Friday
December 18, 1998
a ^r
Part II
Environmental
Protection Agency
Management and Disposal of Lead-Based
Paint Debris; Proposed Rule
Temporary Suspension of Toxicity
Characteristic Rule for Specified Lead-
Based Paint Debris; Proposed Rule
-------
70190
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 745
[OPPTS-62160; FRU-5784-3]
RIN 2070-AC72
Lead; Management and Disposal of
Lead-Based Paint Debris
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Proposed rule.
SUMMARY: EPA is proposing a rule under
the Toxic Substances Control Act
(TSCA) to provide new standards for the
management and disposal of lead-based
paint (LBP) debris generated by
Individuals or firms. In another
document in today's Federal Register,
the Agency is also separately proposing
to suspend temporarily the applicability
of regulations under Subtitle C of the
Resource Conservation and Recovery
Act (RCRA) which currently apply to
LBP debris. The companion RCRA
proposal, Issued elsewhere in today's
Federal Register, is necessary to avoid
inconsistent or duplicative Federal
requirements under RCRA and TSCA. In
addition, this proposal finds LBP debris
which is disposed of improperly to be
a lead-based paint hazard under TSCA.
Today's proposed TSCA standards do
not address LBP debris generated by
homeowners in their own homes. The
Agency is concerned that current RCRA
requirements for the identification,
management, and disposal LBP debris
may be reducing the number of
residential LBP abatements by imposing
significant disposal costs for LBP debris
that is determined to be a hazardous
waste under RCRA. Today's proposed
rule would provide new management
and disposal standards for generators of
LBP debris under TSCA. These
standards would be generally less
burdensome than current RCRA
hazardous waste requirements, yet the
standards are reliable, effective, safe,
and protective of human health and the
environment. 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.
The Agency is also applying today's
proposed standards to LBP debris from
renovation, remodeling, public and
commercial buildings in order to
simplify requirements to generators and
transporters of LBP debris.
DATES: Written comments in response to
this proposed rule must bereceived on
or before February 16, 1999. The Agency
is having two public meetings, where
oral comments will be heard, one in
Washington DC on Thursday, January
14, 1999, from 9 a.m. to 4 p.m. and one
in San Francisco, CA on Thursday,
January 21, 1999, from 9 a.m. to 4 p.m.
ADDRESSES: Comments may be
submitted by regular mail,
electronically, or in person. Please
follow the detailed instructions for each
method as provided in Unit I. of the
SUPPLEMENTARY INFORMATION
section of this proposal.
The Washington DC meeting will be
held at the Omni Shoreham Hotel, 2500
Calvert St., NW., Washington, DC
20008, telephone: (202) 234-0700.
The San Francisco meeting will be
held at the Holiday Inn Civic Center, 50
Eight St., San Francisco, CA 94103,
telephone: (415) 626-6103.
FOR FURTHER INFORMATION CONTACT: For
general information contact: National
Lead Information Center at: 1-800-424-
LEAD(5323). For technical questions
relating to TSCA: Tova Spector, (202)
260-3467; for RCRA-related questions:
Rajanijoglekar, (703) 308-8806.
SUPPLEMENTARY INFORMATION: The
following outline is provided to assist
the reader in locating specific topics in
the preamble.
Table of Contents
I. General Information
A. Does this Notice Apply to Me?
B. How Can I Get Additional Information
or Copies of this Document or Other Support
Documents?
C. How and to Whom Do I Submit
Comments?
D. How Should I Handle CBI Information
that I Want to Submit to the Agency?
II. Introduction
A. Purpose of this Proposed Rule
B. Background: The Hazards of LBP and
Federal Efforts to Reduce Exposure
III. Statutory Framework and Authority
A. TSCA Title IV
B. RCRA Subtitle C and the Toxicity
Characteristic Rule
IV. Overview of Proposed Rule
A. Summary of Management and Disposal
Standards
B. State and Tribal Programs
V. Policy Basis for Today's Proposal
A. Stakeholder Consultation
B. RCRA Coverage of LBP Debris
C. LBP Debris Exclusions/Exemptions from
RCRA Subtitle C
D. Difficulties in Conducting the TCLP on
LBP Debris
E. Economic Impacts of RCRA Subtitle C
Regulation on LBP Abatements
F. TSCA Coverage of LBP Debris
VI. Analytic Basis for Landfill Disposal
Options in Today's Proposed Rule
A. Leaching and Mobility of Lead from LBP
Debris
B. Ground Water Risks from C&D Landfills
C. Preliminary Conclusions on Disposal of
LBP Debris in C&D Landfills
D. Other Non-hazardous Waste Disposal
Options
VII. Proposed Rule Provisions: §§745.301 -
745.319
A. General
B. What Types of Materials Are Covered?
C. What Activities Are Covered?
D. Who Must Comply With This Proposal?
E. When Does LBP Debris Become Subject
to This Proposal?
F. What Structure Types Are Covered?
G. What Are the Proposed Disposal and
Reclamation Options for LBP Debris?
H. What Controls on the Management of
LBP Debris are Included in the Proposal?
I. What Are the Notification and
Recordkeeping Requirements? § 745.313
VIII. State and Tribal Programs
A. General
B. Submission of an Application
C. State Program Certification
D. EPA Approval
E. Withdrawal of Authorization: § 745.356
F. Model State and Tribal Program
G. Tribal LBP Debris Management and
Disposal Programs
H. Enforcement and Compliance
Provisions
IX. Rulemaking Record
X. References
XL Regulatory Assessment Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
(UMRA)
E. Executive Order 12875
F. Executive Order 13084
G. Executive Order 12898
H. National Technology Transfer and
Advancement Act
I. Executive Order 13045
I. General Information
A. Does this Notice Apply to Me?
You may be potentially affected by
this proposed rule if you generate, store,
transport, reuse, offer for reuse, reclaim
(defined in today's proposal at § 745.303
in the regulatory text) or dispose of LBP
debris from abatements, renovations,
and demolitions of target housing, and
from deleading and demolition of public
buildings and commercial buildings
(definitions of structure types and
activities appear at § 745.303 of the
regulatory text).
Regulated categories and entities
would include:
-------
Federal Register/Vol. 63. No. 243/Friday. December 18, 1998/Proposed Rides 70193
Category
Individuals and firms
who generate and/
or store LBP debris
Waste transporters
Reusers of LBP de-
bris
Reclamation facility
owner/operators
Disposal facility
owner/operators
Examples of Regu-
lated Entities
Contractors who gen-
erate and/or store
LBP debris from
abatements, ren-
ovations, and
demolitions of tar-
get housing, and
deleading or demo-
lition of public build-
ings, and commer-
cial buildings
Firms providing trans-
portation services
for LBP debris
Firms or individuals
who reuse LBP de-
bris
Owners or operators
of facilities which
accept LBP debris
for reclamation
Owners or operators
of facilities which
accept LBP debris
for disposal
This table is not intended to be
exhaustive, but rather provides a guide
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 this
table could also be regulated. To
determine whether you or your business
may be regulated by this action, you
should carefully examine the provisions
of §§ 745.301 through 745.319 of the
regulatory text. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed in the "FOR FURTHER
INFORMATION CONTACT" unit above.
B. How Can I Get Additional
Information or Copies of this Document
or Other Support Documents?
1. Electronically. You may obtain
electronic copies of this document and
various support documents from the
EPA internet Home Page at http://
www.epa.gov/. On the Home Page select
"Laws and Regulations" and then look
up the entry for this document under
the "Federal Register - Environmental
Documents." You can also go directly to
the "Federal Register" listings at http:/
/www.epa.gov/homepage/fedrgstr/.
2. In person or by phone. If you have
any questions or need additional
information about this action, please
contact the technical person identified
in the "FOR FURTHER INFORMATION
CONTACT" section. In addition, the
official record for this notice, including
the public version, has been established
under docket control number OPPTS-
62160, (including comments and data
submitted electronically as described
below). A public version of this record,
including printed, paper versions of any
electronic comments,' which does not
include any information claimed as
Confidential Business Information (CBI),
is available for inspection from noon to
4 p.m., Monday through Friday,
excluding legal holidays. The public
record is located in the TSCA
Nonconfidential Information Center,
Rm. NE-B607, 401 M St., SW.,
Washington, DC 20460. The TSCA
Nonconfidential Information Center
telephone number is 202-260-7099.
C. How and to Whom Do I Submit
Comments?
You may submit comments through
the mail, in person, or electronically. Be
sure to identify the appropriate docket
control number (i.e., "OPPTS-62160")
in your correspondence.
1. By mail. Submit written comments
to: Document Control Office (7407),
Office of Pollution Prevention and
Toxics (OPPT), Environmental .
Protection Agency, 401 M St., SW.,
Washington, DC 20460.
2. In person or by courier. Deliver
written comments to: Document Control
Office in Rm. G-099, Waterside Mall
401 M St., SW., Washington, DC,
telephone: 202-260-7093.
3. Electronically. Submit your
comments and/or data electronically by
E-mail to: "oppt.ncic@epamail.epa.gov."
Please note that you should not submit
any information electronically that you
consider to be CBI. Electronic comments
must be submitted as an ASCII file
avoiding the use of special characters
and any form of encryption. Comment
and data will also be accepted on
standard computer disks in WordPerfect
5.1/6.1 or ASCII file format. All
comments and data in electronic form
must be identified by the docket control
number OPPTS-62160. Electronic
comments on this notice may also be
filed online at many Federal Depository
Libraries. ;
D. How Should I Handle CBI
Information that I Want to Submit to the
Agency?
You may claim information that you
submit in response to this document as
CBI by marking any part or all of that
information as CBI. Information so
marked will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2. A copy of the comment
that does not contain CBI must be
submitted for inclusion in the public
record. Information not marked
confidential will be included in the
public docket by EPA without prior
notice. If you have any questions about
CBI or the procedures for claiming CBI,
please consult with the technical person
identified in the "FOR FURTHER
INFORMATION CONTACT" section.
II. Introduction
Unit II. of this preamble provides an
overview of today's proposed rule and
background information; the succeeding
units cover the proposal and rationale in
more detail.
A. Purpose of this Proposed Rule
This document proposes new
management and disposal standards for
LBP debris, which is defined at
§ 745.303 of today's proposed rule to be
(1) Debris resulting from demolitions
where LBP is present and/or (2) LBP
architectural component debris (such as
windows, doors, molding, etc) from
abatement, renovation, and deleading
activities. These proposed standards
have been developed under TSCA
sections 402 and 404 and in
coordination with the RCRA Temporary
Suspension of the Toxicity
Characteristic Proposed Rule for LBP
Debris. (For a detailed discussion of the
regulatory authority refer to Unit HI. of
this preamble). The primary objective of
this proposed rule is to address
obstacles to the removal of LBP hazards
in target housing and other child-
occupied facilities, such as schools and
. day-care centers. The Agency has
concluded for this proposal that
disposal of LBP debris resulting from
abatements, deleading, renovations,
remodeling and demolitions of target
housing, child-occupied facilities, and
public and commercial buildings in
certain non-hazardous solid waste
disposal facilities (discussed in Unit III.
of this preamble) is safe, reliable,
effective, and protective of human
health and the environment.
Accordingly, the coverage of today's
RCRA and TSCA proposals would
include LBP debris generated during
deleading, demolitions, and renovation
and remodeling activities in all target
housing, public buildings, and
commercial buildings. EPA believes it is
important to provide a clear and
consistent regulatory scheme for those
who conduct these activities and to
avoid the imposition of unnecessary
costs on the regulated community.
The Agency believes the LBP debris
management and disposal standards
contained in this proposal would
provide increased protection of human
health by: (1) Reducing the cost of LBP
abatements and deleading so as to
-------
70192
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
facilitate the removal of IBP from areas
that children and others frequent; and
(2) addressing gaps in coverage of LBP
debris under the current RCRA
management and disposal requirements.
This proposal Is designed to minimize
the burdens associated with LBP debris
management and disposal through
enacting a TSCA program that is less"
costly than the current RCRA scheme
but is nonetheless safe, effective, and
reliable.
The standards in today's proposal
would apply only to LBP debris. If LBP
architectural component debris or LBP
demolition debris contain any substance
or constituent subject to regulations (in
addition to LBP). the generator would
still have to comply with those
requirements. For example, if LBP
debris also contained asbestos, it would
have to be disposed of in facilities
subject to both today's proposed
standards and to the existing asbestos
disposal standards found at 40 CFR part
61»subpartM.
The disposal of soil is not addressed
under the proposed TSCA standards.
For a further discussion of soil and why
it was excluded from this proposed rule
please see Unit VII.B.4. of this preamble.
B, Background: The Hazards of LBP and
Federal Efforts to Reduce Exposure
The Centers for Disease Control and
Prevention (CDC) has estimated
approximately 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). Lead
exposure in young children is of
particular concern, because children
absorb lead more readily than adults
and their nervous systems are
particularly vulnerable to the effects of
lead. Common sources of lead exposure
to children include contaminated dust
and paint chips from deteriorating LBP
In older homes and renovation activities
which disturb LBP. Children with high
levels of lead in their body can suffer
from learning disabilities, behavioral
and learning problems, and mental
retardation. The effects of long-term
lead exposure or poisoning in children
are well-documented: higher school
failure rates and reductions in lifetime
earnings due to permanent loss of
intelligence and increased social
pathologies. Fetuses are also at risk, as
lead can pass from a pregnant woman's
bloodstream to the developing child.
There is also some indication that lead
exposure contributes to high blood
pressure, reproductive and memory
problems 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.
Over the past 2 decades the Federal
government has taken a number of steps
to address the problems of lead
exposure. In 1978, the Consumer
Product Safety Commission banned the
residential use of paint~containing more
than 0.06% lead by weight on interior
and exterior surfaces, toys, and
furniture. EPA placed controls on lead
in gasoline in 1978 and lowered the
maximum levels of lead permitted in
public water systems (40 CFR parts 141
and 142). CDC has set and lowered
blood lead levels of concern several
times, most recently in 1991. The
Department of Housing and Urban
Development (HUD) began in 1986 to
abate lead hazards in public housing
that is being renovated or in structures
occupied by a child with elevated blood
lead levels. These efforts, and those of
State and local agencies and the private
sector, have reduced the incidence of
lead poisoning.
It is estimated that more than half the
housing stock in the U.S. (an estimated
64 million pre-1980 homes) still contain
some LBP (Ref. 2). Further, the LBP
. Hazard Reduction and Financing Task
Force established by HUD pursuant to
section 1015 of Title X (the LBP Hazard
Reduction Act of 1992) estimates that
between 5 and 15 million housing units
contain hazards associated with the
presence of LBP.
In response to this health threat,
Congress enacted the Residential LBP
Hazard Reduction Act of 1992
(hereinafter referred to as Title X of the
Housing and Community Development
Act of 1992 or as Title X) Pub. L. No.
102-550, 106 Stat 3897. The purposes of
Title X include: (1) To develop a
national strategy to build the
infrastructure necessary to eliminate
LBP hazards in all housing as
expeditiously as possible; (2) to reorient
the national approach to the presence of
LBP in housing to implement a broad
program to evaluate and reduce LBP
hazards in the Nation's housing stock;
and (3) to encourage effective action to
prevent childhood lead poisoning by
establishing a framework for LBP hazard
evaluation and reduction and by ending
confusion pertaining to reasonable
standards of care (Pub. L. 102-550, Title
X, Sec. 1003 (codified at 42 U.S.C.
485 la)).
To further these goals, Title X requires
that HUD provide public housing
authorities and other owners of
Federally assisted properties with
guidelines for evaluating and reducing
lead hazards in their properties. Title X
also amended TSCA by adding a new
Title IV, which directs EPA 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
are conducted by certified individuals
(TSCA section 402(a), 15 U.S.C.
2682(a)). TSCA Title IV also directs EPA
to identify by regulation LBP hazards,
lead-contaminated dust, and lead-
contaminated soil (TSCA section 403,
15 U.S.C. 2683). States and Indian
Tribes may seek to administer and
enforce these requirements (TSCA
section 404, 15 U.S.C. 2684).
As a result of the enactment of Title
X, 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 eliminate
permanently LBP hazards) are typically
conducted in situations where LBP
exposure has resulted in elevated blood
lead levels in children and in other
situations where permanent removal of
LBP is desired. Abatement efforts
frequently result in the production of
LBP waste which may currently be
subject to regulatory controls under
Subtitle C of the Resource Conservation
and Recovery Act (RCRA) (discussed in
Unit V. of this preamble).
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 for lead abatement activities.
EPA believes that there is an
overwhelming consensus that action
should be taken as quickly as possible
to reduce lead exposure hazards to
young children.
The Lead-Based Paint Hazard
Reduction and Financing Task Force
established by HUD pursuant to section
1015 of Title X (42 U.S.C. 4852a),
representing the spectrum of interests
affected by LBP issues, released final
recommendations on evaluating and
reducing LBP hazards in private
housing on July 11, 1995. Their report
is entitled "Putting the Pieces Together:
Controlling Lead Hazards in the
Nation's Housing" (Ref. 3). In addition,
a letter from the Task Force to EPA
Administrator Carol Browner dated
April 13, 1994, specifically
recommended that the Agency "shift
regulation of discarded architectural
components from the hazardous waste
regulatory program to a tailored
management program under TSCA
§§ 402/404" (Ref. 4). The Task Force
recommendations enjoy the support of a
broad range of the groups and interests
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
70193
affected by LBP activities and
regulations. The Agency has given
substantial weight to the Task Force
recommendations in the development of
today's proposal. EPA has developed
and is proposing a regulatory approach
it believes will both work to speed the
conduct of lead abatement and
deleading activities (by lowering costs)
and, at the same time, ensure that LBP
debris from all activities is managed and
disposed of in safe, reliable, and
effective manner.
III. Statutory Framework and Authority
As noted above, today's action
consists of two proposed rules: (1) this
TSCA proposal introducing new LBP
debris management and disposal
standards; and (2) a companion RCRA
proposal, issued elsewhere in today's
Federal Register, to temporarily
suspend the applicability of the RCRA
Toxicity Characteristic (TC) Rule (40
CFR 261.24) to LBP debris. Unit III.A.
below discusses TSCA Title IV and Unit
m.B. discusses RCRA Subtitle C and the
TC Rule.
A. TSCA Title IV
The Agency is issuing today's
proposed rule under the authority of
sections 402 and 404 of TSCA (15 U.S.C.
2682 and 2684). Section 402 of TSCA,
LBP Activities Training and
Certification, directs EPA to promulgate
regulations governing the training and
certification of individuals engaged in
LBP activities, the accreditation of
training programs, and standards for
conducting LBP activities. Section 404
of TSCA, Authorized State Programs,
provides authority for EPA to authorize
States to administer and enforce the
requirements established by the Agency
under section 402 of TSCA.
1. LBP activities. On August 29, 1996
(61 FR 45778) (FRL-5389-9), EPA
promulgated a rule under sections 402
and 404 of TSCA (hereafter, the LBP
training and certification rule)
addressing the conduct of certain LBP
activities in target housing and child-
occupied facilities (40 CFR part 745).
The LBP training and certification rule
requires that individuals and firms
conducting specified LBP activities in
target housing and child-occupied
facilities receive training from
accredited training programs and be
certified to conduct LBP activities. The
rule also contains standards for
conducting LBP activities. The LBP
training and certification rule did not
specifically address the management
and disposal of LBP debris. Today's
proposal would create standards under
TSCA for the management and disposal
of LBP debris and clarifies that other
LBP wastes remain subject to RCRA
management and disposal requirements.
The term "LBP activities" includes,
among other activities, abatements in
target housing. 15 U.S.C. 2682(b)(l).
TSCA section 401 (1) defines
"abatement" as "any set of measures
designed to permanently eliminate LBP
hazards" including, among other things,
all "clean-up, disposal, and post-
abatement clearance testing activities "
15 U.S.C. 2681(1)(B). Because the term
"abatement" includes all clean-up and
disposal activities, TSCA Title IV
provides the Agency with clear legal
authority to promulgate regulations
establishing standards for the
management and disposal of LBP
(including any LBP found on debris)
resulting from the abatement of target
housing. TSCA Title IV defines "target
housing" generally to mean any housing
constructed prior to 1978, except for
housing for the elderly or those with
disabilities (unless any child who is less
than 6 years of age resides or is expected
to reside in such housing for the elderly
or persons with disabilities) or any 0-
bedroom dwelling. TSCA section
401(17). 15 U.S.C. 2681.
In addition to target housing, the LBP
Activities Training and Certification
Rule (40 CFR part 745) included in the
TSCA section 402 requirements a sub-
category of public buildings called
"child-occupied facilities." A child-
occupied facility is defined as " a
building, or portion of a building,
constructed prior to 1978, visited
regularly by the same child, 6 years of
age or under, on at least 2 different days
within any week (Sunday through
Saturday period), provided that each
day's visit lasts at least 3 hours and the
combined weekly visits last at least 6
hours, and the combined annual visits
last at least 60 hours. Child-occupied
facilities may include, but are not
limited to, day-care centers, preschools
and kindergarten classrooms." Thus,
EPA is also covering "child-occupied
facilities" in today's proposal consistent
with the LBP Training and Certification
rule.
TSCA section 402 excludes
homeowners who conduct LBP
activities (including abatement or
renovation and remodeling activities)
themselves in target housing that they
own, unless the housing is occupied by
a person or persons other than the
owner or the owners' immediate family
while the LBP debris is being generated.
See Unit VII.C1. below for a further
discussion of the homeowner exclusion.
In the case of public buildings
constructed before 1978 and commercial
buildings, TSCA section 402 defines the
term "LBP activities" to include
deleading and demolition. "Deleading"
is defined to mean "activities conducted
by a person who offers to eliminate LBP
or LBP hazards or to plan such
activities." Id. Management and
disposal of LBP debris from public and
commercial buildings are among the
activities a person conducts to eliminate
LBP or LBP hazards, and, therefore, are
considered to constitute "deleading"
activities under TSCA section 402 (b) (2).
Although section 402 (b) (2) uses terms
such as "identification" and
"deleading" instead of the terms used in
402(a) such as "inspection," "risk
assessment," and "abatement," EPA
believes that, given the similarity of the
population to be protected and the
nature of the risk they face, the section
402 (b) (2) terms can be understood to
include the same types of LBP activities
as specified in section 402 (b) (1).
"Deleading" under section 402 (b) (2) is
equivalent to "abatement" under section
402(b)(l). As such, management and
disposal of LBP debris from deleading
and demolition are among the LBP
activities EPA has the authority to
regulate in public buildings and
commercial buildings under TSCA
section 402.
2. LBP hazards. TSCA section 402 (c)
addresses LBP risks associated with
renovation and remodeling activities in
target housing, public buildings and
commercial buildings. EPA was directed
under section 402 (c) (1) to develop
guidelines for conducting such
activities. These guidelines, "Reducing
Lead Hazards When Remodeling Your
Home" (EPA 747-R-94-002), were
published in April 1994, (updated
September 1997) and are available
through the National Lead Information
Center (Telephone: 1-800-424-LEAD).
EPA was also directed under section
402 (c) (2) to conduct a study of the
extent to which renovation and
remodeling activities create a "LBP
hazard" on a regular or occasional basis.
EPA has not completed this study,
however, the study did not examine
management or disposal of LBP debris.
EPA is authorized under section
402(c) (3) of TSCA to apply the
standards developed under section
402 (a) of TSCA for LBP activities to
renovation and remodeling activities
that create LBP hazards. EPA has
determined for this proposal, as
described in Unit V.F. of this preamble,
that improper management and disposal
of LBP debris, including debris from
renovation and remodeling activities
constitutes a LBP hazard and has
included LBP debris from renovation
and remodeling activities within the
scope of today's proposal. The proposed
-------
70194
Federal Register/Vol. 63, No. 243/Friday, December 18. 1998/Proposed Rules
rule determination that improper
management and disposal of LBP debris
constitutes a LBP hazard is included in
the regulatory text of this proposal.
Today's proposal also includes certain
restrictions on the reuse of LBP debris.
The proposed restrictions are designed
to prevent the transfer of LBP hazards
from one structure to another. For
example, today's proposal would
prohibit reuse of LBP debris which
would be identified as a "LBP hazard."
For a more In depth discussion of reuse
of LBP debris, see Unit VH.G.l. of this
preamble.
3. Certification. Section 402 (a) (1) of
TSCA directs the Agency to promulgate
regulations which ensure that
individuals engaged in LBP activities
are:
.. .properly trained; that training programs
arc accredited; and that contractors engaged
in such activities are certified. Such
regulations shall contain standards for
performing LBP activities, taking into
account reliability, effectiveness, and safety.
Today's action proposes standards for
the management and disposal of LBP
debris which take into account
reliability, effectiveness, and safety. It
docs not, however, create training
requirements for individuals engaged in
the management and disposal of LBP
debris.
The Agency believes that the
activities covered by this proposal, and
the requirements governing them do not
warrant any specialized training. These
activities and requirements are similar,
if not, identical to die types of waste
management activities already being
conducted by generators, transporters,
and disposal facility owner/operators
and parties reusing LBP debris. The
proposed requirements are designed to
be as simple as possible while
continuing to meet the TSCA section
402 standard of "taking into account
reliability, effectiveness, and safety."
The addition of training requirements
would add to the burden of conducting
LBP debris management and disposal
activities without providing a
measurable reduction in risk of
exposure to LBP hazards.
The primary reason for requiring the
certification of individuals is to ensure
that the individual has received proper
training. However, because the Agency
would not require specialized training
for the management and disposal of LBP
debris, §745.315 proposes to certify all
individuals who comply with the
requirements of the rule. Certification
would be extended only to individuals
and flrms engaged in management and
disposal of LBP debris. To perform other
LBP activities, individuals and firms
would need to be certified in
accordance with TSCA sections. 402 and
404 rules (40 CFR part 745). This
"certification by rule" for management
and disposal of LBP debris allows the
Agency to efficiently fulfill the TSCA
section 402 mandate noted above to
"ensure that.. .contractors engaged in
such activities are certified" without
sacrificing safety, effectiveness, or
reliability.
Today the Agency is proposing under
section 402 of TSCA to establish a clear
regulatory environment covering the
management and disposal of LBP debris
from abatements, deleading,
demolitions, renovations and
remodeling from target housing, public
buildings, and commercial buildings.
The TSCA standards being proposed
today represent a common sense
approach to management and disposal
of LBP debris which addresses the
problems associated with current RCRA
regulation of LBP debris.
B. 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
listing particular hazardous wastes.
In response to the Congressional
directive in RCRA section 3001 (a), EPA
adopted a two-part definition for
identified or 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. Second, the Agency
identified four characteristics of
hazardous waste that are subject to
objective 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
characteristic of "toxicity" under RCRA
Subtitle C, EPA established the Toxicity
Characteristic Leaching Procedure
(TCLP) test as part of the Toxicity
Characteristic (TC) rule. (55 FR 11798,
March 29, 1990). Under the TC rule, a
waste may be a hazardous waste if any
chemicals identified 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).
Under the TC rule, generators of solid
waste must either use their knowledge
of the waste or perform the TCLP test
using a representative sample of the
waste "as generated" to determine if the
waste exhibits a toxicity characteristic.
The regulatory level for lead in the
waste extract (i.e., leachate) is 5
milligrams per liter (mg/L). If the
leachate of waste contains lead at this
level 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.
IV. Overview of Proposed Rule
This Unit is designed to provide a
brief review of the main provisions in
this proposal. Rationale, analyses
supporting the proposal, and the details
of the provisions outlined in this section
are discussed later in this preamble.
A. Summary of Management and
Disposal Standards
1. Scope of proposed standards. This
proposal would apply to persons who
generate, store, transport, reuse, transfer
for reuse, reclaim and/or dispose of LBP
debris from the following structures and
activities: (1) Abatement, demolition,
renovation and remodeling in target
housing and child-occupied facilities;
and (2) deleading, demolition,
renovation and remodeling in public
buildings and commercial buildings.
The definition of LBP debris at
§ 745.303 of the regulatory text does not
include concentrated LBP wastes such
as LBP chips, dust, blast media,
solvents, sludges, and treatment
residues. Such wastes would remain
subject to RCRA requirements
(discussed further in Unit VII.B. of this
preamble).
The proposal would not apply to LBP
debris generated by persons who
conduct abatement or renovation and
remodeling activities themselves in
target housing in which they reside.
Such debris may, also, be exempt from
RCRA Subtitle C requirements under the
household hazardous waste exclusion.
For a further discussion please refer to
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
70195
the companion proposed RCRA Toxcity
Characteristic Suspension document
issued elsewhere in today's Federal
Register. Under this TSCA proposal, if
a homeowner hires an individual or
firm to perform abatement, demolition,
or renovation activities and LBP debris
is created, the individual or firm would
be considered to be a generator of LBP
debris. In such cases, the individual or
firm would be responsible for
compliance with the generator
requirements in today's proposal rather
than the homeowner.
One important distinction between
this proposal and current RCRA Subtitle
C requirements is that today's proposal
would apply to all LBP debris (as
defined at § 745.303), whereas RCRA
Subtitle C requirements apply only if
LBP debris is a waste and is determined
to be "hazardous." The comprehensive
coverage of today's TSCA proposal
would resolve the current problems
involved in conducting the TCLP test on
heterogenous LBP debris and in leaving
largely unregulated large quantities of
"non-hazardous" LBP debris. Today's
proposal would have the effect of
subjecting all LBP debris to one
common sense regulatory scheme
including management controls which
take into account the risks that LBP
debris poses to humans, particularly
children-even if LBP debris has not
been found to be " hazardous" under
the TCLP test. See Unit VH.B. through
VII.D. of this preamble for an in-depth
discussion of the wastes, activities, and
structures covered in this proposal.
2. Disposal/reclamation options.
Section 745.309 of today's proposal
would allow disposal of LBP debris in
a variety of facilities, specifically:
i. Construction and demolition
landfills.
ii. Nonmunicipal landfills which
accept conditionally exempt small
quantity generated waste.
iii. Hazardous waste disposal
facilities, including hazardous waste
incinerators and landfills.
iv. In the case of incineration,
facilities subject to specified Clean Air
Act requirements.
Each of the disposal options listed
above is discussed in greater detail in
Unit VII.F. of this preamble. Under the
proposal, LBP debris would be able to
be reclaimed (either for recovery of lead,
or for energy combustion value) only in
facilities which meet the Clean Air Act
requirements specified at § 745.309(b) of
today's proposal.
3. Controls on transportation, storage,
and reuse. The Agency has included
proposed controls on the transportation,
storage, reuse and transfer for reuse of
LBP debris in §§745.308 and 745.311. If
finalized, today's proposed rule would
stipulate that when LBP debris is stored
for more than 72 hours, there must be
access limitations, and that LBP debris
must not be stored for more than 180
days (§ 745.311). There are also
proposed limitations on when LBP
debris may be transferred for reuse
(§ 745.311). In addition, the proposal
would require that LBP debris be
transported in covered vehicles to
prevent any inadvertent release of LBP
chips or dust (§ 745.308). These controls
are discussed at length in Unit VII. G. of
this preamble.
4. Notification and recordkeeping. In
order to promote compliance and
provide for effective enforcement of the
standards contained in today's proposal,
the Agency has included a proposed
requirement that when LBP debris is
transferred from one party to another,
the recipient should be notified in
writing that the material is LBP debris
(§ 745.313(a)). Both parties to any
transfer of LBP debris would also be
required to keep a copy of the
notification on record for 3 years
(§ 745.313(b)). The notification and
recordkeeping requirements are
discussed in Unit VII.H. of this
preamble.
B. State and Tribal Programs
Today's proposal contains provisions
for EPA authorization of State or Tribal
LBP debris management and disposal
programs. States and Indian Tribes are
encouraged to develop and seek EPA
authorization of their own LBP debris
management and disposal programs.
EPA invites States and Tribes to submit
their applications 60 days after
promulgation of the final rule.
Sections 745.350 and 745.352 of
today's proposal identify key program
elements which EPA believes are
needed to administer and enforce a LBP
debris management and disposal
program which is at least as protective
as the Federal standards at §§ 745.307
through 745.319 and provides for
adequate enforcement;The proposed
required program elements found at
§ 745.350 are: (1) Requirements
governing the reuse and storage of LBP
debris; (2) requirements governing the
transportation of LBP debris; (3)
requirements for the disposal or
reclamation of LBP debris; and (4)
requirements for notification and
recordkeeping. The proposed required
elements found at § 745.352 are
designed to ensure that State or Tribal
programs provide adequate
enforcement.
The proposed §§ 745.341 through
745.359 also contain procedures for
States and Indian Tribes to follow when
applying to EPA for LBP debris
management and disposal program
authorization. State or Tribal programs
would be required to be "at least as
protective as" the Federal requirements
at §§ 745.307 through 745.319 and to
provide adequate enforcement. In their
application, States and Tribes would be
free to retain or establish more stringent
requirements for the management and
disposal of LBP debris in their
jurisdictions. State and Tribal program
requirements are discussed in Unit VIII.
of this preamble.
V. Policy Basis for Today's Proposal
It is important to understand the
relationship between today's proposal
and the existing RCRA Subtitle C
regulations. The regulated community
has expressed a variety of concerns
about the appropriateness of current
RCRA requirements governing the
management and disposal of LBP debris.
In keeping with EPA's responsibility
under TSCA Title IV to promote and
facilitate the expeditious reduction of
risks related to LBP, the Agency has
explored alternative options for
management and disposal of LBP debris.
The result of this investigation is today's
proposed rule providing safe, effective,
and reliable TSCA management and
disposal standards for LBP debris.
Sections A through F of this unit
describe stakeholder consultation and
the policy basis for today's proposal.
A. Stakeholder Consultation
The input and comments of
stakeholders have been important in the
development of today's proposal. As i
mentioned in Unit II. of this preamble
the TSCA section 1015 Task Force,
which represented a wide array of
interested parties, specifically requested
that EPA "shift regulation of discarded
architectural components from the
hazardous waste regulatory program to
a tailored management program under
TSCA sections 402/404."
In addition, the Agency held a
stakeholders' meeting on September 28,
1994, to discuss possible approaches to
improving management and disposal
requirements for LBP debris.
Stakeholders participating in the
meeting included HUD, State agency
representatives, environmental and
advocacy groups, labor representatives,
professional organizations representing
the building and waste management
trades and private contractors. The
participants provided many opinions
and suggestions.
As noted, many stakeholders have
urged EPA to develop today's proposal.
A number of commenters on the LBP
Training and Certification rule (40 CFR
-------
70196
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
part 745) specifically requested that
ERA jssue disposal standards for LBP
debris under TSCA. In response, the
Agency has, In today's proposal,
identified new disposal options for LBP
debris (in addition to those currently
allowed under RCRA Subtitle C). The
new LBP debris disposal options are
discussed in Units VI. and VH. of this
preamble. Stakeholder concerns about
this proposed rule have generally
focused on the risk of ground water
contamination resulting from alternative
disposal options, a question which is
addressed by the analyses conducted for
tills proposal (as discussed in Unit VI.
of this preamble).
Other stakeholders have expressed
concern about the Agency's
characterization of the current market
for disposal, believing the Agency may
have overestimated costs of disposal
under RCRA Subtitle C. The Agency has
reviewed current data as part of the
economic analysis conducted for this
proposal and believes that Agency
estimates of the current costs of LBP
debris disposal are accurate. It is clear
from the economic analysis that
management and disposal costs for LBP
debris which fails the TCLP for lead are
high and that these high costs can act as
a deterrent to the removal of LBP
hazards.
Stakeholders have also noted that
under current RCRA requirements, all
LBP debris is not treated equally. First,
the RCRA regulations only apply if the
debris Is a waste. There are no RCRA
standards for the management of LBP
debris that is intended for re-use. For
LBP that is a waste, difficulties
conducting the TCLP (discussed in
section D. of this unit) can result in
Insufficient management and disposal
standards for potentially hazardous LBP
debris (debris which does not exhibit
the TC due to anomalous TCLP results)
while other, similar LBP debris fails the
TCLP and is subject to the strict and
costly requirements of RCRA Subtitle C.
Stakeholder concerns about the unequal
requirements and regulations governing
the management and disposal of LBP
debris are addressed in today's TSCA
proposal.
In June of 1996, EPA sent a
stakeholders' mailing to a large list of
parties the Agency had identified as
potentially having an interest in today's
proposed rule. The stakeholder mailing
included an outline of provisions under
consideration for inclusion in today's
proposal, the draft background
document for the Groundwater Pathway
Analysis for LBP Architectural Debris
conducted in support of today's
proposal, and names of Agency staff to
contact with questions. Further input by
stakeholders as a result of the mailing
has been considered during
development of today's proposal.
B. RCRA Coverage of LBP Debris
Under current RCRA requirements, all
LBP debris is not treated equally. Some
LBP debris, specifically, debris which
fails the TCLP for lead or is assessed by
the generator to exhibit the Toxicity
Characteristic, is subject to the strict and
costly requirements of RCRA Subtitle C.
However, LBP debris which passes the
TCLP or is correctly determined by the
generator to be nonhazardous solid
waste is not subject to Subtitle C
management and disposal standards.
Unfortunately as further described in
section D. of this unit, TCLP results are
not reproducible on LBP debris.
Therefore, one piece of LBP debris
might fail the TCLP in one instance and
pass it in another, subjecting the debris
to radically different management and
disposal requirements in each case.
During the development of this
proposal, it has become clear to the
Agency that the two management and
disposal standards which apply to LBP
debris under RCRA are both
inappropriate. In cases where LBP
debris is determined to be hazardous,
the Agency has concluded that RCRA
Subtitle C management and disposal
requirements are unnecessarily strict
and costly (see Unit VI. of this preamble
for a discussion of the analytical basis
for this finding).
Conversely, in cases where LBP debris
passes the TCLP or is determined by the
generator to be nonhazardous, EPA
believes that the absence of clear
managementrand disposal standards is
inappropriate and could result in LBP
hazards. Today's proposal would
resolve the problems associated with
RCRA regulation of LBP debris by
affording equal and appropriate
standards for all LBP debris.
C. LBP Debris Exclusions/Exemptions
from RCRA Subtitle C
Currently, certain types of waste are
excluded from RCRA hazardous waste
requirements. Some LBP wastes,
including certain types of LBP debris
eligible for exclusion from RCRA
requirements, are not covered by today's
TSCA proposal (see Unit VII.B. of this
preamble for a discussion of LBP wastes
not covered by this proposal). The
Agency believes that the RCRA
exclusions clearly and adequately
address management and disposal of
these types of waste and new TSCA
standards are not necessary for these
RCRA-exempted LBP wastes. The
exclusions described in the RCRA
proposal include: (1) The household
waste exclusion; (2) the conditionally
exempt small quantity generator
(CESQG) exclusion; and (3) the scrap
metal exemption. See today's RCRA
proposed, published elsewhere in today's
Federal Register for a thorough
discussion of these exemptions.
D. Difficulties in Conducting the TCLP
on LBP Debris
An important factor the Agency
considered in developing today's
proposal is the difficulty of performing
reproducible TCLP tests on LBP debris.
Proper TCLP testing requires the
collection of a representative sample of
the waste "as generated." LBP debris
typically includes a mixture of painted
and unpainted material, and debris
generated at a single site often includes
a variety of building materials (e.g.,
wood, metal, brick, plaster, etc.). In
addition, different components of the
debris frequently have different
numbers of layers of paint—often with
different formulations—each of which
may contain varying amounts of lead.
Collection of manageable-sized samples
that are representative of the entire
heterogeneous waste stream presents
obvious challenges.
A second testing difficulty is sample
preparation. The particle size reduction
step of the TCLP requires that samples
be small enough to pass through a 3/s-
inch sieve. Thus, the various
components of the sample may require
different procedures in order to
accomplish size reduction. For example,
grinding may be the most appropriate
procedure to apply to plaster
components of a sample, but may not be
practicable for the sample's metal
components. One consequence of this is
that paint layers originally on the
surface of different types of materials
can vary widely after the size-reduction
step, ranging from a powdered state to
% inch-sized pieces. Because of sample
preparation difficulties, the result from
one sample (e.g., lead present above the
regulatory level) may not be duplicated
by the result from another sample of the
same waste. EPA is concerned that this
situation creates an uncertain regulatory
environment and that it may lead to
inappropriate regulation or lack of
regulation of LBP debris.
A third difficulty is introduced by the
physical state of the paint matrix. LBP
on exposed exterior components will
usually have been subject to years of
weathering, since it was almost
exclusively applied before the late
1970s. In contrast, paint from interior
surfaces would likely not be weathered
and the paint matrix would still be
intact. It is reasonable to expect that the
integrity of the paint matrix would be a
-------
Federal Register/Vol. 63, No. 243/Friday; December 18, 1998/Proposed Roles
70197
factor in the teachability of lead from
the paint when it is subjected to the
TCLP test and that the amount of
weathered exterior paint versus interior
paint in the sample would affect test
results. Variability of weathering in
painted surfaces poses a significant
problem in collecting a representative,
reproducible sample of LBP debris.
The Agency believes that these factors
contribute significantly to variation in
TCLP results for LBP debris, causing
considerable difficulty in characterizing
LBP debris under the Toxicity
Characteristic. These problems are
reflected both in stakeholder comments
and in the Agency's empirical data on
TCLP testing of LBP debris.
In March 1993, EPA completed a
study that examined the RCRA status of
various waste materials from abatement
projects. The study had three
components: First, the Agency
evaluated data on waste that HUD
collected during its nationwide
abatement demonstration project (Ref.
5). Second, EPA carried out a detailed
testing program for two categories of
waste-large solid debris and protective
plastic sheeting. Third, EPA examined
the waste disposal experience of HUD's
contractor on the abatement project in
order to obtain preliminary estimates of
the volume of hazardous waste that was
generated and the cost of disposal. The
goal was to determine whether the
Agency could provide useful guidance
to individuals and firms conducting
abatements, on the likely result of TCLP
testing for various types of waste
generated during abatements.
The 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. The study concluded that
filtered wash water is generally
nonhazardous. The results for solid
architectural debris demonstrated that
LBP debris tends to fail the TCLP when
the lead in the paint, as measured by
Atomic Absorption Spectrometry (AAS)
exceeds 4 milligrams per square
centimeters (mg/cm2). However, TCLP
failure in the study was not well-
correlated with results of on-site testing
of lead levels in paint using an X-Ray
Fluorescence (XRF) device. The study's
failure rate for plastic sheeting tended to
depend on the abatement method. For
example, removal and replacement
tends to generate nonhazardous plastic
sheeting, but use of a heat gun for LBP
removal tends to result in plastic
sheeting which exhibits a hazardous
characteristic. The study also notes that
other categories of waste, such as
sludges, LBP chips, mops and rags,
often exceed the RCRA regulatory limit
for lead.
The Agency learned from this study
that there is no clear and well-defined
sampling strategy for LBP debris, and
that the TCLP may not give consistently
reproducible results for LBP debris.
Today's proposal addresses these
difficulties.
E. Economic Impacts of RCRA Subtitle
C Regulation on LBP Abatements
RCRA Subtitle C requirements for the
management and disposal of a
hazardous waste include making the
determination that the waste is
hazardous, the completion of a manifest
which tracks waste from the generator to
ultimate disposal, maintenance of
records for 3 years, treatment subject to
land disposal restrictions, transport to a
hazardous waste facility, and disposal at
a hazardous waste facility. Disposal in
a RCRA Subtitle C facility is not
required for hazardous lead waste
which is treated (i.e., decharacterized)
such that it no longer exhibits the
Toxicity Characteristic for lead. This
alternative requires the generator to test
the waste after treatment using the TCLP
to demonstrate compliance with the
land disposal restrictions at 40 CFR
268.9. For further explanation of RCRA
Subtitle C, please see Unit III.B. of this
preamble or the RCRA companion
document to this proposed rule
published elsewhere in today's Federal
Register.
RCRA Subtitle C hazardous waste
.management and disposal requirements
can substantially increase the costs of
performing abatements which remove
and replace painted architectural
components (e.g. doors and windows), a
technique which results in a relatively
large volume of waste but which
minimizes dust generation that can
cause further human exposure to LBP.
In a 1991 report on its demonstration
project on LBP abatement in public
housing, HUD noted that the abatement
strategy chosen relates directly to a
unit's eventual passing of post-
abatement dust clearance tests (Ref. 6).
HUD found that units which had
undergone removal and replacement
abatements were more likely to pass
clearance tests, suggesting that these
activities tend to generate less lead-
containing dust than other abatement
options.
Among the materials generated during
abatement, LBP architectural
component debris (e.g.* doors, windows
and window frames, external
woodwork) represent largest volume.
Other materials, such as LBP chips and
dust, treatment residues, solvents, blast
media, waste water, plastic sheets, and
worker equipment and clothing, are
generated in smaller quantities, are
comparatively easy to sample and
analyze, and are not covered under
today's proposal (see Unit VII.B. of this
preamble for a discussion of the scope
of materials covered in this proposal).
However, the cost of disposal of the
large volume of LBP debris which
frequently results from removal and
replacement abatements can be very
high. EPA estimates these costs to be
$316 per ton, including the cost of waste
analysis, transportation, and disposal.
Disposal as a RCRA hazardous waste of
an average amount of LBP debris from
an abatement project in a single-family
home can represent up to 18.9% of the
total cost of the project (Ref. 7).
Individuals and firms do not necessarily
know when beginning an abatement
project whether the resulting debris will
require management as a hazardous
waste, but they may frequently account
for this possibility in cost estimates. In
some cases, sampling and analysis
performed prior to bidding on a project
allows estimation of disposal cost,
which affects the decision about
whether or not to undertake an
abatement project.
RCRA subtitle C requirements may
also interfere with achieving economies
of scale in LBP debris disposal. RCRA
requires that LBP debris which is
determined to be hazardous be sent
directly from the site of generation to a
hazardous waste treatment, storage, and
disposal facility and thereby precludes
the aggregation of waste from different
work sites at a central collection site,
which would allow for lower
transportation and disposal costs.
As noted above, RCRA Subtitle C
testing, transportation and disposal
costs can add up to approximately $316
per ton (Ref. 7). The estimated cost to
dispose of LBP debris in a construction
and demolition landfill, taking into ;
account the costs of the management
and disposal requirements in today's
proposal is approximately $37.20 per
ton (including average transport and
disposal costs) (Ref. 7). Thus, the
managementand disposal cost of 100
tons of LBP debris which failed the
TCLP from an abatement at a 100 unit
apartment complex would be $31,600
under Subtitle C requirements as
opposed to $3,720 under today's
proposal.
The alternatives tp RCRA hazardous
waste management and disposal
presented in today's proposal would
result in significant cost saving for the
conduct of LBP abatement activities.
These savings would be achieved
primarily by allowing disposal of LBP
debris in construction and demolition
-------
70198
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
landfills and eliminating the testing and
other requirements associated with
RCRA Subtitle C regulations. These cost
savings could stimulate demand for
abatements which would in turn serve
to reduce hazards to human health and
mitigate the economic impacts
associated with human exposure to LBP
hazards Including: reduced lifetime
earnings due to diminished intelligence,
increased educational costs, increased
health care costs, lost work days and
productivity, and costs associated with
increased morbidity and mortality. In
the public housing sector alone, where
a fixed amount of funds are currently
designated specifically for
modernization including the
performance of abatements (24 CFR part
965, subpart H), the cost savings
associated with today's proposal would
result in an increase in the number of
LBP abatements of more than 5,454
annually. These economic and risk
considerations were also important
factors leading the Agency to identify
the alternative management controls
and disposal options being proposed
today.
F. TSCA Coverage of LBP Debris
The legislative history of TSCA Title
X 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 LBP hazards." S. Rep. No. 102-
332,102nd Cong.. 2nd Sess. Ill (1992).
As die Senate Committee on Banking,
Housing and Urban Affairs stated, " ..
. by establishing realistic, cost-effective
procedures for achieving hazard
reduction. Title X will speed the clean-
up of lead paint hazards ... and greatly
decrease the incidence of childhood
lead poisoning." (Id. at 112.)
Given the demonstrated risks that LBP
poses and the clear Congressional intent
for risks from LBP hazards to be
reduced, the Agency is using today's
proposal to Improve the regulatory
program governing the management and
disposal of LBP debris from abatement,
deleadlng, renovation, remodeling, and
demolition activities.
It is Important to note that although
EPA is proposing to suspend the RCRA
Subtitle C regulations which apply to
LBP debris (see companion RCRA
proposal), the Agency is not basing the
proposed suspension on a
determination that regulation of LBP
debris is unnecessary. On the contrary,
EPA believes that regulation of the
management and disposal of LBP debris
is necessary, and that TSCA, Title IV is
the more appropriate and effective
authority for such regulation.
EPA is today proposing a
determination that improper
management of LBP debris or reuse of
certain LBP debris constitute LBP
hazards.
According to TSCA, Title IV, "LBP
hazard" means "any condition that
causes exposure to lead from lead-
contaminated dust, lead-contaminated
soil, lead-contaminated paint that is
deteriorated or present in accessible
surfaces, friction surfaces, or impact
surfaces that would result in adverse
human health effects" as established by
EPA. EPA believes that, in the absence
of appropriate controls, the management
and disposal of LBP debris creates a
"LBP hazard." This preliminary
determination is a statutory prerequisite
to EPA's application of the TSCA
management and disposal requirements
developed for abatements and deleading
activities to debris from renovations.
(TSCA section 402 (c) (3)).
Historically, research on hazards
associated with residential LBP has
focused upon deteriorated paint in
homes, rather than on the debris
generated during abatements and
renovation. In today's determination
that improper management of LBP
debris is a hazard, the Agency believes
that the same exposure pathways are
relevant for debris and that, in general,
debris by its very nature would tend to
pose a greater hazard than deteriorated
LBP in a home. This is because, except
in the case of re-use, the debris has little
or no value and there is no motivation
to maintain the integrity of the paint on
the debris surfaces. Hence, even the
intact paint on debris would be
expected to deteriorate (e.g., flake or
peel off) rapidly.
Exposures to lead from deteriorated
LBP can occur in several ways. First,
children who exhibit pica, a hunger for
substances not fit for food, may eat paint
chips from accessible waste piles,
resulting in the ingestion of substantial
amounts of lead (Ref. 8). Also, the
deteriorated paint from uncontrolled
piles of debris is likely to fall onto the
ground resulting in potentially high
soil-lead levels. (LBP, as defined in
today's proposal, contains at least 5,000
ppm lead.) Such contaminated soil can
be inadvertently Ingested by children
through their normal hand-to-mouth
activity. In addition, the lead-
contaminated soil can be tracked into a
residence, introducing lead into the
household dust.
These scenarios have been
demonstrated in various studies that
used stable isotopes of lead as tracers.
Basically, this technique relies upon the
fact that the isotope ratios of lead ores
vary by deposit. Consequently, lead-
containing products such as LBPs,
leaded gasolines, etc. can have unique
ratios of the stable isotopes in the lead.
Comparison of the isotope ratios in
these products to those of
environmental media and blood can in
some cases identify these products as
the source of lead in the environmental
media and/or lead in the blood.
Rabinowitz reports use of this
technique to investigate the specific
sources and pathways of lead exposure
in three cases of chronic, high-level lead
poisoning (blood-lead concentrations of
120, 83, and 66 ug/dl) (Ref. 9). In each
case, blood, feces, and the child's home
environment (paint, dust, and soil) were
sampled and analyzed. All of the
children had deteriorated paint present
in their homes. Additionally, a series of
environmental samples were collected
and analyzed to characterize
background lead throughout the city.
In the first two cases, the isotopic
composition of the blood (indicative of
chronic exposure) and the feces
(indicative of exposure during the
preceding day) were nearly identical. In
the first case, they resembled die paint
sample from the child's bedroom wall
(which was similar to the exterior soil).
In the second case, they closely matched
the lead in window sill paint, but not
the kitchen wall or garden soil. In the
third case, the blood lead was close to
that of the paint in die child's bedroom,
which was believed to be the source of
his chronic exposure, whereas the fecal
lead appeared to be similar to fallout
from current automobile emissions in
the area. While such data do present
some ambiguities, they are consistent
with paint being the proximate or
remote source of the child's lead
exposure and the conclusion that, in
cases of severe lead poisoning, the lead
in the child's blood and feces closely
resembles lead in paint on an accessible
surface. Additionally, based upon
isotopic comparisons between
household dust and urban soils, the
study also concluded that: (1) In the
absence of lead paint, the lead in urban
soils and household dust have nearly
the same isotopic composition, and (2)
lead paint, when present, can be
responsible for 20-70% of lead in
household dust and much of the lead in
yard soil.
Yaffe, et al. presented two cases
which also included measurement of
the isotopic ratios of lead in blood,
paint, dust, and soil (Ref. 10). In both
cases, it was unlikely that direct
ingestion of paint chips was the cause
of the elevated blood-lead
concentrations. This was based on the
-------
Federal Register/Vol. 63, No. 243/Frlday, December 18. 1998/Proposed Rules 70199
facts that: (1) There was no indication
that the children were pica-prone based
upon interviews with the children and
their parents, and (2) higher than
exhibited blood-lead concentrations
would be expected if paint chips were
being ingested, given the very high lead
levels in the paint.
The first case involved 10 children
with blood-lead concentrations from 28
to 43 ng/dl. The isotopic ratios of the
children's blood lead were similar,
suggesting a common set of lead
exposures. These ratios were quite
similar to those of soil samples collected
around the house and interior dust
samples. The close agreement between
the average isotopic ratios of exterior
paint samples and the soils near the
house suggested that the soil was
contaminated by the exterior paint,
which was badly deteriorated.
The second case involved twin 2-year-
old males with blood-lead
concentrations of 37 and 43 ng/dl. The
isotopic ratios of the twins' blood lead
were similar to the soil in their side
yard and in the back yard of a nearby
house where they often played. These
soils had similar ratios to adjacent
exterior walls. This suggests that the
lead in the soils was primarily derived
from the weathering of nearby painted
surfaces and that the contaminated soil
was a significant source of the twins'
exposure. The interior dust sample lead
was not similar to the exterior soil or the
twins' blood lead.
The scientific literature also includes
several studies that have identified a
statistically significant relationship
between deteriorated paint and
children's blood-lead concentrations.
One study suggests that infant blood-
lead concentrations are a function of
paint deterioration and lack of
maintenance of the residence (Ref. 11).
In diis study, deteriorated housing was
classified as deteriorated if the exterior
was not well maintained or had peeling
paint, as observed from the street. For
infants at 12 to 18 months old,
geometric mean blood-lead
concentrations were twice as high in
deteriorated housing (33 M-g/dl) than in
housing graded as satisfactory (15 [ig/
dl).
Improper management and disposal of
LBP debris could cause a LBP hazard by
allowing the accumulation and
deterioration of LBP in locations, such
as uncontrolled waste piles, where it
may be accessible to children or
contaminate the soil.
EPA believes that allowing such a
LBP hazard to go unregulated would
undermine benefits gained through the
elimination or reduction of exposure to
LBP in target housing, public buildings
and commercial buildings. The
proposed controls on storage and
transportation which are included in
today's proposal (see Unit VII. G. of this
preamble for a more thorough
discussion of these controls) are
intended to facilitate safe management
of LBP debris.
In order to prevent the transfer of LBP
hazards from one structure to another,
today's proposal also prohibits the reuse
and transfer for reuse of any LBP debris
which is identified as a LBP hazard in
today's TSCA proposal. The proposal
identifies a LBP hazard as the presence
of any deteriorated LBP on the debris.
Under today's proposal, reuse or
transfer for reuse of LBP debris which
is identified as a LBP hazard (i.e., LBP
debris with deteriorated LBP) would be
prohibited. The prohibition would not
apply if the LBP is removed prior to
reuse or transfer for reuse. See Unit
Vn.G. 1. of this preamble for a more in-
depth discussion of reuse of LBP debris.
In authorizing EPA under TSCA Title
IV to promulgate management and
disposal standards for LBP debris,
Congress did not directly address the
conflict that would arise concerning the
overlapping jurisdiction of the RCRA TC
rule and any new TSCA management
and disposal standards. Nor did
Congress clearly address the obstacles to
the conduct of lead abatements and
deleading that could result if LBP debris
is determined to be hazardous and
subject to the high costs of compliance
with RCRA Subtitle C. The concurrent
proposal of today's RCRA TC
suspension and new TSCA standards
should resolve the duplication inherent
in the statutory .schemes. The new
TSCA standards would be less
burdensome than RCRA Subtitle C
requirements and therefore would
remove obstacles to the conduct of LBP
activities while identifying standards to
prevent improper management,
disposal, and reuse of LBP debris.
VI. Analytic Basis for Landfill Disposal
Options in Today's Proposed Rule
Identification of safe, effective, and
reliable alternative landfill disposal
options for LBP debris has been an
important component of this proposed
rulemaking. EPA believes that landfill
disposal is the most common waste
management practice for LBP debris,
and, as noted above in .Unit V. of this
preamble, disposal of LBP debris in
RCRA Subtitle C landfills (hazardous
waste landfills) is very expensive. To
identify safe and accessible alternative
landfill disposal options, the Agency
considered the following information.
A. Leaching and Mobility of Lead from
LBP Debris
Under RCRA, LBP debris is
considered hazardous if it exhibits the
hazardous waste characteristic of
toxicity (other hazardous waste
characteristics of ignitability,
corrosivity, and reactivity are not likely
relevant). EPA changed the test to
determine whether a waste exhibits the
characteristic of toxicity under RCRA in
1990, when the Agency promulgated the
Toxicity Characteristic (TC) rule (40
CFR 261.24). In addition to adding more
hazardous compounds that are regulated
under that characteristic, the TC rule
replaced the Extraction Procedure (EP)
test with the Toxicity Characteristic
Leaching Procedure (TCLP). The test
was designed to indicate a waste's
potential to leach hazardous
constituents into groundwater if the
waste was co-disposed in a landfill with
municipal wastes. In such a landfill, the
decomposition of municipal wastes
would produce organic acids creating
relatively more aggressive leaching
conditions than in landfills without co-
disposal with municipal waste. (55 FR
11862, March 29, 1990.)
After the promulgation of the TC rule,
concerns were expressed to the Agency
that TCLP tests conducted on LBP
debris for determining lead
concentrations in leachate produced
higher lead leachate levels than the old
EP test. The results of TCLP testing
caused certain previously nonhazardous
LBP debris to be classified as hazardous
waste under RCRA Subtitle C. Thus, the
higher lead leachate levels produced by
the TCLP effectively limited disposal
options for LBP debris. LBP debris that
had previously been managed as
nonhazardous waste now often became
subject to RCRA hazardous waste
management requirements. In response,
the Agency conducted a study to
investigate which LBP wastes would be
hazardous under the TC rule. This
report contained EP test results from
some wastes and TCLP results from
odiers. While the study did not include
testing of duplicate samples with both
tests, in general, TCLP results were
higher than EP results for similar
materials. .
The Agency conducted another study
to investigate the leaching behavior of
lead from LBP wastes under the TCLP
as compared with the Agency's
"Synthetic Precipitation Leaching
Procedure" (SPLP). While the TCLP is
designed to simulate leaching in a
municipal landfill environment, the
SPLP is designed to simulate the
leaching of wastes disposed in landfills
that do not accept municipal garbage
-------
70200
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
and other putrescible wastes that could
decompose and form organic acids that
could aggressively leach hazardous
constituents in waste. Accordingly, the
SPLP uses a mild inorganic leaching
solution that would be typical of acid
rain instead of the organic (acetic) acid
used in the TCLP. This study indicated
that LBP waste leached considerably
lower levels of lead in the SPLP than in
the TCLP (Ref. 12).
In a third study of LBP waste, the
Agency analyzed more samples of LBP
debris using both the TCLP and SPLP
methods to compare lead concentration
in the leachate (Ref. 13). The results
showed that when LBP debris was
subjected to the TCLP analysis, the
leachate concentration of lead exceeded
the TC limit of 5.0 mg/L for lead in
approximately 75% of the cases.
However, when the samples were
subjected to the SPLP, in only a few
cases did the lead in leachate exceed 5.0
mg/L, In general, for those materials that
comprise LBP debris as defined at
§745.303 of the regulatory text, lead in
leachate samples subjected to the SPLP
was approximately Vio of the amount of
lead measured in leachate samples
subjected to die TCLP.
Lead was the only contaminant for
which analysis was done in the LBP
debris leachate testing described in the
above three studies. This was simply
because these studies focused on lead as
the principal hazardous constituent in
LBP debris, The Agency has no reason
to believe that LBP debris would be a
TC hazardous waste for any other
reason. However, EPA requests
comments and information on whether
contaminants other than lead associated
with LBP debris may cause LBP debris
to be identified as a TC hazardous
waste.
The relative immobility of lead in
subsurface soils under non-highly acidic
conditions, and its increased mobility
under conditions of higher acidity, has
been documented in many studies (Ref.
14). Deutsch provides a review of lead
geochemistry and has summarized some
of these studies. Lead entering the
subsurface environment may be strongly
affected by adsorption and/or chemical
precipitation onto the solid-phase
surfaces. Due to their strong adsorption
affinity for lead, soils appear to have
large capacities for immobilization of
lead. Lead generally is likely to be
confined to the top soil layers due to
adsorption to the soils. Whatever lead
moves past the top soil zone, iron and
manganese oxides in the subsurface soil
may play the greatest roles in the
adsorption and chemical precipitation
of lead.
While Deutsch concludes that lead is
one of the least mobile of the common
metal contaminants in the environment,
he also states that lead can be relatively
mobile, as with most metals, if the
contaminant source is very acidic and
the environment does not have the
capacity to neutralize the acid. These
conclusions are consistent with the
findings of the leaching tests described
above. That is, lead, in general, tends to
be less mobile in less aggressive acidic
conditions than in a highly acidic
environment. For LBP debris, the
organic acid of the TCLP (which is
predictive of conditions in a municipal
waste landfill) is considerably more
aggressive in leaching lead than the
milder, "acid rain" type of inorganic
acid of the SPLP (nonmunicipal landfill
scenario).
Regardless of the mobility issues
noted above, there are certain other
environmental conditions in the United
States where lead, if soluble, might
move appreciably with groundwater.
For example, the existence of highly
fractured bedrock, or highly porous
soils, karst formations, soils with low
cation exchange capacity or low organic
content, and dissolved organic acids in
the groundwater can appreciably
increase the mobility of lead in the
subsurface soil.
Upon review of the above-cited
studies and the LBP debris leachate
testing data, EPA made some
preliminary conclusions regarding the
potential for lead leachability in non-
municipal versus municipal landfills.
Based on these data, because non-
municipal landfills are likely to be less
aggressive environments for the
leaching of lead, the Agency focused its
further analysis on these types of
landfills. Specifically, the Agency has
focused on evaluating the safety of
disposal of LBP debris in construction
and demolition (C&D) landfills.
However, the Agency recognizes a
need to conduct further analyses to
come to more definitive conclusions
regarding the potential for lead
leachability and mobility from disposal
of LBP debris under various types of
landfill conditions. Therefore, the
Agency plans to conduct such
additional studies. The results of such
analyses could potentially cause the
Agency to revise its current conclusions
regarding the leachability and mobility
of lead in various landfill environments.
However, until that time, the Agency
maintains its long-held position that, in
general, municipal solid waste landfills
represent a more aggressive leaching
environment for lead (and other
hazardous constituents) than many non-
municipal landfill environments.
Municipal landfill disposal remains the
worst-case, generic mismanagement
scenario that the Agency has
determined, under RCRA, to be a
plausible scenario for disposal of non-
municipal solid wastes. The TCLP
remains the appropriate leaching test to
mimic municipal landfill conditions for
determining whether solid waste
exhibits the RCRA toxicity
characteristic. The TCLP is also an
important factor used by the Agency,
when determining whether industrial
process waste should be listed as a
RCRA hazardous waste.
B. Ground Water Risks from C&D
Landfills
The Agency has performed several
studies providing data on leachate
quality and on the environmental
performance of some C&D landfills.
One study investigated leachate
quality in C&D landfills (Ref. 15). The
results indicated that of 21 C&D
landfills for which there were leachate
data, 18 landfills monitored leachate for
lead, and of these, 15 had detectable
lead concentrations. Although the
existence of lead in landfill leachate at
levels above the detection level is not
unusual, the Agency intends to conduct
further studies on the presence of lead
in leachate from various types of
landfills.
Additionally, the Agency has
performed two studies which provide
data on the environmental performance
of some C&D landfills. Because these
two studies were completed for the
purpose of identifying cases of
environmental releases from C&D
landfills, they do not include data from
the vast majority of C&D landfills for
which there is no evidence of
groundwater contamination.
The first of the two studies, "Damage
Cases: Construction and Demolition
Waste Landfills," identified 11 C&D
landfills for which there was adequate
evidence to find that they may have
threatened or damaged human healtii or
the environment (Ref. 16). The second
report "Hazardous Waste Characteristics
Scoping Study," reviewed the 11 C&D
landfill cases documented by the first
report but used more stringent criteria
pertaining to proof of damage (Ref. 17).
In particular, the second report
eliminated from consideration 5 of the
11 cases documented by the first report,
due to the fact that these 5 C&D
landfills, in addition to receiving C&D
wastes, also received municipal,
hazardous or other improper wastes.
Disposal of the inappropriate wastes at
these C&D landfills may have adversely
influenced their environmental
performance.
-------
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
70201
Of the six damage cases that are
described in the Hazardous Waste
Characteristics Scoping Study, two are
documented to have lead concentrations
in groundwater that, at least once,
exceeded a State or Federal standard.
The highest reported values of lead in
these cases are 0.090 and 0.056 mg/L,
exceeding 0.015 mg/L, the Safe Drinking
Water action level for lead at the tap.
The site having the higher of these lead
concentrations in ground water (0.090
mg/L) was operated during its entire life
as an illegal dumpsite with no
regulatory oversight. Therefore, it is not
particularly surprising that release of
lead has occurred at this site. The
Agency is currently conducting further
studies to better understand the
circumstances that have resulted in
these levels of lead being detected in
groundwater at these C&D landfills.
To provide a more comprehensive
understanding of the potential ground
water risks of allowing LBP debris to be
disposed in C&D landfills, the Agency
conducted a groundwater modeling
analysis. This analysis was done on a
national scale, using groundwater
modeling techniques similar to those
used in previous EPA rulemakings (e.g.,
the Toxicity Characteristics Final rule
(40 CFR 261.24); the Hazardous Waste
Identification Proposed Rule (60 FR
66344, 66406, December 21, 1995)
(FRL-5337-9); and the Petroleum
Refining Listing Determination (62 FR
16747, April 8, 1997) (FRL-5807-5)).
The groundwater modeling analysis is
summarized briefly below and in more
detail in the background document
"Groundwater Pathway Analysis for
LBP Architectural Debris," a copy of
which is in the docket for today's
proposal (Ref. 18).
The Agency recognizes that any
"national" modeling analysis is limited
in its ability to reflect every relevant
siting and operational condition at any
particular landfill. Public comments and
supporting data are invited on this
approach.
1. Parameters used for the
groundwater pathway analysis—i.
Leachate composition. SPLP data from
the 1995 report on LBP debris was used
to estimate the concentration of lead
from LBP debris in the leachate
emanating from the modeled C&D
landfills. As noted above, the SPLP data,
which represent the disposal of LBP
•debris in RCRA Subtitle D non-
municipal solid waste landfills was
designed to be more representative of
the C&D landfill environment than the
TCLP data, which is intended to
represent co-disposal in an environment
with wastes containing predominantly
municipal garbage. Although the
Agency is aware that organic matter and
putrescible wastes have been found to
be present in some unknown number of
C&D landfills, the Agency believes that
C&D landfills generally produce less
organic acids than municipal solid
waste landfills (MSWLFs) (Ref. 19).
Thus, the SPLP data is more
appropriate for this analysis. The
Agency specifically solicits comments
on the use of the SPLP leachate test data
for the LBP debris risk analysis. EPA has
initiated studies to obtain data
concerning C&D and municipal solid
waste landfill leachate quality and to
determine whether organic waste
disposed in C&D landfills generates
leachate that could facilitate the
leaching of lead in C&D landfills.
ii. LBP debris quantity. Using
information from a 1990 HUD Report to
Congress, the Agency first estimated
total quantities of LBP debris likely to
be generated from abatement of housing
and day-care facilities (Ref. 20). For this
estimate, the Agency conservatively
assumed that all abatements would
result in removal and replacement of
painted architectural components from
pre-1978 housing and day-care facilities.
The analysis estimated that
approximately 19 million tons of debris
will be generated annually over the next
34 years comprised mainly of three
types of LBP debris: doors, exterior
wood (e.g., soffits, clapboards), and
miscellaneous components (e.g.,
windows, window sills) (Ref. 20). The
Agency used this quantity estimate for
LBP abatement debris for the
groundwater risk analysis.
The Agency also estimated total
quantities of C&D waste and building
construction and demolition waste that
is disposed of in C&D landfills (Refs. 18
and 20). Data for waste quantities from
renovation and remodeling (R&R)
activities are not available separately
and are likely to fluctuate from year-to-
year. EPA assumed that part of the
demolition waste could be attributed to
R&R waste. The Agency used the
quantities of LBP demolition waste in
conjunction with the LBP abatement
debris volumes to assess the combined
groundwater risks from the disposal of
these wastes in C&D landfills (Ref. 18).
For the ground water risk analysis,
based on finite source modeling (i.e.,
each C&D landfill would contain a pre-
determined quantity of LBP debris over
the operating life of a landfill), the
Agency conservatively assumed that
only one-half (900) of the nation's
existing 1,800 C&D landfills would
receive the 19 million tons of LBP
debris for disposal until LBP debris
generation ceases (approximately after
the next 34 years). It was also assumed
that all C&D landfills would receive
building construction, demolition, and
R&R debris and other C&D waste
equally. The Agency requests comment
on these assumptions and their use in
the groundwater risk analysis.
iii. C&D landfill characteristics. The :
Agency has information on the number
of commercial C&D landfills (1,800) and;
a distribution of their sizes (areas).
However, the Agency does not have ;
other site-specific data (e.g.,
hydrogeology) for these C&D landfills.
These data representing the national
distribution of various parameters are
required as input for the groundwater
risk modeling. Therefore, for the site-
specific parameters with no data
specific to C&D landfills, the Agency
decided to use information from the
Industrial Subtitle D Landfill Survey
discussed below. The basis for this
decision was that both C&D and
Industrial D landfills are subject to the
Federal regulations at 40 CFR part 257,
subpart A (which includes some
restrictions on siting of landfills), and
therefore, both types of these facilities
would be located in similar
hydrogeologic regions of the country.
The national survey of Industrial
Subtitle D landfills was conducted in
the late 1980's and the results are
presented in the background documents
to this proposal (Refs. 18 and 22 (b), (c),
(d)). This stratified and weighted survey
represents the nationwide distribution
of the Industrial D landfills (e.g.,
geographic location, area, etc.), and
represents the best available data on
Industrial Subtitle D landfills on a
nationwide basis. The survey represents
a snapshot of the Industrial Subtitle D
universe in the U.S. and has been used
by the Agency in support of other
regulatory (RCRA) programs.
The Agency assumed that the national
distribution of C&D landfill locations is
similar to that of Industrial D landfills.
Therefore, this modeling analysis used
the surficial soil and hydrogeologic data
from the Industrial D landfill data base
in order to represent relevant
characteristics of C&D landfills (Refs. 18
and 22(a), (b), (c), (d)).
These assumptions add some
uncertainty to the overall results, the
exact magnitude of uncertainty is
presently unknown. However, EPA
believes it to be low, because the
Agency used only the locational
information from the Industrial D
survey. The errors resulting from some
differences in locations are not likely to
add major errors in the national Monte
Carlo analyses, as long as the respective
modeled site locations are in the same
hydrogeologic region as the original site
locations.
-------
70202
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
The Agency has information from a
survey on the location of closest
downgradient drinking-water wells
relative to municipal solid waste
landfills, but, similar information is not
available for C&D or Industrial D
landfills. Therefore, the Agency used
the distances to the closest
downgradient drinking-water wells from
the distribution of distances from the
municipal solid waste landfill survey
(Rcfs. 18 and 22(b), (c), (d)). In
characterizing the drinking-water well
distribution with respect to municipal
landfills, the Agency collected
Information on the receptor wells
closest to the landfills that were located
within a radial distance of 1 mile from
the downgradient edge of the landfill.
The distribution of receptor well
distances from municipal landfills used
in the modeling analysis for the LBP
debris rule is the best information
available to the Agency on distances to
receptor wells. As discussed later in this
section, for this proposal, the Agency
estimated lead concentrations in the
drinking water wells located
downgradient anywhere within a radial
distance of 1 mile. However, the Agency
intends to examine the effect on lead
levels if the downgradient drinking
water wells were restricted in location
to the plume centerline or within the
plume, as opposed to downgradient
well location within a radial distance of
one mile, prior to the promulgation of
die final rule.
The data from die Industrial D and
municipal solid waste landfill surveys,
and all other data used as inputs in the
modeling exercise are described in
detail in the background documents for
this proposal.
The Agency seeks comment on
whether other data exist for C&D landfill
locations and drinking water well
locations that could be used as inputs to
achieve a reduction in the uncertainty
in the modeling analysis. Also, the
Agency seeks leachate composition data
for C&D landfills,
2, Modeling approach. The Agency
modeled lead leachate migration from
the bottom of unlined C&D landfills into
the subsurface environment, and
estimated the overall percentage of C&D
landfills across die nation which might
indicate peak lead concentrations in the
closest down gradient receptor wells
above the lead health-based levels (i.e.,
the Federal regulatory action level for
lead in drinking water of 0.015 mg/L).
As in previous RCRA rulemakings (e.g.,
the TC rule), the groundwater modeling
analysis used a "Monte Carlo" approach
to determine the national probability
distribution of peak receptor well
concentrations over the exposure time
horizon. Also, as in many other EPA
groundwater risk analyses, a modeling
time horizon of 10,000 years was used.
The Agency recently enhanced the
subsurface transport model used to
support RCRA rulemakings. The new
model is called EPACMTP (EPA's
Composite Model for Leachate
Migration with Transformation
Products). The model simulates the
migration of contaminants in three
dimensions to take into consideration
the mounding effects beneath waste
management units. The model also can
simulate the fate and transport of
primary constituents and their
secondary reaction, decay products. The
model is particularly appropriate for the
LBP debris risk analysis, because it can
consider the nonlinear nature of the
lead isotherm (the relation between the
mass of lead adsorbed or precipitated on
the solids and the concentration of lead
in water). The Agency developed a
technique for the nonlinear isotherms
and this was incorporated in to the
EPACMTP analyses for lead (Ref. 23).
The Agency also invites comments on
the use of this nonlinear isotherm
approach.
. For the 1990 TC rule, EPA assumed
that the source of contamination was
infinite; i.e., waste would be disposed
within a landfill continuously,
therefore, hazardous constituent loading
would never be depleted. For this
reason, EPA limited its application to
selected chemical constituents which
correspond to infinite source behavior.
The EPACMTP has a new modeling
methodology. The new approach is
called Regional Site-Based finite source
methodology (Ref. 22(b)). The Monte
Carlo-based approach uses all site-
specific data and, if some site-specific
data are not available, it uses data from
regional distributions as the default
data. If regional data are not available,
then data from national distributions are
used. The approach uses the best
available data and keeps the site-
correlated hydrogeological parameters
together for each Monte Carlo
realization in the modeling analyses.
For this risk analysis, the Agency
used the Regional Site-Based approach
to reduce data gaps related to the
EPACMTP model input parameters. For
example, since site-specific depth-to-
groundwater information was not
available, EPA used groundwater depth
data within die Monte Carlo framework
for the geographical region in which the
site is located. The Agency assigned
specific values for the climatic and
hydrogeological model parameters
based on the geographical locations of
waste disposal sites across the U.S. This
approach preserves the interdependence
between the site location and the
climatic and hydrogeological region.
As mentioned in the previous section,
when specific locational data for C&D
landfills were lacking, the Agency used
data from the EPA Survey of Industrial
Subtitle D Waste Management Facilities.
In certain instances (e.g., well location),
information from the Agency's
municipal solid waste landfill database
was used. The underlying assumption
in using these data is that, in general,
the overall C&D site distribution is
similar in terms of climatic and
hydrogeological settings to other non-
hazardous waste landfill sites. Thus,
even if the locations of these types of
landfills do not coincide exactly, the
regional climatic and hydrogeologic
characteristics would not be expected to
vary widely and, therefore, would not
significandy affect the results in a
nationwide Monte Carlo framework.
The size of the landfill and waste
volumes, however, tend to be significant
factors influencing the outcome of the
Monte Carlo results as long as the sites
under consideration are within the same
climatic region. EPA requests comments
on whether assumptions related to
landfill size and waste volume are
appropriate, as well as any supporting
data.
The Agency's modeling approach
assessed a full range of fate and
transport conditions, including the
climatic and hydrogeological properties
which were assumed to characterize
C&D landfills across the nation.
Correlated hydrogeologic characteristics
were utilized, based on a survey
conducted by the National Water
Association, in the Monte Carlo
analysis. Impossible combinations of
site conditions are rejected in the Monte
Carlo analysis; e.g., very low rainfall
and high infiltration. However, some
assumptions can lead to overestimation
or underestimation of risks. For
example, the approach assumed that the
receptor well may be located anywhere,
within a radial distance of a mile from
the edge of the landfill, on the down
gradient side of the landfill. This may
underestimate the risk compared to sites
where the receptor well was restricted
in location to the plume centerline or
within the plume. However, the risk
modeling approach also assumes that
the receptor wells pump water from the
uppermost layer of groundwater below
the ground surface, where leachate
releases from landfills would be most
likely. This may overestimate potential
exposure, because many private wells
gather water from deeper layers of
groundwater which may not be exposed
to the landfill leachate. The Agency
seeks comment on the modeling
-------
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
70203
approach and data to improve the
modeling analyses.
The new model (EPACMTP) and the
Regional Site-Based Monte Carlo
approach were favorably reviewed by
EPA's Science Advisory Board (SAB)
(Ref. 24). The SAB also provided
suggestions for improving the model,
which EPA has considered. The
Agency's response to the SAB's review
is also in the docket for today's proposal
(Ref. 25). The Agency believes it is
applying the best available modeling
approach for this national assessment.
EPA may conduct additional analyses
using this modeling approach should
additional data for C&D landfills
become available. This Monte Carlo
approach avoids the compounding
effects of conservatism that may occur
if, for example, single, reasonable-worst-
case values were used for each
parameter.
The MINTEQA2 (geochemical
speciation model) is another EPACMTP
model component which determines
subsurface lead sorption isotherms
under a range of environmental
conditions i.e., variation in pH and
other factors controlling the subsurface
mobility of lead (Refs. 18 and 22(a), (b),
(c), (d)). The Agency considered the
subsurface behavior of lead in
combination with waste volume,
hydrogeological, climatological and soil
characteristics to generate the
distribution of concentrations of lead in
drinking water wells.
3. Modeling results. The results of the
LBP debris modeling effort are
summarized below. These findings
result from application of the
parameters described in section B.I. of
this unit, including the use of SPLP data
for leachate composition, to the
modeling approach described in section
B.2. of this unit.
• The peak receptor well lead
concentration would be between zero
and 0.015 mg/L over the 110,000 year
modeled time frame in approximately
95% of the modeling simulations. (Each
simulation corresponds to a single
downgradient well located within a
radial distance of a mile. Every Monte
Carlo simulation picks a different
downgradient well location within a
radial distance of a mile along with an
. input data set, including landfill size,
soil hydraulic conductivity, etc.)
• In less than 4.5% of the cases
would the receptor well lead
concentration exceed the Federal
regulatory action level for lead in
drinking water of 0.015 mg/L over the
full modeling time horizon, and most of
these exceedances would occur between
5,000 and 10,000 years after the disposal
of LBP debris in C&D landfills.
• The drinking water action level for
lead was not exceeded in any receptor
well during the first 500 years and,
between 500 and 1,000 years, it was
potentially exceeded at only one site in
10,000 Monte Carlo realized sites (i.e.,
0.01%).
. Thus, at the national level, the
modeling results indicate that the
impact on groundwater at drinking-
water wells down gradient of C&D
landfills accepting LBP debris appears
to be very low and would only occur
after an extremely long period of time.
For this proposal, modeling efforts
indicate that the disposal of LBP debris
in C&D landfills would be protective of
human health at the 95th percentile
protection level. This level of
protectiveness is at the high end (most
protective) of the levels of
protectiveness that the Agency has used
in regulating hazardous wastes under
the RCRA program. Historically, the
EPA RCRA program has used levels of
protectiveness ranging from 85 to 95%,
when considering the results of various
risk analyses. For example, for the TC
rule, the level was 85% (40 CFR 261.24);
for hazardous waste delistings, the level
was 95% (56 FR 67197, December 30,
1991); and for the Hazardous Waste
Identification Rule for Process Wastes
(HWIR), the level was 90% (60 FR
66344, December 21, 1995) (FRL-5337-
9).
4. Monte Carlo Modeling
uncertainties. Monte Carlo analysis is a
statistical technique that can be used to
simulate the effects of natural variability
and informational uncertainty which
often accompany many environmental
conditions. It is a process by which an
outcome is calculated repeatedly for
many actual situations, using in each
iteration randomly selected values from
the distribution of each of the variable
input parameters. Information on the
range and likelihood of possible values
for these parameters is produced using
this technique. When compared with
alternative approaches for assessing
parameter uncertainty or variability, the
Monte Carlo technique has the
advantages of very general applicability,
no inherent restrictions on input
distributions or input-output
relationships, and relatively
straightforward computations. Monte
Carlo application results can also be
expressed in easily understood graphs,
can be used to satisfactorily calculate
uncertainly, and can be used to
quantitatively specify the degree of
conservativeness used. With
deterministic analyses (e.g., worst-case
analyses), an alternative to Monte Carlo,
it is often not possible to quantify the
level of protection represented by the
results. However, some potential
limitations may also exist when
applying Monte Carlo techniques for
modeling risks depending on the data
and model utilized for the analyses.
The Agency has been using the Monte
Carlo modeling methodology in various
rulemakings for many years. EPA has
conducted numerous sensitivity
analyses and comparison with
deterministic approaches in those
rulemakings (e.g., Proposed rule for
Petroleum Refining Waste Listing
Determination, 62 FR 16747, April 8,
1997). The methodology and the model
have gone through many reviews and
evaluations by the SAB and EPA's
Office of Research and Development
(Ref. 24). Additionally, these analyses
were subjected to the public review and
comment process. Consequently, the
model and the modeling methodology
have been significantly enhanced over a
number of years as noted by the SAB in
their latest review.
The modeling analyses conducted on
disposal of LBP debris in C&D landfills
have some uncertainties associated with
them, like any other modeling analyses.
The uncertainties may include the
following: (1) The use of the Industrial
Subtitle D locational data; (2) the exact
nature of the leachate environment in
C&D landfills; (3) the likelihood that
lead which may leach from LBP debris
would form soluble or insoluble organic
complexes which may increase or
decrease the potential for lead
migration; (4) the possibility of the
existence of certain environments
underneath the modeled C&D landfills
that might increase or decrease the
migration of lead from C&D landfills,
e.g., highly fractured or highly
impermeable subsurface environments;
(5) the location of drinking water wells,
exposed to leachate from C&D landfills,
that might not have been factored in the
distribution of well locations; (6)
limitations associated with model
validation and verification; and (7) the
difficulties in predicting conditions over
very long periods of time into the future.
This analysis may have certain other
limitations. For example, the Agency
did not model some specific
environmental conditions (e.g., karst
and fractured rocks, highly porous soils,
presence of excessive amounts of
organics in groundwater). To attempt to
compensate for the inability to address
all possible environmental conditions
where C&D landfills may be located, the
Agency modeled the disposal of LBP
debris conservatively. For example, the
Agency made a number of assumptions
to help ensure protectiveness: (1) The
fate and transport of lead in the
subsurface environment was modeled
-------
70304
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
over a time horizon of 10,000 years; and
(2) The total amount of waste in C&D
landfills was doubled by assuming the
waste is managed in 900 landfills
Instead of the actual 1,800 landfills.
The Agency specifically invites
comments and data on the areas of
uncertainty within the LBP debris
modeling analysis.
C. Preliminary Conclusions on Disposal
of LBP Debris in C&D Landfills
Based on the data and analyses
discussed in sections A and B of this
unit, the Agency is proposing to allow
disposal of LBP debris in C&D landfills
as defined at § 745.303 of the regulatory
text.
The relative immobility of lead in the
soil and subsoil environment under
non-highly acidic conditions is
described in section A of this unit. The
results of comparative leaching studies
using the SPLP and TCLP tests are
generally consistent with those findings.
That is4 under conditions of higher
acidity, the potential for lead to leach
from LBP debris Is greater than under
low acidity conditions. Once released,
the subsurface movement of lead
depends on the hydrogeologic
conditions which may contribute to the
increased or decreased movement of
lead through soils and subsoils. The
environment in a C&D landfill is not
considered likely to be highly acidic
and generally should not result in high
levels of lead leaching. The Agency
conducted groundwater modeling (as
described in section B of this unit) of
the fate and transport of lead from C&D
landfills that would accept LBP debris
and found in this modeling that the
likelihood of contamination of
groundwater in drinking-water wells
downgradient from C&D/landfills
appears to be remote.
These modeling results (in
combination with the TCLP and SPLP
data for LBP debris and the general
geochemical behavior of lead in the
subsurface environment) were
convincing factors leading the Agency
to propose a rule allowing disposal of
LBP debris in C&D landfills. EPA
believes that such disposal would, in
general, be a safe, effective, and reliable
option for management of LBP debris.
As discussed in section B of this unit,
EPA recognizes that uncertainty in the
national groundwater modeling analysis
exists, especially relating to site-specific
conditions that might be present at some
C&D landfills. This concern is perhaps
reinforced by the Agency studies on
environmental releases from a limited
number of C&D landfills which raise
questions regarding the mobility of lead
and the potential for groundwater
contamination. As stated above, the
Agency is further examining the sites
addressed in these studies.
States with C&D landfills regulate
them to some degree, but the extent of
regulatory coverage varies. Twenty-nine
States require the facilities to have some
form of groundwater monitoring and 22
have corrective action requirements. In
addition, 22 States require C&D landfills
to have a liner and 18 require a leachate
collection system (Ref. 15). The State
requirements for groundwater
monitoring and leachate collection are
deterrents against the migration of
hazardous constituents.
EPA is proposing that LBP debris may
be disposed of in C&D landfills subject
only to the requirements in 40 CFR part
257, subpart A. These criteria do not
include groundwater monitoring or
corrective action requirements, but do
include some location and other
standards. The Agency solicits
comments on whether it should require
disposal of LBP debris only in the C&D
landfills with ground water monitoring
and corrective action systems. In
addition, EPA is interested in comments
on whether the Agency should restrict
the disposal of LBP debris to C&D
landfills which satisfy additional State
requirements. Data demonstrating the
need for these protective measures is
particularly requested, as is information
on whether such requirements would
significantly limit disposal options for
LBP debris.
D. Other Non-hazardous Waste Disposal
Options
1. Non-municipal landfills accepting
conditionally exempt small quantity
generator hazardous wastes. The
Agency believes that preliminary
conclusions reached regarding C&D
landfills meeting 40 CFR part 257,
subpart A requirements also apply to
industrial and C&D landfills meeting 40
CFR part 257, subpart B requirements
that would accept hazardous waste from
conditionally exempt small quantity
generators (CESQG). These preliminary
conclusions, however, do not apply to
industrial waste landfills subject to 40
CFR part 257, subpart A requirements
since the industrial facilities may
generate leachate with different leachate
characteristics. If LBP debris were to be
disposed of in these landfills, the
landfill conditions may accelerate lead
leaching. Because EPA has not studied
this possibility, EPA has not proposed
disposal of LBP debris in industrial
solid waste landfills meeting 40 CFR
part 257, subpart A requirements.
Under the 1995 promulgated
regulations for the disposal of CESQG
wastes (61 FR 34252), CESQG wastes
must be disposed of at either: (1)
Subtitle C hazardous waste landfills; or
(2) municipal solid waste landfills
subject to 40 CFR part 258 landfill
design criteria; or (3) nonmunicipal,
nonhazardous waste disposal units
subject to part 257, subpart B
requirements. These subpart B
requirements for nonmunicipal,
nonhazardous waste disposal units
accepting the CESQG wastes for
disposal include location standards,
groundwater monitoring, and corrective
action provisions. If LBP debris disposal
occurs in C&D landfills or Industrial D
landfills accepting CESQG hazardous
wastes for disposal, these requirements
would, during the landfill operating life
and post-closure period, allow detection
and control against potential migration
of not only lead leachate but also
leachate containing other hazardous
constituents associated with CESQG
hazardous wastes. Because of the recent
promulgation of the CESQG waste
disposal requirements, it is unclear at
this time, how many of the
approximately 1,800 C&D landfills
nationwide will accept CESQG waste.
Currently, more than half the States
require groundwater monitoring and
some also require corrective action at
C&D landfills. C&D landfills in these
States can accept CESQG waste for
disposal. The Agency believes it is
unlikely that disposal of LBP debris in
landfills subject to 40 CFR part 257,
subpart B requirements (whether or not
these landfills are also C&D landfills)
would pose a threat to groundwater.
Accordingly, the Agency is also
proposing today to allow disposal of
LBP debris in those landfills that receive
CESQG wastes and are subject to part
257, subpart B requirements. Public
comments are invited on this disposal
option.
2. Municipal solid waste landfills. The
Agency has not included municipal
solid waste landfills (MSWLF) in the list
of allowable disposal facilities at
§ 745.309 of today's proposed rule.
However, the Agency is actively
considering whether MSWLFs are
acceptable for disposal of LBP debris,
and the Agency solicits comments, data
and studies that are relevant to this
question.
As stated above, the Agency decided,
based on concerns about disposal of
LBP debris in the organic-acid-
generating environment of MSWLFs, as
well as the supporting TCLP and SPLP
leachate test data, to focus its analytic
effort in preparing for today's proposal
on the disposal of LBP debris in C&D
landfills. However, the Agency has
recently also completed a groundwater
risk analysis on the disposal of LBP
-------
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
70205
debris in MSWLFs. This risk analysis
has been incorporated into the
background document describing the
groundwater pathway analysis
supporting this proposed rule (Ref.
22(a)).
Although the results of the
groundwater risk analysis for MSWLFs,
as described in the background
document, are quite similar to those for
C&D landfills (i.e., the calculated risks
are quite low), the Agency remains
concerned about the results of the
leaching tests that were described
earlier. That is, lead leachate levels
resulting from use of the TCLP
(intended to mimic leaching in a
MSWLF) on LBP debris samples were
found, in general, to be an order of
magnitude greater than those resulting
from use of the SPLP (intended to
mimic leaching in a non-municipal
. waste landfill). Given these higher rates
of predicted leaching of lead from
MSWLFs, the Agency decided not to
propose a regulation allowing the
disposal of LBP debris in MSWLFs at
this time, but to study this issue further.
EPA seeks information concerning
quantities of lead-containing waste
disposed in municipal landfills,
MSWLF leachate characteristics (pH,
nature of organic acids) and empirical
data for groundwater/leachate
monitoring from older MSWLFs and
new MSWLFs operated according to 40
CFR part 258 requirements. Also, the
Agency requests comment on: (1)
Whether engineered landfill systems
will be operational for extended time
periods (since groundwater modeling
shows it can take hundreds, if not
thousands, of years for lead to reach
hazardous concentrations at
downgradient drinking water wells),
and (2) other options that might be
available to ensure that, if EPA allows
MSWLFs to receive LBP debris, those
options are fully protective of human
health and the environment over such
long time frames. Depending on the
information received, the results of
planned EPA analyses, and public
comments on this proposal, EPA might
allow the disposal of LBP debris in
MSWLFs when it finalizes today's
proposed rule.
VII. Proposed Rule Provisions:
§§745.301-745.319
A. General
Should today's TSCA proposal and
the companion RCRA proposal become
effective, the current Federal
requirements that generators of LBP
debris waste conduct the TCLP test or
use their knowledge to determine
whether their waste is hazardous, and
Federal requirements that hazardous
LBP debris waste be managed and
disposed of under RCRA Subtitle C
rules would be suspended/ Instead, the
TSCA standards in today's proposal or
the equally (or more) protective
standards of an authorized State or
Tribal TSCA program would become
effective. However, RCRA Subtitle C
requirements will remain applicable to
LBP debris if it is a hazardous waste by
virtue of the presence of any hazardous
constituent other than lead or if a State
with an authorized RCRA TC program
elects not to suspend the applicability of
the TC for LBP debris.
The language in TSCA Title IV
compelled the Agency to tailor today's
proposed standards to specific types of
materials generated during the conduct
of specific activities in specific structure
types. Sections B., C., and D. of this unit
outline the applicability of the proposed
rule to material type, activity type, and
structure type. Those1 units also explain
the Agency's rationale for the scope of
the proposal. Sections F., G., and H. of
this unit discuss the disposal options,
management controls and notification
and recordkeeping requirements
respectively.
B. What Types of Materials Are
Covered?
The proposed TSCA standards and
suspension of the RCRA TC rule are
limited in applicability to LBP
architectural component debris (e.g.,
doors, windows, etc.) :and LBP
demolition debris (both terms are
defined in § 745.303 of the regulatory
text). As noted at the beginning of this
preamble, these types: of debris are
referred to collectively as LBP debris
(the term LBP debris is also defined at
§ 745.303). LBP refers to paint or other
surface coatings that contain lead equal
to or in excess of 1.0 mg/cm2 or more
than 0.5 percent by weight. The
definitions and coverage of these terms
are designed to capture high-volume
LBP materials that are the most difficult
to test and most costly to manage and
dispose of under RCRA Subtitle C.
Other types of LBP waste, which would
not be considered to be LBP debris such
as LBP chips, dust, blast media, solvents
or treatment residues (as outlined in
section B.I. and B.2. of this unit) are not
covered.
There would be no de minimis
threshold for the management and
disposal standards in this proposal.
Therefore, even small amounts of LBP
debris would be subject to the standards
in the proposal. The Agency believes
that improper management or disposal
of any amount of LBP debris represents
a LBP hazard.
The practical effect of this decision is
that LBP debris from very small
renovations or abatements should be
managed and disposed of subject to
today's proposed standards (it should be
noted that there is a 72-hour grace
period for access limitations as
described in section H.4. of this unit).
EPA believes this is a common sense
approach given the potential for
children to chew LBP debris, to track
LBP into homes, or to otherwise ingest
LBP resulting from improper
management. An alternative approach
might be to set a de minimis level below
which LBP debris would not become
subject to today's proposed management
standards. One option would be to set
a de minimis threshold based on the
amount of LBP disturbed. The Agency
seeks comment on its decision not to set
a de minimis level in these proposed
standards and specifically requests
suggestions and support for possible de
minimis levels that could be established
in the final rule.
1. Concentrated LBP wastes not
covered. Many abatement approaches
are available to address LBP hazards.
These various approaches and the wide
range of renovation and remodeling
techniques generate a variety of LBP
wastes. EPA is not, however, including
materials (from any activity) other than
LBP architectural component debris and
LBP demolition debris in today's
proposed rule. LBP wastes, such as
paint chips or paint dust, blast media,
solvents or treatment residues are
homogenous in physical characteristics,
easy to test for toxiciry using the TCLP,
and are easily recognizable. Some of
these wastes are more likely than LBP
debris to consistently and significantly
exceed the TCLP regulatory level for
lead (see section B.3. of this unit for a
discussion of dust and paint chips
generated during demolitions). These
wastes, because of their high lead
concentration, may pose a higher risk of
groundwater contamination than LBP
debris if disposed of in nonhazardous
solid waste (i.e., C&D) landfills. The
analyses described in Unit VI. of this
preamble did not study these types of
concentrated lead-contaminated wastes.
The focus of the Agency's risk analysis
was LBP debris, as defined at § 745.303
of the regulatory text.
Given the smaller volume of these
concentrated wastes, it is not extremely ,
costly to manage them under RCRA
Subtitle C. Also, the regulated
community has not identified
management and disposal of these
wastes as a substantial cost factor in
abatement projects. Thus, under today's
proposal, waste of this nature would
still be subject to RCRA regulations, and
-------
70206
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
if it fails the TCLP (i.e., exceeds the TC
regulatory limit of 5 ppm for lead in
TCLP Leachate) or is determined
through knowledge to be hazardous,
must still be managed as hazardous
waste under RCRA Subtitle C. Public
comment on this approach and data
regarding disposal options for these
wastes is encouraged.
2. Hctcrogenous/incidental waste not
covered. Another category of waste not
covered by today's proposal is
heterogenous materials incidental to
LBP activities. These wastes may
include items such as contaminated
HEPA vacuum filters, plastic sheeting,
worker clothing, and equipment. These
materials would remain subject to RCRA
requirements under today's proposal.
Because of the lower volume of these
wastes, if they are determined to be
hazardous, generators can manage and
dispose of them without excessive costs.
Public comment on this approach and
data regarding disposal options for these
wastes are encouraged.
3. LBP demolition debris. The
definition of "LBP demolition debris" in
today's proposal includes all materials
that result from 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. LBP
demolition debris includes dust, paint
chips, and other solid wastes which
would not be covered under today's
proposal if they were generated during
a LBP activity other than demolition (for
example, abatement or deleading).
Quantities of LBP waste are small in
proportion to the overall volume of
unpalntcd waste generated during
demolition activities. As described in
Unit IV. of this preamble, in order to
make a RCRA hazardous waste
determination, the generator must
obtain a representative sample of waste.
In the case of demolition debris, a
representative sample for a TCLP
analysis would represent both painted
and unpainted components in the
proportion that they are present in the
debris. A representative sample of
demolition debris subjected to the
TCLP, is not likely to exceed the TC
regulatory limit for lead because of the
small amount of paint in relation to the
overall waste stream (Ref. 26). The
Agency requests adequate scientific and
historical data which would confirm
anecdotal evidence that demolition
debris never or almost never fails the TC
regulatory level for lead.
Separation of dust, particulate matter,
and paint chips from other demolition
material is virtually impossible and the
Agency believes that requiring such a
separation would be impractical and
unnecessary. Therefore, all materials
generated during demolitions, including
dust, paint chips, or other particulate
matter are included in the definition of
demolition debris and, therefore,
covered by today's proposal.
If LBP demolition debris fails the TC
regulatory level for a hazardous
constituent other than lead, it would
remain subject to all applicable RCRA
Subtitle C requirements. Thus, this
proposed rule would not relieve a
generator of LBP demolition debris from
requirements related to other kinds of
hazardous waste in the debris. He or she
must still determine whether any of the
regulatory levels for TC hazardous
constituents (other than lead) are met or
exceeded or if a listed hazardous waste
is present.
Today's proposal includes
management and disposal of LBP debris
from demolitions. The Agency believes
that demolition debris is identical to
debris generated from other types of
LBP activities such as abatements and
renovations and that waste transporters
and disposal facilities will not be able
to distinguish LBP demolition debris
from other LBP debris. The Agency
. requests relevant data and comments on
the coverage of LBP demolition debris
under today's proposal.
4. LBP contaminated soil. LBP
contaminated soil is not included in the
scope of this proposal and is not
addressed in the proposed RCRA
suspension of the TC with respect to
LBP architectural components. The
Agency has not extended this proposal
to include LBP contaminated soil,
because the analysis to support its
inclusion does not exist at this time.
Also, EPA believes that the disposal of
LBP contaminated soil has already been
addressed, for the most part, in the
RCRA household waste exclusion.
When a homeowner or contractor
removes LBP contaminated soil from
residences, the LBP contaminated soil is
eligible for the household waste
exclusion under the existing RCRA
hazardous waste rules if the LBP
contaminated soil has been
contaminated as a result of routine
household maintenance or the
weathering or chalking of the paint. EPA
believes that this exclusion addresses
the disposal of LBP contaminated soil in
most instances. EPA is interested in
receiving comments and information
about the potential impacts of the
current regulations and exemptions, as
well as alternative approaches related to
the disposal of LBP contaminated soil
from residences. EPA is also interested
in any information about the potential
number of soil abatements and costs
currently associated with the disposal of
LBP contaminated soil, whether or not
the disposal is conducted pursuant to
the RCRA exclusion. Because EPA's
interim guidance for addressing LBP
hazards recommends soil abatements
under certain conditions, EPA is
particularly interested in receiving
comments on whether the completion
and implementation of other lead rules
promulgated under the LBP Hazard
Reduction Act of 1992 or "Title X"
(such as 403: Identification of
Dangerous Levels of Lead (63 FR 30302,
June 3, 1998) (FRL-5791-9); 402: LBP
Activities Training and Certification (61
FR 45778, August 29, 1996) (FRL-5389-
9); 406: Requirements for Lead Hazard
Education before Renovation of Target
Housing (63 FR 29908, June 1, 1998)
(FRL-5751-7); 1018: Requirements for
Disclosure of Known Lead Based Paint
and/or Lead Based Paint Hazards in
Housing (61 FR 9064, March 6, 1996)
(FRL-5347-9)) would have an impact
on the number of soil abatements.
As also indicated in the proposed
RCRA Suspension of the TC for LBP
Debris, the Agency does not currently
have a sufficient technical basis for
reducing the RCRA subtitle C
requirements for LBP contaminated soil.
In that proposal, EPA is seeking other
data to determine whether there is a
sound technical basis for reducing the
subtitle C requirements that might apply
to some soil removed from residences. •
(Comments on this issue should be
submitted in accordance with the
instructions in the RCRA proposal,
found elsewhere in today's Federal
Register). In addition, EPA is interested
in receiving information or data on the
fate of LBP contaminated soil in landfill
environments.
C. What Activities Are Covered?
Today's proposed rule would cover:
LBP architectural component debris
generated during the following
activities: abatement, deleading,
renovation, and remodeling at target
housing, public buildings, and
commercial buildings; and LBP
demolition debris generated by
demolition of target housing, public
buildings and commercial buildings that
contain LBP at the time of demolition.
The Agency is including deleading,
renovation, and demolition activities in
the scope of today's TSCA proposal,
because the LBP debris these activities
produce is similar and in some cases
identical to the LBP debris produced by
abatement activities. The analyses
conducted for today's proposal show no
significant risk associated with disposal
of LBP debris (from any activity or
structure) in C&D landfills. These
analytical conclusions (as discussed in
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
70207
Unit VI. of this preamble) combined
with EPA's desire to subject all LBP
debris to one clear regulatory scheme
resulted in the inclusion of LBP debris
from renovation and remodeling,
deleading and demolition activities
under today's proposal. While the
Agency feels that inclusion of these
activities under the proposed standards
is a logical decision, public comments
on the inclusion of the activities and
structures in today's proposal are
encouraged.
1. Catastrophic events. Catastrophic
events (such as fires, hurricanes, floods,
tornadoes, earthquakes, etc.) may, in
many cases, generate materials similar
or identical to those from planned
demolitions. Therefore, today's
definition of LBP demolition debris
includes debris generated by
catastrophic events as well as by
planned activities.
2. Deconstruction. Some stakeholders
have brought an activity commonly
referred to as "deconstructiori" to the
Agency's attention. Generally,
deconstruction refers to the salvaging of
building components by removing them
prior to demolition or during
remodeling and renovation. The goal of
such salvaging is usually to resell the
components for reuse. Anecdotal
evidence leads the Agency to believe
that deconstruction may be a fairly
common practice in structures
containing LBP architectural
components (Ref. 27). LBP architectural
components which are removed prior to
a demolition, as part of a
"deconstruction" or similar activity
would be subject to today's proposal
under the definition of renovation at
§745.303:
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 section. The
term renovation includes but is not limited
to: the removal or modification of painted
surfaces or painted components....
Deconstruction or similar activities
would result in the "disturbance" or
"removal" of "painted structures" and
therefore LBP debris generated during
these activities would be subject to this
proposal. It should be noted that reuse
of LBP debris or transfer of LBP debris
for reuse is permitted under this
proposal provided that the components
are not considered "LBP hazards" at the
time of reuse or transfer. Reuse of LBP
debris is discussed in more detail in
Unit VII.G.l. of this preamble. EPA
encourages recycling or reuse of waste
products when such activities do not
pose health threats.
D. Who Must Comply With This
Proposal?
Firms and individuals who generate,
store, transport, reuse, offer for reuse,
reclaim, or dispose of LBP debris from
activities which are covered by this
proposal, explained in Unit VI.C. of this
preamble, would have to comply with
today's proposed regulations. Regulated
entities include firms and individuals
who offer to conduct, in whole or part,
abatement, renovation, remodeling,
deleading or demolition in target
housing and public and commercial
buildings for compensation.
Homeowners who perform abatement,
renovation or remodeling work in their
own homes are not subject to today's
proposed regulations, unless the
housing is occupied ,by persons other
than the owner or the owner's
immediate family. EPA recognizes,
though, that not all abatements,
renovation, and remodeling are
performed solely by a home owner. In
some cases a homeowner may hire a
"handyman" to assist in conducting
these activities. The Agency believes
that the homeowner exclusion would
not apply to "handymen" assisting the
homeowner in the work unless the
homeowner generates the majority of
the LBP debris and serves as direct
supervisor to the "handyman." EPA
encourages comments on this topic as
insufficient information is available to
determine how often "handymen" are
hired to assist in abatements,
renovations and remodeling, how much
LBP debris is generated by
"handymen," and whether or not
"handymen" should be subject to
today's proposal.
Although homeowners are not subject
to today's proposed requirements, EPA
encourages homeowners performing
work in their own home to follow the
management requirements outlined in
the proposal. The Agency believes that
the management requirements in today's
proposal reduce risks to LBP hazards,
and homeowners following these
management practices will be able to
reduce LBP hazards in their home.
The proposal allows the disposal of
debris in C&D landfills, as defined at
§ 745.303. Although these landfills are
subject to the RCRA requirements in 40
CFR part 257, subparts A or B, the
proposal does not require that, for
purposes of these TSCA rules, the
landfills in fact be in compliance with
40 CFR part 257, subparts A or B.
Because EPA generally lacks the
authority under RCRA to enforce the
requirements at 40 CFR part 257,
subpart A (44 FR 53438, September 13,
1979), EPA requests comment on
whether the final TSCA rule should
specify that C&D landfills accepting LBP
debris must be in compliance with 40
CFR part 257, subpart A or B.
Being in compliance would require
adherence to all or a subset of the
provisions in 40 CFR part 257 that are
relevant to LBP debris. Examples
include limiting access to the landfill
and groundwater monitoring
requirements. With TSCA authority,
EPA would be able to enforce these
requirements on any landfill that
accepts LBP debris. EPA recognizes that
many states already enforce 40 CFR part
257 requirements under their State
RCRA programs. EPA expects that, even
with Federal TSCA enforcement
authority regarding the provisions of 40
CFR part 257, subpart A for C&D
landfills accepting LBP debris, most
enforcement actions for such landfills
would be taken by states. If the
proposed rule were modified to provide
for Federal enforcement of RCRA 40
CFR part 257, subpart A requirements '
for C&D landfills accepting LBP debris,
a necessary consequence is that, as part
of a state approval process, EPA would
evaluate each State's program to
determine the adequacy of enforcement
capability of state requirements that are
as least as stringent as those found at 40
CFR part 257. EPA requests public ;
comments on whether landfills that
accept LBP debris and are found not to
be in compliance with 40 CFR part 257,
subpart A or B, should be subject to
enforcement under TSCA. EPA would
also like comment on whether
enforcement of 40 CFR part 257, subpart
A or B under TSCA would confuse and
complicate the requirements for
disposal of LBP debris. For example, a
landfill owner or operator may become
confused between the requirements
under RCRA for landfills, and the
requirements under TSCA for disposal,
and inadvertently fall out of compliance
from lack of understanding of the
requirements for disposal of LBP debris.
Finally, the Agency requests comment
on whether imposition of TSCA
enforcement on landfills that accept
LBP debris would discourage or deter
C&D landfill owners and operators from
accepting this material. ',
E. When Does LBP Debris Become
Subject to This Proposal?
In the case of LBP demolition debris,
the proposal is designed to cover all
material that is created by demolitions
when LBP is present in the structure
being demolished. The definition of LBP
demolition debris at § 745.303 states:
LBP Demolition Debris means any solid
material which results from the demolition of
target housing, public buildings, or
-------
70208
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
commercial buildings which are coated
in part with or adhered to by LBP
wl
at the'time of demolition.
This definition subjects LBP debris
generated by demolitions to the
standards in this proposal as soon as a
demolition occurs.
In the case of LBP architectural
component debris, the definition at
§745.303 states:
., ,L8P architectural component debris 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,
dclcading, renovation or remodeling
activities,...
This clause in the definition makes
LBP debris subject to today's proposal
when it is "separated" from a structure.
In the context of this definition,
"separated" does not necessarily imply
that the component is taken out of the
structure, although it may be. For
example, doors detached from a
structure and stacked inside that
structure are considered to be
"separated" from the structure. This
definition is designed to require that the
management controls in today's
proposal (particularly access limitations
where applicable) take effect as soon as
LBP debris is generated.
Under this proposal, if a homeowner
hires a individual or firm to perform any
of the above activities and LBP debris is
created, the individual or firm is
considered to be the generator. In such
cases, the individual or firm who
generated the debris would be
responsible for compliance with the
requirements in today's proposal rather
than the homeowner.
Any generator of LBP debris from the
activities covered in this proposal may
choose to separate components
containing LBP from the rest of the
waste stream. LBP debris separated from
the rest of the waste stream would be
subject to today's proposed standards.
However, the remaining wastestream
which does not contain LBP would not
be subject to today's proposed
standards. Although the Agency
believes that complying with the
requirements in today's proposal would
generally be easier than separating LBP
debris from the waste stream, the
proposal gives the generator of LBP
debris the flexibility to determine the
best course of action for each individual
activity.
During the development of this
proposal, the issue of paint chips or
dust generated incidentally during the
transportation of LBP debris for disposal
or reuse was raised. EPA believes that
chips or dust generated during
transportation for disposal or reuse
should be subject to the provisions of
this proposal and disposed of as LBP
debris. For example, if LBP debris is
transported to a C&D landfill in a
covered dumptruck, the whole load
(including paint chips that fall off the
LBP debris during transport) should be
disposed of together. Similarly, chips
and dust loosened from debris during
storage in a dumpster or during
transport is covered by today's proposal.
Subjecting such incidentally-generated
chips or dust to RCRA Subtitle C
requirements would create an
impractical waste management scenario
requiring separation and TCLP testing of
the waste after transportation to the LBP
debris disposal site. Given the small
volumes of such incidental chips and
dust expected to be generated, EPA does
not believe that there is any justification
for regulation of such waste under
RCRA.
The Agency considers chips and dust
that fall off of LBP debris during storage
and transport for disposal or reuse to
continue to be LBP debris. Such waste
would therefore be subject to today's
proposal. The Agency is seeking
comments or relevant data on this
subject.
F. What Structure Types Are Covered?
Structures covered under today's
proposal include target housing, public
buildings, and commercial buildings.
Covering target housing and other child-
occupied facilities, such as day care
centers in today's proposal is expected
to reduce the risk of lead exposure to
children, who are likely to spend a great
deal of time in residences, schools, and
day care centers. The term "child-
occupied facility" was defined by EPA
in the LBP certification and training rule
(40 CFR 745.223). For the purposes of
today's proposal, child-occupied
facilities are considered to be a subset
of public buildings and are covered by
the definition of that term in today's
proposal at § 745.303. Therefore, a
separate definition for child-occupied
facilities is not included in this
proposal.
As noted in Unit VI.C. of this
preamble, coverage of LBP debris from
activities in structures which are not
considered to be target housing or child-
occupied facilities (i.e., many
commercial buildings and public
buildings) is not expected to result in as
great a direct reduction of LBP risks to
children. The Agency, however, wishes
to provide one common sense regulatory
scheme for the management and
disposal of LBP debris with similar
characteristics regardless of the
structure from which the debris
originates. Having different management
and disposal requirements for identical
wastes would likely create enforcement
problems as well as confusion for
generators, transporters, and landfill
facility operators.
LBP debris from only target housing,
public buildings, and commercial
buildings is included in today's
proposal. However, the Agency believes
the rulemaking should also cover
housing excluded from the definition of
target housing such as housing for the
elderly, or persons with disabilities and
"0 bedroom" dwellings such as
dormitories and efficiencies, as well as
post-1978 housing that may have LBP
hazards. EPA thinks that LBP debris
from these dwellings is identical to LBP
debris for target housing, public
buildings and commercial buildings.
Additionally, individuals and firms
receiving LBP debris may not be able to
distinguish LBP debris from target
housing versus LBP debris from non-
target housing. In order to provide one
common sense regulatory scheme and
encourage the reduction of LBP hazards
from all housing, the Agency would like
to extend today's proposed standards to
all housing. The Agency encourages
comment on whether LBP debris from
non-target housing should be subject to
the same requirements as LBP debris in
target housing.
The fact that structures other than
target housing and child-occupied
facilities often produce similar or
identical LBP debris made extension of
today's proposed standards to all such
structures a logical decision. As noted
in Unit VI. of this preamble, the
analyses conducted for today's proposal
show no significant risk associated with
disposal of LBP debris (from any
activity or structure) in C&D landfills,
and, therefore, no need for the stringent
and costly RCRA Subtitle C testing,
management and disposal requirements.
These factors have resulted in the
inclusion of LBP debris from public
buildings and commercial buildings
under today's proposal. Public comment
on the decision to cover LBP debris
from public buildings and commercial
buildings in today's proposal is
encouraged.
EPA has not included debris
generated during activities in steel
structures and superstructures in this
proposal. The wastes from steel
structures and superstructures are
fundamentally different than those from
occupied structures. The Agency also
believes that most large volume wastes
from steel structures will be composed
of and recycled as scrap metal and will
therefore qualify for the scrap metal
exemption from RCRA Subtitle C
-------
Federal Register/Vol. 63, No. 243/Friday. December 18, 1998/Proposed Rules
70209
requirements (see the RCRA proposed
rule published elsewhere in today's
Federal Register for a discussion of the
scrap metal exemption). Even if steel
structures and superstructures were
covered by today's proposal, the
concentrated LBP wastes resulting from
deleading of such structures (paint
chips, treatment residues, blast media,
filters, etc.) would remain subject to
RCRA requirements, including possible
regulation as hazardous wastes. (See
section B.I. of today's preamble). In
addition, the risk analyses conducted
for this proposal did not study the
volume or other characteristics of debris
from steel structures and
superstructures (e.g., teachability of lead
compounds present in the rust-
inhibiting paints used on steel
structures).
EPA requests comments on whether
its assumptions regarding wastes
generated at steel structures and
superstructures are correct and on
whether it is appropriate to exclude LBP
debris from such structures from this
proposal. To include debris from steel
structures and superstructures in the.
final rule, EPA would need additional
information regarding the character of
wastes from such structures. The
Agency encourages submission of
relevant data on this subject.
G. What Are the Proposed Disposal and
Reclamation Options for LBP Debris?
Section 745.309 of today's proposed
rule requires that LBP debris be
disposed in one of the following: (1) A
construction and demolition landfill as
defined at § 745.303; (2) a landfill
subject to the requirements in 40 CFR
part 257, subpart B, applicable to non-
municipal, non-industrial, non-
hazardous waste disposal units
receiving conditionally exempt small
quantity generated waste (as defined in
40 CFR 261.5); (3) a hazardous waste
disposal facility permitted under 40
CFR part 270; (4) a hazardous waste
disposal facility authorized to manage
hazardous waste by a State that has a
hazardous management program
approved under 40 CFR part 271; (5) a
hazardous waste treatment, storage and
disposal facility that has qualified for
interim status to manage hazardous
waste under RCRA section 3005 (e); or
(6) RCRA hazardous waste incinerators
subject to the requirements of 40 CFR
part 60, subparts Cb, Eb, or part 63,
subpart X.
These disposal options include all of
the categories of solid waste landfills
which were identified by the Agency as
being safe for the disposal of LBP debris
(see Unit VI. of this preamble for a
discussion of the analytical basis for
these findings), as well as certain
incinerators. Under the proposal, it
would still be permissible to dispose of
LBP debris in hazardous waste landfills
regulated under Subtitle C of RCRA or
equivalent State programs if the
generator of the LBP debris wishes to do
so, or if it is required under State law.
Note that the proposal does not
preclude the reclamation of lead from
LBP debris in secondary lead smelters
subject to 40 CFR part 63, subpart X
requirements or the reclamation of
energy, such as burning in waste-to-
energy facilities operated subject to
specified Clean Air Act requirements
(discussed in Unit VII.G.2. of this
preamble). :
During the development of today's
proposal, some State solid waste
officials have raised the issue of
separate cells within larger landfill
facilities. The officials wanted to know
if separate construction and demolition
cells of larger non-C&D facilities would
be acceptable options for the disposal of
LBP debris under the proposed rule.
The issue of separate cells of larger
landfills is not specifically addressed in
the regulatory text. Section 745.309 (a) (1)
identifies facilities which may accept
LBP debris for disposal. If both the
separate cell or unit of the larger facility
satisfy any of the criteria for an
acceptable landfill specified in
§ 745.309(a)(l), then LBP debris may be
disposed in either the separate cell or
that facility. For example, a separate cell
for construction and demolition debris
meeting the criteria specified in
§ 745.309(a) (1) (iii) within a hazardous
waste disposal facility permitted under
40 CFR part 270 would likely be an
allowable disposal site for LBP debris.
On the other hand, a separate C&D cell
within the physical or permitted area of
a landfill not included in the proposal
as a permissible disposal site for LBP
debris (such as an MSWLF permitted
under 40 CFR part 258) would not be an
allowable disposal option unless the
separate cell was permitted separately
as a construction and demolition
landfill.
H. What Controls on the Management of
LBP Debris are Included in the
Proposal?
In addition to the disposal and
reclamation standards included in
today's proposal, EPA is proposing
controls on the management of LBP
debris. EPA believes that LBP debris
should be subject to common sense
management standards in order to
minimize risks. The management
standards outlined below are designed
to be as simple as possible while taking
into account safety, effectiveness and
reliability. EPA believes improper reuse,
storage or transportation of LBP debris
constitute LBP hazards and has
included controls on those activities in
today's proposal.
To assess the need for management
controls, the Agency took a number of
steps. First, the Agency identified
management alternatives or activities
that are currently practiced or may be
feasible. Second, the Agency
determined whether any of these
management practices might pose
health risks, particularly from
inhalation and direct ingestion of LBP.
Third, the Agency ascertained whether
practices which might pose health risks
are already subject to regulation by EPA
or other Federal agencies. Fourth, the
Agency assessed whether management
practices not subject to current
regulation require controls to curb
potential health hazards.
The Agency identified the following
current or plausible practices as
potential public health risks: (1)
Application of LBP debris as mulch or ,
wood chips or use of LBP debris as
ground cover or for any landscaping
purpose; (2) compacting or burying LBP
debris for use as fill material, roadbed
material, or for site leveling purposes;
(3) reuse of LBP debris which has
deteriorated paint; (4) reclamation
through burning of LBP debris (whether
for the purpose of reclamation of lead or
reclamation of energy value) in facilities
without controls on lead emissions; (5)
transporting LBP debris in uncovered
vehicles; and (6) storage of LBP debris
without access limitations.
The application of LBP debris as
mulch, ground cover, or topsoil or for
site leveling, fill or roadbed material
may cause health risks through
ingestion of LBP, dust, or contaminated
soil. Such an application is considered
improper disposal under today's
proposal. The shredding, compacting,
burying, or chopping of LBP debris may
also make it difficult to identify the
presence of LBP, leading to unwitting
handling of a potentially hazardous
material. Therefore, today's proposal
permits these types of applications only
if LBP is removed from LBP debris prior
to such applications . In cases where
LBP is removed, all LBP must be
removed (i.e., the level of lead on the
substrate must be below 1 mg/cm2) prior
to applying it to the ground. See
§ 745.301 (d)) of the regulatory text.
EPA is aware of several States,
including Connecticut, New Hampshire,
and New Jersey, that have similar
regulatory prohibitions. Note that any
paint chips, dust, or other stripping
waste from LBP debris that may be
generated during removal of LBP are
-------
70210
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
subject to RCRA requirements; chips or
flakes that the generator does not
contain may be considered illegal
hazardous waste disposal under RCRA
Subtitle C.
EPA is unaware of data on the
prevalence and methods associated with
application of LBP debris as landscape
material, roadbed material or fill
material. Such applications would
constitute improper disposal under
today's proposal, unless LBP is first
removed. The Agency requests data and
.further information on these practices
and encourages public comment on how
these activities should be regulated in
the final rule.
The remainder of this Unit addresses
the management standards included in
this proposal to address concerns about
the practices noted above.
1:Reuse of LBP debris: § 745.311 (a).
The Agency believes that current
prevalent practice for managing LBP
debris is landfill disposal. However,
some LBP debris is being reused and
transferred for reuse as architectural
components, decorative pieces or in
another manner. For the purposes of
today's proposal, reuse means "to use
again for any purpose other than
reclamation or disposal." This
definition is intended to capture all
potentially hazardous reuses of LBP
debris and subject them to the controls
in today's proposal.
Reuse of architectural component
debris may be a practice in historic
building preservation or on occasions
when homeowners are replacing hard-
to-find doors, windows, or other
components. Historic preservation
projects have the goal of keeping
properties intact, so LBP removal or
covering of LBP with protective coating
(encapsulation) may be a desirable
abatement approach. Even so, there may
be benefits to replacement in these
properties, such as increased energy
efficiency from replaced windows (Ref.
28). The Agency is aware of reuses of
LBP debris ranging from the transfer of
components for reuse within or between
structures, and the application of
unique items as decorative pieces or
artifacts.
Reuse of LBP debris is not currently
subject to Federal regulation. Today's
proposal would permit reuse or the
transfer for reuse of LBP debris as a
building or structural component or
artifact (defined in today's proposal at
§745.303) only if the article to be reused
docs not constitute a "LBP hazard" as
defined In §745.305 of today's proposed
regulation. Section 745.305 states that
reuse of components with deteriorated
LBP is a LBP hazard. Today's proposal
defines "deteriorated paint" as paint
that is cracking, flaking, chipping,
peeling, or otherwise separating from
the substate of a building component.
Today's proposal would prohibit the
reuse or transfer for reuse by individuals
subject to the rule of components which
are identified as LBP hazards at
§745.305 (i.e., components with
deteriorated paint) as described above.
The Agency feels that reuse of
components with any deteriorated paint
would pose a LBP hazard, and should
be prohibited unless LBP is first
removed.
It is important to note that waste
resulting from removal of LBP prior to
reuse (e.g., paint chips, paint dust,
treatment sludges, solvents and
residues) is not covered by today's
proposal and would remain subject to
RCRA requirements. For example, a
generator of such waste would have to
make a hazardous waste determination,
and if the waste was determined to be
hazardous, it would be subject to RCRA
Subtitle C requirements.
EPA is aware that the limitations on
reuse of LBP debris included in today's
proposal would not preclude all reuses
of LBP debris. For example, reuse of
LBP debris with no deteriorated paint
would be permissible under the
proposal. EPA considers the standards
in today's proposal to be the minimum
acceptable limitations on the reuse of
LBP debris. Other approaches to the
regulation of reuse of LBP debris were
considered during the development of
this proposal and have not been ruled
out by EPA as possible components of
a final regulation. The Agency seeks
public comment on the prevalence and
methods of reuse, the approach
contained in this proposal, and other
possible approaches to the issue as well
as any unintended effects of this
proposed rule on the reuse of
architectural components.
Some stakeholders have expressed
concern that reuse of LBP debris which
has no deteriorated paint may pose a
future LBP hazard. As noted above, such
reuse would be allowed under the
proposal, but the Agency is requesting
comment on these provisions. Allowing
such reuse would be in keeping with
EPA's desire to encourage recycling of
materials while continuing to protect
human health. Perhaps the most
relevant question for public comment
on the subject is: Do the reuse standards
proposed today adequately protect
human health?
One possible alternative approach
would be to require that warning labels
be placed on all components which
contain LBP and are destined for reuse.
Another possible approach might be to
prohibit reuse of all LBP debris
regardless of the condition of the paint,
unless all LBP is removed. However,
EPA does not believe that components
with intact LBP necessarily represent
LBP hazards, so such an approach may
prohibit reuse of LBP debris which
would not pose a hazard. EPA
specifically seeks comment, however,
on whether the reuse of LBP debris by
a homeowner who is not advised of the
presence of LBP should be considered a
hazard, not because of the present
condition of the paint but due to the
possibility that an uninformed
homeowner may sand or strip the LBP
without taking proper precautions.
Many historic preservation projects
reuse antique or historically significant
architectural components. Since many
of these components were created before
1978, they can contain a variable
amount of LBP. The Agency is
proposing that all LBP should be
removed from architectural components
which have deteriorated paint before the
components are reused in order to
reduce the spread of potential LBP
hazards. Removal of LBP is especially
important on friction or impact surfaces
where paint is more likely to wear off,
creating lead contaminated dust and
exposing the layers of lead paint. The
Agency defines "deteriorated paint" as
paint that is cracking, flaking, chipping,
peeling, or otherwise separating from
the substrate of a building component.
However, the Agency recognizes that
in order to preserve as much of the
original historic fabric and the historic
character of the antiques or historical
architectural components as possible,
removal of all LBP may not be an
option. Sometimes the architectural
component is too fragile to undergo LBP
removal or the process of removing the
LBP may damage the design or ornate
woodwork which makes the piece an
antique or historically significant. The
Agency requests information on
whether, in these cases, encapsulation
or other techniques not allowed under
the proposed rule may be less invasive
and a better restoration practice when
preserving antique and historic
architectural components. The Agency
would also like information on relevant
historic preservation practices used
when restoring and fixing architectural
components of antique or historic value
with LBP.
Under the proposal, generators or
transporters of LBP debris, or owners or
operators of disposal facilities which
accept LBP debris may not transfer LBP
debris to entities (such as antique
dealers or salvagers) which intend to
reuse the debris or offer it for reuse if
the LBP debris has deteriorated paint.
For example, the proposal is designed to
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
70211
prevent transfers of LBP debris with
deteriorated paint from a generator to a
business which then offers the debris for
sale. Even though the business selling
the LBP debris is not technically using
it, the term "transferring for reuse" is
defined in today's proposal to prevent
generators, transporters, or others from
transferring LBP debris with
deteriorated paint which will ultimately
be reused. Generators and transporters
of LBP debris, owners or operators of
disposal or reclamation facilities
accepting LBP debris, or owners or
operators of any enterprise which
transfer LBP debris with deteriorated
paint for reuse without first removing
the LBP would not be in compliance
with today's proposal. However, LBP
debris may be transferred specifically
for the purpose of LBP removal. For
example, if a generator of a door with
deteriorated LBP gave or sold the door
to an individual who then reused it, the
generator would be in violation of the
transfer-for-reuse restrictions in today's
proposal. Generators wishing to avoid
this potential liability could remove the
LBP prior to transfer of a component,
could transport the LBP debris to a
reclamation facility for removal of LBP
or could decide not to transfer the
component for reuse. If the generator
transferred the door to a reclamation
facility for removal of LBP before
reusing or selling the door, the generator
would be in compliance with today's
rule. Once the LBP is completely
removed from an architectural
component (as described in
§ 745.301 (d)) it is no longer considered
LBP debris and is no longer subject to
today's proposed regulations.
EPA is seeking public comment on
the provision in today's proposal which
would prohibit a generator or
transporter from transferring LBP debris
with deteriorated paint to antique
dealers or other businesses or entities
for reuse or to offer for reuse. EPA is
concerned that the requirement may
prevent transfers of debris to enterprises
specializing in paint removal and
restoration of building components with
a historic value. The Agency would like
to know what effect this provision might
have on antique and salvaging
businesses and what alternatives might
be available which would also prevent
the transfer of LBP hazards from one
structure to another.
2. Reclamation: § 745.309(b).
Companies that reclaim lead waste
(either for recovery of lead, or for energy
, combustion value) have voiced concerns
to EPA that the provisions in today's
proposed rule would discourage the
reclamation of LBP debris by lowering
landfill disposal costs. Today's
proposed standards would not preclude
the reclamation of LBP debris for lead
and/or energy recovery in facilities that
meet Clean Air Act requirements. EPA
wishes to stress that reclamation can be
a viable alternative to landfill disposal
and encourages this activity in
situations where it is safe and practical.
However, estimates have shown that
currently, the costs (to a generator) of
sending LBP debris to a reclamation
facility can be comparable to the cost of
disposal in RCRA Subtitle C facilities.
Such high costs may lead generators to
seek alternatives to reclamation of LBP
debris. EPA encourages generators of
LBP debris to identify reclamation
facilities meeting the requirements
described in this unit to determine the
feasibility of reclamation as an
alternative to disposal.
EPA is concerned about risk of lead
exposure from the processing of LBP
debris in smelters, combustors, and
incinerators without proper controls on
emissions. Burning of wooden LBP
debris may allow energy recovery
facilities or power plants to rely less on
fossil fuels and virgin wood. Paint, as
noted in a report prepared for EPA's
Office of Air Quality and Planning and
Standards, makes up a small percentage
of the weight of painted wood, and
metals (including lead) comprise only a
fraction of this percentage (Ref. 29).
However, burning or incineration of
LBP debris may result in lead releases.
Therefore, prior to accepting LBP debris
for any of these activities, a facility
should ensure that it will not be in
violation of Clean Air Act permit
conditions.
EPA has promulgated a national
emission standard for hazardous air
pollutants (NESHAP) that is based on
the use of Maximum Achievable Control
Technology (MACT) for meeting
emission standards for lead compounds
released from existing and new
secondary lead smelters (40 CFR part
63, subpart X). EPA also has
promulgated new source performance
standards (NSPS) for new municipal
waste combustor (MWC) units, and
emission guidelines for existing MWC
units, which establish emission limits
for nine pollutants, including lead. (See
40 CFR part 60, subparts Eb and Cb,
respectively; 60 FR 65389, December 19,
1995). New MWC units are those that
either commenced construction after
September 20, 1994, or commenced
reconstruction after June 19, 1996;
existing MWC units are those for which
construction commenced on or before
September 20, 1994. As a result of a
recent Court of Appeals decision, 40
CFR part 60, subparts Cb and Eb apply
only to MWC units with individual
capacity to combust more than 250 tons
per day of municipal solid waste (large
MWC's). See Davis County Solid Waste
Management and Recovery District v.
EPA, 101 F.3d 1395 (D.C. Cir. 1996), .
amended 108 F.3d 1454 (D.C. Cir. 1997)
(the Davis decision).
EPA believes that the NESHAP for
new and secondary lead smelters, the
NSPS emission standard for lead for
large MWCs, and the lead emission
guidelines for large MWCs are sufficient
to ensure safe management of LBP
debris in these facilities. Thus, EPA is
proposing to prohibit burning of debris
in any facility that does not meet the
applicable Clean Air Act standards/
guidelines for lead emissions set forth in
40 CFR parts 60, subparts Cb and Eb (as
amended by the Davis decision) and
part 63, subpart X. LBP debris would be
allowed to be incinerated in industrial
boilers and furnaces for energy recovery
provided that boilers and industrial
furnaces are subject to the RCRA 40 CFR
part 266, subpart H requirements.
Today's definition of reclamation
includes the practice of removing
existing LBP from debris in order to
reuse or recycle such debris. The
Agency encourages the transport of LBP
debris to reclamation facilities for
removal of LBP before reuse of any
components. Reclamation practices
employed to remove existing LBP from
a component include stripping, blasting^
sanding, etc. Once debris has been
entirely stripped of LBP as described in
§ 745.301 (d), it would no longer be
considered LBP debris, and therefore,
would no longer be subject to the
requirements in today's proposal.
Wastes, such as sludges and
concentrated LBP generated by the
removal of LBP, continue to be subject
to RCRA disposal requirements. Firms
and individuals receiving LBP debris for
reclamation would be subject to the
storage and access limitations in
§§745.311 and 745.313 of today's
proposed rule.
3. Transportation of LBP debris:
§ 745.308. Shipping or transport of LBP
debris in uncovered vehicles is a
possible source of releases in the form
of paint chips or dust. The U.S.
Department of Transportation does not
specifically regulate the transport of
non-hazardous LBP debris. Many
individual States or local authorities,
however, have requirements for
covering vehicles which carry debris or
rubble of any kind.
Today's proposed rule would prohibit
shipment of LBP debris off-site in
vehicles without covers that prevent
identifiable releases of material. Proper
management requires the covering of
vehicles or containers used for
-------
70212
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
transportation of LBP debris to
minimize possible releases of
paniculate matter. Some practical
approaches might include but are not
limited to: transportation of LBP debris
in a vehicle covered with secured tarp
or plastic, transport in covered
containers/drums, transport in covered
dumpsters, or transport in covered
mobile trailers.
Although LBP debris could under
today's proposal be moved within a
work site without using a covered
vehicle, EPA encourages those
managing LBP debris to keep LBP debris
covered at all times including when
moving LBP debris within a site in order
to prevent the release of LBP chips, dust
or debris.
The HUD "Guidelines for the
Evaluation and Control of LBP Hazards
In Housing" (hereafter referred to as the
HUD Guidelines) recommend wrapping
LBP debris in plastic upon generation,
and through storage and shipment
(Chapter 14) (Ref. 30). Although EPA
does not feel that plastic wrap alone
represents an adequate access limitation
(see Unit VTLG.4. below) during storage,
some stakeholders have suggested that
plastic wrap used in accordance with
the HUD Guidelines may present a
satisfactory alternative to covering
vehicles for transportation. Although
wrapping LBP debris in plastic would
not be an allowable transportation
method under this proposal (unless the
transport vehicle is also covered), the
Agency is seeking comment on whether
such wrapping would be sufficient to
prevent releases of particulate matter
during transport as well as on the cost
of using plastic wrap. EPA particularly
seeks comment from transporters on
their experience in delivering plastic-
wrapped debris to disposal facilities,
and whether or not the plastic wrap is
punctured during loading or transport.
4« Access and storage time
limitations: § 745.311 (b)—L Access
limitations. As explained in Unit V.F. of
this preamble, the Agency considers
improper management and disposal of
LBP debris to be a LBP hazard. As
discussed in detail earlier in Unit V.F.
of Ms preamble, improper storage
pending disposal of LBP debris can
cause a LBP hazard by allowing the
storage or deterioration of LBP in
locations, such as uncontrolled waste
piles, where it may be accessible to
children or contaminate the soil.
Therefore, EPA is proposing common
sense access limitations for LBP debris,
with the exception of LBP debris
generated from demolitions, which is
stored for more than 3 days (72 hours).
The access limitations in today's
proposal are designed to ensure safe
management of LBP debris while
minimizing dispersal of and access to
LBP debris by anyone other than
persons performing work, or managing
or otherwise needing access to the
debris.
Under today's proposal, acceptable
access limitations (described at
§ 745.311 (b) of the regulatory text)
include:
• Enclosing LBP debris in closed or
covered receptacles (e.g., containers,
drums, mobile trailers, covered
dumpsters or covered transport
vehicle.).
• Keeping LBP debris in a dumpster
or container which is at least 6 feet tall.
• Keeping LBP debris in fenced areas
that are locked when work activities are
not being performed on the site.
• Keeping LBP debris in an
unoccupied structure which is locked
when work activities are not being
performed on the site.
• Keeping LBP debris on an
unoccupied level of a multi-story
structure and keeping the level locked
when work activities are not being
performed on the site.
Access and storage limitations do not
' apply to debris which is reused in
compliance with this rule. See Unit
VII.G.l. entitled Reuse of LBP Debris for
a detailed discussion of reuse.
Access limitations apply to LBP
Architectural Component Debris
(LBPACD) which is transferred for reuse
but has not yet been reused. LBPACD
must be stored in a fenced or enclosed
area such as within a store or salvage
yard and locked when not monitored.
Cases where LBPACD have been
transferred for reuse but have not yet
been used include mantles, doors,
windows, banisters, cabinets or any
other type of LBPACD offered for sale in
an antique store or a salvage yard. Once
the LBPACD has been reused it is no
longer subject to these access
limitations.
While common sense dictates some
degree of control on the storage of LBP
debris, the Agency has attempted to
identify logical measures which would
impose the least burden while still
taking into account safety, effectiveness,
and reliability. For example, item b.
above allows use of the standard type of
large dumpster which is generally used
at renovation or abatement projects
which last more than a few days. The
Agency encourages comments on
current "real world" practices which
may represent adequate access
limitations, but are not included in this
proposal. EPA does not want to
preclude from a final rule any access
limitations which may be appropriate
but have been inadvertently omitted
from those being proposed today.
The Agency is exempting demolitions
from access limitation requirements in
this proposed rule. Many demolition
projects require a permit issued by local
governments which require some type
of access limitations. In addition, EPA
'believes that demolitions, due to
liability from other type of hazards such
as falling debris, are required to prevent
access to these hazards. In places where
access limitations are not required by
the permiter, EPA believes that the
permiter would have sufficient
justification, such as demolitions in
remote areas, not to require these access
limitations. Therefore, EPA is not
requiring any further access limitations
for demolitions. EPA encourages
comments on the adequacy of the
proposed access restrictions, the types
of access requirements needed for
obtaining a demolition permit, and
whether demolition permits generally
require access limitations.
Access limitations for LBP debris
which are more stringent than the
disposal requirements at C&D landfills
are necessary for safety, effectiveness,
and reliability. The Agency believes that
most LBP debris is generated in
residential areas where children and
adults may have access to an
uncontrolled LBP debris wastepile as
opposed to C&D landfills which EPA
believes are located is less populated
areas. The Agency requests more
information on controlling public access
to and the location of C&D landfills.
LBP debris which is stored for less
than 3 days is not required to have
access limitations under today's
proposal. This de minimi's cut-off level
is intended to allow small renovation
and abatement projects to accumulate
LBP debris prior to disposal without
incurring the expense of implementing
additional access limitations. While
investigating the issue of access
limitations, the Agency determined that
as many as 51% of renovation and
remodeling projects last less than 3 days
(Ref 31). The Agency believes that the
access limitations which are prescribed
in today's proposal represent common
practice in these-smaller projects, and
would not therefore impose significant
additional costs.
The Agency is aware that alternative
approaches to setting a de minimis level
for requiring access limitations exist.
Some alternative approaches might be
based on: (1) The volume of waste
produced; (2) square footage of paint
surface disturbed; or (3) time limits
other than 3 days. The Agency chose 3
days as the de minimis level for access
limitations because it appeared to
-------
Federal Register/Vol. 63. No. 243/Friday. December 18. 1998/Proposed Rules 70213
represent a natural dividing line
between smaller projects and projects
which last significantly longer. EPA
factored in the resources needed to
implement access limitations for these
smaller jobs and concluded that the
costs associated with access limitations
for short timeframes less than 72 hours
outweighed the potential benefits. Risk-
benefit analysis is the principle
analytical tool available to the Agency
to measure the effectiveness of using
resources to reduce human health risks.
EPA feels that the 72-hour threshold for
access limitations represents a clear and
logical standard for the regulated
community to comply with and will be
safe and effective. EPA solicits comment
on this approach and suggested
alternative approaches to establishing a
de minimus exclusion for access
limitations.
The Agency would like interested
parties to comment on or submit data
related to the appropriateness of the
proposed access limitations. Specific
design requirements for fencing or
containers are not, with a few
exceptions, detailed in today's proposal.
The Agency believes that the general
descriptions provided in the proposal
are sufficient and would result in
adequate access limitations; however
comments or relevant data on
alternative approaches including
additional design criteria are
encouraged.
ii. Storage time limitations. Today's
proposal establishes a 180-day time
limit on the storage of LBP debris. EPA
believes that the access limitations in
this proposal would minimize risk;
however, access limitations can and do
fail. The cumulative probability of
access limitation failure increases the
longer LBP debris is in storage. The
management and disposal options for
LBP debris presented in this proposal
are numerous and inexpensive.
Therefore the Agency believes that
lengthy storage of LBP debris will be
unnecessary. The 180-day time
limitation for storage of LBP debris
contained in today's proposal is the
same as the minimum storage time limit
for generators of between 100 and 1,000
kilograms of hazardous waste per month
(51 FR 10148; March 24, 1986).
The storage time limit begins on the
date of generation of the LBP debris.
Transfer of LBP debris to a different
storage site is permitted under the
proposal, but the storage time limit
remains 180 days from the date of
generation regardless of the number of
storage sites for any given LBP debris.
Situations may occur for which
generation of LBP debris at one site
occurs over an extended time period
and the debris is commingled (e.g.,
debris is disposed of in a dumpster at
different times over a 90-day period). In
such cases, the 180-day storage time
limit would begin on the date that LBP
debris was first generated, and that
limitation would apply to all of the
commingled LBP debris. EPA believes
that 180 days provides an adequate
amount of time to arrange for the
transport and disposal of LBP debris but
encourages public comment on the
length of this proposed storage
limitation.
5. Size reduction/processing of LBP
debris. It is possible that a generator
may need to chop, trim, or otherwise
reduce in size LBP debris to fit it in
storage containers, drums or transport
vehicles. EPA believes there is the
possibility of a release of dust, LBP
chips, or particulate matter during this
activity. Generators working where LBP
is present should use processing or size
reduction techniques that will control
releases, such as use of a plastic
contained area with a plastic floor, top
and sides, or a mobile enclosure. As
noted, previously, paint chips and dust
generated during such activities are still
subject to RCRA requirements under
today's proposal and may be considered
hazardous waste.
Today's proposal does not include
standards regulating size reduction of
LBP debris or other similar activities.
The Occupational Safety and Health
Administration (OSHA) Lead in
Construction standards, however do
apply to the following:
• Alteration, renovation, or repair of
substrates containing lead.
• Removal of materials containing
lead.
• Transportation, disposal, storage, or
containment of materials containing
lead on the site.
• Maintenance activities associated
with the construction activities listed
above.
The OSHA staridard establishes
maximum limits of exposure to lead for
all workers covered, including a
permissible exposure limit (PEL) and an
action level. Under the standard, no
employee may be, exposed to. lead at
airborne concentrations greater than 50
g/m averaged over an 8-hour period (58
FR 26598; May 4, 1993).
EPA believes that compliance with
the OSHA Lead in Construction
standards represents sufficient controls
on LBP debris size reduction activities
and that additional regulation under
today's proposal would be duplicative.
The Agency requests comment,
however, on whether TSCA standards
for such activities are warranted.
I. What Are the Notification and
Recordkeeping Requirements? § 745.313
In order to ensure that LBP debris is
managed and disposed of properly, the
Agency is proposing a requirement that
when LBP debris is transferred from one
party to another, the recipient should be
notified in writing of the presence of
LBP debris (§745.313(a)). The
notification document should: (1)
Disclose the presence of LBP debris; (2)
indicate the date of generation of the
LBP debris; (3) be signed and dated by
the recipient; (4) be signed and dated by
the transferor; (5) contain the generator's
name and address; and (6) notify the
recipient of the need to comply with
LBP debris management and disposal
standards. The proposal requires both
parties (the transferor and the recipient)
to any transfer of LBP debris to retain
a record of the notification for 3 years
(§745.313(b)).
LBPACD transferred for reuse,
including components intended for sale,
are also subject to notification and
recordkeeping requirements at
§ 745.313. Notification requirements
begin upon generation of the debris
intended for reuse and terminate at the
point at which the LBPACD is reused.
For example, a salvage yard which sells
LBPACD generated by an abatement,
renovation, or demolition must notify, :
in writing, any purchaser or user of any
LBPACD of the presence of LBP debris
and keep records of the notification and
transfer as required by this proposed
rule § 745.313. Once the LBPACD is
reused further notification is not
required.
Without notification requirements, a
recipient (e.g., transporter or owner/
operator of a disposal facility) might
unknowingly accept LBP debris and
then violate the provisions of today's
proposal by improperly managing or
disposing of the material. For example,
if a generator transferred LBP debris to
a transporter for disposal without
notifying the transporter of the presence
of LBP debris, the transporter might not
cover the vehicle or might dispose of the
LBP debris in a facility not allowed to
receive LBP debris under this proposal.
The effect of the notification
requirement will be that each person
who receives LBP debris for any reason
would be aware that they are receiving
LBP debris and will be referred to the
requirements for LBP debris
management and disposal in this
proposal. Any person who manages LBP
debris in compliance with this proposal,
including proper notification, will
generally be deemed to have fulfilled
their responsibilities under the
proposal. EPA would view any
-------
70214
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
noncornpliance with the proposed
requirements subsequent to a transfer
(which included proper notification) to
be the responsibility of the person who
Is not in compliance with the
requirements, not of any person who
had prior possession of the LBP debris.
However, a party in prior possession
may be in noncornpliance if the party
knew or had reason to know that the
person receiving the LBP debris would
not handle it properly. In addition, a
generator who incorrectly determines
that LBP debris is not present, would be
liable for any and all subsequent
violations of today's proposal.
EPA believes a recordkeeping
requirement is a necessity from the
standpoint of enforcement because it
establishes a clear chain-of-custody.
This would allow inspectors to identify
and locate the generators and
rcclpient(s) of LBP debris for
questioning and to gather further
material evidence from them to aid an
investigation, if necessary. In addition,
the recordkeeping requirement would
result in the retention of important
evidence that is likely to be used should
an enforcement action be necessary. The
notification document contains
information needed to establish a
foundation for enforcement actions.
The Agency would like comment on
whether there are less expensive or
more efficient ways that maintain safety,
reliability, and effectiveness of notifying
and keeping records of LBP debris for
transport and disposal than the one
outlined in the proposal. An example of
an alternative to the suggested paper
notification and recordkeeping may be a
system of notification and
recordkeeping with electronic signature
and storage. Any type of alternative
notification and recordkeeping system
should: (1) Disclose the presence of LBP
debris; (2) indicate the date that the LBP
debris was generated; (3) be signed and
dated by the recipient; (4) be signed and
dated by the transferor, (5) contain the
generator's name and address, and (6)
notify the recipient of the need to
comply with LBP debris management
and disposal standards.
A sample notification which meets
the requirements of proposed §745.313
is included at the end of this unit. The
sample is intended to serve as an
example and does not represent the only
format or wording that might meet the
requirements of the proposal. The
sample is not included in the regulatory
text itself and nothing in the proposal
would require the use of any specific
form or format. Instead, the regulatory
text, at §745.313 contains the specific
information which must be included in
the notification.
-------
Federal Register/Vol. 63, No. 243/Friday. December 18, 1998/Proposed Rules
70215
SAMPLE NOTIFICATION
NOTIFICATION OF THE PRESENCE OF LBP DEBRIS
Lead Warning Statement
Lead from paint can pose health hazards if not managed, transported and disposed of properly Lead expo-
sure is especially harmful to young children and pregnant women. Before transferring LBP (LBP) debris to
any party for any reason, transferors must notify recipients of the presence of LBP debris.
Notification of Presence of LBP Debris
LBP debris is present in the materials being transferred from
(Transferor name) to
(Recipient name).
When Was this Lead-Based Paint Generated?
This LBP debris was generated on
(Date).
Who Generated this Lead-Based Paint Debris?
(Name and Address of Generator)
John Doe
1000 Main Street
Hope, Arkansas 12345
Requirements for the Management and Disposal of LBP Debris
LBtu d®bi:is.Iis subject to EPA regulations found at 40 CFR 745.301-745.319. See those regulations for fur-
M?Jenn!f^ls-- Re,^e™,?nts and restrictions on the MANAGEMENT OF LBP debris include the following-
(1) LBP debris MUST BE COVERED when it is transported.
(2) LBP debris stored for more than 72 hours after initial generation MUST HAVE ACCESS LIMITATIONS
(except for demolition debris).
(3) LBP debris MAY NOT BE STORED for more than 180 days after it is generated
(4) LBP debris with deteriorated paint MAY NOT BE REUSED or TRANSFERRED FOR REUSE.
- on the DlspOSAL OR RECLAMATION of LBP debris include the following-
ill Mo ^eur!s . . NOT be disP°sed of in any landfill which accepts municipal or industrial waste
fied at 40 ?CFR ^6 reclaimed' incinerated or recycled at facilities subject to the regulations speci-
Transferor Date Recipient Date
!: Both parties (transferor and recipient) must keep a copy of this Notification for at least 3 years from
date it is signed.
-------
70216
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
VIII. State and Tribal Programs
This section outlines the State and
Indian Tribe (including Alaskan Native
Villages where appropriate) program
approval process for today's proposed
rule,
A, General
Section 404(a) of TSCA Tide IV
provides that any State which seeks to
administer and enforce the standards,
regulations, or other requirements
established under TSCA section 402
may submit an application to EPA for
approval of such a program. TSCA
section 404 (b) states that EPA may
approve such an application only after
finding that: (1) The State program is at
least as protective of human health and
the environment as the Federal program;
and (2) that the program provides
adequate enforcement. Although TSCA
does not specifically address Tribal lead
programs; EPA is extending to Tribes
the same opportunity as States to apply
for authorization (see section G. of this
unit for further discussion.)
EPA*s final rule addressing LBP
training and certification (61 FR 45778),
outlined specific procedures for
program approval under the authority of
TSCA section 402 at 40 CFR 745.320.
Today's proposed rule adopts a similar
process with some alterations including
specific requirements for LBP debris
management and disposal program
applications, A State or Tribe may apply
for LBP debris management and
disposal program authorization if it does
not have an authorized LBP training and
certification program.
Political subdivisions of States or
Tribes (e.g., cities, towns, counties, etc.),
are not eligible for authorization.
B, Submission of an Application
Under this proposal, before
developing an application for
authorization, a State or Indian Tribe
would have to distribute publicly a
notice of intent to seek such
authorization and provide an
opportunity for a public hearing. The
State or Indian Tribe is free to conduct
tills hearing and provide an opportunity
for comment in any manner it chooses.
Upon completion of an application that
reflects this public participation, the
State or Indian Tribe may submit the
application to the appropriate EPA
Regional Office.
As proposed at § 745.344. an
application for program authorization
should Include the following seven
elements: (1) A transmittal letter from
the Governor or Tribal Chairperson (or
equivalent official); (2) a summary of the
State or Tribal program; (3) a
description and analysis of the program;
(4) a statement which identifies
resources the State or Tribe intends to
devote to the administration of its
compliance and enforcement program;
(5) a statement agreeing to submit to
EPA the Summary on Progress and
Performance of LBP debris management
and disposal compliance and
enforcement activities as described at
§ 745.355 (b) (2); (6) an Attorney General
or Tribal equivalent's statement
attesting to the adequacy of the State or
Indian Tribe's program authority; and
(7) copies of all applicable State or
Tribal statutes, regulations, standards
and other materials that provide the
State or Indian Tribe with the authority
to administer and enforce a LBP debris
management and disposal program.
Sections B.I., B.2., and B.3. of this
unit outline the application elements.
1. Program description: § 745.346. A
program application should contain
information, specified in § 745.346, that
describes the program. The program
description is the portion of the
application that the State or Indian
Tribe will use to characterize the
elements of their program. The Agency
, would use this information to make an
approval or disapproval decision on a
State or Indian Tribe's application. The
program description contains four
distinct sections (five in the case of
Tribal applications).
In the first section (§ 745.346(a)), the
State or Indian Tribe should list the
name of the State or Tribal agency that
will administer and enforce the program
and the name of a contact at that agency,
and if there will be more than one
agency administering or enforcing the
program, describe the relationship
between or among these agencies.
Second (§745.346(b)), the State or
Indian Tribe should demonstrate that
the program has all of the required
program elements specified in §
745.350. These elements represent the
minimum elements or requirements a
State-or Tribal program should have to
be considered for authorization.
Third (§ 745.346 (c)), the application
should provide an analysis of the entire
State or Tribal program that describes
any dissimilarity from the Federal
requirements in §§ 745.301 through
745.319. The analysis should explain
why, considering these differences, the
State or Tribal program is at least as
protective as the provisions outlined at
§§745.301 through- 745.319 and
provides adequate enforcement. The
Agency would like to be as flexible as
possible in reviewing applications
which contain provisions different from
the Federal requirements; however in
such cases, the State or Tribe should
demonstrate in its program analysis that
its program is at least as protective as
the Federal program and provides for
adequate enforcement. The Agency will
use this analysis, along with its own
comparison, to evaluate the
protectiveness of the State or Tribal
program.
Fourth (§745.346(d))( the State or
Tribal application should demonstrate
that the program meets the compliance
and enforcement requirements at
§ 745.352. This section of the
application is discussed in more detail
in section H. of this unit.
In addition to the above, the program
description for a Tribe should also
include the information required by
§ 745.346(e) (special requirements for
Tribal Program Descriptions).
2. Attorney General's Statement:
§ 745.347. The State or Indian Tribe
should provide an assurance that it has
the legal authority necessary to
administer and enforce the LBP debris
management and disposal program. The
State or Tribal Attorney General (or
equivalent Tribal official) should sign
this statement.
3. Public availability of application:
§745.344(c)-(d). Section 404(b) of TSCA
requires EPA to provide notice and an
opportunity for a public hearing on a
State or Tribal application for
authorization. Accordingly, the Agency
will publish in the Federal Register a
notice announcing the receipt of a State
or Tribe's application, a summary of the
State or Tribal program (to be provided
by the applicant (§ 745.344 (b)(2)), the
location of copies of the application
available for public review, and the
dates and times that the application will
be available for public review.
Individuals may at that time submit a
request to the Agency for a public
hearing on the State or Tribal
application. It should be noted that this
opportunity for public hearing is
separate and distinct from the public
comment, discussed in section B. of this
unit, that the State or Indian Tribe
should seek before preparing an
application for program approval.
C. State Program Certification
Pursuant to TSCA section 404(a), at
the time of submitting an application for
program authorization, a State may also
certify to the Administrator that the
State program is at least as protective as
the Federal program proposed at
§§ 745.301 - 745.319 and that it provides
adequate enforcement.
If this certification is contained in a
State application, the program will be
deemed authorized until/unless EPA
disapproves the program's application
or withdraws the program's
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
70217
authorization. This certification should
be contained in a letter from the
Governor or the Attorney General, to
EPA, and should reference the program
analysis contained in the program
description portion of the application as
the basis for concluding that the State
program is at least as protective as the
Federal program and provides for
adequate enforcement. If a State
application does not contain such
certification, the State program will be
considered authorized only after EPA
approves the State application.
This program certification provision
is not available to Indian Tribes because
Indian Tribes should first demonstrate
to the Agency that they meet the criteria
proposed at § 745.324 (b) (4) for treatment
in the same manner as a State (TAS).
Although Indian Tribes may be able to
demonstrate that they have been
approved for TAS for another
environmental program (satisfying two
of the four TAS criteria), the Agency
must make a separate determination that
an Indian Tribe has adequate
jurisdictional authority and
administrative and programmatic
capability regarding its LBP debris
management and disposal program
before it can determine that the Tribe
should be treated in the same manner as
a State. These criteria are discussed in
greater detail in section F. of this unit.
TSCA section 404 (b) limits Agency
review of program applications to 180
days. EPA encourages States and Indian
Tribes to submit their authorization
applications as soon as possible after the
final rule is promulgated. Because the
Agency anticipates needing the full 180
days allowed under today's proposal to
properly review and act on an
application, States and Indian Tribes are
strongly encouraged to work with the
appropriate EPA Regional office to
develop and submit a complete
application before promulgation of the
final rule.-
D. EPA Approval
Within 180 days following receipt of
a complete State or Tribal application,
EPA will approve or disapprove the
application. EPA will authorize a
program only if, after notice and
opportunity for public hearing, EPA
finds that:
(1) The program is at least as
protective of human health and the
environment as the Federal program
contained at §§ 745.301 - 745.319.
(2) The program provides adequate
enforcement of the appropriate State or
Tribal regulations.
The Agency will notify the State or
Indian Tribe in writing of the decision.
As described in proposed
§ 745.354(a)(4), upon authorization of a
State or Tribal program, it will be
unlawful under TSCA section 15 and
section 409; for any person to violate,
fail or refuse to comply with any
requirements of such a program.
The Agency believes that TSCA
section 404 and the decision criteria
above give it reasonably broad latitude
in approving or disapproving State and
Tribal programs. EPA interprets the
TSCA section 404 (b) standard "... at
least as protective as. .." to mean that
a program need not be identical to, or
administered and enforced in a manner
identical to, the Federal program for that
program to be authorized. The Agency
expects to receive applications for State
and Tribal programs that will differ in
some respects from the Federal program
established in this proposed
rulemaking. This is unavoidable (and
even desirable) given the differences
that undoubtedly exist between LBP
debris management and disposal
programs at the State and Tribal level.
The Agency will make every attempt to
accommodate these differences while
following the statutory requirement of
ensuring that every State or Tribal
program is at least as protective as the
Federal program and provides for
adequate enforcement.
1. Establishment of the Federal
program. If a State or Indian Tribe does
not have a program authorized under
this proposed rule and in effect by the
date that is 2 years from the
promulgation date of the final
regulation, EPA will, as of such date,
establish the Federal program under 40
CFR part 745, subpart P in that State or
Indian Country.
Although the definition of Indian
Country is contained in a criminal
statute, 18 U.S.C. 1151 (1994), it
"generally applies as well to questions
of civil jurisdiction." DeCoteau v.
District County Ct, 420 U.S. 425, 427 n.
2 (1975). In addition, several cases have
interpreted its scope, including the
Supreme Court's recent decision, Alaska
v. Native Village of Venetie, No. 96-
1577, 1998 U.S. LEXIS 1449 (S.Ct.
February 25, 1998) finding that an
Alaska Native Village's lands held in fee
simple were not Indian country; Solem
v. Bartlett, 465 U.S. 463 (1984).
2. EPA overfiling authority. The
Agency reserves the right to bring an
enforcement action against a violator if
a State or Indian Tribe fails to impose
the proper penalty against a violator.
However, before doing so, the Agency
will notify the State or Indian Tribe in
writing of its failure to impose the
appropriate penalty. The State or Indian
Tribe will have 30 days from receipt of
such notice from the Administrator to
adjust the improper penalty amount. In
the event that the State or Indian Tribe
fails to rectify the situation, the Agency
may issue an administrative penalty
order against the violator with the
appropriate penalty amount. In
addition, if a State or Indian Tribe fails
to bring an action against a violator,
then the Agency has the authority to
commence the appropriate action after
giving the State 30 days notice to bring
an action against the violator.
E. Withdrawal of Authorization:
§745.356
As required by section 404 of TSCA,
if a State or Indian Tribe is not
administering and enforcing its
authorized program according to the
standards, regulations, and other
requirements of TSCA Title IV,
including section 404 (b)(l) and (b)(2),
the Agency will so notify the State or
Indian Tribe. If corrective action is not
completed within a reasonable time, not
to exceed 180 days, EPA will withdraw
authorization of such program and
establish a Federal LBP debris ;
management and disposal program
pursuant to TSCA Title TV in that State
or Tribal land. Procedures for
withdrawal of authorization can be
found at § 745.356 of the regulatory text.
F. Model State and Tribal Program
Section 404(d) of TSCA directs the
Agency to promulgate a model program
that may be adopted by any State or
Tribe that seeks to administer and
enforce a LBP debris management and
disposal program. For the purposes of
this proposal, the Federal requirements
at proposed §§ 745.301 through 745.319
serve as the model State and Tribal
program.
G. Tribal LBP Debris Management and
Disposal Programs
Today's action proposes a system that
would provide Federally-recognized
Indian Tribes the opportunity to apply
for program authorization in a manner
similar to States. Providing Indian
Tribes with this opportunity is
consistent with EPA's Policy for the
Administration of Environmental
Programs on Indian Reservations
(hereinafter referred to as EPA's Indian
Policy). This policy, formally adopted in
1984 and reaffirmed on March 14, 1994,
by the Administrator, ". . . viewfs]
Tribal Governments as the appropriate
non-Federal parties for making
decisions and carrying out program
responsibilities affecting Indian
reservations, their environments, and
the health and welfare of the reservation
populace," consistent with Agency
standards and regulations.
-------
70218
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
A major goal of EPA's Indian Policy
is to eliminate statutory and regulatory
barriers to Tribal administration of
Federal environmental programs to the
greatest extent possible. Today's
proposal represents another step in the
Agency's continuing commitment
toward achieving this goal. However,
EPA recognizes fiSat some eligible
Indian Tribes may choose not to apply
for program authorization. Regardless of
the choice made by a Tribe, the Agency
remains committed to providing
technical assistance and training when
possible to Tribal entities as they work
to resolve their LBP management and
disposal concerns.
1, EPA's authority to review and
approve Tribal LBP debris management
and disposal programs. EPA believes it
has adequate authority under TSCA to
allow Indian Tribes to seek LBP debris
management and disposal program
authorization. EPA's interpretation of
TSCA is governed by the principles of
Chevron, Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984).
Where "Congress has not directly
addressed the precise question at issue"
in a statute, Id. at 843, the Agency
charged with implementing that statute
may adopt any interpretation which, in
the Agency's expert judgment, is
reasonable in light of the goals and
purposes of the statute as a whole. Id.
at 844. Interpreting TSCA to allow
Indian Tribes to apply for program
authorization satisfies the Chevron test.
TSCA, including sections 402 and
404, does not explicitly define a role for
Indian Tribes. Therefore, Congress did
not directly address the precise question
at issue. Indian Tribes' status as
sovereign governments, see, e.g.,
Worcester v. Georgia, 31 U.S. (10 Pet)
515 (1832); United States v. Wheeler,
485 U.S. 313 (1978), precludes the
operation of State law within Tribal
jurisdictions except in very limited
circumstances. See California v.
Cabuzon Band of Mission Indians, 480
U.S. 202 (1987). There is no indication
in TSCA or its legislative history that
Congress intended to abrogate any
sovereign Tribal authority by extending
State jurisdiction into Indian Country.
The Supreme Court has stated that the
"choice between [possible statutory
constructions] must be dictated by a
principle deeply rooted in this Court's
Indian jurisprudence: statutes are to be
construed liberally in favor of the
Indians, with ambiguous provisions
interpreted to their benefit.'" County of
Yaklma v. Yakima Indian Nation, 502
U.S. 251, 268 (1992). Further, any
statutory limitations on Tribal
sovereignty must be stated explicitly.
Santa Clara Pueblo v. Martinez, 436
U.S. 49 (1978); Montana v. Blackfeet
Indian Tribe, 471 U.S. 759 (1985)
(Congressional intent must be
"unmistakably clear"). In addition, the
Supreme Court has consistently
admonished that Federal statutes and
regulations relating to Tribes and Tribal
activities must be construed generously
in order to comport with traditional
notions of Indian sovereignty and with
the Federal policy of encouraging Tribal
independence. Ramah Navajo School
Board v. Bureau of Revenue, 458 U.S..
832, 846 (internal quotations, ellipsis
and brackets removed).
A recent decision of the U.S. Court of
Appeals for the B.C. Circuit found that
RCRA did not authorize EPA to review
and approve certain Tribal solid waste
programs in the same manner as States.
Backcountry Against Dumps v. EPA, 100
F.3d 147 (9th Cir. 1996). In that case, the
court found under the first step of the
Supreme Court's analysis in Chevron,
that RCRA was "neither silent nor
ambiguous" on the role of Tribes. Id. at
151. The inclusion of Indian Tribes in
the definition of "municipality" and the
absence of Indian Tribes from the
definition of "State" precluded EPA
from interpreting RCRA section
4005 (c) (1) (C) to authorize review and
approval of Tribal programs. Id.
Importantly, however, the court noted
that "if Indian Tribes were not defined
anywhere in the statute ... we would
move to Chevron's second step." Id.
Because Indian Tribes are not defined or
even mentioned in TSCA, Backcountry
Against Dumps supports EPA position
that the Agency may, under step two of
Chevron, adopt a reasonable
interpretation of TSCA.
The D.C. Circuit held up Nance v.
EPA, 645 F.2d 701 (9th Cir. 1981), as an
example of such a case. Backcountry at
151. The Nance court recognized the
reasonableness of EPA's actions in
rilling regulatory gaps on Indian
Country. In Nance, the U.S. Court of
Appeals for the Ninth Circuit upheld
EPA's regulations which authorized
Indian Tribes to redesignate the level of
air quality applicable to Indian Country
under the Prevention of Significant
Deterioration (PSD) program of the
Clean Air Act similar to the manner in
which States could redesignate other
lands. The Court found that EPA could
reasonably interpret the Clean Air Act to
allow for Tribal redesignation, rather
than allowing the States to exercise that
authority or exempting Indian Country
from the redesignation process. Nance,
745 F.2d 713. The Court noted that
EPA's rule was reasonable in light of the
general existence of Tribal sovereignty
over activities in Indian Country. Id. at
714.
Interpreting TSCA to allow EPA to
review and approve Tribal LBP debris
management and disposal programs is
reasonable. Today's proposed rule is
analogous to the rule upheld in Nance.
Failure to authorize Tribal LBP debris
management and disposal programs
would deny Indian Tribes the option
available to States to administer their
programs in lieu of the Federal program.
As with the redesignation program at
issue in Nance, this proposal, however,
would enable the most direct regulation
of LBP debris management and disposal
in Indian Country. Today's proposed
rule would conform with the
Congressional intent that the local
sovereigns with program and
enforcement authority-the States and
Tribes-rather than the Federal
government regulate. Approving Tribal
regulation by eligible Tribes in lieu of
Federal regulation also follows general
principles of Federal Indian law and the
Agency's Indian Policy. EPA believes
that allowing Indian Tribes to apply for
program authorization is consistent with
the sovereign authority of Indian Tribes.
EPA also has allowed Indian Tribes to
seek program approval despite the lack
of an explicit Congressional language in
the past. (61 FR 45778, August 29, 1996
and 55 FR 30632, July 26, 1990) Nance
v. EPA, 645 F.2d 701 (9th Cir. 1981) and
(CAA PSD Program). Furthermore, EPA
has broad expertise in reconciling
Federal environmental and Indian
policies. Washington Dept. of Ecology v.
EPA, 752 F.2d 1465, 1469 (1985).
For a more detailed discussion of
EPA's authority to treat Tribes in the
same manner as States under TSCA, see
61 FR 45778, 45805-07, August 29,
1996, LBP activities.
2. Tribal eligibility requirements.
Under several environmental statutes,
including the Clean Water Act (CWA),
and the Safe Drinking Water Act
(SDWA), Congress specified certain
criteria for EPA to determine whether it
may treat an Indian Tribe in the same
manner as a State. These criteria
generally require that the Indian Tribe:
• Be recognized by the Secretary of
the Interior.
• Have an existing government
exercising substantial governmental
duties and powers.
• Have adequate civil regulatory
jurisdiction over the subject matter and
entities to be regulated.
• Be reasonably expected to be
capable of administering the Federal
environmental program for which it is
seeking approval.
EPA proposes to require Indian Tribes
seeking program authorization and
grants under TSCA section 404 to
demonstrate in the program description
-------
Federal Register/Vol. 63, No. 243/Frlday, December 18, 1998/Proposed Rules 70219
that they meet the four criteria listed
above. The Agency has simplified its
process for determining Tribal eligibility
to administer environmental programs
under several other environmental
statutes (59 FR 64339; December 14,
1994). The proposed process for
determining eligibility for TSCA section
404 programs parallels the
simplification rule. Generally, the fact
that an Indian Tribe has met the
recognition or governmental function
requirement under another
environmental statute allowing for
Tribal assumption of environmental
programs (e.g., the CWA, SDWA, CAA)
will establish that it meets those
particular requirements for purposes of
TSCA section 404 authorization. To
facilitate review of Tribal applications,
EPA requests that the Indian Tribe
demonstrate that it has been approved
for "TAS" (under the old TAS process)
or been deemed eligible to receive
authorization (under the simplified
process) for any other program.
If an Indian Tribe has not received
TAS approval or been deemed eligible
to receive authorization, the Indian
Tribe must demonstrate, pursuant to
§ 745.324(b)(5)(ii), that it meets the
recognition and governmental function
criteria described above. A discussion
on how to make these showings can be
found at 59 FR 64339, December 14
1994.
EPA believes, on the other hand, that
the Agency must make a separate
determination that an Indian Tribe has
adequate jurisdictional authority and
administrative and programmatic
capability before it approves each Tribal
LBP debris management and disposal
program. To have its LBP debris
management and disposal program
authorized by EPA under today's
proposed rule, an Indian Tribe would
need adequate authority over the
regulated activities.
EPA proposes to require under
§ 745.346(e) that Indian Tribes provide
a discussion of their jurisdiction to run
a LBP debris management and disposal
program. The Tribe should include
copies of all documents, such as
treaties, statutes, executive orders,
constitutions, bylaws, charters, codes,
ordinances, and/or resolutions which
support the Indian Tribe's assertions of
jurisdiction. EPA will review this
documentation and comments
submitted by appropriate governmental
entities during the public comment
period, and then will make a
determination whether the Tribe has
adequately demonstrated its jurisdiction
over LBP debris activities in Indian
Country. The Indian Country standard
provides the guideline of the areas over
which a Tribe may demonstrate
jurisdiction for purposes of Tribal
programs. EPA, however, will not rely
solely on the Indian Country standard,
but will consider, on a case-by-case
basis whether a Tribe has demonstrated
its jurisdiction over LBP debris
management and disposal in particular
areas under principles of Federal Indian
law.
The jurisdiction of Indian Tribes
generally extends "over both their
members and their territory." United
States v. Mazurie, 419 U.S. 544, 557
(1975). However, Indian reservations
may include lands owned in fee by
nonmembers. "Fee lands" are privately
owned by nonmembers and title to the
lands can be transferred without
restriction. The Supreme Court, in
Montana v. U.S., 450 U.S. 544, 565-66
(1981) noted that Tribes may have
authority over nonmember activities on
reservation fee lands in certain
circumstances, including when the
nonmember conduct "threatens or has
some direct effect on the political
integrity, the economic security, or the
health or welfare of the Indian Tribe."
The Supreme Court,in several cases
since Montana has explored several
criteria to assure that the impacts upon
Indian Tribes of the activities of non-
Indians on fee land, under the Montana
test, are more than de minimis. To date,
however, the Court has not agreed in a
case on point on any one reformulation
of the test. In response to this
uncertainty, in 1991 EPA decided in the
context of a regulation under the CWA
that it would apply a more rigorous
formulation of the Montana test,
establishing an "operating rule" that
requires Tribes seeking eligibility to set
water quality standards governing
activities of nonmembers on fee lands to
show that the effects are "serious and
substantial" (56 FR 64878). EPA noted
that "[t]he choice of an Agency
operating rule containing this standard
is taken solely as a matter of prudence
in light of judicial uncertainty and does
not reflect an Agency endorsement of
this standard per se." Since 1991,
however, the Supreme Court has
reaffirmed Montana's impacts test
verbatim without addressing the need
for "serious" or "substantial" impacts.
e.g., Strate v. A-l Contractors, 117 S. Ct.
1404 (1997); South Dakota v. Bourland
508 U.S. 679 (1993). While it appears
that the Montana test may not require
"serious and substantial" impacts, for
the time-being, as a matter of prudence,
EPA will continue to look to see
whether such impacts exist when
evaluating Tribal authority over LBP
debris activities under the Montana test.
In Strate, 117 S.Ct. at 1414, the
Supreme Court made clear that Montana
remains the controlling standard for
evaluating Tribal authority over
nonmember activities on fee lands. The
Court emphasized in Strate that the
purpose of Montana's impacts test is to
ensure that Tribes retain their powers of
self-government. EPA believes that
protecting the public through
environmental protection programs
from serious and substantial effects on
health and welfare is a core
governmental function whose exercise
is critical to self-government, (see 56 FR
64879).
Whether an Indian Tribe has
jurisdiction over activities of
nonmembers on fee lands, will be
determined case-by-case, based on
factual findings. The determination as to
whether the required effect is present in
a particular case depends on the
circumstances and will likely vary from
Indian Tribe to Indian Tribe. The
Agency believes, however, that the
activities regulated under the various
environmental statutes, including
TSCA, generally have the potential for '
direct impacts on human health and
welfare that are serious and substantial
See 56 FR 64878.
The process that the Agency will use
for Indian Tribes to demonstrate their
authority over nonmembers on fee lands
includes a submission of a statement
pursuant to §§ 745.346 and 745.347
explaining the legal basis for the Indian
Tribes' regulatory authority. The Indian
Tribe must explicitly assert and
demonstrate jurisdiction, i.e., show that
LBP debris management and disposal
activities conducted by nonmembers on
fee lands could have impacts on the
health and welfare of the Indian Tribe
and its members that are serious and
substantial. The Tribal submission
should make a showing of facts that
there are or may be activities regulated
under TSCA Title IV by nonmembers on
fee lands within the territory for which
the Indian Tribe is seeking
authorization, and that the Indian Tribe
or Tribal members could be subject to
exposure to LBP hazards from such
activities through, e.g., dust, soil, air,
and/or direct contact.
As noted above, the Supreme Court
emphasized in Strate that the purpose of
the Montana test is to ensure that Tribes
retain their powers of self-government.
While EPA believes generally that
protecting Tribal health and welfare
from serious and substantial
environmental effects is essential to
Tribal self-government, the Tribal
submission should also discuss the
extent to which Tribal implementation
of the LBP debris management and
-------
70220
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
disposal program over nonmembers on
fee lands is essential to Tribal self-
government However, EPA will also
rely on Its generalized findings
regarding the relationship of LBP
activities and related hazards to Tribal
health and welfare.
Appropriate governmental entities
(e.g., an adjacent Indian Tribe or State)
will have an opportunity to comment on
the Indian Tribe's jurisdictional
assertions during the public comment
period prior to EPA's action on the
Indian Tribe's application.
The Agency recognizes that
jurlsdlctlonal disputes between Indian
Tribes and States can be complex and
difficult and that it may, in some
circumstances, be most effective to
address such disputes by attempting to
work with the parties in a mediative
fashion. However, EPA's ultimate
responsibility is protection of human
health and the environment. In view of
the mobility of environmental problems,
and the interdependence of various
jurisdictions, it is imperative that all
affected sovereigns work cooperatively
for environmental protection.
Finally, capability is a determination
that will be made on a case-by-case
basis. Ordinarily, the information
regarding programmatic capability
provided in the application for program
approval submitted under proposed
§§745.350 and 745.352 will be
sufficient. Nevertheless, EPA may
request, in individual cases, that the
Indian Tribe provide a narrative
statement or other documents showing
that the Indian Tribe is capable of
administering the program for which it
Is seeking approval. See 59 FR 64341.
Consistent with the simplification
rule, no pre-qualification process will be
required for Indian Tribes to obtain
program approval for the LBP debris
management and disposal program. EPA
will evaluate whether Indian Tribes
have met the four eligibility criteria
listed above during the program
approval process.
H. Enforcement and Compliance
Provisions
1. General. As noted above, before
approving a State or Tribal application
for authorization to run a LBP debris
management and disposal program, the
Agency is required to determine that a
State or Tribe will provide for the
adequate enforcement of its regulations.
The Agency has developed, at
proposed § 745.352, minimum
requirements that a State or Tribal LBP
debris management and disposal
compliance and enforcement program
should meet in order to receive
authorization. The Agency believes that
a State or Indian Tribe that develops an
enforcement program based on these
requirements would provide "adequate
enforcement" as that term is used in
TSCA section 404 (b) (2).
These requirements were developed
based on the Agency's experience
evaluating and approving other State
and Tribal compliance and enforcement
programs, as well as the Agency's
experience in enforcing its own
regulations. These requirements are also
generally consistent with those found in
the LBP certification and training rule
(61 FR 45778, August 29, 1996). Further,
the Agency's own compliance and
enforcement program for these LBP
debris management and disposal
regulations will contain most of the
elements described at § 745.352.
The compliance and enforcement
portion of a State or Tribal LBP debris
management and disposal program
application should be submitted
simultaneously with the other required
elements. Today's proposal does not
provide separate or interim approval
procedures for compliance and
enforcement portions of State or Tribal
applications. This represents a notable
distinction between the compliance and
enforcement components in today's
proposal and those found in the LBP
certification and training rule. The
Agency believes that because LBP debris
is currently regulated by many
authorized State RCRA programs, most
States already have the necessary
infrastructure in place to administer and
enforce a LBP debris management and
disposal program. In comparison,
relatively few States had LBP
certification and training programs in
place at the time of the promulgation of
that rule (August 29, 1996). EPA
believes that the compliance and
enforcement application procedures in
today's proposal are simpler and will be
easier to complete than those in the LBP
certification and training rule.
Comments from States and Tribes on
this issue are encouraged.
Approval will be given to any State or
Indian Tribe which has in place all of
the elements of proposed § 745.352,
provided the program is also found to be
"at least as protective as" the Federal
program. If a State or Indian Tribe does
not have a LBP debris management and
disposal program authorized by the
Agency within 2 years after final
promulgation of the LBP Debris
Management and Disposal Rule, the
Agency will enforce the provisions at
proposed §§745.301 through 745.319 as
the Federal program.
In order for a LBP debris management
and disposal compliance and
enforcement program to be considered
adequate for approval, the State or
Indian Tribe should certify it has the
legal authority and ability to
immediately implement the elements at
proposed § 745.352. States or Indian
Tribes should submit copies of all
applicable State or Tribal statutes,
regulations, standards and other
material that provide the State or Indian
Tribe with authority to administer and
enforce the lead debris compliance and
enforcement program, and copies of the
policies, certifications, plans, reports,
and any other documents that
demonstrate that the program meets the
requirements established at proposed
§745.352.
Finally, the State or Indian Tribe must
agree to submit to EPA the Summary on
Progress and Performance as described
at § 745.355(b) (2), This report should be
submitted to EPA by the primary agency
for each authorized State or Indian Tribe
beginning 12 months after the date of
program authorization. Each authorized
program will be required to submit the
report to the EPA Regional
Administrator for the Region in which
the State or Indian Tribe is located. The
report should be submitted at least once
every 12 months for the first 3 years
after program approval. As long as these
reports indicate that the authorized
program is successful, the reporting
interval will automatically be extended
to every 2 years. If the reports
demonstrate problems with
implementation, EPA will revert to
annual reporting in order to assist the
State or Indian Tribe in resolving the
problems. These programs will return to
biannual reporting after demonstration
of successful program implementation.
2. Required enforcement and
compliance elements. The remainder of
this Unit describes in more detail the
required enforcement and compliance
elements at proposed § 745.352. Section
745.352 "State and Tribal Compliance
and Enforcement" requires that a State
or Indian LBP debris management and
disposal program should at a minimum
have the compliance and enforcement
elements discussed below.
i. Authority to enter (§ 745.352(a)(l)).
State or Tribal officials should be able
to enter premises or facilities where LBP
debris management or disposal
violations may occur. A State or Tribe
must be able to subpoena any person
who has possession of records or reports
pertaining to LBP debris to produce
such documents; in addition, a State or
Tribe must be able to compel the
appearance of any person to testify
concerning any matter relating to LBP
debris. A State or Tribe must also
designate a judicial body that will have
the authority to hold any person in
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
70221
contempt who fails or refuses to obey
such a duly issued subpoena. They
should have the authority to take
samples, if necessary, as part of the
inspection process. A State or Indian
Tribe should have the authority to seek
a warrant if access is denied to inspect
any place or vehicle.
ii. Flexible remedies (§745.352(a)(2)).
State or Tribal LBP debris management
and disposal programs should provide
for a diverse and flexible array of
enforcement remedies, which must be
reflected in a Standard Enforcement
Response Policy. A LBP debris
management and disposal program
should be able to select from among the
available alternatives an enforcement
remedy that is particularly suited to the
gravity of the violation, taking into
account potential or actual risk,
including:
• Warning letters, or notices of
noncompliance, or notices of violation,
or the equivalent.
• Administrative or civil actions (e.g.,
administrative or civil penalty
assessment).
• Authority to apply criminal
sanctions or other criminal authority
using existing,State or Tribal laws, as
applicable.
The Agency understands that Indian
Tribes may have restrictions on their
ability to levy criminal sanctions, e.g.,
Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978); 25 U.S.C. 1302(7).
This limitation will not necessarily have
a negative impact on the ability of an
Indian Tribe to receive program
authorization. The Indian Tribe should,
however, explain in its application the
nature and extent of any limitation on
its ability to levy criminal sanctions.
The Agency realizes that requiring
Indian Tribes to demonstrate the same
criminal authority as States might
effectively prohibit any Indian Tribe
from obtaining program authorization.
The Agency, in Unit VTI.F. of this
preamble has stated that Indian Tribes
are not required to exercise
comprehensive criminal enforcement
jurisdiction as a condition for LBP
debris management and disposal
program authorization. Under this
proposal, Indian Tribes are required to
provide for the timely and appropriate
referral of criminal enforcement matters
to the EPA Regional Administrator
when Tribal enforcement authority does
not exist or is not sufficient. Section
745.352(b) of today's proposal requires
that such procedures be established in
a formal Memorandum of Agreement
with the Regional Administrator. This
approach is the same as that which the
Agency has taken in the context of
Tribal programs under the Safe Drinking
Water Act and the Clean Water Act. EPA
emphasizes that this referral mechanism
is not available where limitations on
Tribal enforcement arise under purely
Tribal law, for example, the Tribal
constitution or statutes. It should be
further noted that, as in authorized
States, EPA retains the authority to take
enforcement action if an authorized
Indian Tribe does not (or cannot) take
such action or fails to enforce
adequately.
iii. Training for compliance and
enforcement personnel (§ 745.352(a)(3)).
A LBP debris management and disposal
program should offer training for
compliance/enforcement personnel to
ensure that the personnel are well
trained. Enforcement personnel should
understand case development
procedures and the maintenance of
proper case files. Inspectors should
successfully demonstrate knowledge of
the requirements of the particular
discipline for which they have
compliance monitoring and
enforcement responsibilities. Inspectors
should also be trained in violation
discovery, evidence gathering,
preservation of evidence and chain-of-
custody, and sampling procedures.
Instruction should take the form of both
hands-on or on-the-job training and the
use of prepared training materials. A
State and Tribal LBP debris
management and disposal program
should also implement a process for
continuing education of enforcement
and inspection personnel.
iv. Compliance assistance
(§ 745.352(a)(4)). LBP debris
management and disposal compliance
and enforcement programs should
provide compliance assistance to the
public and the regulated community to
facilitate awareness and understanding
of and compliance with the State or
Indian Tribe's LBP debris management
and disposal program(s).
v. Sampling techniques
(§ 745.352(a)(5)). A State or Tribal
compliance and enforcement program
should show that the State or Indian
Tribe is technologically capable of
ensuring compliance with LBP debris
management and disposal compliance
and enforcement program requirements.
As a result, an authorized program
should have access to the facilities and
equipment necessary to conduct the
proper analysis of samples gathered
from inspections of sites such as waste
facilities, reclamation facilities, and
vehicles. A State or Indian Tribe should
use a laboratory facility as defined at 40
CFR 745.223 or implement a quality
assurance program that ensures
appropriate quality of laboratory
personnel and protects the integrity of
analytical data.
vi. Handling tips and complaints
(§ 745.352(a)(6)). An authorized LBP
debris management and disposal
program should have a method in place
to respond to tips from the general
public. The compliance and
enforcement program should >
demonstrate the ability to process and
react to tips and complaints or other
information indicating a violation. EPA
expects that the ability to process and
react to tips and complaints would, as
appropriate, include:
• A method for funneling complaints
to a central organizational unit for
review.
• A logging system to record the
receipt of complaints and to track the
stages of a follow-up investigation.
• A mechanism for referring
complaints to the appropriate
investigative personnel.
• A system for allowing a
determination of the status of cases and
ensuring correction of any violations.
« A procedure for notifying citizens
of the ultimate disposition of their
complaints.
• A procedure to conduct swift
preliminary investigations of
complaints, especially those that allege
serious threats to public safely and the
environment.
• A pledge of confidentiality to all
informants, to encourage members of
the public to come forward with tips
and complaints.
vii. Targeting inspections
(§ 745.352(a)(7)). LBP debris
management and disposal compliance
and enforcement programs should
demonstrate the ability to target
inspections to ensure compliance with
the LBP debris management and
disposal program requirements.
viii. Follow-up to inspection reports
(§ 745.352(a)(8)). A State or Indian Tribe
should develop a quick turnaround time
to review and follow-up on identified
violations and information that are
gathered from inspections. Such
information should be processed within
a reasonable time to avoid risks
associated with a stagnant investigation.'
The State or Indian Tribe should be in
a position to ensure correction of
violations, and, as appropriate, develop
and issue enforcement remedies/
responses in follow-up to the
identification of violations.
ix. Compliance monitoring and
enforcement (§ 745.352(a) (9)). A
compliance and enforcement program
should ensure correction of violations,
and encompass either planned and/or
responsive lead hazard reduction
inspections and development/issuance
-------
70222
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
of State or Tribal enforcement responses
which are appropriate to the violations.
x. Tribal memorandum of agreement
(MOA)(§ 745,3S2(b)). Indian Tribes
should enter into an MOA with the
appropriate EPA Regional Administrator
regarding criminal enforcement. The
MOA should be executed by the Indian
Tribe's counterpart to the State Director;
e.g., the Director of Tribal
Environmental Office, Program or
Agency. The MOA should include a
provision for timely and appropriate
referral to the Regional Administrator of
criminal enforcement matters for which
the Indian Tribe does not have
authority.
3. Summary on progress and
performance. An authorized State or
Indian Tribe should provide periodic
reports to EPA as specified in
§745.355(b)(2). Section 745.355(b)(2)
requires authorized States or Indian
Tribes to submit a report which
summarizes the results of implementing
the State or Indian Tribe's LBP debris
management and disposal compliance
and enforcement program, including: (1)
A summary of the scope of the regulated
community within the State or Indian
Tribe; (2) the inspections conducted; (3)
Enforcement actions taken; (4)
compliance assistance provided; and (5)
the level of resources committed by the
State or Indian Tribe to these activities
and any other LBP debris management
and disposal administrative and
compliance/enforcement activities.
The report should describe any
significant changes in the enforcement
of the State or Tribal LBP debris
management and disposal program
implemented during the last reporting
period. The report should also
summarize the results of the State or
Indian Tribe's implementation activities
and what the State or Indian Tribe
discovered, in general, with regard to
compliance and enforcement in the
State or Indian Tribe as a result of these
activities. The report should also
describe how any measures of success
were achieved, and directly assess the
impact of compliance/enforcement
activities on reducing threats to public
health.
IX. Rulemaking Record
EPA has established a record for this
proposed rule under docket control
number OPPTS-62160. A public version
of the record without any information
claimed to be confidential is available in
the TSCA Non-Confidential Information
Center (NCIC) from noon to 4 p.m.,
Monday through Friday, excluding legal
holidays. The TSCA NCIC is located at
EPA headquarters, Rm. NE-B607, 401 M
St.. SW., Washington, DC 20460.
The rulemaking record contains
information considered by the EPA in
developing this proposed rule. The
record includes: (1) All Federal Register
notices, (2) relevant support documents,
(3) reports, (4) memoranda and letters
and (5) other documents related to this
proposed rulemaking.
Unit X. of this preamble contains the
list of documents which the Agency
relied upon while developing today's
regulation and can be found in the
docket. Other documents, not listed
there, such as those submitted with
written comments from interested
parties, are contained in the TSCA
Docket office as well. A copy of today's
proposed rule is also contained in the
public record.
X. 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, Centers for Disease
Control. February 21, 1997. "Update:
Blood Lead Levels- United States, 1991-
1994." Morbidity and Mortality Weekly
Report. Vol. 46, No. 7.
2. HUD. 1994. Department of Housing
and Urban Development, National
Housing Survey. Washington, DC.
3. Lead-Based Paint Hazard Reduction
and Financing Task Force. July 1995.
Putting the Pieces Together: Controlling
Lead Hazards in the Nation's Housing.
HUD-1547-LBP.
4. Task Force on Lead-Based Paint
Hazard Reduction and Financing. April
13, 1994. Letter to Honorable Carol
Browner, Administrator, USEPA.
Washington, DC.
5. USEPA. March 1993. Applicability
ofRCRA Disposal Requirements to
Lead-Based Paint Abatement Wastes;
Final Report EPA 747-R-93-006.
6. HUD. April 1991. "The HUD Lead-
Based Paint Abatement Demonstration
(FHA)." Office of Policy Development
and Research.
7. USEPA. September 1998. TSCA
Title IV, §§402/404: Lead-Based Paint
Debris Management and Disposal
Standards Proposed Rule Economic
Analysis. Office of Pollution Prevention
and Toxics.
8. Stedman's Medical Dictionary.
1976. William and Wilken Co.,
Baltimore.
9. Rabinowitz, Michael. 1987. "Stable
Isotope Mass Spectrometry in
Childhood Lead Poisoning." Biological
Trace Element Research. Vol. 12: 223-
229.
10. Yaffe, Y., C.P. Flessel, J.J.
Wesolowski, A. del Rosario, G.N.
Guirguis, V. Matias, J.W. Gramlich, W.R.
Kelly, T.E. Degarmo, and G.C. Coleman.
1983. "Identification of lead sources in
California children using the stable
isotope ratio technique." Arch
Environmental Health. Jul-Aug
38(4):237-45.
11. Clark, C.S., R.L. Bornschein, P.
Succop, S.S. Que Hee, P.B. Hammond,
and B. Peace. 1985. "Condition and
Type of Housing as an Indicator of
Potential Environmental Lead Exposure
and Pediatric Blood Lead Levels."
Environmental Research. 38:46-53.
12. Science Application International
Corporation. May 1992. Analytical
Results of Lead in Construction Debris.
Prepared for USEPA's Office of Solid
Waste.
13. Science Application International
Corporation. September 1994.
Background Document on Lead
Abatement Waste Study; Interim Draft.
Prepared for USEPA's Office of Solid
Waste.
14. Deutsch, W.J. 1997. Groundwater
Geochemistry. Woodward-Clyde,
Seattle, WA.
15. ICF Incorporated. 1995.
Construction and Demolition Waste
Landfills. EPA 530-R-95-018.
16. ICF Incorporated. Damage Cases:
Construction and Demolition Waste
Landfills. EPA 530-R-020.
17. USEPA. 1996. Hazardous Waste
Characteristics Scoping Study. EPA 530-
R-96-053.
18. USEPA. June 1998. Groundwater
Pathway Analysis for Lead-Based Paint
(LBP) Architectural Debris; Background
Document.
19. Clinch, J. Michael. 1994. Summary
of C&D Leachate Studies. Prepared for
Ohio EPA C&D Landfill Regulation
Negotiated Rulemaking Committee.
20. HUD, Office of Policy
Development and Research. December
1990. "Comprehensive and Workable
Plan for the Abatement of Lead-Based
Paint in Privately Owned Housing."
Report to Congress.
21. USEPA. 1995. Estimates for
Disposal of LBP Debris in C&D
Landfills. Developed for C&D landfill
risk analysis.
22. EPA. 1997. EPA's Composite
Model for Leachate Migration with
Transformation Products (EPACMTP).
Office of Solid Waste.
(a) Background Document
(b) Users Manual
(c) Background Document for Finite
Source Methodology
(d) Background Document for Metals:
Methodology
23. Wu et al. January 1997. Water
Resources Research, pp. 21-29.
24. EPA Science Advisory Board.
August 1995. An SAB Report: Review of
EPA's Composite Model for Leachate
-------
Federal Register/Vol. 63. No. 243/Friday. December 18, 1998/Proposed Rules
70223
Migration with Transformation
Products-EPACMTP. Prepared by the
OSWER Exposure Model Subcommittee
of the Environmental Engineering
Committee. EPA-SAB-EEC-95-010
25. USEPA. January 1996. Office of
Solid Waste. Response by USEPA Office
of Solid Waste to SAB Review of
EPACMTP.
26. National Association of
Demolition Contractors. October 21,
1997. Letter to Tim Torma, Office of
Pollution Prevention and Toxics,
USEPA, Washington, DC.
27. Holmes. Hannah 1997. "Bringing
Down the House: Home
Deconstructionists Make Salvaging a
Class Act." Sierra Club Magazine;
September/October, 1997: pp. 20-21.
28. U.S. Department of the Interior.
1995. National Park Service, Cultural
Resources Preservation Assistance.
Historic Preservation Brief #37:
Appropriate Methods for Reducing
Lead-Based Paint Hazards in Historic
Housing. Washington, DC, April 1995
29. USEPA. November 1993.
Management of Whole-Structure
Demolition Debris Containing Lead-
Based Paint, Office of Waste Programs
Enforcement.
30. U.S. Department of Housing and
Urban Development. 1995. Guidelines
for the Evaluation and Control of Lead-
Based Paint Hazards in Housing. Office
of Lead-Based Paint Abatement and
Poisoning Prevention. June 1995.
31. Lehman, Timothy. September 15,
1997. USEPA, Office of Pollution
Prevention and Toxics. Memorandum to
Timothy Torma, USEPA, Office of
Pollution Prevention and Toxics.
32. EPA. November 1984. EPA Policy
for the Administration of Environmental
Programs on Indian Reservations.
33. EPA. July 1994. Memorandum of
Actions for Strengthening EPA's Tribal
Operations.
XI. Regulatory Assessment
Requirements
A. Executive Order 12866
The Office of Management and Budget
(OMB) has determined that this action
is an "economically significant
regulatory action" under Executive
Order 12866, entitled "Regulatory
Planning and Review" (58 FR 51735,
October 4, 1993), because EPA estimates
that this action may result in annual
cost savings exceeding $100 million.
The Agency submitted today's proposed
rule, along with the proposed
Suspension under RCRA, to OMB for
review under this Executive Order. Any
changes made in response to OMB
suggestions or recommendations have
been documented in the public record
for this proposal.
EPA has prepared an economic
analysis of the impact of this action,
which js contained in a document
entitled, "TSCA Title IV, Sections 402/
404: LBP Debris Management and
Disposal Proposed Rule: Economic
Analysis." This document is also
available in the public record for this
proposal.
The goal of the economic analysis was
to identify, quantify, and value the cost
savings associated with exempting LBP
debris from RCRA Subtitle C and
allowing for disposal in C&D landfills,
and the incremental costs of compliance
with the LBP debris management
provisions of the proposed rules. Insofar
as the cost savings and reduction in the
price of abatements stimulates demand
for additional LBP hazard-reducing
activities, the analysis identified
potential social benefits associated with
those cost reductions.
The following is a brief summary of
that analysis.
1. Costs of the regulatory action. The
proposed TSCA rule imposes three new
compliance requirements on regulated
entities: notification and recordkeeping
when LBP debris is transferred, access
limitations for LBP debris stored longer
than 72 hours, and covering of LBP
debris during transport. The compliance
costs associated with the new
notification and recordkeeping
requirements total $30.86 million
annually. The access limitation
requirement imposes no new
compliance costs, because EPA believes
that all affected projects are: (1)
Completed within the 72 hour
timeframe, (2) presently using
containers that meet the access
limitations requirements (by virtue of
their height or use of covers), or (3)
capable of using compliant containers at
no additional cost. The requirements for
covering LBP debris during transport are
expected to impose no new costs
because transporters generally cover
debris already or can provide covered
vehicles or containers at no additional
COSt. :
In addition to these compliance costs,
EPA estimates that LBP debris
generators, transporters, and disposers
will incur $21.61 million in the first
year following promulgation of the rule
to familiarize themselves and their
employees with the requirements of the
proposed rules, and $1.08 million in
subsequent years to familiarize new
hires with the provisions of the
proposed rules. Finally, as discussed in
Section XI.A.3. of this preamble, states
incur costs to apply for EPA approval to
administer the proposed rules at the
state level. EPA estimates that states
will 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
annual reports. Thus, total costs for
regulated entities in the first year will be
$53.42 million in the first year, $32.00
million in years that states submit
annual reports (second and third years
and biennially thereafter), and $31.94
million in years that state reports are not
required.
The renovation and remodeling sector
incurs the largest share of first year
compliance costs at $29.34 million, :
followed by waste transporters, who
will incur $ 15.86 million in the first
year. Waste disposal facilities are
expected to incur compliance costs of
$3.98 million in the first year, while
abatement and demolition contractors
will each incur $1.38 and $1.91 million:
in first year compliance costs,
respectively. States incur the least
compliance costs in the first year with
$0.95 million.
2. Benefits of regulatory action. The
benefits of the proposed rule are two-
fold. First, the proposed rule would
result in significant cost savings for
consumers of abatement, renovation,
remodeling and demolition. These
savings would be achieved by allowing
the use of C&D landfills as an option for
the disposal of LBP debris, and
eliminating the hazardous waste
determination currently required for
LBP debris under RCRA Subtitle C.
•Second, the cost savings and reduced
costs of abatements, renovation,
remodeling and demolitions would
stimulate demand for those services.
The additional activities (in particular
abatements) would serve to mitigate the
economic impacts of lead risk,
including: reduced lifetime earnings
due to diminished intelligence,
increased educational costs, increased
health care costs, costs associated with
increased morbidity and mortality, lost
work days and lost productivity, and
pain and suffering associated with
adverse health effects.
The primary objective of the benefit
analysis was to estimate the potential
cost savings that would arise from relief
from the expensive requirements of
hazardous waste analysis, management,
transportation, and disposal for LBP
debris. Waste generators, in the short-
term, would be relieved of the costly
burden of managing LBP debris under
RCRA Subtitle C. In the long-term, the
economic benefits to waste generators
are expected to be passed on to the
consumers of abatement, renovation,
remodeling, and demolition services in
the form of lower costs. The net cost
savings from the proposed rule are
calculated as the baseline costs
-------
70224
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
associated with managing and disposing
of LBP debris under current
requirements minus the proposed rule
compliance costs and the costs of
disposing of the LBP debris as a
nonhazardous waste. The net cost
savings represent the potential
magnitude of savings that would be
passed on to consumers.
The cost-savings (reduced disposal
costs minus new compliance costs) of
the proposal are estimated at $97.91
million In the first year. In subsequent
years, the estimated cost savings
increases to approximately $119 million
annually as initial compliance costs are
reduced. The demolition sector is
estimated to realize the most benefit
with a S78.95 million cost savings in the
first year. The estimated savings for
abatement activities is $36.99 million in
the first year and the savings for
renovation and remodeling are
estimated at S2.75 million in the first
year, The cost savings in these three
sectors are then partially offset by
increased costs incurred by waste
transporters, waste disposal facilities,
and states. The waste transportation
sector is estimated to incur an
additional $15.86 million in costs and
the waste disposal industry is estimated
to incur new costs totaling $3.98
million. States applying for EPA
approval to administer the proposed
rules will incur $0.95 million in the first
year.
When the net savings are divided by
the baseline number of activities, the
demolition sector is expected to see the
largest per activity cost-savings with an
average savings of $272.50 per project in
the first year. The average first year
savings in the abatement sector
(including target housing, public
housing, and commercial buildings) and
the renovation and remodeling sector
are $ 176.26 and $0.62 per activity
respectively. Waste transporters and
waste disposal facilities are expected to
incur costs of $3.19 and $0.80,
respectively, for each transaction
Involving LBP debris.
The secondary objective of the benefit
analysis was to determine how a
potential change in demand for
abatement, renovation, remodeling, and
demolition activities associated with a
reduction in the costs of those services
would reduce the social costs of LBP
risk, To the extent that the costs of
abatement, renovation, remodeling and
demolition decline as an outcome of
this proposed rule and these savings are
passed on to consumers, there will be a
corresponding increase in demand for
these activities.
This increase is likely to be
particularly evident in the public
housing sector where local housing
authorities operate under fixed budgets
that often include funds which are
earmarked specifically for abatement
activity. Thus, any decrease in the cost
of abatements should lead to a direct
increase in abatement activity in public
housing, and a subsequent accelerated
depletion of the stock of public housing
with LBP hazards. The benefits analysis
estimates that if promulgated, the
proposed rule would reduce the cost of
public housing abatements from a
current average of $3,650 per unit to
$3,444 per unit, a decline of $206 or
5.6%. In aggregate, the proposal would
generate $17.13 million per year in cost
savings for public housing abatements.
Under the assumption that public
funding for LBP abatement remains
stable, all public housing units will be
abated within 12 years. The estimated
$17.13 million in cost savings per year
to public housing could be used to fund
additional abatements, shortening the
time frame for completing all remaining
abatements. The analysis estimates that
the number of abatements in public
housing will increase by 5,454 per year
(an increase of 6.6% from the current
' baseline), eliminating the stock of
public housing containing LBP 1 year
earlier than predicted in the absence of
the proposed rule.
In the target housing and child-
occupied facility sectors, the decreased
price of abatement activities is expected
to also stimulate demand for abatement,
R&R and demolition services. Data on
the potential change in the demand for
those services is not available, however,
and therefore it is not possible to
determine the magnitude of the
potential benefits.
For each additional abatement,
renovation, remodeling, and demolition
activity demanded as a result of the
proposed rule, there would be an
additional reduction in LBP exposure.
The elimination of exposures to LBP
hazards associated with these additional
activities will reduce the baseline
number of cases of adverse health
effects such as childhood lead poisoning
and increased hypertension among
adults.
In addition to the measured benefits
of additional abatement, renovation,
remodeling, and demolition activities
described in the base analysis, other
qualitative benefit categories exist.
These categories include reductions in
neonatal mortality, adult resident health
effects such as hypertension, coronary
heart disease and stroke, infant/child
neurological effects, and occupational
health effects such as hypertension,
coronary heart disease, and stroke. Due
to data limitations, however, it was not
possible to value these benefits.
3. Costs to States. Under the proposed
rules, States, Territories and Tribes may
incur costs associated with adopting
and implementing both the RCRA TC
suspension rule and the TSCA LBP
debris management and disposal
program. States are not required to
implement these rules, and States that
do not do so will not incur any costs.
Despite the optional nature of the State
requirements, EPA considers these costs
attributable to the proposed rules and
has prepared estimates of the potential
costs that will be incurred by States.
Under the proposed TSCA rule, States
would need to demonstrate and certify
to EPA that they have adopted
requirements at the State level that are
at least as protective as the proposed
Federal LBP debris program. As a
conservative assumption (from a cost
standpoint), EPA has assumed that 55
States, Tribes and Territories apply for
such authorization. EPA estimates that
each entity would incur costs of
approximately $9,900 in the first year to
modify State laws, assemble an
application package, and make the
necessary certifications to EPA. States
receiving authorization would be
required to submit progress reports in
the first 3 years after receiving
authorization and biennially thereafter
on their LBP management programs,
which would cost them an estimated
$1,100 for each report, or a total of $0.06
million for all States. In total, the
highest costs to States would occur in
the first year, when the combined State
costs would total $0.55 million.
Under the proposed RCRA TC
suspension rule, States that are
authorized for TC and that have an
approved LBP debris management
program in place (or that have certified
to EPA that their programs are as
protective as the Federal requirements)
would be eligible to implement the TC
rule at the State level. Presently, there
are 35 States with authorized TC
programs and another 10 States with TC
rules adopted that are awaiting EPA
authorization. Assuming again a
conservative scenario (from a cost
standpoint), if all 45 States eventually
apply and incur costs similar to those
incurred to implement the LBP debris
program (approximately $8,800 per
State), the total costs of the TC rule to
States would be $0.40 million in the
first year.
The combined costs incurred by
States to implement both the LBP debris
program and the TC suspension rule
would be $0.95 million in the first year
under worst-case assumptions. In the
second and third years and biennially
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
70225
thereafter, States would only incur
$0.06 million to prepare and submit the
required LBP debris management
progress report.
4. Sensitivity analysis. Sensitivity
analyses were prepared to examine the
effects of key assumptions and modeling
parameters on the pre- and post-
regulatory costs, and their impact on the
cost savings of the proposed rule. These
analyses considered the effects of
alternative TCLP failure rates for LBP
debris, alternative assumptions
concerning how frequently generators
perform TCLP testing on LBP debris,
alternative estimates of how often
generators rely on relevant knowledge
rather than TCLP testing to make
hazardous waste determinations, how
commonly generators use XRF testing to
make hazardous waste determinations
instead of TCLP, the time required to
perform notifications under title
proposed rule, and the number of States
that will apply for EPA approval to
administer the proposed TC suspension
and LBP debris management and
disposal program. In total, 16 different
scenarios were generated by varying
these assumptions.
In the sensitivity analysis, the net
impact of the rule varies from a net
savings of $295.25 million in the first
year to a net savings of $46.04 million
in the first year. The upper bound
represents over a 300% increase over
the results obtained using all of the
baseline assumptions ($97.91 million in
the first year) while the lower bound
represents a 53% decrease from the
baseline cost savings. The upper bound
scenario assumed more frequent use of
XRF testing in the baseline scenario,
which increased the baseline level of
testing costs. The lower bound assumed
that less testing and less reliance on
relevant knowledge is used in
identifying LBP debris compared to
assumptions used in the baseline
scenario. These two assumptions
combined to reduce the baseline costs of
waste disposal, thus reducing the
potential cost savings of the proposed
rules. The median estimate among the
sensitivity analyses was $107.70 million
in the first year (this scenario assumes
a only 23 states would apply for EPA
approval under the TC suspension and
28 states would apply under the TSCA
rule). Six of the sensitivity analyses
generated lower cost savings estimates
and 10 scenarios generated higher cost
savings estimates compared to the
baseline scenario.
B. Regulatory Flexibility Act
Pursuant to section 605 (b) of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.), the Agency hereby certifies that
this action will not have a significant
adverse economic impact on a
substantial number of small entities.
The factual basis for this certification is
included in the small entity analysis
that was conducted as part of the
economic analysis. This proposed rule
will result in substantial cost and
burden savings for all of the entities
involved in LBP activities, regardless of
the size of the entity. EPA's analysis, as
summarized above, shows that this
proposed rule consistently imposes
compliance costs that are less than 1%
of any industry's revenues, and in many
cases, less than 0.1% of the industry's
revenues. Information relating to this
determination is provided upon request
to the Chief Counsel for Advocacy of the
Small Business Administration, and is
included in the docket for this
rulemaking.
C. Paperwork Reduction Act
The information collection
requirements contained in this proposed
rule have been submitted to the Office
of Management and Budget under the
Paperwork Reduction Act, 44 U.S.C.
3501 etseq., and in accordance with the
procedures at 5 CFR 1320.11. An
Information Collection Request (ICR)
document has been prepared by EPA
(EPA ICR No. 1822.01) and a copy may
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@epamail.epa.gov." An
electronic copy of the ICR has also been
posted with the Federal Register notice
on EPA's homepage at "www.epa.gov/
icr." The information requirements
contained in this proposal are not
effective until promulgation and OMB
approval, which is presented by a
currently valid OMB control number.
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 the PRA unless it
displays a currently valid OMB control
number. The OMB control numbers for
EPA's regulations after initial
publication in the Federal Register are
maintained in a list at 40 CFR part 9.
Under the Paperwork Reduction Act
(44 U.S.C. 3501 etseq.), EPA is required
to estimate the notification, reporting
and recordkeeping costs and burdens
associated with the requirements
specified in the proposed rule. The
proposed rules contain three
requirements that would impose
paperwork burdens: reading and
interpreting the proposed rules, the
notification and recordkeeping
requirement of the TSCA rule, and the
state application requirement under,
both rules. In addition to these new
burdens, exempting LBP debris from
RCRA subtitle C will reduce the burden
associated with manifesting for LBP
debris handled as hazardous waste. .
Paperwork burdens are estimated to be
1.6 million hours annually, with a total
costs of $36.9 million annually.
Under the Paperwork Reduction Act ,
"burden" means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
Comments are requested on the
Agency's need for this information, the
accuracy of the provided burden
estimates, and any suggested methods
for minimizing respondent burden,
including through the use of automated
collection techniques. The final rule
will respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
D. Unfunded Mandates Reform Act
(UMRA)
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104-4), EPA has determined
that this proposed action does not
contain a Federal mandate that may
result in expenditures of $100 million or
more for State, local, and Tribal
governments, in the aggregate, or the
private sector in any 1 year. The cost
associated with this action are described
in the Executive Order 12866 section
above. '
UMRA 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 or
Indian Tribes of today's proposed rule
and the companion RCRA temporary TC
suspension is voluntary and imposes no
Federal intergovernmental mandate
within the meaning of the Act. Because
any possible burden on such
governmental units would be incurred
-------
70226
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
as a result of voluntary action by those
governmental units, there is not an
unfunded mandate.
In addition, EPA has determined that
today's proposed rule will not
significantly or uniquely affect small
governments, including Tribal
governments, so no action is needed
under section 203 of the UMRA. As
indicated in Unit XI.B. of this preamble,
if small governments, such as small
municipalities or Tribes, are generators
of LBP debris covered under today's
proposed standards, then they will save
the costs of complying with the RCRA
TC rule and any costs of complying with
RCRA Subtitle C standards when LBP
debris is determined to be hazardous.
As a result, this proposed action is not
subject to the requirements of sections
202, 203. 204, or 205 of UMRA.
E, 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 l(a) of
Executive Order 12875 do not apply to
tills proprosed rule. Nevertheless, EPA
has consulted with these governmental
entities. Throughout the development of
today's proposed rules, the Agency has
worked closely with States, Tribal, and
local governments. A more detailed
discussion of these activities has been
included in Unit V.A. of this preamble
on stakeholder consultation. In working
with these various governmental
entities, EPA has provided notice to
small governments of the provisions of
today's proposed rule and obtained
meaningful and timely input from them.
Furthermore, EPA will continue these
outreach efforts during the comment
period and subsequent to promulgation.
F. 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
costsincurred 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. Nevertheless, as
indicated above and discussed in more
detail in Unit IV. A. of this preamble,
EPA has consulted with State, local and
Tribal governments during the
development of these proposed rules.
EPA will continue these outreach efforts
during the comment period and
subsequent to promulgation.
G. Executive Order 12898
Pursuant to Executive Order 12898
entitled "Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations" (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 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."
Although the baseline risks from LBP
fall disproportionately on 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, renovations, 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
-------
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed RuJes
70227
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.
H. 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., materials 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 not
used by EPA, the Act requires the
Agency to provide Congress, through
the Office of Management and Budget,
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 TSCA 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 public
comment on this analysis.
/. Executive Order 13045
This proposed rule is not subject to
E.O. 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 LBP 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 as well as from the
entire Lead Program.
List of Subjects in 40 CFR Part 745
Environmental protection, Hazardous
substances, Hazardous waste, Lead
•poisoning, Management and disposal of
LBP, Reporting and recordkeeping
requirements.
Dated: December 9, 1998.
Carol M. Browner,
Administrator.
Therefore, 40 CFR part 745 is
proposed to be amended as follows:
PART 745—[AMENDED]
1. The authority citation for part 745
is revised to read as follows:
Authority: 15 U.S.C. 2605, 2607, 2681-
2692, and 42 U.S.C. 4852d.
2. By adding a new subpart P to read
as follows:
Subpart P—Management and Disposal of
Lead-Based Paint Debris
Sec.
745.301 Scope and applicability.
745.303 Definitions.
745.305 Lead-based paint hazards.
745.307 Generator responsibilities.
745.308 Transporter responsibilities.
745.309 Disposal and reclamation facility
owner or operator responsibilities.
745.311 General requirements for the reuse
and storage of lead-based paint debris.
745.313 Notification arid recordkeeping
requirements.
745.315 Certification of workers.
745.317 Enforcement.
745.318 Inspections.
745.319 Effective dates.
Subpart P—Management and Disposal
for Lead-Based Paint Debris
§745.301 Scope and applicability.
(a) Regulated entities. Except as
provided in paragraphs (b) and (d) of
this section, this subpart applies to all
persons, individuals, and firms, who
generate, store, transport, reuse, offer for
reuse, reclaim and/or dispose of lead-
based paint debris.
(b) Exclusion of homeowners. This
subpart does not apply to lead-based
paint debris generated by persons who
conduct abatement or renovation and
remodeling activities themselves in
target housing that they own, unless the
housing is occupied by a person or
persons other than the owner or the
owners' immediate family while the
lead-based paint debris is being
generated.
(c) Other regulatory authorities. Lead-
based paint debris subject to this
subpart may also be subject to
additional requirements under other
regulatory authorities (e.g., the Resource
Conservation and Recovery Act (RCRA)
and the Clean Air Act (CAA)).
(d) Lead-based paint removal. If lead-
based paint is removed from lead-based
paint debris and the remaining material
has levels of lead less than 1 mg/cm2,
the material is no longer subject to the
requirements in this subpart. Waste
products generated during removal of
lead-based paint (e.g., paint chips, paint
dust, solvents) may be subject to other
regulatory authorities (e.g., RCRA, CAA,
non-Title IV TSCA authorities).
§745.303 Definitions.
The definitions in subparts A and L
of this part apply to this subpart. In
addition, the following definitions
apply:
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 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
§ 745.226, 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
-------
70228
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
projects are covered by paragraph (4) of
this definition; or
(iv) Projects resulting in the
permanent elimination of lead-based
paint hazards, 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.
Artifact means an item that is not
used as a structural or utility (e.g.,
electrical, plumbing, heating, air
conditioning) component of a building
or other structure but is used for
decorative or other purposes.
Commercial building means any
building which is used primarily for
commercial or industrial activity
including but not limited to
manufacturing, service, repair, or
storage.
Construction and demolition (C&D)
landfill means a solid waste disposal
facility subject to the requirements in
part 257, subparts A or B of this chapter
that does not receive hazardous waste
(defined in §261.3 of this chapter)
(other than conditionally exempt small
quantity generator waste (defined in
§261.5 of this chapter)) or industrial
solid waste (defined in § 258.2 of this
chapter). A C&D landfill typically
receives any one or more of the
following types of solid wastes:
roadwork material, excavated material,
demolition waste, construction/
renovation waste, and site clearance
waste. Municipal solid waste landfill
unite as defined in §258.2 of this
chapter are not C&D landfills.
Deleadlng 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, commercial buildings,
or steel structures.
Demolition means the wrecking,
razing, or destroying of any building or
significant element thereof using a
method that generates undifferentiated
rubble.
Deteriorated paint means paint that is
cracking, flaking, chipping, peeling, or
otherwise separting from the substrate
of a building component.
Dispose means intentionally or
accidentally to discard, throw away, or
otherwise undertake any action
resulting in the placement of lead-based
paint debris in any location where it is
not destined to be stored, reused, or
reclaimed in accordance with this
subpart. Application of lead-based paint
debris as mulch, topsoil, ground cover,
landscaping material, roadbed material,
fill material or for any purpose which
would require shredding, grinding,
compacting, burying or mixing with soil
is disposal. Any burning of lead-based
paint debris that is not reclamation is
disposal.
Encapsulation means the application
of a substance that forms a barrier
between lead-based paint and the
environment, using a liquid-applied
coating (with or without reinforcement
materials) or an adhesively-bonded
covering material.
Generator means any person, by site,
whose act or process produces lead-
based paint debris or whose act first
causes lead-based paint debris to
become subject to this part.
Indian Country means:
(1) All land within the limits of any
American Indian reservation under the
jurisdiction of the U.S. government,
notwithstanding the issuance of any
patent, and including rights-of-way
running throughout the reservation.
(2) All dependent Indian communities
within the borders of the United States
whether within the original or
subsequently acquired territory thereof,
and whether within or outside the limits
of a State.
(3) All Indian allotments, the Indian
titles which have not been extinguished,
including rights-of-way running through
the same.
Indian Tribe or Tribe means any
Indian Tribe, band, nation, or
community recognized by the Secretary
of the Interior and exercising substantial
governmental duties and powers.
Lead-based paint 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
percent 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 lead-based paint. 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, facias,
rake boards, cornerboards, 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 lead-based paint is displaced and
separated from commercial buildings,
public buildings, or target housing as a
result of abatement, deleading,
renovation or remodeling activities.
LBPACD does not include other types of
lead-based paint 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 LBPACD is placed in a
container or vehicle for transport to a
disposal or reclamation facility
specified in § 745.309 is considered
LBPACD.
(3) LBPACD which is reused in
compliance with this subpart is no
longer LBPACD.
Lead-based paint debris means lead-
based paint demolition debris or lead-
based paint architectural component
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 lead-based
paint at the time of demolition.
Person means any natural or judicial
person including any individual,
corporation, partnership, or association;
any Indian Tribe, State or political
subdivision thereof; any interstate body;
and any department, agency or
instrumentality of the Federal
government.
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, daycare centers,
museums, airport terminals, hospitals,
stores, restaurants, office buildings,
convention centers, and government
buildings. Note: "child-occupied
facilities" as defined at § 745.223 are
included in the definition of public
building.
-------
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
70229
Reclaim or reclamation means to
procure usable substances from lead-
based paint debris. Examples of
reclamation include the burning of lead-
based paint debris for energy value,
processing of lead-based paint debris in
a smelter to obtain lead, or removing
lead-based paint from debris prior to
reuse of a component.
Remodeling means any construction-
related work on an existing property
intended to either maintain or improve
the property that results in the
disturbance of painted surfaces.
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
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 a similar use.
Site means the same or geographically
contiguous property which may be
divided by public or private right-of-
way. Non-contiguous properties owned
by the same person but connected by a
right-of-way which the owner controls
and to which the public does not have
access, are considered part of a single
site.
Storage means the holding of lead-
based paint debris for a temporary
period.
Target housing means any housing
constructed prior to 1978, except
housing for die 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 persons with disabilities)
or any 0-bedroom dwelling.
Transfer for reuse means to physically
relocate, or convey ownership of a
building component prior to reuse.
§745.305 Lead-based paint hazards.
The following are lead-based paint
hazards:
(a) Management or disposal of lead-
based paint debris not in compliance
with this subpart.
(b) Reuse or transfer for reuse of lead-
based paint debris which is coated in
part or in whole with deteriorated paint.
§ 745.307 Generator responsibilities.
(a) Determination of presence of lead-
based paint debris. (1) Generators of
lead-based paint debris are responsible
for determining if lead-based paint
debris is present. To make this
determination, generators may:
(i) Test the waste for the presence of
lead-based paint.
(ii) Use their knowledge of the waste.
(iii) Assume that lead-based paint
debris is present.
(2) Generators incorrectly determining
that lead-based paint debris is not
present are liable as separate violations
of TSCA for any subsequent storage,
transportation, disposal, reclamation or
reuse of lead-based paint debris not in
compliance with this subpart.
(b) Other generator responsibilities.
Generators of lead-based paint debris
must comply with §§ 745.311 and
745.313 and may not: .
(1) Transport, or arrange for the
transportation of lead-based paint debris
in any manner other than specified in
§ 745.308.
(2) Dispose of, or arrange for the
disposal of, lead-based paint debris at
any facility not specified in § 745.309(a).
(3) Reclaim, or arrange for the
reclamation of, lead-based paint debris
at any facility not specified in
§745.309(b).
(4) Transfer lead-based paint debris to
any party other than for reuse, storage,
transport, disposal or reclamation in
compliance with this subpart.
§745.308 Transporter responsibilities.
Transporters of lead-based paint
debris must comply with §§ 745.311 and
745.313 and may not:
(a) Transport or arrange for the
transportation of lead-based paint debris
off-site in any vehicle without a cover
that prevents visibly identifiable
releases of dust or debris.
(b) Dispose of, or arrange for the
disposal of, lead-based paint debris at
any facility not specified in § 745.309(a).
(c) Reclaim, or arrange for the
reclamation of, lead-based paint debris
at any facility not specified in
§745.309(b).
(d) Transfer lead-based paint debris to
any party other than for reuse, storage,
transport, disposal or reclamation in
compliance with this subpart.
§745.309 Disposal and reclamation facility
owner or operator responsibilities.
(a) Disposal facility responsibilities.
Owners or operators of waste disposal
facilities must comply with §§ 745.311
and 745.313 and may not:
(1) Accept lead-based paint debris for '
disposal in any facility other than:
(i) A construction and demolition
landfill as defined in this subpart.
(ii) A facility which does not accept
industrial waste but is subject to the
requirements in part 257, subpart B of
this chapter applicable to non-
municipal, non-hazardous waste
disposal units receiving conditionally
exempt small quantity generated waste
(as defined in § 261.5 of this chapter).
(iii) A hazardous waste disposal
facility permitted under part 270 of this
chapter.
(iv) A hazardous waste disposal
facility that is authorized to manage
hazardous waste by a State that has a
hazardous waste management program
approved under part 271 of this chapter.
(v) A hazardous waste disposal
facility that has qualified for interim
status to manage hazardous waste under
RCRA section 3005 (e).
(vi) A facility subject to the
requirements of part 60, subparts Cb, Eb,
or part 63, subpart X (such as a
secondary lead smelter or a municipal
combustor) of this chapter.
(2) Transport or arrange for the
transportation of lead-based paint debris
in any vehicle without a cover that
prevents any visibly identifiable release
of dust or debris.
(3) Reclaim lead-based paint debris
except in a facility subject to the
requirements of § 745.309(b).
(4) Transfer lead-based paint debris to
any party other than for reuse, storage,
transport, disposal, or reclamation in
compliance with this subpart.
(b) Reclamation facility
responsibilities. An owner or operator of
a reclamation facility must comply with
§§745.311 and 745.313. Reclamation
facilities burning, incinerating or
smelting may accept lead-based paint
debris for reclamation only in a facility
subject to the requirements of part 60,
subparts Cb, Eb, or part 63, subpart X of
this chapter.
(1) An owner or operator of a
reclamation facility may not transport or
arrange for the transportation of lead-
based paint debris in any vehicle
without a cover that prevents any
visibly identifiable release of dust or
debris.
(2) An owner or operator of a
reclamation facility may not dispose of,
or arrange for the disposal of, lead-based
paint debris at any facility not specified
in§745.309(a).
(3) An owner or operator of a
reclamation facility may not transfer
lead-based paint debris to any party
other than for reuse, storage, transport,
disposal or reclamation in compliance
-with this subpart.
-------
70230
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
§745.311 General requirements for the
rcuso and storage of lead-based paint
debris.
Generators and transporters of lead-
based paint debris, owners or operators
of disposal or reclamation facilities
accepting lead-based paint debris, or
owners or operators of any enterprise
offering lead-based paint debris for
reuse may not reuse, offer for reuse, or
store lead-based paint debris, or transfer
lead-based paint debris to other parties
for reuse or storage unless the reuse or
storage is in compliance with all
requirements in this subpart.
(a) Rouse. Lead-based paint debris
that is coated in part or whole with
deteriorated paint identified as a lead-
based paint hazard at § 745.305 (b) may
not be reused or offered for reuse as a
building or structural component or
artifact or transferred to another party
for such reuse unless the lead-based
paint is completely removed, lead-based
paint debris may be transferred to a
reclamation facility for removal of lead-
based paint prior to reuse.
(b) Storage. (1) With the exception of
demolition debris, may not be stored at
any site (Including the site where the
lead-based paint debris was generated)
for more than 72 hours from the time of
generation without one of the following
access limitations:
(i) Enclosing lead-based paint debris
In closed or covered receptacles (e.g.,
containers, drums, mobile trailers, or
covered dumpsters).
(U) Keeping lead-based paint debris in
a dumpster or container which is at
least 6 feet tall.
(ill) Keeping lead-based paint debris
In fenced areas that are locked when
work activities are not being performed
on the site.
(iv) Keeping lead-based paint debris
in an unoccupied or non-residential
structure which Is locked when work
activities are not being performed on the
site.
(v) Keeping lead-based paint debris on
an unoccupied or non-residential level
of a multi-story structure and keeping
the level locked when work activities
are not being performed on the site.
p) May not be stored at any site or
combination of sites for a period
exceeding 180 days.
(3) May be stored in a covered
transport vehicle for all or a portion of
this 180-day period.
§745.313 Notification and recordkeeping
requirements.
(a) Notification. When generators and
transporters of lead-based paint debris,
owners or operators of disposal or
reclamation facilities accepting lead-
based paint debris, or owners or
operators of any enterprise offering lead-
based paint debris for reuse transfer
lead-based paint debris (transferor) to
any other person (recipient), for any
reason, the transferor must notify the
recipient in writing of the presence of
lead-based paint debris. The
Notification must:
(1) Disclose the presence of lead-
based paint debris.
(2) Indicate the date of generation of
the lead-based paint debris.
(3) Be signed and dated by the
recipient.
(4) Be signed and dated by the
transferor.
(5) Contain the generator's name and
address.
(6) Include a citation referring the
recipient to this subpart.
(b) Recordkeeping. The transferor and
the recipient must each retain a copy of
the Notification for a minimum of 3
years from the date that the Notification
is signed by the recipient.
§ 745.315 Certification of workers.
Individuals and firms engaged in the
transport, reuse, storage, disposal or
reclamation of lead-based paint debris
or in offering lead-based paint debris for
any such activity whose practices are in
compliance with the requirements of
this subpart are deemed certified by this
section to engage in the transport, reuse,
storage, reclamation or disposal of lead-
based paint debris pursuant to section
402 of the Toxic Substances Control
Act.
§745.317 Enforcement.
(a) Failure or refusal of any person to
comply with §§745.307, 745.308,
745.309, 745.311, 745.313 or 745.315 is
a prohibited act under 15 U.S.C. 2689 of
the Toxic Substances Control Act and
may subject a violator to civil and
criminal sanctions pursuant to 15 U.S.C.
2615 for each violation.
(b) Failure or refusal of any person to
establish, maintain, provide, copy, or
permit access to records or reports as
required by § 745.313 is a prohibited act
under 15 U.S.C. 2689 of the Toxic
Substances Control Act.
(c) Failure or refusal of any person to
permit entry or inspection as required
by §745.318 or 15 U.S.C. 2610 of the
Toxic Substances Control Act is a
prohibited act under 15 U.S.C. 2689 of
the Toxic Substances Control Act.
§745.318 Inspections.
EPA may conduct reasonable
inspections pursuant to 15 U.S.C. 2610
of the Toxic Substances Control Act to
ensure compliance with this subpart.
§ 745.319 Effective dates.
EPA will begin enforcement of the
provisions at §§ 745.307 through
745.318 on [insert the date 2 years after
date of publication of the final rule in
the Federal Register] in any State or
Indian Country which does not have a
lead-based paint debris management
and disposal program authorized under
subpart Q of this part in effect by that
date.
3. By revising the heading for subpart
Q to read as follows:
Subpart Q—State and Tribal Lead-Based
Paint Debris Management and Disposal
Programs
4. In §745.320, by adding paragraph
(h) to read as follows:
§ 745.320 Scope and purpose.
* # *, * *
(h) For State or tribal lead-based paint
management and disposal programs, a
State or Indian Tribe may seek
authorization to administer and enforce
§§ 745.307 through 745.315. The
provisions of §§745.301, 745.303,
745.317, 745.318 and 745.319 shall be
applicable for the purposes of such
program authorization.
5. By adding new §§ 745.341 through
745.359 to subpart Q to read as follows:
§745.341 Options for lead-based paint
debris management and disposal programs
in States and Indian Country.
(a) State and Tribal programs. A State
or Indian Tribe may apply to EPA for
authorization to administer and enforce
a lead-based paint debris management
and disposal program. No program
application will be approved unless
EPA finds that the program is at least as
protective as the Federal requirements
in §§ 745.307 through 745.319 and that
it provides adequate enforcement.
(b) EPA administration and
enforcement in States and Tribes
without authorized programs. If a State
or Indian Tribe does not have a lead-
based paint debris management and
disposal program authorized under this
subpart and in effect on or before the
date which is 2 years after the date the
final rule is published in the Federal
Register, EPA will on such date, begin
enforcement of the provisions at
§§ 745.307 through 745.319 as the
Federal program for that State or Indian
Country.
§ 745.344 Application for authorization of
State and Tribal programs.
This section establishes requirements
for State or Tribal applications to EPA
to administer and enforce a lead-based
paint debris management and disposal
program under TSCA section 404. This
section also establishes the public
-------
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
70231
participation procedures EPA will
follow as part of its review of State or
Tribal applications.
(a) Public comment. Before submitting
an application to EPA for program
authorization, a State or Indian Tribe
must:
(1) Issue in the State or Indian
Country a public notice of intent to seek
authorization. The comment period on
the public notice must be at least 30
days.
(2) Provide an opportunity for public
hearing.
(b) Application contents. A State or
Tribal application must include:
(1) A transmittal letter from the State
Governor or Tribal Chairperson (or
equivalent official) requesting program
authorization.
(2) A program summary that will be
published in the Federal Register by
EPA to provide notice to residents of the
State or Tribe that EPA will review the
application.
(3) A description of the program in
accordance with § 745.346.
(4) An Attorney General's or Tribal
Counsel's (or equivalent) statement in
accordance with § 745.347.
(5) A statement which identifies
resources the State or Tribe intends to
devote to the administration of its
compliance and enforcement program.
(6) A statement agreeing to submit to
EPA the Summary on Progress and
Performance of lead-based paint
compliance and enforcement activities
as described at §745.355(b) (2).
(7) Copies of all applicable State and
Tribal statutes, regulations, standards,
and other materials that provide the
State or Indian Tribe with the authority
to administer and enforce a lead-based
paint debris management and disposal
program.
(c) Public comment on applications.
After receipt of a State or Tribal
application, EPA will publish a Federal
Register notice containing:
(1) An announcement of the receipt of
the application.
(2) The program summary provided
by the State or Tribe in accordance with
paragraph (b) (2) of this section.
(3) A request for public comments to
be mailed to the appropriate EPA
Regional Office. The comment period
will last at least 45 days. EPA will
consider public comments during its
review of the application.
(d) Public hearing. EPA will, if
requested, conduct a public hearing in
the State or Indian Country of the Tribe
seeking program authorization and will
consider all comments submitted at that
hearing during its review of the State or
Tribal application.
§ 745.346 State or Tribal Program
Description
A State or Tribe applying to
administer and enforce a program under
this subpart must submit a description
of its program. The State or Tribal
program description must include the
following components:
(a) Primary agency and contact. A
designation of the agency or agencies
responsible for administering and
enforcing the program and an agency
contact. This designation must be in
accordance with the specifications at
§ 745.324 (b)(l).
(b) Program elements. A description
of the program demonstrating that it
contains all of the elements specified in
§745.350.
(c) At least as protective as. An
analysis of the State or Tribal program
that compares the program to the
Federal provisions in §§ 745.307
through 745.319. This analysis must
demonstrate how the program is, in the
State's or Indian Tribe's assessment, at
least as protective as the Federal
provisions in this subpart. EPA will use
the analysis to evaluate the program in
making its determination pursuant to
§745.354(a)(2)(i).
(d) Adequate enforcement. A
description of the State or Tribal
compliance and enforcement program
demonstrating that the program contains
all of the enforcement requirements
specified at § 745.352. This description
must include copies of all policies,
certifications, plans, reports, and other
materials that demonstrate that the State
or Tribal program contains all of the
requirements specified at § 745.352.
(e) Special requirements for tribal
program descriptions. The program
description for an Indian Tribe must
also include the information and
documents specified in
§ 745.324(b) (4) (i) through (b) (4) (iil).
§ 745.347 State or Tribal Attorney
General's statement.
An application for program
authorization by a State or Indian Tribe
must include a written statement signed
by the Attorney General or Tribal
Counsel (or equivalent). The statement
must include all information and
certifications as specified in
§ 745.324 (c) (1) through (c) (3).
§745.348 State program certification/
interim approval.
(a) (1) When submitting an
application, a State may also certify to
EPA that the State program meets the
requirements in §§ 745.350 and 745.352
of this subpart.
(2) If a State application contains this
certification, the program will be
considered authorized until EPA
disapproves the program or withdraws
the authorization. A program will not be
considered authorized to the extent that
jurisdiction is asserted over Indian
Country, including non-member fee
lands within an Indian reservation.
(3) If the application does not contain
such certification, the State program
will be authorized only after EPA
approves it in accordance with :
§745.354.
(4) This certification must be
contained in a letter from the Governor
or the Attorney General to the EPA.
(5) The certification must reference
the analyses required in § 745.346(d) as
the basis for concluding that the State
program is at least as protective as the
Federal program and provides adequate
enforcement.
(b) [Reserved]
§ 745.350 State or Tribal programs:
required program elements.
To receive authorization from EPA, a
State or Tribal program must contain at
least the following program elements for
lead-based paint debris management
and disposal activities:
(a) Requirements for reuse and
storage. The State or Tribe must have
requirements for the reuse and storage
of lead-based paint debris including but
not limited to:
(1) Standards that prevent reuse of
hazardous lead-based paint debris.
(2) Standards that limit access to and
prevent dispersal of lead-based paint
debris which is being stored.
(b) Requirements for transportation.
The State or Tribe must have
requirements for the transportation of
lead-based paint debris including but
not limited to measures to prevent the
release of dust or paint chips from lead-
based paint debris while it is being
transported. Requirements for disposal
or reclamation. The State or Tribe must
have requirements for the disposal or
reclamation of lead-based paint debris
including but not limited to:
(1) Clear standards identifying
disposal facilities which may safely
accept lead-based paint debris. These
standards must reference any State or
Federal regulations which govern the
disposal facilities.
(2) Clear standards identifying
reclamation facilities which may safely
accept lead-based paint debris. These
standards must reference any State or
Federal regulations which govern the
reclamation facilities.
(c) Notification and recordkeeping.
The State or Tribe must have
notification and recordkeeping
standards which at a minimum include
the requirements found at § 745.313 or
their functional equivalent.
-------
70232
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
§ 745.352 State or Tribal compliance and
enforcement.
(a) Compliance and enforcement
program elements. For the compliance
and enforcement portion of a State or
Tribal program to be considered
adequate, a State or Indian Tribal
application must demonstrate the
following elements:
(I) Authority to enter. State or Tribal
officials must be able to enter premises
or facilities where lead-based paint
debris management or disposal
violations may occur. A State or Tribe
must be able to subpoena any person
who has possession of records or reports
pertaining to lead-based paint debris to
produce such documents; in addition, a
State or Tribe must be able to compel
the appearance of any person to testify
concerning any matter relating to lead-
based paint debris. A State or Tribe
must also designate a judicial body that
will have the authority to hold any
person in contempt who fails or refuses
to obey such a duly issued subpoena. A
State or Indian Tribe should have the
authority to seek a warrant if it is denied
access to inspect any place or vehicle
where lead-based paint is being
generated or stored.
(1) State or Tribal officials must be
able to enter and inspect premises,
facilities, or vehicles where lead-based
paint debris is generated or transported.
(11) State or Tribal officials must be
able to enter and inspect disposal and
reclamation facilities.
(ill) State or Tribal officials must have
authority to take samples and review
records as part of the inspection
process.
(2) Flexible remedies. A State or
Tribal compliance and enforcement
program must provide for a diverse and
flexible array of enforcement remedies.
At a minimum, the program must
authorize the remedies specified at
§745.3270)) (3). Indian Tribes are not
required to exercise criminal
enforcement jurisdiction as a condition
for program authorization.
(3) Training. A State or Tribal
compliance and enforcement program
must include a process for training
enforcement and inspection personnel.
The training must include case
development procedures, proper case
files, and methods of conducting
inspections and gathering evidence.
(4) Compliance assistance. A State or
Tribal compliance and enforcement
program must provide compliance
assistance to the public and the
regulated community to facilitate
awareness and understanding of and
compliance with State or Tribal
requirements governing lead-based
paint debris management and disposal
activities.
(5) Sampling techniques. A State or
Tribal application for program approval
must show that the State or Indian Tribe
is technologically capable of conducting
a lead-based paint debris management
and disposal compliance and
enforcement program. The State or
Tribal program must have access to the
facilities and equipment necessary to
perform sampling and laboratory
analysis as needed. This laboratory
facility must be a recognized laboratory
as defined at 40 CFR 745.223, or the
State or Tribal program must implement
a quality assurance program that
ensures appropriate quality of
laboratory personnel and protects the
integrity of analytical data.
(6) Tracking tips and complaints. A
State or Tribal compliance and
enforcement program must include a
process for reacting to tips and
complaints or other information
indicating a violation.
(7) Targeting inspections. A State or
Tribal compliance and enforcement
program must demonstrate the ability to
target inspections to ensure compliance
with the lead-based paint debris
management and disposal program
requirements. A State or Tribe should
have the ability to conduct consensual
inspections in places where records or
reports are stored, but where no lead
debris is present. Such consensual
inspections should include the
authority of State or Tribal officials to
physically appear at such places or to
issue a consensual Information Request
Letter to gather records or reports on
lead debris.
(8) Follow up to inspection reports. A
State or Tribal compliance and
enforcement program must demonstrate
the ability to reasonably, and in a timely
manner, process and follow-up on
inspection reports and other
information generated through
enforcement-related activities. The State
or Tribal program must be in a position
to ensure correction of violations and, as
appropriate, effectively develop and
issue enforcement remedies/responses
to follow up on the identification of
violations.
(9) Compliance monitoring and
enforcement. A State or Tribal
compliance and enforcement program
must demonstrate in its application for
approval that it is in a position to
implement a compliance monitoring
and enforcement program. Such a
program must ensure correction of
violations, and encompass either
planned and/or responsive inspections
and development/issuance of State or
Tribal enforcement responses which are
appropriate to the violations.
(b) Memorandum of Agreement. An
Indian Tribe which obtains program
approval must establish a Memorandum
of Agreement with the appropriate
Regional Administrator. The
Memorandum of Agreement must meet
the requirements at § 745.327(e).
§ 745.354 EPA review of State or Tribal
program applications.
(a) EPA approval.
(1) EPA will fully review and consider
all portions of a State or Tribal
application.
(2) Within 180 days of receipt of a
complete State or Tribal application
containing all elements specified in this
subpart, EPA must authorize the
program or disapprove the application.
EPA will authorize the program only if
it finds that:
(i) The State or Tribal program is at
least as protective of human health and
the environment as the corresponding
Federal provisions at §§ 745.307
through 745.319.
(it) The State or Tribal program
provides adequate enforcement.
(3) EPA will notify the State or Tribe
in writing of its decision to authorize or
disapprove the State or Tribal
application.
(4) Upon authorization of a State or
Tribal program pursuant to this subpart,
it will be an unlawful act under sections
15 and 409 of TSCA for any person to
fail or refuse to comply with any
requirements of such program.
(b) [Reserved]
§745.355 Oversight and reporting
requirements.
(a) Oversight. EPA will periodically
evaluate the adequacy of a State or
Indian Tribe's implementation and
enforcement of its authorized program.
(b) Reports. Beginning 12 months after
the date of program authorization, the
primary agency for each State or Indian
Tribe must submit a written report to
the EPA Regional Administrator for the
Region in which the State or Indian
Tribe is located. The report must be
submitted at least once every 12 months
for the first 3 years after program
approval. If these reports demonstrate
successful program implementation, the
Agency will extend the reporting
interval to every 2 years. If the
subsequent reports demonstrate
problems with implementation, EPA
will require a return to annual reporting
until the reports demonstrate successful
program implementation. The report
must include the following information:
(1) Any significant changes in the
content, administration, or enforcement
-------
Federal Register/Vol. 63, No. 243/Friday. December 18, 1998/Proposed Rules
7O233
of the State or Tribal program
implemented since the previous
reporting period.
(2) A Summary on Progress and
Performance which summarizes the
results of implementing the State or
Tribal lead-based paint debris
management and disposal compliance
and enforcement program, including a
summary of the scope of the regulated
community within the State or Indian
Tribe, the inspections conducted,
enforcement actions taken, compliance
assistance provided, and the level of
resources committed by the State or
Indian Tribe to these activities.
§ 745.356 Withdrawal of State or Tribal
Program authorization.
(a) Withdrawal of authorization. (1) If
EPA concludes that a State or Tribe is
not administering or enforcing an
authorized program in compliance with
the standards, regulations, and other
requirements of Title IV of TSCA and
this part, EPA will notify the primary
agency for the State or Tribe in writing
and indicate EPA's intent to withdraw
authorization of' the program.
(2) The Notice of Intent to Withdraw
Authorization will comply with the
specifications at § 745.324(1) (2).
(3) Any actions taken by EPA related
to withdrawal of State or Tribal program
authorization will follow the procedures
ecified at § 745.324 (i) (3) through
(4) If EPA issues an order
withdrawing the authorization of a State
or Tribal program, EPA will establish
and enforce the provisions at §§ 745.307
through 745.319 as the Federal program
for that State or Indian Country. The
Federal program will be established and
enforced as of the effective date of the
order withdrawing authorization of the
State or Tribal program.
(b) [Reserved]
§745.358 Over-filing.
(a) Failure to impose adequate
penalty. If EPA finds that a violator of
a State or Indian Tribal lead-based paint
debris management and disposal
program approved under this subpart
has not been adequately penalized, EPA
will notify the State or Indian Tribe of
this finding. If EPA finds that the
penalty against the violator has not been
adjusted appropriately within 30 days
after such notice, EPA may issue an
appropriate administrative penally
order against the violator.
(b) Failure to penalize. If upon receipt
of any complaint or information alleging
or indicating a significant violation, a
State or Tribal Program has not
commenced appropriate enforcement
action, EPA may act upon the complaint
or information by instituting an
appropriate action order against the
violator.
§745.359 Effective dates.
States and Indian Tribes may seek
authorization to administer and enforce
a lead-based paint debris management
and disposal program under this subpart
effective on [insert date 60 days after
date of publication of the final rule in
the Federal Register].
[FR Doc. 98-33326 Filed 12-17-98; 8:45 am]
BILLING CODE 6560-50-F
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.
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)(l) 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 Tide 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 pn 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:
Category
Abatement
Industry
Examples of Regulated
Entities
Firms contracted to abate
lead-based paint in target
housing and public and
commercial buildings
where children under the
age of 6 may be exposed
to lead hazards.
-------
70234
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
Category
Renovation
and
Remodeling
Industry
Demolition
Industry
Examples of Regulated
Entities
Firms involved in renovation
and remodeling of resi-
dences and other buildings
where lead-based paint
debris may be generated.
Firms involved in demolition
activities where demolition
waste may contain lead-
based paint debris.
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 entitles 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)(l)).
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.
J"he 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.
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
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,
corrosiviry, reactivity, and toxicify (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 "toxiciry"
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 toxiciry 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
§ 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
-------
70236
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
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/cm2. (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).
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
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.
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,
subpartA).
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
-------
70238
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
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
dcleading 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)(l)
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)(l).
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. Ill (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."
ad. 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
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
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)(l). 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)(l) 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
0une 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
1997r
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 § 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 dieir 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
-------
70240
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
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 forTC 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/cm2 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)(l) 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
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
7O241
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
-------
70242
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
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
§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:
• Collect paint chips and dust, and
dirt and rubble in plastic trash bags for
disposal.
• Store larger LBP architectural debris
pieces in containers until ready for
disposal.
• Consider renting a covered mobile
dumpster for storage of LBP debris until
the job is done.
• 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
-------
Federal Register/Vol. 63. No. 243/Friday. December 18, 1998/Proposed Rules
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 TV 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 TVProgram 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)(l) 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 § 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 §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 confbrmance
with § 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 IVProgram 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 Titie 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.]
-------
70244
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
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
die toxiclty 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
toxiclty 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 TV
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
-------
Federal Register/Vol. 63. No. 243/Friday, December 18, 1998/Proposed Rules
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 faction 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, §§ 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 (EPAICRNo. 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
-------
70246
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
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 etseq.
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,
"farmcr.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 SI00 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 tiiat 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
-------
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
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 l(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.
-------
70248
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
Datcdr 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:
§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
arc 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
§745.226 of this chapter, unless such
projects are covered by paragraph (4) of
tills 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
tiiis 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
-------
Federal Register/Vol. 63, No. 243/Friday, December 18, 1998/Proposed Rules
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:
§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 Tpxicity
Characteristic (§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 '(§ 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
-------
-------
-------
------- |