Definition of Hazardous Waste Under RCRA Corrective Action

On February 8, 2024, EPA proposed to amend the definition of hazardous waste applicable to the RCRA corrective action program (now referred to by EPA as the hazardous waste cleanup program). [89 FR 8598] The proposal would have made two changes:

1. Amend the definition of hazardous waste in §260.10 and §270.2 to expressly apply the RCRA Section 1004(5) [42 U.S.C. Section 6903(5)] statutory definition of hazardous waste to corrective action requirements referenced in §264.101 and Part 264, Subpart S.
2. Add RCRA Sections 3004(u) [42 U.S.C. Section 6924(u)], 3004(v) [42 U.S.C. Section 6924(v)], and 3008(h) [42 U.S.C. Section 6928(h)]to the statutory authorities identified in §261.1(b)(2).

RCRA Section 3004(u) requires corrective action for releases of hazardous waste or hazardous constituents from solid waste management units identified in a facility permit, Section 3004(v) requires facility owners or operators to perform corrective action to address releases that have moved beyond a facility’s boundary, and Section 3008(h) authorizes EPA and states to issue administrative orders or file lawsuits requiring corrective action at hazardous waste facilities operating under interim status.

Combined, the revisions would have more clearly communicated EPA’s authority to address the cleanup of the full universe of hazardous waste and hazardous constituents under corrective action. Such a change was anticipated to minimize challenges to corrective action requirements, as it would have codified EPA’s longstanding interpretation that cleanup has always applied to hazardous waste meeting the statutory definition, not only the regulatory definition. The agency did not expect that an increase in permit conditions to address corrective action would be attributed to the regulatory authority proposed by the rule.

The definition of hazardous waste

While EPA did not expect a significant impact on the corrective action program, one should be familiar with the difference between the regulatory and broader statutory definition of hazardous waste to understand the proposal. At the most fundamental level, the regulatory definition of hazardous waste, as cited in §261.3, is any solid waste that is not excluded and either exhibits a characteristic under Part 261, Subpart C, or meets a listing description under Part 261, Subpart D. Compare this to the RCRA Section 1004(5) definition, which reads:

“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.”

More wastes are considered hazardous under the statutory definition than under the regulatory definition.

EPA withdraws hazardous waste rule

On May 8, 2026, EPA withdrew its 2024 proposal to clarify that corrective action applies to the cleanup of hazardous waste as defined by the RCRA statute, not only the RCRA regulations. [91 FR 25266] The agency believed the proposal would have complicated efficient corrective action implementation by creating confusion on which substances were subject to cleanup and what units were solid waste management units. EPA supported its withdrawal with two reasons:

1. Few permits and 3008(h) orders have been issued addressing the cleanup of substances that were not regulated hazardous waste or Part 261, Appendix VIII hazardous constituents.
2. The cleanup of statutory hazardous waste can already be required under the RCRA “omnibus” authority of Section 3005(c)(3) [42 U.S.C. Section 6925(c)(3)].

In addition to Section 3005(c)(3), cleanup can also be required under Section 7003 [42 U.S.C. Section 6973], where solid or hazardous waste management activities may present an imminent and substantial endangerment to health or the environment. RCRA Section 3005(c)(3) allows EPA or an authorized state to include corrective action and other requirements in a permit as necessary to protect human health and the environment. Section 7003 authorizes the use of enforcement to abate conditions that may present an imminent and substantial endangerment to health or the environment.

Cleanup can also be mandated under Section 3013 [42 U.S.C. Section 6934], where the presence of hazardous waste or releases of hazardous waste may present a substantial hazard to human health or the environment. [91 FR 25267] This section authorizes the use of administrative orders requiring owners or operators of hazardous waste facilities to conduct monitoring, testing, analysis, and reporting.

 

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