Temporary Suspension of Toxicity Characteristic Rule for
Specified Lead-Based Paint Debris
[Federal Register: December 18, 1998 (Volume 63, Number 243)]
[Proposed Rules]
[Page 70233-70249]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de98-52]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260 and 261
[FRL-5783-7]
RIN 2070-AC72
Temporary Suspension of Toxicity Characteristic Rule for
Specified Lead-Based Paint Debris
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a rule which would suspend temporarily the
applicability of the Resource Conservation and Recovery Act (RCRA)
Toxicity Characteristic (TC) Rule (40 CFR 261.24) to debris generated
during lead-based paint (LBP) abatements conducted at target housing;
deleading projects conducted at public or commercial buildings; and
renovation or remodeling and demolition activities at target housing,
public buildings, or commercial buildings. Instead of being subject to
the TC Rule, LBP debris resulting from the above-mentioned activities
would be subject to the management and disposal standards being
proposed today under Title IV of the Toxic Substances Control Act
(TSCA). EPA is proposing this temporary suspension of the TC rule in
accordance with RCRA sections 1006(b)(1) and 2002 to avoid duplication
and inconsistent regulation of LBP debris and to allow the Agency
sufficient time to assess whether any RCRA requirements, in addition to
TSCA Title IV requirements, are necessary to assure proper management
and disposal of such debris.
DATES: Comments on this proposed rule must be submitted on or before
February 16, 1999.
ADDRESSES: Commenters must send an original and two copies of their
comments to: Docket Clerk, Mail Code 5305W, Docket No. F-98-LPDP-FFFFF,
U.S. Environmental Protection Agency, 401 M St., SW., Washington, DC
20460. Comments should include the docket number F-98-LPDP-FFFFF.
Hand deliveries of comments should be made to the RCRA Information
Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson
Davis Highway, Arlington, VA. Comments may also be submitted
electronically through the Internet to: rcra-docket@epamail.epa.gov.
Comments in electronic format should also be identified by the docket
number F-98-LPDP-FFFFF. All electronic comments must be submitted as an
ASCII file avoiding the use of special characters and any form of
encryption. Commenters should not submit electronically any
confidential business information (CBI). An original and two copies of
CBI must be submitted under separate cover to: RCRA CBI Document
Control Officer, Office of Solid Waste (5305W), Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460. For additional
information on electronic submissions refer to Unit VII. of the
preamble.
FOR FURTHER INFORMATION CONTACT: For general information about this
proposed rule, contact the RCRA Hotline, Office of Solid Waste, U.S.
Environmental Protection Agency, Washington, DC 20460, (800) 424-9346
(toll free); TDD (800) 553-7672 (hearing impaired); in Washington, DC
metropolitan area the number is (703) 412-9810; TDD (703) 486-3323
(hearing impaired).
For technical information on this proposed rule, contact Ms. Rajani
D. Joglekar in the Office of Solid Waste at (703) 308-8806; and for
technical information on the proposed TSCA Title IV disposal and
management standards, contact Tova Spector in the Office of Pollution
Prevention and Toxics at (202) 260-3467. To obtain copies of the
reports or other materials referred to in this proposal, contact the
RCRA Docket at the telephone number or address listed above.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action include:
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Category Examples of Regulated Entities
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Abatement Firms contracted to abate lead-
Industry based paint in target housing
and public and commercial
buildings where children under
the age of 6 may be exposed to
lead hazards.
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[[Page 70234]]
Renovation and Firms involved in renovation
Remodeling and remodeling of residences
Industry and other buildings where lead-
based paint debris may be
generated.
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Demolition Firms involved in demolition
Industry activities where demolition
waste may contain lead-based
paint debris.
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The preceding table is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be regulated
by this action. This table lists the types of entities that EPA is now
aware could potentially be regulated by this action. Other types of
entities not listed in the table could also be regulated. To determine
whether you are affected by this regulatory action, you should
carefully examine the applicability criteria in Unit V. of this
preamble. If you have any questions regarding the applicability of this
section to a particular entity, consult the person listed for technical
information under FOR FURTHER INFORMATION CONTACT.
I. Background
A. The Hazards of Lead-Based Paint
Lead poisoning is the most common environmental health problem
affecting young children in the United States. The Centers for Disease
Control has estimated that up to 900,000 children, or about 4.4% of
children under the age of 6, may have unacceptably high levels of lead
in their blood (Ref. 1). High levels of lead impair mental and
cognitive development and physical growth, and can cause
neurobehavioral disorders. Among the other risks to human health
presented by LBP hazards is neonatal mortality due to the exposure of
pregnant women to lead and adverse neurological effects in infants and
children. 59 FR 45900-01 (September 2, 1994). There is also some
indication that lead exposure contributes to high blood pressure in
adults. Lead has no known use in the body and is difficult to remove
from blood and bones in cases where medical intervention is necessary.
The primary route of exposure to lead in young children is the
ingestion of dust, paint chips, and soil contaminated by lead from
deteriorated paint surfaces of walls, doors, and windows. Although lead
was banned from residential paint in 1978 (when the amount of lead in
paint was above 0.06% lead by weight), more than half the housing stock
(an estimated 64 million pre-1980 homes) still contains some lead-based
paint (LBP) (Ref. 2). The Lead-Based Paint Hazard Reduction and
Financing Task Force estimates that between 5 and 15 million housing
units contain LBP hazards (Ref. 3).
In response to health threats posed by LBP, Congress enacted the
Residential Lead-Based Paint (LBP) Hazard Reduction Act of 1992
(hereafter referred to as Title X or the Act) as Title X of the Housing
and Community Development Act of 1992. The Act amended TSCA by adding a
new Title IV, which, among other things, provides EPA with the
authority to promulgate standards to govern: (1) the training and
certification of individuals engaged in LBP activities; (2) the
accreditation of training programs; and (3) the process by which LBP
activities, including abatements, are conducted by certified
individuals (15 USC section 2682(a)(1)).
As a result of the enactment of The LBP Act of 1992, there is an
increasing effort to reduce the hazards posed by LBP in residential
housing and other buildings. Although there are a number of methods to
reduce LBP exposure, abatements (which under TSCA Title IV involve any
set of measures designed to permanently eliminate LBP hazards) are
typically conducted in situations where LBP exposure has resulted in
elevated blood lead levels in children. EPA expects that abatements in
target housing (defined in TSCA as any housing constructed prior to
1978, except any 0-bedroom housing or dwelling for elderly or persons
with disabilities (unless any child age 6 years or under resides or is
expected to reside in such housing for the elderly or person with
disabilities)), may increase. Abatement efforts result in the
production of waste which, as explained in more detail below, would
potentially be subject to overlapping regulatory controls under RCRA
Subtitle C and TSCA Title IV.
The Agency has spent considerable resources working with health
specialists, environmental groups, the lead abatement industry, and
state and local governments to develop regulatory options to expedite
the conduct of lead abatement activities so that risks to children from
lead poisoning will be permanently and expeditiously eliminated. EPA
believes that there is an overwhelming consensus to act as quickly as
possible to reduce risks resulting from lead exposure to young
children.
The Lead-Based Paint Hazard Reduction and Financing Task Force,
representing the spectrum of interests affected by lead-based paint
issues, released final recommendations on evaluating and reducing lead-
based paint hazards in private housing on July 11, 1995, in a report
entitled Putting the Pieces Together: Controlling Lead Hazards in the
Nation's Housing (Ref. 4). In addition, in a letter to EPA
Administrator Carol Browner dated April 13, 1994, the Task Force
specifically recommended that the Agency, ``shift regulation of
discarded architectural components from the hazardous waste regulatory
program to a tailored management program under TSCA Section 402/404''
(Ref. 3). The Agency has given substantial weight to these
recommendations in the development of today's proposals as they are
supported by a broad range of groups and interests affected by lead-
based paint activities and regulations. EPA has developed a regulatory
approach it believes will both speed the conduct of lead abatement and
deleading activities (by lowering costs) and, at the same time, ensure
that LBP debris is managed and disposed of in an environmentally safe
manner.
B. Impetus for Today's Rulemaking
One of EPA's primary purposes in developing this regulatory
approach for this proposed RCRA TC Rule temporary suspension, and the
companion proposed TSCA management and disposal standards (issued
elsewhere in today's Federal Register), is to address obstacles to the
conduct of LBP abatements in target housing and child-occupied
facilities, such as schools and day-care centers. The Agency's analysis
of the risk of alternative disposal facilities also examined the risk
of disposing LBP debris resulting from other activities. Because the
Agency has concluded that the disposal of LBP debris (no matter what
the origin) in certain solid waste disposal facilities, such as
construction and demolition landfills, is safe, reliable, effective,
and protective of human health and the environment, EPA has decided to
extend the coverage of today's RCRA and TSCA proposed rules to LBP
debris generated during lead-based paint abatement, deleading,
demolition, renovation, and remodeling projects in all target housing,
public and commercial buildings. EPA believes it is important to
provide a clear and consistent regulatory environment for those who
conduct these activities which generate almost identical LBP debris.
[[Page 70235]]
II. RCRA Subtitle C and the Toxicity Characteristic Rule
Subtitle C of RCRA, 42 U.S.C. 6921-39b, establishes a comprehensive
program for the regulation of hazardous waste. In enacting RCRA,
however, Congress did not set forth a list of hazardous wastes nor
provide a specific test for determining whether a waste is hazardous.
Instead, in RCRA section 1004(5), Congress defined ``hazardous waste''
broadly as a ``solid waste'' which ``may . . . pose a substantial
present or potential hazard to human health or the environment when
improperly treated, stored, transported, disposed, or otherwise
managed.'' Under RCRA section 3001(a), EPA is responsible for defining
which solid wastes are hazardous by either identifying the
characteristics of hazardous waste or by listing particular hazardous
wastes.
In response to the Congressional directive in RCRA section 3001(a),
EPA adopted a two part definition for identified and listed ``hazardous
wastes'' (45 FR 33084, May 19, 1980). First, EPA published lists of
specific hazardous wastes, in which EPA described the wastes and
assigned a ``waste code'' to each of them (40 CFR part 261, subpart D).
These wastes are known as ``listed'' hazardous wastes and are subject
to regulations under Subtitle C (See 40 CFR part 262, 264-268, and
270). Second, the Agency identified four characteristics of hazardous
waste that are subject to measurement: ignitability, corrosivity,
reactivity, and toxicity (See 45 FR 33121-22, May 19, 1980). Any solid
waste exhibiting one or more of these characteristics is a
``characteristic hazardous waste'' subject to regulation under RCRA
Subtitle C (See 40 CFR parts 262, 264 to 268, and 270).
To measure objectively the ``toxicity'' criterion for determining
whether a waste exhibits the characteristic of toxicity under RCRA
Subtitle C, EPA has established the Toxicity Characteristic Leaching
Procedure (TCLP) test as part of the Toxicity Characteristic (TC) rule
(55 FR 11798, March 29, 1990). The TC rule added 25 organic chemicals
to the original list of toxic constituents of concern (primarily
metals, including lead) and established regulatory levels for these
organic chemicals.
Under the TC rule, a waste may be a hazardous waste if any
chemicals listed in the rule, such as lead, are present in leachate
from the waste (generated from use of the TCLP) at or above the
specified regulatory levels (40 CFR 261.24). The overall effect of the
TC rule was to subject additional solid wastes to regulatory control
under the hazardous waste provisions of Subtitle C of RCRA.
Under the TC rule, generators of solid waste must either use their
knowledge or perform the TCLP test using a representative sample of the
waste as generated to determine if the waste exhibits the toxicity
characteristic for lead. The regulatory level for lead in the waste
extract (i.e., leachate) is 5 milligrams per liter (mg/L). If under the
TCLP test, the leachate extracted from waste contains lead at 5 mg/L or
higher, then the waste is a ``characteristic'' hazardous waste, and the
generator must comply with the applicable RCRA Subtitle C requirements
in 40 CFR parts 262 through 266, 268, and 270.
Currently, like any other lead-containing waste, the TC rule
applies to waste (including debris) from construction, demolition, and
renovation activities, and waste (including debris) from LBP abatement
activities. The generator of lead-containing waste must make a RCRA
hazardous waste determination to identify whether it is
characteristically hazardous and, thus, whether management as a
hazardous waste is required.
III. The TSCA Title IV Proposed Rule
As explained in detail in the companion proposal published
elsewhere in today's Federal Register, Title IV of TSCA provides EPA
with the authority to promulgate regulations which address the
management and disposal of LBP debris. In accordance with that
authority, EPA is proposing a rule under TSCA sections 402 and 404
which would establish management and disposal standards for ``LBP
architectural component debris'' from abatement, deleading, renovation,
and remodeling, and ``demolition debris'' from target housing, and
public and commercial buildings (collectively referred to as ``LBP
debris''). Under the TSCA Title IV rule, EPA is specifying that such
LBP debris must be disposed of in: (1) Construction and demolition
landfills as defined at proposed Sec. 745.303; (2) a landfill subject
to the requirements in 40 CFR part 257, subpart B, applicable to non-
municipal, non-hazardous waste disposal units receiving conditionally
exempt small quantity generator waste (as defined in 40 CFR 261.5); (3)
a hazardous waste disposal facility that is permitted under 40 CFR part
270; (4) a hazardous waste disposal facility authorized to manage
hazardous waste by a State that has a hazardous waste management
program approved under 40 CFR part 271; or (5) a hazardous waste
treatment, storage, and disposal facility that has qualified for
interim status to manage hazardous waste under RCRA section 3005(e).
For a number of reasons discussed in the preamble of the TSCA proposed
rule (see Unit V. ``Analytical Basis for Landfill Disposal Options''
for details), EPA believes that these disposal options for LBP debris
are safe, reliable, and effective as required under TSCA section
402(a)(1). (The preamble to the TSCA Title IV proposal also requests
comment on the appropriateness of disposing LBP debris in Municipal
Solid Waste Landfills operated in compliance with 40 CFR part 258
requirements.)
EPA has included, in the TSCA Title IV proposed rule, the following
prohibitions: (1) No application of LBP debris as mulch, ground cover,
or fill material (e.g., after shredding or grinding) without first
removing the LBP such that the remaining material contains no visible
signs/traces of paint; (2) no transfer for reuse of LBP debris with a
specified level of deteriorating paint (e.g., as a building or
structural component or artifact) unless the LBP is encapsulated or
removed such that the remaining material does not pose a LBP hazard;
(3) no transport of LBP debris in open, uncovered vehicles; (4) no
storage of LBP debris prior to disposal for any period exceeding 180
days, and after 72 hours following waste generation such storage must
include use of an access limitation, such as a receptacle, covered
dumpster, barrier, or fence; (5) notification and recordkeeping
requirements; and (6) no reclamation or burning of LBP debris for lead
or for energy except at facilities meeting specified Clean Air Act
standards. EPA believes that these prohibitions and management
standards are appropriate because they are protective of human health
and the environment, and they ensure that management and disposal of
LBP debris are conducted in a safe, reliable, and effective manner. For
further information about the management and disposal standards EPA is
proposing, see the companion TSCA proposed rule in today's Federal
Register.
IV. Basis for the Temporary Suspension of the TC Rule
A. Purpose of the Proposed Temporary Suspension
The purpose of today's proposed temporary suspension of the TC rule
for LBP debris is to ensure that abatements, deleading, remodeling and
renovation, and demolition activities where LBP is present are
conducted expeditiously and that management and disposal of LBP debris
from these activities are
[[Page 70236]]
governed by appropriate standards. Since enactment of the Lead-Based
Paint Poisoning Prevention Act, as amended by the McKinney Homeless
Assistance Act, 42 U.S.C. 4822, and TSCA Title IV, as part of the LBP
Act of 1992, there has been a significant increase in abatement
activities in public housing and target housing. These activities
result in the production of large amounts of solid waste containing
LBP.
Based on a 1992 study of LBP waste, EPA concluded that because of
the high lead content in some paint used in residences built before
1978, certain LBP waste components (including painted architectural
debris) may sometimes be a RCRA hazardous characteristic waste, and
that additional confirmatory analysis would be necessary (Ref. 5). To
comply with RCRA Subtitle C regulations, contractors conducting
abatements at Housing and Urban Development (HUD) housing units
reportedly have been TCLP testing LBP waste and, if the waste ``fails''
the TCLP, have managed it according to the RCRA hazardous waste
management requirements.
HUD, State public housing authorities (e.g., Maryland and
Massachusetts), and advocacy groups (e.g., Alliance to End Childhood
Lead Poisoning and the National Center for Lead Safe Housing), have
argued against the applicability of the TC rule (and all of the RCRA
Subtitle C hazardous waste requirements which flow from a ``failure''
of the TCLP test) to LBP waste. They argue that the applicability of
RCRA Subtitle C requirements results in significant interference with
abatement activities in target housing, and that such interference is
contrary to the intent of Congress in enacting Title X of the Housing
and Community Development Act of 1992 (which amended TSCA by adding a
new Title IV).
The stakeholders mentioned above have provided a variety of reasons
explaining why applicability of the TC rule and RCRA Subtitle C
interferes with LBP abatement efforts. Among the reasons are: (1)
Technical difficulties in sampling of certain types of LBP debris,
e.g., doors, windows, and other structural components; (2) uncertainty
about conducting the TCLP test on LBP waste and about reproducibility
of test results; and (3) the high cost of compliance with RCRA
hazardous waste standards in cases where the LBP debris fails the TCLP
test. The result is that certain LBP abatement and deleading projects
do not occur or are delayed due to the lack of sufficient funds. EPA
addresses each of these issues in Unit IV.B. of this preamble.
B. Available Information on the Scope of the Problem and Impacts of
RCRA Subtitle C
1. Difficulties in conducting the TCLP test. EPA has received
comments indicating difficulties in obtaining a representative sample
of heterogenous waste material such as LBP debris (made up of painted
doors and windows, plaster boards, and other painted architectural
components) from abatement, renovation and remodeling, or demolition
activities and conducting the TCLP test. The sampling methods described
in EPA's laboratory testing method manual, SW-846, largely focus on
homogenous waste materials, and are not well suited for sampling LBP
debris such as door frames, windows, shelves, and banisters. EPA has
received several inquiries concerning how to obtain a representative
sample of LBP architectural component debris. Because of the difficulty
in sampling heterogeneous waste and the lack of a standardized sampling
methodology, stakeholders argue that TCLP results for such waste are
inconsistent and not reproducible.
EPA acknowledges the difficulties that may arise in attempting to
prepare a sample to conduct the TCLP test on LBP architectural
component waste. To address some of these difficulties, EPA completed a
residential LBP architectural component debris study. The intent was
threefold: (1) To develop heterogenous waste sampling and TCLP sample
preparation protocols; (2) to obtain additional TC analysis data to
substantiate earlier EPA study results; and (3) to subject waste
samples to both the TCLP (which simulates leaching when waste is
disposed of in a municipal landfill) and the Synthetic Precipitation
Leaching Procedure (which simulates leaching when waste is disposed of
in landfills other than a municipal landfill, such as construction and
demolition--``C&D'' landfills) (Ref. 6).
A 1992 EPA study identified three major categories of waste
produced during abatements: filtered wash water, solid architectural
debris, and plastic sheets and tape used to cover floors and other
surfaces (Ref. 5). The study concluded that filtered wash water is
generally nonhazardous. The results for solid architectural debris
demonstrated that debris tended to fail the TCLP when the lead in the
paint, as measured by Atomic Absorption Spectrometry (AAS) exceeds 4
mg/cm<SUP>2</SUP>. (Note: TCLP failure in the study was not well-
correlated with results of on-site testing of lead levels in paint
using an XRF device.) Generators often experience difficulties when
sampling and conducting the TCLP test on solid architectural debris
waste. The study's failure rate for plastic sheeting tended to depend
on the abatement method. For example, removal and replacement tended to
generate nonhazardous plastic sheeting, but use of a heat gun tended to
result in the sheeting failing the TCLP. Such material can properly be
decontaminated (e.g., vacuuming of dust and/or washing) prior to
disposal. The study also noted that other categories of waste, such as
sludges and LBP chips, often exceed the RCRA TC rule regulatory limit.
As discussed in Unit IV.D, of the companion proposal titled
``Management and Disposal of Lead-Based Paint Debris'' published
elsewhere in today's Federal Register, the TCLP results for LBP debris
are not reproducible primarily due to difficulties in obtaining a
representative sample. Also, even if a representative sample is taken,
difficulties exist when preparing and obtaining a sample for the TCLP
analysis. These difficulties may be creating disincentives to LBP
abatement and other lead hazard reduction activities that generate LBP
debris.
EPA intends to study these sampling and analytical difficulties
further and assess whether questions concerning the consistency and
validity of TCLP results on LBP architectural components can be
resolved during the pendency of the temporary suspension.
2. Economic impacts of Subtitle C regulation on LBP abatements. It
is clear that RCRA Subtitle C regulation of LBP debris resulting from
abatements, deleading, renovation, remodeling, and demolition can
potentially increase the costs of conducting such activities. The
primary sources of these increased costs are the RCRA Subtitle C
treatment and disposal requirements that apply if LBP debris fails the
TCLP. (In addition, waste sampling and analysis costs are approximately
$100 per sample for TCLP analysis.) For waste which is determined to be
hazardous, the cost of treatment and disposal (including
transportation) can be quite high (EPA estimates approximately $316 per
ton), assuming full compliance (Ref. 7). Individuals undertaking
abatements and deleadings do not necessarily know when beginning a
project if the waste will require management as a hazardous waste, but
they must account for this possibility in their cost estimates. These
RCRA Subtitle C testing, treatment, and disposal costs may contribute
to the decision not to conduct an abatement project (Ref. 7).
[[Page 70237]]
Among abatement waste categories, LBP architectural components are
the main source of large-volume waste. Other abatement wastes (such as
LBP chips and dust, treatment residues and waste water, and worker
equipment and clothing) are generally generated in smaller quantities.
Moreover, these other types of abatement wastes are relatively easy to
sample and analyze (with reproducible results), and, even if hazardous,
generators can manage the wastes without excessive costs (because of
smaller volumes).
As noted above, RCRA Subtitle C treatment and disposal costs are
approximately $316 per ton (of this total, approximately $86 per ton is
for transportation) as compared with an estimated cost of $37.20 per
ton based on new United States Forest Service C&D tipping fees survey,
to dispose of LBP debris in a construction and demolition landfill (a
solid, nonhazardous waste landfill defined in today's TSCA proposal
that generally accepts construction wastes), including compliance with
the management controls in today's proposal. Thus, for the disposal of
100 tons of debris from a LBP abatement, Subtitle C requirements would
cost $31,600 as opposed to the $3,720 it would require to dispose of
the waste in a construction and demolition facility in compliance with
today's proposed standards (Ref. 7).
EPA believes that the higher costs associated with RCRA Subtitle C
may hinder LBP abatements and deleadings from being conducted. The
Agency has received submissions from members of the public, including a
number of State governments, indicating that the cost of complying with
RCRA Subtitle C hazardous waste regulations interferes with or in many
cases halts the conduct of LBP abatements (Ref. 7).
3. Conclusions and areas for further consideration. Given the
demonstrated risks that LBP poses and the clear Congressional intent
for risks from LBP hazards to be reduced, the Agency believes that it
is appropriate to assess the adverse impacts that RCRA Subtitle C
regulations may have on LBP abatement, deleading, renovation,
remodeling, and demolition activities and decide what (if any) RCRA
Subtitle C regulation is necessary once the TSCA Title IV regulations
take effect. Because indications are that the applicability of the TC
rule and all other Subtitle C requirements may interfere with lead
hazard reduction activities and may not be necessary to protect human
health and the environment from LBP debris disposal, EPA is proposing
this temporary suspension.
Moreover, under current RCRA requirements, all LBP debris (if not
derived from a household) is not treated equally. Some LBP debris,
specifically, debris which fails the TCLP for lead, is subject to the
strict and costly requirements of RCRA Subtitle C. At the same time,
LBP debris (if not derived from a household) which passes the TCLP or,
using generator's knowledge has been determined to be nonhazardous,
remains non-hazardous solid waste and generally may be disposed of in
any solid waste disposal facility which meets the requirements in the
open dumping criteria which EPA promulgated in 1979 (40 CFR part 257,
subpart A).
However, any LBP debris which passes the TCLP test (i.e., which is
identified as nonhazardous) is not currently subject to any management
standards under RCRA Subtitle D similar to that being proposed under
TSCA today. These new TSCA management standards (e.g., access control
during debris storage, covering of trucks used in shipping debris for
recycling or disposal) take into account the risks that LBP debris may
pose to humans, particularly children, even if the debris passes the
TCLP test.
During the development of this proposal, it has become clear to the
Agency that the unequal management and disposal standards for LBP
debris under RCRA are inappropriate. In cases where LBP debris is
determined to be hazardous, the Agency now believes that RCRA Subtitle
C management and disposal requirements for LBP debris are unnecessarily
strict and costly. On the other hand, LBP debris that is found to be
nonhazardous is not subject to the RCRA Subtitle C management
requirements (i.e., land disposal restrictions requiring treatment and
disposal as a RCRA hazardous waste). Thus, in cases where LBP debris
passes the TCLP or is determined through knowledge to be nonhazardous,
management and disposal occurs according to solid waste management
regulations and disposal occurs at solid waste landfills accepting such
waste for disposal.
The TSCA standards being proposed today represent a common sense
approach to management and disposal of LBP debris which addresses the
problems associated with RCRA regulation of LBP debris. This proposal
to suspend the TC rule, combined with the TSCA proposal issued today,
would afford equal and appropriate management and disposal standards
for all LBP debris.
Although EPA believes there is sufficient information to propose
this temporary suspension of the TC rule for LBP debris, the Agency
plans to proceed to analyze in greater detail the concerns that members
of the public, including States, have raised concerning the degree to
which RCRA Subtitle C requirements may impede or frustrate LBP
abatements in target housing, public and commercial buildings. While
the temporary TC suspension is in effect, EPA will study further
related issues such as: (1) are LBP abatements and deleading projects
occurring on a more frequent and expeditious basis because LBP debris
is temporarily not subject to RCRA hazardous waste requirements; and
(2) whether any RCRA Subtitle C requirements are needed to supplement
the TSCA Title IV standards.
As indicated in the Agency's proposed Hazardous Waste
Identification Rule (HWIR), EPA is considering reevaluation of the TC
regulatory level for lead (see 60 FR 66406, December 21, 1995). Since
promulgation of the TC rule, EPA has become aware of a number of
factors which have prompted the Agency to consider initiating a re-
evaluation of the 5 mg/L TC level for lead. First, the human health
risk evaluation for lead has changed since EPA promulgated the TC rule,
resulting in the action level (on which the TC is based) for lead being
reduced from 50 parts per billion (ppb) to 15 ppb. Second, EPA has
developed a constituent-specific Dilution Attenuation Factor (``DAF'')
of 5,000 for lead leaching under different disposal scenarios
(suggesting that lead generally moves slowly in the subsurface
environment except in specific hydrogeologic situations) which differs
from the generic DAF of 100 used in the TC rule (See Unit V. of the
TSCA proposed rule preamble published elsewhere in today's Federal
Register for a discussion of the lead DAF). Third, EPA has developed a
multi-pathway, multi-media exposure risk assessment model that allows
consideration of exposure pathways in addition to ground water
contamination (which was the pathway considered in the TC rule).
(Available data suggest that some of the other pathways may be more
riskier than the ground water exposure pathway.)
EPA recognizes that the TC level for lead is a matter of
considerable interest to the public and has initiated efforts to review
management of lead-bearing waste and other related studies (e.g., lead
leaching). In the meantime, given the other factors discussed above,
EPA has decided to propose a temporary suspension of the TC rule for
LBP debris
[[Page 70238]]
and new standards under TSCA for the management and disposal of LBP
debris.
C. Alternative Approaches
Instead of a temporary suspension of the TC rule, EPA is
considering and seeking comment on a permanent approach under RCRA for
addressing LBP debris that is subject to the proposed TSCA Title IV
requirements. Like the proposed temporary TC suspension, a permanent
rule would eliminate the dual regulation of LBP debris under two
separate environmental statutes and remove obstacles hindering lead
abatement and deleading activities.
Such a rule could be framed as a permanent suspension of the TC for
LBP debris that is subject to the proposed TSCA Title IV requirements.
Under such an approach, EPA would determine that the proposed TSCA
Title IV standards for managing and disposing of LBP debris are safe,
reliable, and effective in protecting human health and the environment.
As discussed in Unit V.B. of this preamble, the statutory basis for
such an approach would be RCRA sections 1006(b)(2) and 2002(a), which
require the Agency to integrate the provisions of RCRA with other
environmental statutes. In addition, a permanent rule could be issued
as a ``conditional exemption'' from RCRA subtitle C for LBP debris
regulated under the TSCA Title IV management and disposal standards.
See Military Toxics Project v. EPA, D.C. Cir. No. 97-1343 (June 30,
1998) (EPA has the authority under RCRA subtitle C to conditionally
exempt a hazardous waste from subtitle C regulation where an
alternative regulatory scheme provides adequate protection). EPA
requests comment on the merits of such a permanent RCRA LBP rule.
V. Explanation of Today's Proposed Rule
A. Introduction
Today's proposal would suspend temporarily the applicability of the
TC rule to LBP debris (i.e., LBP architectural component debris
resulting from LBP abatements, deleadings, renovation and remodeling,
and LBP debris from demolitions) generated at target housing, public
and commercial buildings, for which management and disposal standards
are being proposed today under TSCA Title IV. If promulgated, the
proposed rule would mean that generators of LBP debris resulting from
these activities would not have to conduct the TCLP test on LBP debris
or use their knowledge to determine whether LBP debris is a hazardous
waste. Nor would generators of LBP debris be required to comply with
any treatment, storage, or disposal requirements under RCRA Subtitle C.
Instead, generators of LBP debris would be required to comply with the
management and disposal standards to be promulgated under TSCA Title IV
(unless and until the Agency decides that some additional RCRA
regulation should also apply to LBP debris).
EPA is proposing this temporary suspension of the TC rule as an
exclusion from the definition of ``hazardous waste'' in 40 CFR
261.4(b). The temporary suspension would amend the definition of
hazardous waste to exclude LBP debris resulting from: (1) Lead-based
paint abatements conducted at target housing; (2) deleading projects
conducted at public buildings or commercial buildings; and (3)
renovation or remodeling activities conducted at target housing, public
buildings, or commercial buildings. The temporary suspension would also
amend the definition of hazardous waste to exclude LBP debris resulting
from demolitions of target housing, public, or commercial buildings.
If, however, such LBP debris, is hazardous for reasons other than
failing the TCLP for lead, (e.g., the debris contains a listed
hazardous waste or any other TC or other hazardous waste characteristic
constituent), the exclusion from the definition of hazardous waste
would not apply.
The Agency is proposing this suspension in 40 CFR 261.4, rather
than as part of the TC rule in 40 CFR 261.24, because it has been a
consistent practice for EPA to list all of the exclusions from both the
solid waste and hazardous waste regulatory schemes in 40 CFR 261.4, and
the regulated community is more likely to be familiar with this
approach. This exclusion from the definition of hazardous waste, and
thus from any TC rule requirements, would be temporary pending EPA's
conduct of studies and analyses of the issues as described in Unit
IV.B.3. of this preamble.
B. Statutory Basis for the Temporary Suspension
EPA is proposing this temporary suspension of the TC rule for LBP
architectural components under the authority of RCRA sections
1006(b)(2) and 2002(a). RCRA section 1006(b)(1) states that EPA:
shall integrate all provisions of [RCRA] for purposes of
administration and enforcement and shall avoid duplication, to the
maximum extent practicable, with the appropriate provisions of . . .
such other Acts of Congress as grant regulatory authority to the
Administrator. Such integration shall be effected only to the extent
that it can be done in a manner consistent with the goals and
policies expressed in [RCRA] and in the other acts referred to in
this subsection. 42 USC section 6905(b)(1).
As discussed in the proposed TSCA rule, EPA has authority under
TSCA Title IV to promulgate regulations governing LBP activities,
including the establishment of standards governing the management and
disposal of waste resulting from abatements, deleading, renovation and
remodeling, and demolition activities (15 U.S.C. 2681(1) and 2682(a)(1)
and (b)). Pursuant to this authority, EPA is simultaneously proposing
elsewhere in today's Federal Register specific regulations which govern
the management and disposal of LBP debris resulting from these
activities. EPA believes that the TSCA rules being proposed today for
LBP debris are consistent with the central objective and policy of
RCRA: Protecting human health and the environment.
The legislative history shows clearly that by enacting TSCA Title
IV, Congress wanted to ``remove all major obstacles to progress, making
important changes in approach and laying the foundation for more cost-
effective and widespread activities for reducing lead-based paint
hazards'' (S. Rep. No. 102-332, 102nd Cong., 2nd Sess. 111 (1992)). As
the Senate Committee on Banking, Housing and Urban Affairs stated, `` .
. . by establishing realistic, cost-effective procedures for achieving
hazard reduction, [The LBP Act of 1992] will speed the clean-up of lead
paint hazards in housing and greatly decrease the incidence of
childhood lead poisoning.'' (Id. at 112.)
Thus, in enacting TSCA Title IV, Congress wanted to ensure that
obstacles to lead abatements and deleading activities, including high
costs, would be minimized and that LBP hazards would be reduced. In
authorizing EPA under TSCA Title IV to promulgate management and
disposal standards for LBP waste, however, Congress did not address the
conflict that would arise concerning the overlapping jurisdiction of
the RCRA TC rule and the TSCA disposal standards. Nor did Congress
clearly address the obstacles to the conduct of lead abatements and
deleading activities that can result if LBP debris is determined to be
hazardous and subject to the resultant costs of RCRA Subtitle C. To
resolve the duplication inherent in the statutory schemes and the
potential adverse impacts if both RCRA and TSCA regulatory schemes were
to apply
[[Page 70239]]
to LBP debris, EPA believes it is appropriate to resolve this conflict
of overlapping jurisdiction by proposing to suspend temporarily the
applicability of the TC rule to such LBP debris as authorized under
RCRA section 1006(b)(1). See Edison Electric Institute v. EPA, 2 F.3d
438, 452 (D.C. Cir. 1993) (because Congress did not clearly address the
interaction between RCRA Subtitles C and I, EPA's temporary deferral of
the TC rule for underground storage tank waste under RCRA section
1006(b)(1) was permissible). The temporary suspension of the TC rule
proposed today would also work to integrate the regulatory provisions
promulgated under the Clean Air Act pertaining to municipal waste
combustors and smelters with RCRA and TSCA Title IV regulatory
requirements.
EPA believes that the TSCA rule being proposed today for LBP debris
will protect the core value of RCRA of protecting human health and the
environment. See 42 U.S.C. 6902. While EPA further studies various
issues described in this proposal, e.g., the difficulty of conducting
the TCLP test on LBP debris and whether the TC regulatory level for
lead should be modified, the Agency believes that the management,
notification, transportation, and disposal standards being proposed
today under TSCA Title IV are consistent with the goals and policies of
RCRA. Suspending the applicability of the TC rule to LBP debris on a
temporary basis, while requiring that disposal of such LBP debris
comply with regulations promulgated under TSCA Title IV and the Clean
Air Act, would give EPA the necessary time to study the Title IV
regulatory scheme and to assess whether any additional RCRA regulation
is necessary.
The Agency also believes that it has the authority to promulgate
the TC temporary suspension for LBP debris as a conditional exemption
under RCRA section 3001(a). See Military Toxics Project v. EPA, D.C.
Cir. No. 97-1343 (June 30, 1998) (EPA has the authority under RCRA
subtitle C to conditionally exempt a hazardous waste from Subtitle C
regulation where an alternative regulatory scheme provides protection.)
See 62 FR 6622, 6636-38; February 12, 1997.
It is important to note that the proposed temporary TC suspension
would not alter a person's potential CERCLA liability. The rule would
only suspend the TC rule for LBP debris managed under the proposed TSCA
Title IV requirements. Even if a lead regulatory level was changed or
lead was entirely removed from regulations as a RCRA hazardous waste,
lead would remain a CERCLA hazardous substance because it is listed
under the Clean Air Act and the Clean Water Act. Therefore, persons who
arrange for the disposal of, or are otherwise connected with, LBP
debris would remain potentially subject to liability under CERCLA
section 107(a) even after promulgation of the rule. Nevertheless, the
rule is intended to facilitate lead abatement and deleading activities
by eliminating the barriers posed by RCRA's hazardous waste rules when
the LBP is properly managed in accordance with the TSCA Title IV rules.
C. Scope of the Temporary Suspension
1. Types of waste covered. The temporary suspension of the TC rule
would apply to LBP architectural component debris and LBP demolition
debris which is subject to the disposal and management standards
promulgated under TSCA section 402(a). EPA is proposing to define ``LBP
architectural component debris'' in the RCRA regulation, in the same
manner proposed in today's TSCA proposed rule (see Sec. 745.301 of the
TSCA proposed rule regulatory text). The definition of LBP
architectural component debris provides a generic definition of
architectural components, i.e., ``elements or fixtures, or portions
thereof, of commercial buildings, public buildings, or target housing
that are coated wholly or in part with or adhered to by lead-based
paint.'' The definition also includes a non-exclusive list of specific
examples of structural elements or fixtures that would fall within the
definition.
Under this definition of ``lead-based paint architectural component
debris,'' EPA has specified that other types of LBP wastes that may
result from activities at any of the identified structures are not
covered by the scope of the proposed temporary suspension of the TC
rule. The other LBP wastes excluded from coverage under this proposed
TC suspension include paint chips and dust, sludges and filtercake,
wash water, and contaminated and decontaminated protective clothing and
equipment.
For a number of reasons, EPA is not proposing to include these
other LBP wastes (except when they are part of LBP demolition debris)
within the scope of the temporary suspension of the TC rule. First,
these types of LBP waste are generally produced in much smaller
quantities and their bulk is considerably less than that of LBP debris.
Thus, the costs involved in treating and disposing of these wastes as
hazardous are far less than the costs would be for the large volume of
LBP debris which frequently result from abatement, deleading,
demolition, and renovation and remodeling activities.
Second, certain of these LBP wastes, e.g., paint chips and dust,
sludge and filter cakes, are homogenous in physical characteristics,
are easy to sample using the existing EPA sampling methods, are easily
recognizable, can be easily segregated from LBP architectural component
debris resulting from abatements or renovation or remodeling, and
contain high levels of lead in a concentrated form. Unlike LBP
architectural component debris, they are more likely to fail the 5 mg/L
TCLP regulatory level for lead routinely, and the TCLP test results can
reliably be reproduced. In some cases, the lead content is so high that
the waste could possibly be sent to lead smelters for the metal
recovery. Thus, these other lead-based paint wastes will remain subject
to RCRA hazardous waste determination requirements, including the
provisions of the TC rule.
EPA is proposing to define ``LBP demolition debris'' to include any
solid material which results from the demolition of target housing,
public buildings, or commercial buildings which are coated wholly or in
part with or adhered to by lead-based paint at the time of demolition.
Thus, LBP demolition debris includes dust, paint chips, and other solid
wastes from demolition activities which are not covered under today's
proposal if they are generated during other LBP activities such as
``abatement,'' ``deleading,'' ``renovation'' etc. EPA expects that such
LBP waste would normally represent only a small percentage of the large
volume of the total solid waste generated during demolitions. Moreover,
separation of dust and paint chips from other demolition waste is
virtually impossible. (Nevertheless, to the extent practicable, EPA
encourages separation of LBP debris and LBP non-debris waste (paint
chips and dust), and proper management.) Since some LBP non-debris
waste is impractical to separate, EPA is proposing that all solid
waste, including any LBP dust, paint chips, or other particulate
matter, generated during demolitions are covered by today's proposal to
suspend the TC.
LBP demolition debris under the Agency's proposal, however, would
not include any solid waste resulting from a demolition which fails the
toxicity characteristics regulatory level for any hazardous constituent
other than lead as contained in the TC rule (40 CFR 261.24). Thus, if a
generator of LBP
[[Page 70240]]
demolition debris has not separated hazardous waste (other than LBP)
from the building prior to the demolition, he or she remains subject to
the RCRA hazardous waste determination requirement for TC hazardous
constituents and must determine whether any of the regulatory levels
for the TC hazardous constituents (other than lead) are met or
exceeded.
2. Activities and structures covered. Under this proposal and the
TSCA proposal being published today, ``lead-based paint'' would be
defined in the same manner it is defined in the TSCA rule applicable to
worker certification and training requirements (see 61 FR 45815, August
29, 1996). Under the TSCA definition, the term would mean paint or
other surface coatings that contain lead equal to or in excess of 1.0
mg/cm<SUP>2</SUP> or 0.5% by weight measured using the appropriate lead
detection instruments. (This is a TSCA LBP hazard determination
requirement.) The discussion below describes activities and structures
from which LBP debris is generated.
EPA is proposing to apply the temporary suspension of the TC rule
to exclude LBP architectural component debris resulting from: Lead-
based paint abatements conducted at target housing; deleading projects
conducted at public buildings or commercial buildings; and renovation
or remodeling activities conducted at target housing, public buildings,
or commercial buildings. The temporary suspension would also apply to
LBP debris resulting from demolitions of target housing, public
buildings, or commercial buildings. What follows is a discussion of
each of these categories of activities.
i. Abatements at target housing. EPA is trying to ensure that
abatements at target housing occur (when needed) in an expeditious and
cost-effective manner through publication of the proposed rules today.
In both proposals, EPA is defining the term ``abatement'' as the term
is defined in the worker certification and training rule that the
Agency promulgated under TSCA section 402 and 404 (see 61 FR 45813,
August 29, 1996). Both the statutory definition in TSCA section 401(1)
and this regulatory definition tie the term ``abatement'' closely to a
permanent elimination of LBP hazards.
EPA proposes to define ``target housing'' in the same way Congress
defined the term in TSCA section 401(17), i.e., all housing constructed
prior to 1978 (with certain exceptions as specified in the definition).
LBP was used frequently prior to 1978 in the construction and re-
painting of housing in the United States. As such, under TSCA Title IV
and the Residential Lead-Based Paint Hazard Reduction Act of 1992
(Title X), target housing was specifically intended to be the subject
of LBP abatement activity (15 U.S.C. 2682(a)(1) and 42 U.S.C. 4851 -
4852).
ii. Deleading at public buildings and commercial buildings,
renovation and remodeling, and demolition. EPA originally planned to
limit the scope of the TSCA proposed rule and the proposed TC
suspension to LBP architectural components debris resulting from
abatements at target housing and child-occupied facilities. However, a
number of stakeholders, including State governments, argued that the
scope of the proposed rules should be broadened to include
architectural component debris from deleading activities at public and
commercial buildings and from renovation and remodeling activities. For
example, EPA received a letter from the California Department of Health
Services suggesting that EPA expand the scope of this temporary TC
suspension proposal to include LBP waste from public buildings such as
libraries and buildings owned by State and local municipalities.
Stakeholders argue that LBP architectural component debris is
essentially the same waste no matter what its origin; thus, its
disposal should be controlled in the same manner. Moreover, States also
raised questions about their ability to enforce two different sets of
rules (the TSCA Title IV rule and the RCRA Subtitle C regulations) for
the same type of waste that will ``look alike'' despite having
different points of generation, e.g., target housing versus public
buildings, or resulting from different activities, e.g., LBP abatement
versus renovation projects that include removal of architectural
components or demolition of target housing, public buildings, or
commercial buildings.
EPA agrees with these concerns and is including within the scope of
the proposed rules being published today LBP architectural component
debris resulting from deleading activities at public buildings and
commercial buildings. EPA is also proposing to make the rules
applicable to LBP architectural component debris from renovation and
remodeling activities and LBP debris from demolitions of target
housing, public buildings, and commercial buildings. EPA agrees with
the stakeholders' comments and believes that broadening the scope of
the proposed rules provides a common sense regulatory framework that
would not have resulted if the same waste from different structures or
activities remained subject to two different regulatory regimes. In
addition, including LBP debris resulting from deleading, renovation,
remodeling, and demolition of public and commercial buildings within
the scope of the proposed TSCA rule and the proposed TC suspension
would allow the establishment of management and transportation
standards for LBP debris to protect human health which otherwise would
not exist under RCRA Subtitle D if the debris does not fail the TCLP.
EPA has proposed the definitions for the following terms at 40 CFR
745.301, in the companion TSCA proposal published today. ``Deleading''
as the term is defined under TSCA section 402(b)(2)--``activities
conducted by a person who offers to eliminate lead-based paint or lead-
based paint hazards or to plan such activities'' in public buildings or
commercial buildings (15 U.S.C. 2682(b)(2)). EPA is proposing to define
``public building'' to mean ``any building constructed prior to 1978,
[except target housing], which is generally open to the public or
occupied or visited by the public, including but not limited to
schools, day care centers, museums, airport terminals, hospitals,
stores, restaurants, office buildings, convention centers, and
government buildings.'' The proposed definition of ``public building''
would also include any ``child-occupied facility'' as defined in the
LBP worker certification and training rule. In addition, EPA proposes
to define ``commercial building'' to mean any building used primarily
for commercial or industrial activity including: manufacturing,
service, repair, or storage.
The Agency is proposing to define ``renovation'' to mean the
modification of any existing structure, or portion thereof, that
results in the disturbance of painted surfaces, unless that activity is
performed as part of an abatement. The term renovation includes but is
not limited to: the removal or modification of painted surfaces or
painted components (e.g., modification of painted doors, surface
preparation activity (such as sanding, scraping, or other such
activities that may generate paint dust)); the removal of large
structures (e.g., walls, ceiling, large surface replastering, major re-
plumbing); and window replacement. The term ``remodeling'' is defined
to encompass any construction-related work on an existing property
intended to either maintain or improve the property that results in the
disturbance of painted surfaces.
EPA is proposing to define the term ``demolition'' to include the
act of wrecking, razing, or destroying any
[[Page 70241]]
building or significant element thereof using a method that generates
undifferentiated solid waste.
3. Lead-contaminated soil. Lead-contaminated soil is not included
in the scope of the TSCA lead-based paint debris proposal nor in the
proposed temporary suspension of the TC with respect to LBP debris (see
the companion TSCA LBP debris proposal for further discussion). EPA
requests comment on whether there is a sound technical basis for
reducing the Subtitle C requirements that might apply to some soil
removed from residences, the importance of addressing this issue, and
possible options for doing so. EPA will consider whether there is a
need and a basis for addressing that issue in a separate rulemaking in
the future.
D. Other Exclusions from RCRA Subtitle C
1. Household waste exclusion. One issue that has arisen during the
course of preparing this proposed rule is whether the existing
household waste exclusion would apply to LBP waste that results from a
resident's actions to renovate, remodel, or abate a LBP-contaminated
home. This household waste provision in the RCRA Subtitle C regulations
excludes certain types of household hazardous waste from the
requirements of RCRA Subtitle C (40 CFR 261.4(b)(1)). EPA promulgated
this household waste exclusion as part of the Agency's initial phase of
implementing RCRA section 3001, which required the Agency to establish
criteria for identifying hazardous waste characteristics and listing
specific hazardous wastes (42 U.S.C. 6921; 45 FR 33084, 33098-99,
33120, May 19, 1980).
In that 1980 regulation, EPA excluded ``household waste'' from
being identified as hazardous waste. This exclusion implements
Congressional intent as expressed in the legislative history of RCRA as
enacted in 1976. See S. Rep. No. 94-988, 94th Cong., 2nd Sess., at 16
(hazardous waste program is ``not to be used either to control the
disposal of substances used in households or to extend control over
general municipal wastes based on the presence of such substances.'').
In promulgating the exclusion in 1980, EPA defined ``household waste''
to include ``any waste material (including garbage, trash, and sanitary
wastes in septic tanks) derived from households (including single and
multiple residences, hotels and motels)'' (see 45 FR 33120, May 19,
1980). In 1984, the Agency expanded the scope of the household waste
definition to include wastes from bunkhouses, ranger stations, crew
quarters, campgrounds, picnic grounds, and day-use recreation areas (49
FR 44978, November 13, 1984).
Although the definition of household waste does not indicate
whether a waste is household waste as a result of the place of
generation (e.g., a residence), or as a result of who generated it
(e.g., a resident of a household), EPA has limited the exclusion's
application to those wastes which meet the following two criteria: (1)
The waste must be generated by individuals on the premises of a
household and (2) the waste must be composed primarily of materials
found in the wastes generated by consumers in their homes (49 FR
44978). If a waste satisfies both criteria, then it would fall within
the household waste exclusion and not be subject to RCRA Subtitle C
regulation. Id.
EPA has previously taken the position that the household waste
exclusion should not be extended to debris resulting from building
construction, renovation, or demolition in houses, or other residences,
because EPA did not consider the debris from such operations to be of a
type similar to that routinely generated by a consumer in a home (49 FR
44978). (Although this interpretation did not address waste resulting
from remodeling or abatement conducted at residences, these activities
can be similar in many ways to those addressed in the 1984 Federal
Register notice, i.e., renovation, construction, and demolition). EPA
has re-evaluated this position in the context of this proposed
temporary suspension of the TC rule for contractor-generated LBP debris
and the TSCA rulemaking also being proposed today.
For the reasons discussed below, EPA has reconsidered the matter
and now interprets the household waste exclusion in 40 CFR 261.4(b)(1)
to apply to all LBP waste (i.e., LBP debris, LBP chips and dust, etc.)
generated as a result of actions by residents of households to
renovate, remodel, or abate their homes on their own. EPA invites
comment on this interpretation.
i. Residential renovation and remodeling. EPA has previously taken
the position that lead-contaminated paint chips resulting from
stripping and re-painting of residential walls would be part of the
household waste stream and not subject to RCRA Subtitle C regulation
(Ref. 8). The Agency believed then and continues to believe that such
re-painting efforts within a residence are routine maintenance and that
any LBP waste resulting from these activities should fall within the
household exclusion. EPA now believes that LBP waste resulting from
renovation or remodeling efforts by residents of households or ``do-it-
yourselfers,'' should also fall within the household waste exclusion.
Although the Agency stated in 1984 that waste from renovation
should not be covered by the household waste exclusion (because the
waste was not composed primarily of materials routinely generated by
consumers in a home), it has become evident that more and more
residents are engaging in renovation or remodeling of their homes. This
is strongly suggested by the greatly increased number of building
permits that have been issued throughout the country for renovation of
residences. EPA believes that, although many renovation and remodeling
efforts are conducted by professional contractors, more and more are
done by residents on their own. This may be shown, in part, by the
widespread openings of home improvement stores throughout the United
States which cater to do-it-yourselfers. It is also evident from: (a)
The doubling of retail sales of lumber and other materials to consumers
over the last 10 years from $45 to $89 billion; (b) steady increases of
approximately 25% in hardware sales every 5 years; (c) the increase in
consumers' purchase of home improvement products from $38 to $90
billion between 1980 and 1995; and (d) the projected increase in sales
of home improvement products to consumers to almost $115 billion by the
year 2000 (Ref. 9). Thus, EPA now believes that LBP waste resulting
from renovation or remodeling efforts conducted by residents of
households does meet the two criteria for the household exclusion
outlined above (i.e., the waste is generated by individuals in a
household and it is of the type that consumers generate routinely in
their homes).
ii. Residential abatements. EPA has decided to include within the
scope of the household waste exclusion LBP waste resulting from a do-
it-yourselfer abatement conducted in homes. (EPA recommends that
homeowners/residents do not try to remove lead paint or painted
architectural components from older, pre-1978 homes without adequate
understanding of the lead risks, especially to children, and proper
ways to minimize the risks of exposure to dust and paint when removing
and storing painted doors, windows, and other architectural
components.) Although such abatements are less routine than renovation
or remodeling activities, the Agency believes such LBP abatement waste
should be covered by the household waste exclusion to avoid the
incongruities that would result from the fact that the TSCA disposal
and management standards being proposed
[[Page 70242]]
today do not apply to homeowners. The TSCA proposal applies to persons
(i.e., properly trained and certified LBP abatement contractors) who
generate, store, transport, reuse, reclaim and/or dispose of LBP debris
resulting from target housing abatements, deleading of public or
commercial buildings, and renovation, remodeling and demolition of
target housing, residential, public, and commercial buildings. However,
the TSCA proposed rule does not apply to residents of households who
conduct any of these activities within a target house that they own
(unless people other than immediate family members are occupying the
target house). See Sec. 745.300(a) and (b) of the regulatory text of
the TSCA proposed rule.
If EPA chose to interpret the household exclusion not to apply to
LBP waste resulting from residential renovation and remodeling or
abatements done by households, the result would be that contractors
conducting residential abatements, remodeling or renovation of LBP-
contaminated residences would be subject to the TSCA standards (and not
RCRA Subtitle C); however, residents conducting their own remodeling or
renovation or LBP abatements would be subject to RCRA Subtitle C
requirements (unless the Conditionally Exempt Small Quantity Generator
exemption discussed below were to apply). Thus, residents/homeowners,
but not contractors, would be required to determine whether the
resulting LBP waste was hazardous. If the waste was hazardous, i.e.,
failed the TCLP regulatory level for lead, the resident would be
required to comply with RCRA Subtitle C requirements. The Agency does
not believe it is appropriate to apply RCRA Subtitle C requirements to
LBP waste resulting from a resident's own renovation or remodeling or
abatement actions, while allowing contractors generating the same type
of LBP waste through the same activities at residences to comply with
the less burdensome TSCA standards being proposed today.
EPA does not intend that its interpretation to exclude LBP waste
generated by do-it-yourselfer abatements at homes from Subtitle C to be
taken as a sign that EPA is encouraging people to conduct their own LBP
abatements. Rather, the Agency believes that in situations where LBP in
a residence presents risks to human health, trained and certified
abatement contractors should conduct the LBP abatement.
iii. Management of LBP waste generated by ``do-it-yourselfer''
households. Identification of the waste as falling within the household
waste exclusion, however, does not make exposure to LBP less hazardous,
and the LBP waste should be managed properly. EPA, therefore,
recommends that residents/households generating LBP waste take the
following steps for proper handling and disposal of LBP waste:
<bullet> Collect paint chips and dust, and dirt and rubble in
plastic trash bags for disposal.
<bullet> Store larger LBP architectural debris pieces in containers
until ready for disposal.
<bullet> Consider renting a covered mobile dumpster for storage of
LBP debris until the job is done.
<bullet> Contact local municipalities or county offices to
determine where and how LBP debris can be disposed. These precautionary
measures would minimize generation of lead dust, and limit access to
stored debris.
2. Conditionally exempt small quantity generator waste. LBP waste
that does not fall within the scope of the TSCA LBP debris disposal
standards and complimentary temporary TC deferral proposed today (i.e.,
paint chips and dust, sludges and filtercake, and contaminated clothing
and equipment) may still be conditionally exempt from substantive RCRA
hazardous waste management regulations, as explained below.
If LBP waste is produced in small quantities (no more than 100
kilograms per month (approximately 220 pounds)), the waste may fall
within the conditionally exempt small quantity generator (CESQG) waste
exemption from RCRA hazardous waste regulation (40 CFR 261.5). The
CESQG rule generally exempts generators who produce hazardous waste in
such small quantities from having to comply with the RCRA Subtitle C
requirements. However, EPA has promulgated disposal requirements for
CESQG waste (see 61 FR 34252, July 1, 1996). Generators of CESQG waste
are required to dispose of such waste in solid waste disposal
facilities which meet location, ground water monitoring, and corrective
action standards promulgated in accordance with RCRA section 4010(c)
(40 CFR part 257, subpart B), in permitted RCRA Subtitle C facilities,
or in interim status RCRA Subtitle C facilities. Id.
3. Scrap metal. RCRA Subtitle C regulations exempt scrap metal
being reclaimed from hazardous waste management requirements (40 CFR
261.6(a)(3)(ii). Additionally, non-consumer scrap metal (e.g., home,
prompt and processed scrap metal) being recycled have been excluded
from the definition of solid waste and therefore, not regulated under
RCRA (40 CFR 261.4(a)(13)). Home scrap is scrap metal generated by
steel mills, foundries, and refineries such as turnings, cuttings,
punchings, and borings. Prompt scrap, also known as industrial or new
scrap is scrap metal generated by the metal working/fabrication
industries and includes such scrap metal as turnings, cuttings,
punching, and borings. Processed scrap metal is scrap metal that has
been manually or physically altered to either separate it into distinct
materials to enhance economic value or to improve the handling of
materials. Under both the exemption and exclusion, recyclable materials
such as steel beams and other metal components being sent for
reclamation are not subject to the RCRA C regulations (40 CFR parts
262-266, 268, 270, and 124). Generators of these materials are not
subject to the notification requirements of section 3010 of RCRA.
VI. State Authorization Considerations
A. Applicability of Rules in States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA Subtitle C program within the State.
Following authorization, EPA retains enforcement authority under
sections 3008, 3013, and 7003 of RCRA, although authorized States have
primary enforcement responsibility. The standards and requirements for
authorization are found in 40 CFR part 271.
Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a
State with final RCRA authorization administered its hazardous waste
program 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 that the State was
authorized to permit. When new, more stringent Federal requirements
were promulgated or enacted, the State was obliged to enact equivalent
authority within specified timeframes. New Federal requirements
promulgated under RCRA Subtitle C did not take effect in an authorized
State until the State adopted the requirements as State law.
In contrast, under RCRA section 3006(g), 42 U.S.C. 6926(g), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time that they take effect in non-authorized States.
EPA is directed to carry out these requirements and prohibitions in
authorized States, including the issuance of permits, until the State
is granted authorization to do
[[Page 70243]]
so. While States must still adopt HSWA-related provisions as State law
to retain final authorization, HSWA applies in the authorized State in
the interim.
Today's proposed suspension of the TC is less stringent than the
current RCRA program. Therefore, although the suspension is proposed
under section 3001(g) of RCRA, a provision added by HSWA, States are
not required to adopt it when promulgated. Nonetheless, EPA strongly
encourages States to adopt the TC suspension for the reasons set out in
this proposal. (It should be noted, however, that the TSCA management
and disposal standards, once finalized, would apply to LBP debris even
if it does not fail the TCLP test).
B. The TC Suspension in States Which Have Adequate TSCA Title IV
Programs
EPA is proposing to allow the temporary suspension of the RCRA TC
rule to take effect in those States where there is an effective TSCA
Title IV program addressing the management and disposal of LBP debris.
Therefore, a prerequisite for the temporary TC suspension, in the first
2 years, is a State TSCA Title IV program has been approved by EPA, or,
after 2 years, EPA is implementing the Federal TSCA Title IV program
for the management and disposal of LBP debris because the State has not
been approved for the program under the requirements of TSCA section
404. This limitation applies to all States, regardless of whether they
have been authorized for the RCRA hazardous waste program.
1. Approval of States for the TSCA Title IV Program concerning the
management and disposal of LBP debris. Any State which seeks to
administer and enforce the standards, regulations, or other
requirements established under section 402 or 406 of TSCA may submit an
application to EPA for approval of such TSCA program. TSCA section
404(b) states that EPA may approve such an application only after
finding that the State TSCA program is at least as protective of human
health and the environment as the Federal program established under
section 402 or 404 and that it provides adequate enforcement.
There are two ways by which States may be approved for a TSCA Title
IV program. Under the first method, when a State submits an application
for LBP debris management and disposal program approval, the State may
certify that it has such program, and that the program meets the
requirements of TSCA sections 404(b)(1) and 404(b)(2). The TSCA
certification must take the form of a letter from either the Governor
or the State Attorney General to the Administrator. It must include a
description demonstrating that the State's TSCA program is at least as
protective as the Federal program and provides for adequate
enforcement. If this certification, or certificate of compliance, is
contained in a State's application, the State program shall be deemed
to be approved by EPA under TSCA section 404, until such time as the
Administrator withdraws the approval (see Sec. 745.312 of the
regulatory text of today's TSCA proposed rule).
Under the second approval method, if the application does not
contain such a certification, the State LBP debris management and
disposal program would be considered approved only after EPA reviews
and approves the State application (see Sec. 745.315 of the regulatory
text of today's TSCA proposal).
During the development of today's proposed rule, EPA considered
restricting the proposed temporary suspension of the TC rule to only
those States which had submitted applications and obtained actual
approval of their TSCA section 404 programs under the second method
described above. However, limiting the temporary exemption in this way
might unnecessarily delay implementation of the State program because
of the time it takes to approve or disapprove a State program. See 15
U.S.C. 2684(b). Because LBP abatements and deleading activities may be
postponed until the TC suspension goes into effect, this delay may be
detrimental to human health and the environment.
Thus, although the Agency will review the State TSCA program
applications to ensure that the statutory standards for State programs
under TSCA section 404 are met, EPA believes that it is appropriate to
allow the temporary TC suspension to be applicable in States which
submit certification Statements in conformance with Sec. 745.312 of
the regulatory text of today's TSCA proposed rule. Such a certification
must assure EPA that the State TSCA program provides for adequate
enforcement and is at least as protective of human health and the
environment as the Federal program to be established for LBP debris
under TSCA section 402. Therefore, the Agency believes that protection
of human health and the environment will not be compromised by allowing
LBP debris to be subject to the management and disposal requirements of
the relevant State program.
Procedures for State or Tribal applications for TSCA program
authorization are discussed in Unit VII. of the TSCA proposed rule
preamble published elsewhere in today's Federal Register. EPA has
promulgated procedures for the submission and approval of State LBP
worker training and certification programs developed under section 404,
as well as a model State program (see 61 FR 45825-45827, August 29,
1996). For the purposes of the disposal standards developed pursuant to
TSCA section 402, the requirements found in that TSCA rule will serve
as the model State program (see 61 FR 45825-30, August 29, 1996).
2. Federal implementation of the TSCA Title IV Program concerning
the management and disposal of LBP debris. EPA is required to enforce
these TSCA Title IV regulations in any State which has not adopted a
program to carry out the Federal requirements 2 years after
promulgation of today's proposed TSCA Title IV regulations (see TSCA
section 404(h)). Thus, today EPA is proposing to make the TC temporary
suspension applicable once the Federal TSCA Title IV program for LBP
disposal and management becomes federally enforceable in any State that
has not adopted an approved TSCA program. EPA plans to issue a
notice[s] in the Federal Register 2 years after the LBP TSCA
regulations and TC temporary suspension are promulgated which provides
a list of States that have not adopted a TSCA program. The notice will
announce that the Agency intends to enforce the Federal TSCA program
for LBP debris disposal and management in those States which have not
been approved for the TSCA program.
C. Applicability of TC Suspension in States Without a TSCA Title IV
Program
Under TSCA section 404(h), the Administrator of EPA is authorized
to enforce TSCA Title IV regulations 2 years after the regulations have
been promulgated in any State which has not adopted a program to carry
out the Federal requirements. Thus, in addition to authorizing States
for the temporary suspension of the TC rule once they have obtained
approval of their TSCA program or submitted the requisite
certification, EPA is also proposing to make the TC temporary
suspension effective once the Federal TSCA Title IV program for LBP
debris management and disposal becomes federally enforceable in any
State that has not adopted an approved TSCA program. [EPA plans to
issue a notice as discussed in section B above.]
[[Page 70244]]
D. Effect of Today's Proposed Rule in States Where EPA Implements RCRA
Hazardous Waste Regulations
Under today's proposal, LBP debris would not be hazardous waste in
those States without RCRA base program authorization, at the time those
States have been approved for the TSCA Title IV program, or when EPA's
implementation of such program becomes effective.
E. Effect of Today's Proposed Rule in States That Are Authorized for
RCRA Subtitle C
1. States that are not authorized for the toxicity characteristic.
In States that are not authorized for the TC regulation, EPA implements
the TC regulation and would implement this suspension of the TC
regulation for LBP debris in States which have approved TSCA Title IV
programs, or where EPA implements the Federal TSCA Title IV program.
One important factor that States with base RCRA authorization
should consider is the operation of their Extraction Procedure (EP)
toxicity characteristic under State law. The EP procedure was part of
the base State authorized program for those States authorized for RCRA
before 1991. When the TCLP was promulgated by EPA, this more stringent
procedure superseded the EP procedure. However, some States may still
be implementing the EP under State law, even though the more stringent
TCLP is in effect under RCRA. (At the time this proposal was written,
35 of the 49 authorized States and Territories were authorized for the
TC rule.) Because LBP debris could also be considered hazardous under
the EP, States may have to suspend or waive the operation of the EP
under State law to allow this waste to be regulated exclusively under
the TSCA Title IV program. Therefore, States that submit and certify
(or simply submit) their TSCA Title IV program applications to EPA
should also determine whether the EP toxicity characteristic is still
in effect and take appropriate action. States should note that any such
action to suspend or waive the EP would not require approval from EPA
since this solely is a matter of State law.
2. States that are authorized for the toxicity characteristic.
States that are authorized for both the RCRA-base program and the TC
would need to revise their hazardous waste programs to adopt a
suspension similar to the Federal TC suspension. If a State amends its
RCRA and TC regulations, the new State RCRA regulations must be no less
stringent than the Federal TC temporary suspension. If State TC
regulations are changed in a manner that is less stringent than this
temporary suspension (e.g., the State suspension is permanent rather
than temporary or addresses other types of LBP debris, e.g., LBP dust,
LBP chips or blast media), EPA will not authorize the change and will
enforce the more stringent Federally-authorized State TC rule
provisions pursuant to section 3008 of RCRA. Some States may choose to
use a State waiver authority to lift the TC requirements for LBP debris
instead of amending their regulations. Use of such waiver authority
would also have to be in a manner no less stringent than the Federal TC
suspension.
On the other hand, States that have RCRA-base programs and are TC-
authorized, and which choose not to change their RCRA regulations or
use a State waiver authority to lift TC requirements for LBP debris, or
do not have an approved TSCA Title IV program, would still administer
and enforce their existing TC authorized requirements for LBP debris.
In this circumstance, non-hazardous LBP debris would be regulated
exclusively under a State or Federal TSCA program. Hazardous LBP debris
would technically be subject to both the State RCRA program and the
State or Federal TSCA program; however, compliance with both sets of
requirements could be satisfied only by treating the LBP debris as a
hazardous waste.
F. Procedure for Authorizing States for the TC Temporary Suspension
As discussed previously, in order for the TC temporary suspension
to be effective in any State, the State must be approved for the TSCA
Title IV program or be a State where EPA implements the Federal TSCA
Title IV program. In States with the Federal TSCA Title IV program, EPA
will take action to make the TC suspension effective.
For States that are authorized for the TC rule, EPA is prepared to
expedite the review and approval of TC rule revision applications. EPA
further encourages States which are in the process of applying for TC
authorization to suspend or waive the operation of the TC for LBP
debris as part of their TC application.
EPA requests comment regarding the use of the abbreviated
authorization procedure proposed on August 22, 1995 (see 60 FR 43688)
for the authorization of TC suspension. This proposed procedure,
designated as Category 1, would abbreviate the contents of a State
application regarding applicable rules, and shorten the length of time
allocated for EPA review and determination. The abbreviated application
required by the proposed Category 1 procedures should also cite and
reference the State's approved TSCA Title IV program. EPA believes that
today's proposed rule may be appropriate for the use of this procedure
due to the minor effect of today's rule on an overall TC program, its
environmental benefit, and the straight-forward nature of today's
proposed amendments to the RCRA regulations. EPA believes that the
proposed application procedure will encourage States to adopt the TC
suspension and become authorized for it.
Under TSCA Title IV, Indian Tribes may apply for approval of lead-
based paint programs (see 61 FR 45805-45808, August 29, 1996). Thus,
EPA is proposing in the accompanying TSCA proposal for LBP management
and disposal standards, that Indian Tribes may apply for approval of
management and disposal of LBP debris management and disposal programs.
However, in an opinion issued by the U.S. Court of Appeals for the
District of Columbia, the Court held that EPA does not have authority
under RCRA Subtitle D to approve tribal solid waste permit programs.
Backcountry Against Dumps v. EPA, 100 F.3d. 147 (D.C. Cir. 1996).
Partly, as a result of this decision, EPA expects that it will not be
authorizing tribal hazardous waste programs under RCRA Subtitle C.
Thus, after consulting with Tribes, EPA expects to implement and
enforce this temporary suspension of the TC rule for LBP debris in
Indian Country when a TSCA Title IV program (either Tribal or Federal
is operable in the Tribe's jurisdiction.
VII. Public Docket and Electronic Submissions
The complete record for this proposed rule is contained in the RCRA
Docket office at the following address: Environmental Protection
Agency, RCRA Docket, Crystal Gateway, North #1, 1235 Jefferson Davis
Highway, First Floor, Arlington, VA and is available for viewing from 9
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. To
review docket materials, it is recommended that the public make an
appointment by calling 703 603-9230. Copies may be made at a cost of $
0.15 per page. Charges under $25.00 are waived.
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comment received electronically into
paper form and place them in the official record, which will also
include all comments submitted directly in writing. The official record
is the record maintained at the address in the beginning of this
document. EPA
[[Page 70245]]
responses to comments, whether the comments are written or electronic,
will be in a notice in the Federal Register or in a response to
comments document placed in the official record for this proposal. EPA
will not immediately reply to commenters electronically other than to
seek clarification of electronic comments that may be garbled in
transmission or during conversion to paper form, as discussed above.
VIII. References
The following books, articles, reports and sources were used in
preparing this notice and were cited in this proposal by the number
indicated below:
1. U.S. Department of Health and Human Services, Center for Disease
Control. Update: Blood Lead Levels-United States, 1991-1994, Morbidity
and Mortality Weekly Report. Vol. 46, No. 7. February 21, 1997.
2. HUD. Department of Housing and Urban Development, ``National
Housing Survey.'' Washington, DC. 1994.
3. Task Force on Lead-Based Paint Hazard Reduction and Financing,
Letter to Honorable Carol Browner, Administrator, USEPA, Washington,
DC, April 13, 1994.
4. HUD. Lead-Based Paint Hazard Reduction and Financing Task Force,
Putting the Pieces Together: Controlling Lead Hazards in the Nation's
Housing. HUD-1547-LBP. July 1995.
5. Science Applications International Corporation (SAIC).
Analytical Results of Lead in Construction Debris. May 1992.
6. SAIC. Background Document on Lead Abatement Waste Study (Interim
Draft). Prepared for USEPA, Office of Solid Waste. September 1994.
7. USEPA. TSCA Title IV, Sections 402/404: Lead-Based Paint Debris
Management and Disposal Standards Proposed Rule Economic Analysis.
Office of Pollution Prevention and Toxics. September 24, 1998.
8. USEPA. RCRA/Superfund Hotline Summary - RCRA Question No. 6
(March 1990).
9. USEPA. Table 1: Home Improvement Products Market 1980 to 2000
and Table 2: Retail Sales for Lumber and Other Building Materials and
Hardware - 1980 to 1995. June 1997.
IX. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and, therefore, subject to review by the Office of Management and
Budget (OMB) and the requirements of the Executive Order. A significant
regulatory action is defined as an action likely to result in a rule
that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
Pursuant to the terms of the Executive Order, EPA has determined
that today's proposed rule is a ``significant regulatory action''
because it raises novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. Changes made in response to OMB suggestions or
recommendations are documented in the public record.
In addition, EPA has prepared an economic analysis of the impact of
this action and the companion TSCA rule, which is contained in a
document entitled, ``TSCA Title IV, Secs. 402/404: Lead-Based Paint
Debris Management and Disposal Proposed Rule: Economic Analysis,''
which is available in the public record for this proposal.
The proposed TSCA and RCRA rules will result in an estimated cost
savings of $119 million annually after the first year. The cost savings
results from reduced disposal costs minus new compliance costs.
Compliance costs of these two rules, due primarily to recordkeeping and
notification, are $30.86 million annually after the first year. States
are expected to incur $0.95 million in the first year to apply for EPA
approval and then 0.06 million in the second and third years and
biennially thereafter to submit reports.
The public housing sector will benefit from reduced costs of
disposal of LBP debris. Decreased disposal costs should lead to a
decrease in the costs of abatements, saving the public housing
authorities $17.13 million per year. This money, earmarked specifically
for abatement activity, will allow an increase in the number of
abatements in public housing conducted per year, thus eliminating the
stock of public housing containing LBP 1 year earlier than predicted in
the absence of these proposed rules.
Please refer to the companion TSCA proposal for a further
discussion of the costs and benefits of this and the TSCA proposal.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-12, as
amended by the Small Business Regulatory Enforcement and Fairness Act,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis which
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, under the Regulatory Flexibility Act, an agency is not
required to prepare a regulatory flexibility analysis for a proposed
rule if the agency head certifies that the proposal will not have a
significant adverse economic impact on a substantial number of small
entities.
This proposed rule will generally provide regulatory relief to
small and medium entities that are involved in lead abatement,
renovation, remodeling, deleading, and demolition. For this reason, I
certify that this proposed rule will not have a significant adverse
impact on a substantial number of small entities. Therefore, a
regulatory flexibility analysis is not required. The proposed rule will
offer cost savings to homeowners and public/private property owners of
target housing and public or commercial buildings faced with LBP
abatements, deleadings, renovations, and demolitions. For further
discussion of the cost savings associated with this proposed suspension
of the TC rule, see the Economic Analysis prepared for the TSCA LBP
debris management and disposal standards (Ref. 7).
C. Paperwork Reduction Act
Today's proposed rule, which would temporarily suspend the TC rule
for specified LBP debris, does not add any new burden as defined by the
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The existing RCRA
information collection requirements have been previously approved by
the Office of Management and Budget (OMB) under OMB control number
2050-0041 (EPA ICR No. 969). This proposed rule would temporarily
suspend the RCRA TC requirements for specified LBP debris, which would
be replaced by TSCA Title IV requirements which are proposed elsewhere
in today's Federal Register. As indicated
[[Page 70246]]
in the TSCA Title IV proposed rule entitled ``Lead; Management and
Disposal of Lead-Based Paint Debris,'' an Information Collection
Request (ICR) document has been prepared by EPA (EPA ICR No. 1822.01)
and submitted to OMB in accordance with the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. and the procedures at 5 CFR 1320.11. For
information on the TSCA requirements and the accompanying ICR, please
refer to the TSCA Title IV proposed rule. A copy of the ICR can be
obtained from Sandy Farmer, OPPE Regulatory Information Division
(2137), Environmental Protection Agency, 401 M St., SW., Washington, DC
20460, by calling (202) 260-2740, or electronically by sending an e-
mail message to, ``farmer.sandy@epa.gov.'' An electronic copy of the
ICR has also been posted with the Federal Register notice on EPA's
Homepage at ``http://www.epa.gov/icr.'' The RCRA temporary suspension
and the new information requirements contained in the TSCA proposal are
not effective until promulgation. An agency may not conduct or sponsor
and a person is not required to respond to a collection of information
subject to OMB approval under PRA unless it displays a currently valid
OMB control number. The OMB control numbers for EPA's regulations after
initial publication in the final rule, are maintained in a list at 40
CFR part 9.
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995 (the
Act), Public Law 104-4, which was signed into law on March 22, 1995,
EPA generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and Tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any 1 year. When such a statement is required for EPA rules,
under section 205 of the Act, EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including Tribal governments, it
must develop under section 203 of the Act a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements.
EPA has determined that adoption of the proposed temporary
suspension of the TC rule for LBP debris is voluntary; therefore, there
is no unfunded mandate. The proposed rule would relieve generators,
including States, local or Tribal governments, and the private sector,
of their obligation to comply with the TC rule, which may lead to
significant cost savings from both not having to sample and conduct the
TCLP on LBP debris but, more importantly, from not having to manage LBP
debris as a RCRA hazardous waste if the waste is determined to be
hazardous. EPA has estimated that the cost savings to the private
sector from this temporary suspension of the TC rule would be
approximately $120 million annually.
Moreover, the Act generally excludes from the definition of a
``Federal intergovernmental mandate'' (in sections 202, 203, and 205)
duties that arise from participation in a voluntary Federal program.
Adoption by States of this proposed temporary TC suspension is
voluntary and imposes no Federal intergovernmental mandate within the
meaning of the Act. Rather, States may continue to impose more strict
standards for LBP debris by choosing to maintain the TC rule in their
authorized State programs. The only costs to States which choose to
adopt the temporary TC suspension would be that cost of certifying that
it has a State TSCA Title IV LBP debris management and disposal program
at least as protective as the Federal program. EPA estimates that it
may cost States $0.40 million to provide a certification to EPA (Ref.
7).
In response to section 203 of the Act, EPA has determined that the
proposed rule will not significantly or uniquely affect small
governments, including Tribal governments. As indicated above, if small
governments, such as small municipalities or Tribes, are generators of
LBP debris, then they would save the costs of complying with the TC
rule and any of the costs of complying with the RCRA Subtitle C
hazardous waste standards if the debris failed the TCLP and a temporary
suspension of the TC rule had not been promulgated. Under this proposed
rule, small governments, including Tribal governments, are not being
treated in an unique way.
EPA has, however, worked closely with States and small governments
in the development of the temporary suspension of the TC rule. EPA held
a stakeholder meeting in the fall of 1994 and sent a stakeholder
mailing in the summer of 1996 to discuss a temporary suspension of the
TC for lead abatement waste and new TSCA management and disposal
standards. Among the attendees/recipients were representatives from
State governments, environmental groups, labor organizations,
professional organizations representing the building and waste
management trades, and private LBP abatement contractors. EPA has also
transmitted a draft proposed rule to a number of State government
regulatory agencies which act as co-regulators under RCRA and TSCA
Title IV.
In working with these various States and other organizations, EPA
has provided notice to small governments of the potential regulatory
relief provided by the temporary TC suspension; obtained meaningful and
timely input from them; and informed, educated, and advised small
governments on how to comply with the requirements of the proposed
rule. Thus, any applicable requirements of the Act have been met.
E. Executive Order 12898
Pursuant to Executive Order 12898 entitled ``Environmental Justice
Considerations'' (59 FR 7629, February 16, 1994), the Agency has
considered environmental justice related issues with regard to the
potential impacts of this proposed action on the environmental and
health conditions in low-income and minority communities. This
examination shows that existing LBP hazards are a risk to all segments
of the population living in pre-1978 housing. However, literature
indicates that some segments of our society are at relatively greater
risk than others.
A recent study by the National Health and Nutrition Examination
Survey (NHANES) indicates that children of urban, minority (e.g.,
African American, Asian Pacific American, Hispanic American, American
Indian), or low-income families, or who live in older housing, continue
to be most vulnerable to lead poisoning and elevated blood-lead levels.
The February 21, 1997 Center for Disease Control's Morbidity and
Mortality Weekly Report states that: ``Despite the recent and large
declines in BLLs [blood lead levels], the risk for lead exposure
remains disproportionately high for some groups, including children who
are poor, non-Hispanic black, Mexican American, living in large
metropolitan areas, or living in older housing'' (Ref. 1).
Although the baseline risks from lead-based paint fall
disproportionately on
[[Page 70247]]
poorer sub-populations, it may be more likely that abatements will take
place in residential dwellings occupied by mid- to upper-level income
households. Abatements are voluntary, and wealthier households are more
likely to have the financial resources to abate an existing problem in
their home, or to avoid LBP hazards by not moving into a residential
dwelling with LBP. Even though a national strategy of eliminating LBP
hazards targets a problem affecting a greater share of poor households
and minorities, the impact of income on the ability to undertake
voluntary abatements may result in an inequitable distribution of LBP
risks.
By making abatements more affordable, today's proposal helps to
address this situation. To the extent that the proposal results in
additional abatements, renovation and remodeling, and demolitions that
reduce LBP hazards, there is a likelihood that poor and minority
populations will benefit the most from risk reductions. This potential
will likely be realized to the greatest extent in the case of public
housing units with LBP hazards. The decrease in the cost of abatements
in public housing will lead to an increase in abatement activity in
public housing and a subsequent acceleration in the depletion of public
housing with LBP hazards. The occupants of these public housing units
are disproportionately lower income and minority populations. As the
price of abatements is lowered as a result of cost savings associated
with today's proposed rule, more low-income families will be able to
afford to make the decision to remove LBP hazards from their homes.
EPA also determined that the potential impact on minority-owned
businesses in industries affected by the proposed rule would be
minimal. Available information suggests that minority-owned business
would not particularly benefit from this proposed rule, since minority
ownership rates for firms that generate LBP debris are no higher than
average.
F. Executive Order 13045
This proposed rule is not subject to Executive Order 13045,
entitled ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), because this proposal is
not an economically significant regulatory action as defined by E.O.
12866. The environmental health or safety risks addressed by this
action have a beneficial effect on children. This proposal will benefit
children by allowing less costly management and disposal of lead-based
paint therefore lessening the cost of abatements. Reducing the costs of
abatements will also reduce the amount of time needed to complete
abatements in public housing. Lower abatement costs will increase the
amount of private homes undergoing abatements. By reducing costs
associated with management and disposal of LBP debris, the Agency
believes that the number of abatements will increase thus resulting in
a reduction of children exposed to LBP. Children are the primary
beneficiaries of this proposed rule.
G. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, the Agency is directed to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., material
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are effective. The Act requires the Agency to provide
Congress, through OMB, an explanation of the reasons for not using such
standards.
EPA is not proposing any new test methods or other technical
standards as part of today's proposed temporary suspension of the TC
rule for LBP debris. Thus, the Agency has no need to consider the use
of voluntary consensus standards in developing this proposed rule. EPA
invites comments on this analysis.
H. Executive Order 12875
Under Executive Order 12875, entitled ``Enhancing Intergovernmental
Partnerships'' (58 FR 58093, October 28, 1993), EPA may not issue a
regulation that is not required by statute and that creates a mandate
upon a State, local or tribal government, unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by those governments. If the mandate is unfunded, EPA must
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
State, local and tribal governments, the nature of their concerns,
copies of any written communications from the governments, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's proposed rule does not create a mandate on State, local or
tribal governments. The proposed rule does not impose any enforceable
duties on these entities. Accordingly, the requirements of section 1(a)
of Executive Order 12875 do not apply to this proprosed rule.
I. Executive Order 13084
Under Executive Order 13084, entitled ``Consultation and
Coordination with Indian Tribal Governments'' (63 FR 27655, May 19,
1998), EPA may not issue a regulation that is not required by statute,
that significantly or uniquely affects the communities of Indian tribal
governments, and that imposes substantial direct compliance costs on
those communities, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by the tribal
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments. The proposed rule does not
impose any enforceable duties on these entities. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this proposed rule.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practive and procedure,
Confidential business information, Hazardous waste.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
[[Page 70248]]
Dated: December 9, 1998.
Carol M. Browner,
Administrator.
Therefore, it is proposed that chapter I of 40 CFR be amended as
follows:
PART 260--[AMENDED]
1. In part 260:
a. The authority citation for part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
b. Section 260.10 is amended by alphabetically adding the following
definitions to read as follows:
Sec. 260.10 Definitions.
* * * * *
Abatement means any measure or set of measures designed to
permanently eliminate lead-based paint hazards. Abatement includes, but
is not limited to:
(1) The removal of lead-based paint and lead-contaminated dust, the
permanent enclosure or encapsulation of lead-based paint, the
replacement of lead-painted surfaces or fixtures, and the removal or
covering of lead-contaminated soil.
(2) All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures.
(3) Specifically, abatement includes, but is not limited to:
(i) Projects for which there is a written contract or other
documentation, which provides that an individual or firm will be
conducting activities in or to a residential dwelling or child-occupied
facility [target housing] that:
(A) Shall result in the permanent elimination of lead-based paint
hazards; or
(B) Are designed to permanently eliminate lead-based paint hazards
and are described in paragraphs (1) and (2) of this definition.
(ii) Projects resulting in the permanent elimination of lead-based
paint hazards, conducted by firms or individuals certified in
accordance with Sec. 745.226 of this chapter, unless such projects are
covered by paragraph (4) of this definition.
(iii) Projects resulting in the permanent elimination of lead-based
paint hazards, conducted by firms or individuals who, through their
company name or promotional literature, represent, advertise, or hold
themselves out to be in the business of performing lead-based paint
activities as identified and defined by this section, unless such
projects are covered by paragraph (4) of this definition; or
(iv) Projects resulting in the permanent elimination of lead-based
paint hazards (at target housing), that are conducted in response to
State or local abatement orders.
(4) Abatement does not include renovation, remodeling, landscaping
or other activities, when such activities are not designed to
permanently eliminate lead-based paint hazards, but, instead, are
designed to repair, restore, or remodel a given structure or dwelling,
even though these activities may incidentally result in a reduction or
elimination of lead-based paint hazards. Furthermore, abatement does
not include interim controls, operations and maintenance activities, or
other measures and activities designed to temporarily, but not
permanently, reduce lead-based paint hazards.
* * * * *
Commercial building means any building which is used primarily for
commercial or industrial activity including but not limited to:
manufacturing, service, repair, or storage.
* * * * *
Deleading means activities conducted by a person who offers to
eliminate lead-based paint or lead-based paint hazards or to plan such
activities in public buildings or commercial buildings.
Demolition means the wrecking, razing, or destroying any building
or significant element thereof using a method that generates
undifferentiated rubble.
* * * * *
Lead-based paint (LBP) means paint or other surface coatings that
contain lead equal to or in excess of 1.0 milligrams per centimeter
squared or more than 0.5% by weight.
Lead-based paint architectural component debris (LBPACD) means:
(1) Elements or fixtures, or portions thereof, of commercial
buildings, public buildings, or target housing that are coated wholly
or in part with or adhered to by LBP. These include, but are not
limited to interior components such as: ceilings, crown molding, walls,
chair rails, doors, door trim, floors, fireplaces, radiators and other
heating units, shelves, shelf supports, stair treads, stair risers,
stair stringers, newel posts, railing caps, balustrades, windows and
trim, including sashes, window heads, jambs, sills, stools and troughs,
built-in cabinets, columns, beams, bathroom vanities, and counter tops;
and exterior components such as: painted roofing, chimneys, flashing,
gutters and downspouts, ceilings, soffits, fascias, rake boards, corner
boards, bulkheads, doors and door trim, fences, floors, joists, lattice
work, railings and railing caps, siding, handrails, stair risers and
treads, stair stringers, columns, balustrades, window sills or stools
and troughs, casings, sashes, and wells.
(2) LBPACD is generated when an architectural component which is
coated wholly or in part with or adhered to by LBP is displaced and
separated from commercial buildings, public buildings, or target
housing as a result of abatement, deleading, renovation or remodeling
activities.
(3) LBPACD does not include other types of LBP waste such as paint
chips, paint dust, sludges, solvents, vacuum filter materials, wash
water, contaminated and decontaminated protective clothing and
equipment except that paint chips and dust which are created after LBP
debris is placed in a container or vehicle for transport to a disposal
or reclamation facility specified in 40 CFR 745.309 is considered
LBPACD.
(4) LBPACD which is reused in compliance with 40 CFR 745.311 is no
longer LBPACD.
Lead-based paint debris (LBP debris) means lead-based paint
architectural component debris (LBPACD) or lead-based paint demolition
debris.
Lead-based paint demolition debris means any solid material which
results from the demolition of target housing, public buildings, or
commercial buildings which are coated wholly or in part with or adhered
to by LBP at the time of demolition.
* * * * *
Public building means any building constructed prior to 1978, which
is generally open to the public or occupied or visited by the public,
including but not limited to schools, day care centers, museums,
airport terminals, hospitals, stores, restaurants, office buildings,
convention centers, and government buildings. Note: ``child-occupied
facilities'' as defined in 40 CFR 745.223 of this chapter are included
in the definition of public building.
* * * * *
Remodeling means any construction-related work on an existing
property intended to either maintain or improve the property.
Renovation means the modification of any existing structure, or
portion thereof, that results in the disturbance of painted surfaces,
unless that activity is performed as part of an abatement as defined in
this part. The term renovation includes but is not limited to: the
removal or modification of painted surfaces or painted components
(e.g., modification of painted doors, surface preparation activity
(such as sanding, scraping, or other such
[[Page 70249]]
activities that may generate paint dust)); the removal of large
structures (e.g., walls, ceiling, large surface replastering, major re-
plumbing); and window replacement.
* * * * *
Reuse means to use again for any purpose other than reclamation or
disposal. Examples of reuse include moving doors, windows, or other
components from one structure to another to be put to similar use.
* * * * *
Target housing means any housing constructed prior to 1978, except
housing for the elderly or persons with disabilities (unless any child
who is less than 6 years of age or under resides or is expected to
reside in such housing for the elderly or person with disabilities) or
any 0-bedroom dwelling.
* * * * *
PART 261--[AMENDED]
2. In part 261:
a. The authority section for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
b. Section 261.4 is amended by adding (b)(15) to read as follows:
Sec. 261.4 Exclusions.
* * * * *
(b) * * *
(15)(i) Lead-based paint architectural component debris subject to
the management and disposal standards under part 745, subpart P of this
chapter which results from abatements conducted at target housing;
deleading activities conducted at public buildings or commercial
buildings; or renovation or remodeling activities conducted at target
housing, public buildings, or commercial buildings. This exclusion does
not apply if the LBP architectural component debris is hazardous for
any other reason than failure of the Toxicity Characteristic
(Sec. 261.24) for lead (Hazardous Waste Code D008),
(ii) Lead-based paint demolition debris resulting from
demolition(s) conducted at target housing, public building(s), or
commercial building(s) which is subject to the management and disposal
standards under part 745, subpart P of this chapter. This exclusion
does not apply if the LBP architectural component debris is hazardous
for any other reason than failure of the Toxicity Characteristic
(Sec. 261.24) for lead (Hazardous Waste Code D008).
(iii) The exclusions set forth in paragraph (b)(15)(i) and (ii) of
this section shall apply in any State which has an EPA authorized
program for management and disposal of LBP debris under TSCA Title IV;
or in any State in which the Federal TSCA Title IV program has become
effective.
(iv) If the Administrator determines that the State satisfies the
standards in paragraph (b)(15)(iii) of this section, the Administrator
shall publish a notice in the Federal Register to suspend the TC in
that State. The suspension shall be effective immediately upon
publication of the Federal Register notice.
* * * * *
[FR Doc. 98-33327 Filed 12-17-98; 8:45 am]
BILLING CODE 6560-50-F
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