Temporary Suspension of Toxicity Characteristic Rule for Specified Lead-Based Paint Debris

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[FRL-5783-7]

RIN 2070-AC72

Temporary Suspension of Toxicity Characteristic Rule for

Specified Lead-Based Paint Debris

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a rule which would suspend temporarily the

applicability of the Resource Conservation and Recovery Act (RCRA)

Toxicity Characteristic (TC) Rule (40 CFR 261.24) to debris generated

during lead-based paint (LBP) abatements conducted at target housing;

deleading projects conducted at public or commercial buildings; and

renovation or remodeling and demolition activities at target housing,

public buildings, or commercial buildings. Instead of being subject to

the TC Rule, LBP debris resulting from the above-mentioned activities

would be subject to the management and disposal standards being

proposed today under Title IV of the Toxic Substances Control Act

(TSCA). EPA is proposing this temporary suspension of the TC rule in

accordance with RCRA sections 1006(b)(1) and 2002 to avoid duplication

and inconsistent regulation of LBP debris and to allow the Agency

sufficient time to assess whether any RCRA requirements, in addition to

TSCA Title IV requirements, are necessary to assure proper management

and disposal of such debris.

DATES: Comments on this proposed rule must be submitted on or before

February 16, 1999.

ADDRESSES: Commenters must send an original and two copies of their

comments to: Docket Clerk, Mail Code 5305W, Docket No. F-98-LPDP-FFFFF,

U.S. Environmental Protection Agency, 401 M St., SW., Washington, DC

20460. Comments should include the docket number F-98-LPDP-FFFFF.

Hand deliveries of comments should be made to the RCRA Information

Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson

Davis Highway, Arlington, VA. Comments may also be submitted

electronically through the Internet to: [email protected].

Comments in electronic format should also be identified by the docket

number F-98-LPDP-FFFFF. All electronic comments must be submitted as an

ASCII file avoiding the use of special characters and any form of

encryption. Commenters should not submit electronically any

confidential business information (CBI). An original and two copies of

CBI must be submitted under separate cover to: RCRA CBI Document

Control Officer, Office of Solid Waste (5305W), Environmental

Protection Agency, 401 M St., SW., Washington, DC 20460. For additional

information on electronic submissions refer to Unit VII. of the

preamble.

FOR FURTHER INFORMATION CONTACT: For general information about this

proposed rule, contact the RCRA Hotline, Office of Solid Waste, U.S.

Environmental Protection Agency, Washington, DC 20460, (800) 424-9346

(toll free); TDD (800) 553-7672 (hearing impaired); in Washington, DC

metropolitan area the number is (703) 412-9810; TDD (703) 486-3323

(hearing impaired).

For technical information on this proposed rule, contact Ms. Rajani

D. Joglekar in the Office of Solid Waste at (703) 308-8806; and for

technical information on the proposed TSCA Title IV disposal and

management standards, contact Tova Spector in the Office of Pollution

Prevention and Toxics at (202) 260-3467. To obtain copies of the

reports or other materials referred to in this proposal, contact the

RCRA Docket at the telephone number or address listed above.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this action include:

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Category Examples of Regulated Entities

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Abatement Firms contracted to abate lead-

Industry based paint in target housing

and public and commercial

buildings where children under

the age of 6 may be exposed to

lead hazards.

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[[Page 70234]]

Renovation and Firms involved in renovation

Remodeling and remodeling of residences

Industry and other buildings where lead-

based paint debris may be

generated.

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Demolition Firms involved in demolition

Industry activities where demolition

waste may contain lead-based

paint debris.

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The preceding table is not intended to be exhaustive, but rather

provides a guide for readers regarding entities likely to be regulated

by this action. This table lists the types of entities that EPA is now

aware could potentially be regulated by this action. Other types of

entities not listed in the table could also be regulated. To determine

whether you are affected by this regulatory action, you should

carefully examine the applicability criteria in Unit V. of this

preamble. If you have any questions regarding the applicability of this

section to a particular entity, consult the person listed for technical

information under FOR FURTHER INFORMATION CONTACT.

I. Background

A. The Hazards of Lead-Based Paint

Lead poisoning is the most common environmental health problem

affecting young children in the United States. The Centers for Disease

Control has estimated that up to 900,000 children, or about 4.4% of

children under the age of 6, may have unacceptably high levels of lead

in their blood (Ref. 1). High levels of lead impair mental and

cognitive development and physical growth, and can cause

neurobehavioral disorders. Among the other risks to human health

presented by LBP hazards is neonatal mortality due to the exposure of

pregnant women to lead and adverse neurological effects in infants and

children. 59 FR 45900-01 (September 2, 1994). There is also some

indication that lead exposure contributes to high blood pressure in

adults. Lead has no known use in the body and is difficult to remove

from blood and bones in cases where medical intervention is necessary.

The primary route of exposure to lead in young children is the

ingestion of dust, paint chips, and soil contaminated by lead from

deteriorated paint surfaces of walls, doors, and windows. Although lead

was banned from residential paint in 1978 (when the amount of lead in

paint was above 0.06% lead by weight), more than half the housing stock

(an estimated 64 million pre-1980 homes) still contains some lead-based

paint (LBP) (Ref. 2). The Lead-Based Paint Hazard Reduction and

Financing Task Force estimates that between 5 and 15 million housing

units contain LBP hazards (Ref. 3).

In response to health threats posed by LBP, Congress enacted the

Residential Lead-Based Paint (LBP) Hazard Reduction Act of 1992

(hereafter referred to as Title X or the Act) as Title X of the Housing

and Community Development Act of 1992. The Act amended TSCA by adding a

new Title IV, which, among other things, provides EPA with the

authority to promulgate standards to govern: (1) the training and

certification of individuals engaged in LBP activities; (2) the

accreditation of training programs; and (3) the process by which LBP

activities, including abatements, are conducted by certified

individuals (15 USC section 2682(a)(1)).

As a result of the enactment of The LBP Act of 1992, there is an

increasing effort to reduce the hazards posed by LBP in residential

housing and other buildings. Although there are a number of methods to

reduce LBP exposure, abatements (which under TSCA Title IV involve any

set of measures designed to permanently eliminate LBP hazards) are

typically conducted in situations where LBP exposure has resulted in

elevated blood lead levels in children. EPA expects that abatements in

target housing (defined in TSCA as any housing constructed prior to

1978, except any 0-bedroom housing or dwelling for elderly or persons

with disabilities (unless any child age 6 years or under resides or is

expected to reside in such housing for the elderly or person with

disabilities)), may increase. Abatement efforts result in the

production of waste which, as explained in more detail below, would

potentially be subject to overlapping regulatory controls under RCRA

Subtitle C and TSCA Title IV.

The Agency has spent considerable resources working with health

specialists, environmental groups, the lead abatement industry, and

state and local governments to develop regulatory options to expedite

the conduct of lead abatement activities so that risks to children from

lead poisoning will be permanently and expeditiously eliminated. EPA

believes that there is an overwhelming consensus to act as quickly as

possible to reduce risks resulting from lead exposure to young

children.

The Lead-Based Paint Hazard Reduction and Financing Task Force,

representing the spectrum of interests affected by lead-based paint

issues, released final recommendations on evaluating and reducing lead-

based paint hazards in private housing on July 11, 1995, in a report

entitled Putting the Pieces Together: Controlling Lead Hazards in the

Nation's Housing (Ref. 4). In addition, in a letter to EPA

Administrator Carol Browner dated April 13, 1994, the Task Force

specifically recommended that the Agency, ``shift regulation of

discarded architectural components from the hazardous waste regulatory

program to a tailored management program under TSCA Section 402/404''

(Ref. 3). The Agency has given substantial weight to these

recommendations in the development of today's proposals as they are

supported by a broad range of groups and interests affected by lead-

based paint activities and regulations. EPA has developed a regulatory

approach it believes will both speed the conduct of lead abatement and

deleading activities (by lowering costs) and, at the same time, ensure

that LBP debris is managed and disposed of in an environmentally safe

manner.

B. Impetus for Today's Rulemaking

One of EPA's primary purposes in developing this regulatory

approach for this proposed RCRA TC Rule temporary suspension, and the

companion proposed TSCA management and disposal standards (issued

elsewhere in today's Federal Register), is to address obstacles to the

conduct of LBP abatements in target housing and child-occupied

facilities, such as schools and day-care centers. The Agency's analysis

of the risk of alternative disposal facilities also examined the risk

of disposing LBP debris resulting from other activities. Because the

Agency has concluded that the disposal of LBP debris (no matter what

the origin) in certain solid waste disposal facilities, such as

construction and demolition landfills, is safe, reliable, effective,

and protective of human health and the environment, EPA has decided to

extend the coverage of today's RCRA and TSCA proposed rules to LBP

debris generated during lead-based paint abatement, deleading,

demolition, renovation, and remodeling projects in all target housing,

public and commercial buildings. EPA believes it is important to

provide a clear and consistent regulatory environment for those who

conduct these activities which generate almost identical LBP debris.

[[Page 70235]]

II. RCRA Subtitle C and the Toxicity Characteristic Rule

Subtitle C of RCRA, 42 U.S.C. 6921-39b, establishes a comprehensive

program for the regulation of hazardous waste. In enacting RCRA,

however, Congress did not set forth a list of hazardous wastes nor

provide a specific test for determining whether a waste is hazardous.

Instead, in RCRA section 1004(5), Congress defined ``hazardous waste''

broadly as a ``solid waste'' which ``may . . . pose a substantial

present or potential hazard to human health or the environment when

improperly treated, stored, transported, disposed, or otherwise

managed.'' Under RCRA section 3001(a), EPA is responsible for defining

which solid wastes are hazardous by either identifying the

characteristics of hazardous waste or by listing particular hazardous

wastes.

In response to the Congressional directive in RCRA section 3001(a),

EPA adopted a two part definition for identified and listed ``hazardous

wastes'' (45 FR 33084, May 19, 1980). First, EPA published lists of

specific hazardous wastes, in which EPA described the wastes and

assigned a ``waste code'' to each of them (40 CFR part 261, subpart D).

These wastes are known as ``listed'' hazardous wastes and are subject

to regulations under Subtitle C (See 40 CFR part 262, 264-268, and

270). Second, the Agency identified four characteristics of hazardous

waste that are subject to measurement: ignitability, corrosivity,

reactivity, and toxicity (See 45 FR 33121-22, May 19, 1980). Any solid

waste exhibiting one or more of these characteristics is a

``characteristic hazardous waste'' subject to regulation under RCRA

Subtitle C (See 40 CFR parts 262, 264 to 268, and 270).

To measure objectively the ``toxicity'' criterion for determining

whether a waste exhibits the characteristic of toxicity under RCRA

Subtitle C, EPA has established the Toxicity Characteristic Leaching

Procedure (TCLP) test as part of the Toxicity Characteristic (TC) rule

(55 FR 11798, March 29, 1990). The TC rule added 25 organic chemicals

to the original list of toxic constituents of concern (primarily

metals, including lead) and established regulatory levels for these

organic chemicals.

Under the TC rule, a waste may be a hazardous waste if any

chemicals listed in the rule, such as lead, are present in leachate

from the waste (generated from use of the TCLP) at or above the

specified regulatory levels (40 CFR 261.24). The overall effect of the

TC rule was to subject additional solid wastes to regulatory control

under the hazardous waste provisions of Subtitle C of RCRA.

Under the TC rule, generators of solid waste must either use their

knowledge or perform the TCLP test using a representative sample of the

waste as generated to determine if the waste exhibits the toxicity

characteristic for lead. The regulatory level for lead in the waste

extract (i.e., leachate) is 5 milligrams per liter (mg/L). If under the

TCLP test, the leachate extracted from waste contains lead at 5 mg/L or

higher, then the waste is a ``characteristic'' hazardous waste, and the

generator must comply with the applicable RCRA Subtitle C requirements

in 40 CFR parts 262 through 266, 268, and 270.

Currently, like any other lead-containing waste, the TC rule

applies to waste (including debris) from construction, demolition, and

renovation activities, and waste (including debris) from LBP abatement

activities. The generator of lead-containing waste must make a RCRA

hazardous waste determination to identify whether it is

characteristically hazardous and, thus, whether management as a

hazardous waste is required.

III. The TSCA Title IV Proposed Rule

As explained in detail in the companion proposal published

elsewhere in today's Federal Register, Title IV of TSCA provides EPA

with the authority to promulgate regulations which address the

management and disposal of LBP debris. In accordance with that

authority, EPA is proposing a rule under TSCA sections 402 and 404

which would establish management and disposal standards for ``LBP

architectural component debris'' from abatement, deleading, renovation,

and remodeling, and ``demolition debris'' from target housing, and

public and commercial buildings (collectively referred to as ``LBP

debris''). Under the TSCA Title IV rule, EPA is specifying that such

LBP debris must be disposed of in: (1) Construction and demolition

landfills as defined at proposed Sec. 745.303; (2) a landfill subject

to the requirements in 40 CFR part 257, subpart B, applicable to non-

municipal, non-hazardous waste disposal units receiving conditionally

exempt small quantity generator waste (as defined in 40 CFR 261.5); (3)

a hazardous waste disposal facility that is permitted under 40 CFR part

270; (4) a hazardous waste disposal facility authorized to manage

hazardous waste by a State that has a hazardous waste management

program approved under 40 CFR part 271; or (5) a hazardous waste

treatment, storage, and disposal facility that has qualified for

interim status to manage hazardous waste under RCRA section 3005(e).

For a number of reasons discussed in the preamble of the TSCA proposed

rule (see Unit V. ``Analytical Basis for Landfill Disposal Options''

for details), EPA believes that these disposal options for LBP debris

are safe, reliable, and effective as required under TSCA section

402(a)(1). (The preamble to the TSCA Title IV proposal also requests

comment on the appropriateness of disposing LBP debris in Municipal

Solid Waste Landfills operated in compliance with 40 CFR part 258

requirements.)

EPA has included, in the TSCA Title IV proposed rule, the following

prohibitions: (1) No application of LBP debris as mulch, ground cover,

or fill material (e.g., after shredding or grinding) without first

removing the LBP such that the remaining material contains no visible

signs/traces of paint; (2) no transfer for reuse of LBP debris with a

specified level of deteriorating paint (e.g., as a building or

structural component or artifact) unless the LBP is encapsulated or

removed such that the remaining material does not pose a LBP hazard;

(3) no transport of LBP debris in open, uncovered vehicles; (4) no

storage of LBP debris prior to disposal for any period exceeding 180

days, and after 72 hours following waste generation such storage must

include use of an access limitation, such as a receptacle, covered

dumpster, barrier, or fence; (5) notification and recordkeeping

requirements; and (6) no reclamation or burning of LBP debris for lead

or for energy except at facilities meeting specified Clean Air Act

standards. EPA believes that these prohibitions and management

standards are appropriate because they are protective of human health

and the environment, and they ensure that management and disposal of

LBP debris are conducted in a safe, reliable, and effective manner. For

further information about the management and disposal standards EPA is

proposing, see the companion TSCA proposed rule in today's Federal

Register.

IV. Basis for the Temporary Suspension of the TC Rule

A. Purpose of the Proposed Temporary Suspension

The purpose of today's proposed temporary suspension of the TC rule

for LBP debris is to ensure that abatements, deleading, remodeling and

renovation, and demolition activities where LBP is present are

conducted expeditiously and that management and disposal of LBP debris

from these activities are

[[Page 70236]]

governed by appropriate standards. Since enactment of the Lead-Based

Paint Poisoning Prevention Act, as amended by the McKinney Homeless

Assistance Act, 42 U.S.C. 4822, and TSCA Title IV, as part of the LBP

Act of 1992, there has been a significant increase in abatement

activities in public housing and target housing. These activities

result in the production of large amounts of solid waste containing

LBP.

Based on a 1992 study of LBP waste, EPA concluded that because of

the high lead content in some paint used in residences built before

1978, certain LBP waste components (including painted architectural

debris) may sometimes be a RCRA hazardous characteristic waste, and

that additional confirmatory analysis would be necessary (Ref. 5). To

comply with RCRA Subtitle C regulations, contractors conducting

abatements at Housing and Urban Development (HUD) housing units

reportedly have been TCLP testing LBP waste and, if the waste ``fails''

the TCLP, have managed it according to the RCRA hazardous waste

management requirements.

HUD, State public housing authorities (e.g., Maryland and

Massachusetts), and advocacy groups (e.g., Alliance to End Childhood

Lead Poisoning and the National Center for Lead Safe Housing), have

argued against the applicability of the TC rule (and all of the RCRA

Subtitle C hazardous waste requirements which flow from a ``failure''

of the TCLP test) to LBP waste. They argue that the applicability of

RCRA Subtitle C requirements results in significant interference with

abatement activities in target housing, and that such interference is

contrary to the intent of Congress in enacting Title X of the Housing

and Community Development Act of 1992 (which amended TSCA by adding a

new Title IV).

The stakeholders mentioned above have provided a variety of reasons

explaining why applicability of the TC rule and RCRA Subtitle C

interferes with LBP abatement efforts. Among the reasons are: (1)

Technical difficulties in sampling of certain types of LBP debris,

e.g., doors, windows, and other structural components; (2) uncertainty

about conducting the TCLP test on LBP waste and about reproducibility

of test results; and (3) the high cost of compliance with RCRA

hazardous waste standards in cases where the LBP debris fails the TCLP

test. The result is that certain LBP abatement and deleading projects

do not occur or are delayed due to the lack of sufficient funds. EPA

addresses each of these issues in Unit IV.B. of this preamble.

B. Available Information on the Scope of the Problem and Impacts of

RCRA Subtitle C

1. Difficulties in conducting the TCLP test. EPA has received

comments indicating difficulties in obtaining a representative sample

of heterogenous waste material such as LBP debris (made up of painted

doors and windows, plaster boards, and other painted architectural

components) from abatement, renovation and remodeling, or demolition

activities and conducting the TCLP test. The sampling methods described

in EPA's laboratory testing method manual, SW-846, largely focus on

homogenous waste materials, and are not well suited for sampling LBP

debris such as door frames, windows, shelves, and banisters. EPA has

received several inquiries concerning how to obtain a representative

sample of LBP architectural component debris. Because of the difficulty

in sampling heterogeneous waste and the lack of a standardized sampling

methodology, stakeholders argue that TCLP results for such waste are

inconsistent and not reproducible.

EPA acknowledges the difficulties that may arise in attempting to

prepare a sample to conduct the TCLP test on LBP architectural

component waste. To address some of these difficulties, EPA completed a

residential LBP architectural component debris study. The intent was

threefold: (1) To develop heterogenous waste sampling and TCLP sample

preparation protocols; (2) to obtain additional TC analysis data to

substantiate earlier EPA study results; and (3) to subject waste

samples to both the TCLP (which simulates leaching when waste is

disposed of in a municipal landfill) and the Synthetic Precipitation

Leaching Procedure (which simulates leaching when waste is disposed of

in landfills other than a municipal landfill, such as construction and

demolition--``C&D'' landfills) (Ref. 6).

A 1992 EPA study identified three major categories of waste

produced during abatements: filtered wash water, solid architectural

debris, and plastic sheets and tape used to cover floors and other

surfaces (Ref. 5). The study concluded that filtered wash water is

generally nonhazardous. The results for solid architectural debris

demonstrated that debris tended to fail the TCLP when the lead in the

paint, as measured by Atomic Absorption Spectrometry (AAS) exceeds 4

mg/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).

[[Page 70237]]

Among abatement waste categories, LBP architectural components are

the main source of large-volume waste. Other abatement wastes (such as

LBP chips and dust, treatment residues and waste water, and worker

equipment and clothing) are generally generated in smaller quantities.

Moreover, these other types of abatement wastes are relatively easy to

sample and analyze (with reproducible results), and, even if hazardous,

generators can manage the wastes without excessive costs (because of

smaller volumes).

As noted above, RCRA Subtitle C treatment and disposal costs are

approximately $316 per ton (of this total, approximately $86 per ton is

for transportation) as compared with an estimated cost of $37.20 per

ton based on new United States Forest Service C&D tipping fees survey,

to dispose of LBP debris in a construction and demolition landfill (a

solid, nonhazardous waste landfill defined in today's TSCA proposal

that generally accepts construction wastes), including compliance with

the management controls in today's proposal. Thus, for the disposal of

100 tons of debris from a LBP abatement, Subtitle C requirements would

cost $31,600 as opposed to the $3,720 it would require to dispose of

the waste in a construction and demolition facility in compliance with

today's proposed standards (Ref. 7).

EPA believes that the higher costs associated with RCRA Subtitle C

may hinder LBP abatements and deleadings from being conducted. The

Agency has received submissions from members of the public, including a

number of State governments, indicating that the cost of complying with

RCRA Subtitle C hazardous waste regulations interferes with or in many

cases halts the conduct of LBP abatements (Ref. 7).

3. Conclusions and areas for further consideration. Given the

demonstrated risks that LBP poses and the clear Congressional intent

for risks from LBP hazards to be reduced, the Agency believes that it

is appropriate to assess the adverse impacts that RCRA Subtitle C

regulations may have on LBP abatement, deleading, renovation,

remodeling, and demolition activities and decide what (if any) RCRA

Subtitle C regulation is necessary once the TSCA Title IV regulations

take effect. Because indications are that the applicability of the TC

rule and all other Subtitle C requirements may interfere with lead

hazard reduction activities and may not be necessary to protect human

health and the environment from LBP debris disposal, EPA is proposing

this temporary suspension.

Moreover, under current RCRA requirements, all LBP debris (if not

derived from a household) is not treated equally. Some LBP debris,

specifically, debris which fails the TCLP for lead, is subject to the

strict and costly requirements of RCRA Subtitle C. At the same time,

LBP debris (if not derived from a household) which passes the TCLP or,

using generator's knowledge has been determined to be nonhazardous,

remains non-hazardous solid waste and generally may be disposed of in

any solid waste disposal facility which meets the requirements in the

open dumping criteria which EPA promulgated in 1979 (40 CFR part 257,

subpart A).

However, any LBP debris which passes the TCLP test (i.e., which is

identified as nonhazardous) is not currently subject to any management

standards under RCRA Subtitle D similar to that being proposed under

TSCA today. These new TSCA management standards (e.g., access control

during debris storage, covering of trucks used in shipping debris for

recycling or disposal) take into account the risks that LBP debris may

pose to humans, particularly children, even if the debris passes the

TCLP test.

During the development of this proposal, it has become clear to the

Agency that the unequal management and disposal standards for LBP

debris under RCRA are inappropriate. In cases where LBP debris is

determined to be hazardous, the Agency now believes that RCRA Subtitle

C management and disposal requirements for LBP debris are unnecessarily

strict and costly. On the other hand, LBP debris that is found to be

nonhazardous is not subject to the RCRA Subtitle C management

requirements (i.e., land disposal restrictions requiring treatment and

disposal as a RCRA hazardous waste). Thus, in cases where LBP debris

passes the TCLP or is determined through knowledge to be nonhazardous,

management and disposal occurs according to solid waste management

regulations and disposal occurs at solid waste landfills accepting such

waste for disposal.

The TSCA standards being proposed today represent a common sense

approach to management and disposal of LBP debris which addresses the

problems associated with RCRA regulation of LBP debris. This proposal

to suspend the TC rule, combined with the TSCA proposal issued today,

would afford equal and appropriate management and disposal standards

for all LBP debris.

Although EPA believes there is sufficient information to propose

this temporary suspension of the TC rule for LBP debris, the Agency

plans to proceed to analyze in greater detail the concerns that members

of the public, including States, have raised concerning the degree to

which RCRA Subtitle C requirements may impede or frustrate LBP

abatements in target housing, public and commercial buildings. While

the temporary TC suspension is in effect, EPA will study further

related issues such as: (1) are LBP abatements and deleading projects

occurring on a more frequent and expeditious basis because LBP debris

is temporarily not subject to RCRA hazardous waste requirements; and

(2) whether any RCRA Subtitle C requirements are needed to supplement

the TSCA Title IV standards.

As indicated in the Agency's proposed Hazardous Waste

Identification Rule (HWIR), EPA is considering reevaluation of the TC

regulatory level for lead (see 60 FR 66406, December 21, 1995). Since

promulgation of the TC rule, EPA has become aware of a number of

factors which have prompted the Agency to consider initiating a re-

evaluation of the 5 mg/L TC level for lead. First, the human health

risk evaluation for lead has changed since EPA promulgated the TC rule,

resulting in the action level (on which the TC is based) for lead being

reduced from 50 parts per billion (ppb) to 15 ppb. Second, EPA has

developed a constituent-specific Dilution Attenuation Factor (``DAF'')

of 5,000 for lead leaching under different disposal scenarios

(suggesting that lead generally moves slowly in the subsurface

environment except in specific hydrogeologic situations) which differs

from the generic DAF of 100 used in the TC rule (See Unit V. of the

TSCA proposed rule preamble published elsewhere in today's Federal

Register for a discussion of the lead DAF). Third, EPA has developed a

multi-pathway, multi-media exposure risk assessment model that allows

consideration of exposure pathways in addition to ground water

contamination (which was the pathway considered in the TC rule).

(Available data suggest that some of the other pathways may be more

riskier than the ground water exposure pathway.)

EPA recognizes that the TC level for lead is a matter of

considerable interest to the public and has initiated efforts to review

management of lead-bearing waste and other related studies (e.g., lead

leaching). In the meantime, given the other factors discussed above,

EPA has decided to propose a temporary suspension of the TC rule for

LBP debris

[[Page 70238]]

and new standards under TSCA for the management and disposal of LBP

debris.

C. Alternative Approaches

Instead of a temporary suspension of the TC rule, EPA is

considering and seeking comment on a permanent approach under RCRA for

addressing LBP debris that is subject to the proposed TSCA Title IV

requirements. Like the proposed temporary TC suspension, a permanent

rule would eliminate the dual regulation of LBP debris under two

separate environmental statutes and remove obstacles hindering lead

abatement and deleading activities.

Such a rule could be framed as a permanent suspension of the TC for

LBP debris that is subject to the proposed TSCA Title IV requirements.

Under such an approach, EPA would determine that the proposed TSCA

Title IV standards for managing and disposing of LBP debris are safe,

reliable, and effective in protecting human health and the environment.

As discussed in Unit V.B. of this preamble, the statutory basis for

such an approach would be RCRA sections 1006(b)(2) and 2002(a), which

require the Agency to integrate the provisions of RCRA with other

environmental statutes. In addition, a permanent rule could be issued

as a ``conditional exemption'' from RCRA subtitle C for LBP debris

regulated under the TSCA Title IV management and disposal standards.

See Military Toxics Project v. EPA, D.C. Cir. No. 97-1343 (June 30,

1998) (EPA has the authority under RCRA subtitle C to conditionally

exempt a hazardous waste from subtitle C regulation where an

alternative regulatory scheme provides adequate protection). EPA

requests comment on the merits of such a permanent RCRA LBP rule.

V. Explanation of Today's Proposed Rule

A. Introduction

Today's proposal would suspend temporarily the applicability of the

TC rule to LBP debris (i.e., LBP architectural component debris

resulting from LBP abatements, deleadings, renovation and remodeling,

and LBP debris from demolitions) generated at target housing, public

and commercial buildings, for which management and disposal standards

are being proposed today under TSCA Title IV. If promulgated, the

proposed rule would mean that generators of LBP debris resulting from

these activities would not have to conduct the TCLP test on LBP debris

or use their knowledge to determine whether LBP debris is a hazardous

waste. Nor would generators of LBP debris be required to comply with

any treatment, storage, or disposal requirements under RCRA Subtitle C.

Instead, generators of LBP debris would be required to comply with the

management and disposal standards to be promulgated under TSCA Title IV

(unless and until the Agency decides that some additional RCRA

regulation should also apply to LBP debris).

EPA is proposing this temporary suspension of the TC rule as an

exclusion from the definition of ``hazardous waste'' in 40 CFR

261.4(b). The temporary suspension would amend the definition of

hazardous waste to exclude LBP debris resulting from: (1) Lead-based

paint abatements conducted at target housing; (2) deleading projects

conducted at public buildings or commercial buildings; and (3)

renovation or remodeling activities conducted at target housing, public

buildings, or commercial buildings. The temporary suspension would also

amend the definition of hazardous waste to exclude LBP debris resulting

from demolitions of target housing, public, or commercial buildings.

If, however, such LBP debris, is hazardous for reasons other than

failing the TCLP for lead, (e.g., the debris contains a listed

hazardous waste or any other TC or other hazardous waste characteristic

constituent), the exclusion from the definition of hazardous waste

would not apply.

The Agency is proposing this suspension in 40 CFR 261.4, rather

than as part of the TC rule in 40 CFR 261.24, because it has been a

consistent practice for EPA to list all of the exclusions from both the

solid waste and hazardous waste regulatory schemes in 40 CFR 261.4, and

the regulated community is more likely to be familiar with this

approach. This exclusion from the definition of hazardous waste, and

thus from any TC rule requirements, would be temporary pending EPA's

conduct of studies and analyses of the issues as described in Unit

IV.B.3. of this preamble.

B. Statutory Basis for the Temporary Suspension

EPA is proposing this temporary suspension of the TC rule for LBP

architectural components under the authority of RCRA sections

1006(b)(2) and 2002(a). RCRA section 1006(b)(1) states that EPA:

shall integrate all provisions of [RCRA] for purposes of

administration and enforcement and shall avoid duplication, to the

maximum extent practicable, with the appropriate provisions of . . .

such other Acts of Congress as grant regulatory authority to the

Administrator. Such integration shall be effected only to the extent

that it can be done in a manner consistent with the goals and

policies expressed in [RCRA] and in the other acts referred to in

this subsection. 42 USC section 6905(b)(1).

As discussed in the proposed TSCA rule, EPA has authority under

TSCA Title IV to promulgate regulations governing LBP activities,

including the establishment of standards governing the management and

disposal of waste resulting from abatements, deleading, renovation and

remodeling, and demolition activities (15 U.S.C. 2681(1) and 2682(a)(1)

and (b)). Pursuant to this authority, EPA is simultaneously proposing

elsewhere in today's Federal Register specific regulations which govern

the management and disposal of LBP debris resulting from these

activities. EPA believes that the TSCA rules being proposed today for

LBP debris are consistent with the central objective and policy of

RCRA: Protecting human health and the environment.

The legislative history shows clearly that by enacting TSCA Title

IV, Congress wanted to ``remove all major obstacles to progress, making

important changes in approach and laying the foundation for more cost-

effective and widespread activities for reducing lead-based paint

hazards'' (S. Rep. No. 102-332, 102nd Cong., 2nd Sess. 111 (1992)). As

the Senate Committee on Banking, Housing and Urban Affairs stated, `` .

. . by establishing realistic, cost-effective procedures for achieving

hazard reduction, [The LBP Act of 1992] will speed the clean-up of lead

paint hazards in housing and greatly decrease the incidence of

childhood lead poisoning.'' (Id. at 112.)

Thus, in enacting TSCA Title IV, Congress wanted to ensure that

obstacles to lead abatements and deleading activities, including high

costs, would be minimized and that LBP hazards would be reduced. In

authorizing EPA under TSCA Title IV to promulgate management and

disposal standards for LBP waste, however, Congress did not address the

conflict that would arise concerning the overlapping jurisdiction of

the RCRA TC rule and the TSCA disposal standards. Nor did Congress

clearly address the obstacles to the conduct of lead abatements and

deleading activities that can result if LBP debris is determined to be

hazardous and subject to the resultant costs of RCRA Subtitle C. To

resolve the duplication inherent in the statutory schemes and the

potential adverse impacts if both RCRA and TSCA regulatory schemes were

to apply

[[Page 70239]]

to LBP debris, EPA believes it is appropriate to resolve this conflict

of overlapping jurisdiction by proposing to suspend temporarily the

applicability of the TC rule to such LBP debris as authorized under

RCRA section 1006(b)(1). See Edison Electric Institute v. EPA, 2 F.3d

438, 452 (D.C. Cir. 1993) (because Congress did not clearly address the

interaction between RCRA Subtitles C and I, EPA's temporary deferral of

the TC rule for underground storage tank waste under RCRA section

1006(b)(1) was permissible). The temporary suspension of the TC rule

proposed today would also work to integrate the regulatory provisions

promulgated under the Clean Air Act pertaining to municipal waste

combustors and smelters with RCRA and TSCA Title IV regulatory

requirements.

EPA believes that the TSCA rule being proposed today for LBP debris

will protect the core value of RCRA of protecting human health and the

environment. See 42 U.S.C. 6902. While EPA further studies various

issues described in this proposal, e.g., the difficulty of conducting

the TCLP test on LBP debris and whether the TC regulatory level for

lead should be modified, the Agency believes that the management,

notification, transportation, and disposal standards being proposed

today under TSCA Title IV are consistent with the goals and policies of

RCRA. Suspending the applicability of the TC rule to LBP debris on a

temporary basis, while requiring that disposal of such LBP debris

comply with regulations promulgated under TSCA Title IV and the Clean

Air Act, would give EPA the necessary time to study the Title IV

regulatory scheme and to assess whether any additional RCRA regulation

is necessary.

The Agency also believes that it has the authority to promulgate

the TC temporary suspension for LBP debris as a conditional exemption

under RCRA section 3001(a). See Military Toxics Project v. EPA, D.C.

Cir. No. 97-1343 (June 30, 1998) (EPA has the authority under RCRA

subtitle C to conditionally exempt a hazardous waste from Subtitle C

regulation where an alternative regulatory scheme provides protection.)

See 62 FR 6622, 6636-38; February 12, 1997.

It is important to note that the proposed temporary TC suspension

would not alter a person's potential CERCLA liability. The rule would

only suspend the TC rule for LBP debris managed under the proposed TSCA

Title IV requirements. Even if a lead regulatory level was changed or

lead was entirely removed from regulations as a RCRA hazardous waste,

lead would remain a CERCLA hazardous substance because it is listed

under the Clean Air Act and the Clean Water Act. Therefore, persons who

arrange for the disposal of, or are otherwise connected with, LBP

debris would remain potentially subject to liability under CERCLA

section 107(a) even after promulgation of the rule. Nevertheless, the

rule is intended to facilitate lead abatement and deleading activities

by eliminating the barriers posed by RCRA's hazardous waste rules when

the LBP is properly managed in accordance with the TSCA Title IV rules.

C. Scope of the Temporary Suspension

1. Types of waste covered. The temporary suspension of the TC rule

would apply to LBP architectural component debris and LBP demolition

debris which is subject to the disposal and management standards

promulgated under TSCA section 402(a). EPA is proposing to define ``LBP

architectural component debris'' in the RCRA regulation, in the same

manner proposed in today's TSCA proposed rule (see Sec. 745.301 of the

TSCA proposed rule regulatory text). The definition of LBP

architectural component debris provides a generic definition of

architectural components, i.e., ``elements or fixtures, or portions

thereof, of commercial buildings, public buildings, or target housing

that are coated wholly or in part with or adhered to by lead-based

paint.'' The definition also includes a non-exclusive list of specific

examples of structural elements or fixtures that would fall within the

definition.

Under this definition of ``lead-based paint architectural component

debris,'' EPA has specified that other types of LBP wastes that may

result from activities at any of the identified structures are not

covered by the scope of the proposed temporary suspension of the TC

rule. The other LBP wastes excluded from coverage under this proposed

TC suspension include paint chips and dust, sludges and filtercake,

wash water, and contaminated and decontaminated protective clothing and

equipment.

For a number of reasons, EPA is not proposing to include these

other LBP wastes (except when they are part of LBP demolition debris)

within the scope of the temporary suspension of the TC rule. First,

these types of LBP waste are generally produced in much smaller

quantities and their bulk is considerably less than that of LBP debris.

Thus, the costs involved in treating and disposing of these wastes as

hazardous are far less than the costs would be for the large volume of

LBP debris which frequently result from abatement, deleading,

demolition, and renovation and remodeling activities.

Second, certain of these LBP wastes, e.g., paint chips and dust,

sludge and filter cakes, are homogenous in physical characteristics,

are easy to sample using the existing EPA sampling methods, are easily

recognizable, can be easily segregated from LBP architectural component

debris resulting from abatements or renovation or remodeling, and

contain high levels of lead in a concentrated form. Unlike LBP

architectural component debris, they are more likely to fail the 5 mg/L

TCLP regulatory level for lead routinely, and the TCLP test results can

reliably be reproduced. In some cases, the lead content is so high that

the waste could possibly be sent to lead smelters for the metal

recovery. Thus, these other lead-based paint wastes will remain subject

to RCRA hazardous waste determination requirements, including the

provisions of the TC rule.

EPA is proposing to define ``LBP demolition debris'' to include any

solid material which results from the demolition of target housing,

public buildings, or commercial buildings which are coated wholly or in

part with or adhered to by lead-based paint at the time of demolition.

Thus, LBP demolition debris includes dust, paint chips, and other solid

wastes from demolition activities which are not covered under today's

proposal if they are generated during other LBP activities such as

``abatement,'' ``deleading,'' ``renovation'' etc. EPA expects that such

LBP waste would normally represent only a small percentage of the large

volume of the total solid waste generated during demolitions. Moreover,

separation of dust and paint chips from other demolition waste is

virtually impossible. (Nevertheless, to the extent practicable, EPA

encourages separation of LBP debris and LBP non-debris waste (paint

chips and dust), and proper management.) Since some LBP non-debris

waste is impractical to separate, EPA is proposing that all solid

waste, including any LBP dust, paint chips, or other particulate

matter, generated during demolitions are covered by today's proposal to

suspend the TC.

LBP demolition debris under the Agency's proposal, however, would

not include any solid waste resulting from a demolition which fails the

toxicity characteristics regulatory level for any hazardous constituent

other than lead as contained in the TC rule (40 CFR 261.24). Thus, if a

generator of LBP

[[Page 70240]]

demolition debris has not separated hazardous waste (other than LBP)

from the building prior to the demolition, he or she remains subject to

the RCRA hazardous waste determination requirement for TC hazardous

constituents and must determine whether any of the regulatory levels

for the TC hazardous constituents (other than lead) are met or

exceeded.

2. Activities and structures covered. Under this proposal and the

TSCA proposal being published today, ``lead-based paint'' would be

defined in the same manner it is defined in the TSCA rule applicable to

worker certification and training requirements (see 61 FR 45815, August

29, 1996). Under the TSCA definition, the term would mean paint or

other surface coatings that contain lead equal to or in excess of 1.0

mg/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)(1) and 42 U.S.C. 4851 -

4852).

ii. Deleading at public buildings and commercial buildings,

renovation and remodeling, and demolition. EPA originally planned to

limit the scope of the TSCA proposed rule and the proposed TC

suspension to LBP architectural components debris resulting from

abatements at target housing and child-occupied facilities. However, a

number of stakeholders, including State governments, argued that the

scope of the proposed rules should be broadened to include

architectural component debris from deleading activities at public and

commercial buildings and from renovation and remodeling activities. For

example, EPA received a letter from the California Department of Health

Services suggesting that EPA expand the scope of this temporary TC

suspension proposal to include LBP waste from public buildings such as

libraries and buildings owned by State and local municipalities.

Stakeholders argue that LBP architectural component debris is

essentially the same waste no matter what its origin; thus, its

disposal should be controlled in the same manner. Moreover, States also

raised questions about their ability to enforce two different sets of

rules (the TSCA Title IV rule and the RCRA Subtitle C regulations) for

the same type of waste that will ``look alike'' despite having

different points of generation, e.g., target housing versus public

buildings, or resulting from different activities, e.g., LBP abatement

versus renovation projects that include removal of architectural

components or demolition of target housing, public buildings, or

commercial buildings.

EPA agrees with these concerns and is including within the scope of

the proposed rules being published today LBP architectural component

debris resulting from deleading activities at public buildings and

commercial buildings. EPA is also proposing to make the rules

applicable to LBP architectural component debris from renovation and

remodeling activities and LBP debris from demolitions of target

housing, public buildings, and commercial buildings. EPA agrees with

the stakeholders' comments and believes that broadening the scope of

the proposed rules provides a common sense regulatory framework that

would not have resulted if the same waste from different structures or

activities remained subject to two different regulatory regimes. In

addition, including LBP debris resulting from deleading, renovation,

remodeling, and demolition of public and commercial buildings within

the scope of the proposed TSCA rule and the proposed TC suspension

would allow the establishment of management and transportation

standards for LBP debris to protect human health which otherwise would

not exist under RCRA Subtitle D if the debris does not fail the TCLP.

EPA has proposed the definitions for the following terms at 40 CFR

745.301, in the companion TSCA proposal published today. ``Deleading''

as the term is defined under TSCA section 402(b)(2)--``activities

conducted by a person who offers to eliminate lead-based paint or lead-

based paint hazards or to plan such activities'' in public buildings or

commercial buildings (15 U.S.C. 2682(b)(2)). EPA is proposing to define

``public building'' to mean ``any building constructed prior to 1978,

[except target housing], which is generally open to the public or

occupied or visited by the public, including but not limited to

schools, day care centers, museums, airport terminals, hospitals,

stores, restaurants, office buildings, convention centers, and

government buildings.'' The proposed definition of ``public building''

would also include any ``child-occupied facility'' as defined in the

LBP worker certification and training rule. In addition, EPA proposes

to define ``commercial building'' to mean any building used primarily

for commercial or industrial activity including: manufacturing,

service, repair, or storage.

The Agency is proposing to define ``renovation'' to mean the

modification of any existing structure, or portion thereof, that

results in the disturbance of painted surfaces, unless that activity is

performed as part of an abatement. The term renovation includes but is

not limited to: the removal or modification of painted surfaces or

painted components (e.g., modification of painted doors, surface

preparation activity (such as sanding, scraping, or other such

activities that may generate paint dust)); the removal of large

structures (e.g., walls, ceiling, large surface replastering, major re-

plumbing); and window replacement. The term ``remodeling'' is defined

to encompass any construction-related work on an existing property

intended to either maintain or improve the property that results in the

disturbance of painted surfaces.

EPA is proposing to define the term ``demolition'' to include the

act of wrecking, razing, or destroying any

[[Page 70241]]

building or significant element thereof using a method that generates

undifferentiated solid waste.

3. Lead-contaminated soil. Lead-contaminated soil is not included

in the scope of the TSCA lead-based paint debris proposal nor in the

proposed temporary suspension of the TC with respect to LBP debris (see

the companion TSCA LBP debris proposal for further discussion). EPA

requests comment on whether there is a sound technical basis for

reducing the Subtitle C requirements that might apply to some soil

removed from residences, the importance of addressing this issue, and

possible options for doing so. EPA will consider whether there is a

need and a basis for addressing that issue in a separate rulemaking in

the future.

D. Other Exclusions from RCRA Subtitle C

1. Household waste exclusion. One issue that has arisen during the

course of preparing this proposed rule is whether the existing

household waste exclusion would apply to LBP waste that results from a

resident's actions to renovate, remodel, or abate a LBP-contaminated

home. This household waste provision in the RCRA Subtitle C regulations

excludes certain types of household hazardous waste from the

requirements of RCRA Subtitle C (40 CFR 261.4(b)(1)). EPA promulgated

this household waste exclusion as part of the Agency's initial phase of

implementing RCRA section 3001, which required the Agency to establish

criteria for identifying hazardous waste characteristics and listing

specific hazardous wastes (42 U.S.C. 6921; 45 FR 33084, 33098-99,

33120, May 19, 1980).

In that 1980 regulation, EPA excluded ``household waste'' from

being identified as hazardous waste. This exclusion implements

Congressional intent as expressed in the legislative history of RCRA as

enacted in 1976. See S. Rep. No. 94-988, 94th Cong., 2nd Sess., at 16

(hazardous waste program is ``not to be used either to control the

disposal of substances used in households or to extend control over

general municipal wastes based on the presence of such substances.'').

In promulgating the exclusion in 1980, EPA defined ``household waste''

to include ``any waste material (including garbage, trash, and sanitary

wastes in septic tanks) derived from households (including single and

multiple residences, hotels and motels)'' (see 45 FR 33120, May 19,

1980). In 1984, the Agency expanded the scope of the household waste

definition to include wastes from bunkhouses, ranger stations, crew

quarters, campgrounds, picnic grounds, and day-use recreation areas (49

FR 44978, November 13, 1984).

Although the definition of household waste does not indicate

whether a waste is household waste as a result of the place of

generation (e.g., a residence), or as a result of who generated it

(e.g., a resident of a household), EPA has limited the exclusion's

application to those wastes which meet the following two criteria: (1)

The waste must be generated by individuals on the premises of a

household and (2) the waste must be composed primarily of materials

found in the wastes generated by consumers in their homes (49 FR

44978). If a waste satisfies both criteria, then it would fall within

the household waste exclusion and not be subject to RCRA Subtitle C

regulation. Id.

EPA has previously taken the position that the household waste

exclusion should not be extended to debris resulting from building

construction, renovation, or demolition in houses, or other residences,

because EPA did not consider the debris from such operations to be of a

type similar to that routinely generated by a consumer in a home (49 FR

44978). (Although this interpretation did not address waste resulting

from remodeling or abatement conducted at residences, these activities

can be similar in many ways to those addressed in the 1984 Federal

Register notice, i.e., renovation, construction, and demolition). EPA

has re-evaluated this position in the context of this proposed

temporary suspension of the TC rule for contractor-generated LBP debris

and the TSCA rulemaking also being proposed today.

For the reasons discussed below, EPA has reconsidered the matter

and now interprets the household waste exclusion in 40 CFR 261.4(b)(1)

to apply to all LBP waste (i.e., LBP debris, LBP chips and dust, etc.)

generated as a result of actions by residents of households to

renovate, remodel, or abate their homes on their own. EPA invites

comment on this interpretation.

i. Residential renovation and remodeling. EPA has previously taken

the position that lead-contaminated paint chips resulting from

stripping and re-painting of residential walls would be part of the

household waste stream and not subject to RCRA Subtitle C regulation

(Ref. 8). The Agency believed then and continues to believe that such

re-painting efforts within a residence are routine maintenance and that

any LBP waste resulting from these activities should fall within the

household exclusion. EPA now believes that LBP waste resulting from

renovation or remodeling efforts by residents of households or ``do-it-

yourselfers,'' should also fall within the household waste exclusion.

Although the Agency stated in 1984 that waste from renovation

should not be covered by the household waste exclusion (because the

waste was not composed primarily of materials routinely generated by

consumers in a home), it has become evident that more and more

residents are engaging in renovation or remodeling of their homes. This

is strongly suggested by the greatly increased number of building

permits that have been issued throughout the country for renovation of

residences. EPA believes that, although many renovation and remodeling

efforts are conducted by professional contractors, more and more are

done by residents on their own. This may be shown, in part, by the

widespread openings of home improvement stores throughout the United

States which cater to do-it-yourselfers. It is also evident from: (a)

The doubling of retail sales of lumber and other materials to consumers

over the last 10 years from $45 to $89 billion; (b) steady increases of

approximately 25% in hardware sales every 5 years; (c) the increase in

consumers' purchase of home improvement products from $38 to $90

billion between 1980 and 1995; and (d) the projected increase in sales

of home improvement products to consumers to almost $115 billion by the

year 2000 (Ref. 9). Thus, EPA now believes that LBP waste resulting

from renovation or remodeling efforts conducted by residents of

households does meet the two criteria for the household exclusion

outlined above (i.e., the waste is generated by individuals in a

household and it is of the type that consumers generate routinely in

their homes).

ii. Residential abatements. EPA has decided to include within the

scope of the household waste exclusion LBP waste resulting from a do-

it-yourselfer abatement conducted in homes. (EPA recommends that

homeowners/residents do not try to remove lead paint or painted

architectural components from older, pre-1978 homes without adequate

understanding of the lead risks, especially to children, and proper

ways to minimize the risks of exposure to dust and paint when removing

and storing painted doors, windows, and other architectural

components.) Although such abatements are less routine than renovation

or remodeling activities, the Agency believes such LBP abatement waste

should be covered by the household waste exclusion to avoid the

incongruities that would result from the fact that the TSCA disposal

and management standards being proposed

[[Page 70242]]

today do not apply to homeowners. The TSCA proposal applies to persons

(i.e., properly trained and certified LBP abatement contractors) who

generate, store, transport, reuse, reclaim and/or dispose of LBP debris

resulting from target housing abatements, deleading of public or

commercial buildings, and renovation, remodeling and demolition of

target housing, residential, public, and commercial buildings. However,

the TSCA proposed rule does not apply to residents of households who

conduct any of these activities within a target house that they own

(unless people other than immediate family members are occupying the

target house). See Sec. 745.300(a) and (b) of the regulatory text of

the TSCA proposed rule.

If EPA chose to interpret the household exclusion not to apply to

LBP waste resulting from residential renovation and remodeling or

abatements done by households, the result would be that contractors

conducting residential abatements, remodeling or renovation of LBP-

contaminated residences would be subject to the TSCA standards (and not

RCRA Subtitle C); however, residents conducting their own remodeling or

renovation or LBP abatements would be subject to RCRA Subtitle C

requirements (unless the Conditionally Exempt Small Quantity Generator

exemption discussed below were to apply). Thus, residents/homeowners,

but not contractors, would be required to determine whether the

resulting LBP waste was hazardous. If the waste was hazardous, i.e.,

failed the TCLP regulatory level for lead, the resident would be

required to comply with RCRA Subtitle C requirements. The Agency does

not believe it is appropriate to apply RCRA Subtitle C requirements to

LBP waste resulting from a resident's own renovation or remodeling or

abatement actions, while allowing contractors generating the same type

of LBP waste through the same activities at residences to comply with

the less burdensome TSCA standards being proposed today.

EPA does not intend that its interpretation to exclude LBP waste

generated by do-it-yourselfer abatements at homes from Subtitle C to be

taken as a sign that EPA is encouraging people to conduct their own LBP

abatements. Rather, the Agency believes that in situations where LBP in

a residence presents risks to human health, trained and certified

abatement contractors should conduct the LBP abatement.

iii. Management of LBP waste generated by ``do-it-yourselfer''

households. Identification of the waste as falling within the household

waste exclusion, however, does not make exposure to LBP less hazardous,

and the LBP waste should be managed properly. EPA, therefore,

recommends that residents/households generating LBP waste take the

following steps for proper handling and disposal of LBP waste:

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

[[Page 70243]]

so. While States must still adopt HSWA-related provisions as State law

to retain final authorization, HSWA applies in the authorized State in

the interim.

Today's proposed suspension of the TC is less stringent than the

current RCRA program. Therefore, although the suspension is proposed

under section 3001(g) of RCRA, a provision added by HSWA, States are

not required to adopt it when promulgated. Nonetheless, EPA strongly

encourages States to adopt the TC suspension for the reasons set out in

this proposal. (It should be noted, however, that the TSCA management

and disposal standards, once finalized, would apply to LBP debris even

if it does not fail the TCLP test).

B. The TC Suspension in States Which Have Adequate TSCA Title IV

Programs

EPA is proposing to allow the temporary suspension of the RCRA TC

rule to take effect in those States where there is an effective TSCA

Title IV program addressing the management and disposal of LBP debris.

Therefore, a prerequisite for the temporary TC suspension, in the first

2 years, is a State TSCA Title IV program has been approved by EPA, or,

after 2 years, EPA is implementing the Federal TSCA Title IV program

for the management and disposal of LBP debris because the State has not

been approved for the program under the requirements of TSCA section

404. This limitation applies to all States, regardless of whether they

have been authorized for the RCRA hazardous waste program.

1. Approval of States for the TSCA Title IV Program concerning the

management and disposal of LBP debris. Any State which seeks to

administer and enforce the standards, regulations, or other

requirements established under section 402 or 406 of TSCA may submit an

application to EPA for approval of such TSCA program. TSCA section

404(b) states that EPA may approve such an application only after

finding that the State TSCA program is at least as protective of human

health and the environment as the Federal program established under

section 402 or 404 and that it provides adequate enforcement.

There are two ways by which States may be approved for a TSCA Title

IV program. Under the first method, when a State submits an application

for LBP debris management and disposal program approval, the State may

certify that it has such program, and that the program meets the

requirements of TSCA sections 404(b)(1) and 404(b)(2). The TSCA

certification must take the form of a letter from either the Governor

or the State Attorney General to the Administrator. It must include a

description demonstrating that the State's TSCA program is at least as

protective as the Federal program and provides for adequate

enforcement. If this certification, or certificate of compliance, is

contained in a State's application, the State program shall be deemed

to be approved by EPA under TSCA section 404, until such time as the

Administrator withdraws the approval (see Sec. 745.312 of the

regulatory text of today's TSCA proposed rule).

Under the second approval method, if the application does not

contain such a certification, the State LBP debris management and

disposal program would be considered approved only after EPA reviews

and approves the State application (see Sec. 745.315 of the regulatory

text of today's TSCA proposal).

During the development of today's proposed rule, EPA considered

restricting the proposed temporary suspension of the TC rule to only

those States which had submitted applications and obtained actual

approval of their TSCA section 404 programs under the second method

described above. However, limiting the temporary exemption in this way

might unnecessarily delay implementation of the State program because

of the time it takes to approve or disapprove a State program. See 15

U.S.C. 2684(b). Because LBP abatements and deleading activities may be

postponed until the TC suspension goes into effect, this delay may be

detrimental to human health and the environment.

Thus, although the Agency will review the State TSCA program

applications to ensure that the statutory standards for State programs

under TSCA section 404 are met, EPA believes that it is appropriate to

allow the temporary TC suspension to be applicable in States which

submit certification Statements in conformance with Sec. 745.312 of

the regulatory text of today's TSCA proposed rule. Such a certification

must assure EPA that the State TSCA program provides for adequate

enforcement and is at least as protective of human health and the

environment as the Federal program to be established for LBP debris

under TSCA section 402. Therefore, the Agency believes that protection

of human health and the environment will not be compromised by allowing

LBP debris to be subject to the management and disposal requirements of

the relevant State program.

Procedures for State or Tribal applications for TSCA program

authorization are discussed in Unit VII. of the TSCA proposed rule

preamble published elsewhere in today's Federal Register. EPA has

promulgated procedures for the submission and approval of State LBP

worker training and certification programs developed under section 404,

as well as a model State program (see 61 FR 45825-45827, August 29,

1996). For the purposes of the disposal standards developed pursuant to

TSCA section 402, the requirements found in that TSCA rule will serve

as the model State program (see 61 FR 45825-30, August 29, 1996).

2. Federal implementation of the TSCA Title IV Program concerning

the management and disposal of LBP debris. EPA is required to enforce

these TSCA Title IV regulations in any State which has not adopted a

program to carry out the Federal requirements 2 years after

promulgation of today's proposed TSCA Title IV regulations (see TSCA

section 404(h)). Thus, today EPA is proposing to make the TC temporary

suspension applicable once the Federal TSCA Title IV program for LBP

disposal and management becomes federally enforceable in any State that

has not adopted an approved TSCA program. EPA plans to issue a

notice[s] in the Federal Register 2 years after the LBP TSCA

regulations and TC temporary suspension are promulgated which provides

a list of States that have not adopted a TSCA program. The notice will

announce that the Agency intends to enforce the Federal TSCA program

for LBP debris disposal and management in those States which have not

been approved for the TSCA program.

C. Applicability of TC Suspension in States Without a TSCA Title IV

Program

Under TSCA section 404(h), the Administrator of EPA is authorized

to enforce TSCA Title IV regulations 2 years after the regulations have

been promulgated in any State which has not adopted a program to carry

out the Federal requirements. Thus, in addition to authorizing States

for the temporary suspension of the TC rule once they have obtained

approval of their TSCA program or submitted the requisite

certification, EPA is also proposing to make the TC temporary

suspension effective once the Federal TSCA Title IV program for LBP

debris management and disposal becomes federally enforceable in any

State that has not adopted an approved TSCA program. [EPA plans to

issue a notice as discussed in section B above.]

[[Page 70244]]

D. Effect of Today's Proposed Rule in States Where EPA Implements RCRA

Hazardous Waste Regulations

Under today's proposal, LBP debris would not be hazardous waste in

those States without RCRA base program authorization, at the time those

States have been approved for the TSCA Title IV program, or when EPA's

implementation of such program becomes effective.

E. Effect of Today's Proposed Rule in States That Are Authorized for

RCRA Subtitle C

1. States that are not authorized for the toxicity characteristic.

In States that are not authorized for the TC regulation, EPA implements

the TC regulation and would implement this suspension of the TC

regulation for LBP debris in States which have approved TSCA Title IV

programs, or where EPA implements the Federal TSCA Title IV program.

One important factor that States with base RCRA authorization

should consider is the operation of their Extraction Procedure (EP)

toxicity characteristic under State law. The EP procedure was part of

the base State authorized program for those States authorized for RCRA

before 1991. When the TCLP was promulgated by EPA, this more stringent

procedure superseded the EP procedure. However, some States may still

be implementing the EP under State law, even though the more stringent

TCLP is in effect under RCRA. (At the time this proposal was written,

35 of the 49 authorized States and Territories were authorized for the

TC rule.) Because LBP debris could also be considered hazardous under

the EP, States may have to suspend or waive the operation of the EP

under State law to allow this waste to be regulated exclusively under

the TSCA Title IV program. Therefore, States that submit and certify

(or simply submit) their TSCA Title IV program applications to EPA

should also determine whether the EP toxicity characteristic is still

in effect and take appropriate action. States should note that any such

action to suspend or waive the EP would not require approval from EPA

since this solely is a matter of State law.

2. States that are authorized for the toxicity characteristic.

States that are authorized for both the RCRA-base program and the TC

would need to revise their hazardous waste programs to adopt a

suspension similar to the Federal TC suspension. If a State amends its

RCRA and TC regulations, the new State RCRA regulations must be no less

stringent than the Federal TC temporary suspension. If State TC

regulations are changed in a manner that is less stringent than this

temporary suspension (e.g., the State suspension is permanent rather

than temporary or addresses other types of LBP debris, e.g., LBP dust,

LBP chips or blast media), EPA will not authorize the change and will

enforce the more stringent Federally-authorized State TC rule

provisions pursuant to section 3008 of RCRA. Some States may choose to

use a State waiver authority to lift the TC requirements for LBP debris

instead of amending their regulations. Use of such waiver authority

would also have to be in a manner no less stringent than the Federal TC

suspension.

On the other hand, States that have RCRA-base programs and are TC-

authorized, and which choose not to change their RCRA regulations or

use a State waiver authority to lift TC requirements for LBP debris, or

do not have an approved TSCA Title IV program, would still administer

and enforce their existing TC authorized requirements for LBP debris.

In this circumstance, non-hazardous LBP debris would be regulated

exclusively under a State or Federal TSCA program. Hazardous LBP debris

would technically be subject to both the State RCRA program and the

State or Federal TSCA program; however, compliance with both sets of

requirements could be satisfied only by treating the LBP debris as a

hazardous waste.

F. Procedure for Authorizing States for the TC Temporary Suspension

As discussed previously, in order for the TC temporary suspension

to be effective in any State, the State must be approved for the TSCA

Title IV program or be a State where EPA implements the Federal TSCA

Title IV program. In States with the Federal TSCA Title IV program, EPA

will take action to make the TC suspension effective.

For States that are authorized for the TC rule, EPA is prepared to

expedite the review and approval of TC rule revision applications. EPA

further encourages States which are in the process of applying for TC

authorization to suspend or waive the operation of the TC for LBP

debris as part of their TC application.

EPA requests comment regarding the use of the abbreviated

authorization procedure proposed on August 22, 1995 (see 60 FR 43688)

for the authorization of TC suspension. This proposed procedure,

designated as Category 1, would abbreviate the contents of a State

application regarding applicable rules, and shorten the length of time

allocated for EPA review and determination. The abbreviated application

required by the proposed Category 1 procedures should also cite and

reference the State's approved TSCA Title IV program. EPA believes that

today's proposed rule may be appropriate for the use of this procedure

due to the minor effect of today's rule on an overall TC program, its

environmental benefit, and the straight-forward nature of today's

proposed amendments to the RCRA regulations. EPA believes that the

proposed application procedure will encourage States to adopt the TC

suspension and become authorized for it.

Under TSCA Title IV, Indian Tribes may apply for approval of lead-

based paint programs (see 61 FR 45805-45808, August 29, 1996). Thus,

EPA is proposing in the accompanying TSCA proposal for LBP management

and disposal standards, that Indian Tribes may apply for approval of

management and disposal of LBP debris management and disposal programs.

However, in an opinion issued by the U.S. Court of Appeals for the

District of Columbia, the Court held that EPA does not have authority

under RCRA Subtitle D to approve tribal solid waste permit programs.

Backcountry Against Dumps v. EPA, 100 F.3d. 147 (D.C. Cir. 1996).

Partly, as a result of this decision, EPA expects that it will not be

authorizing tribal hazardous waste programs under RCRA Subtitle C.

Thus, after consulting with Tribes, EPA expects to implement and

enforce this temporary suspension of the TC rule for LBP debris in

Indian Country when a TSCA Title IV program (either Tribal or Federal

is operable in the Tribe's jurisdiction.

VII. Public Docket and Electronic Submissions

The complete record for this proposed rule is contained in the RCRA

Docket office at the following address: Environmental Protection

Agency, RCRA Docket, Crystal Gateway, North #1, 1235 Jefferson Davis

Highway, First Floor, Arlington, VA and is available for viewing from 9

a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. To

review docket materials, it is recommended that the public make an

appointment by calling 703 603-9230. Copies may be made at a cost of $

0.15 per page. Charges under $25.00 are waived.

The official record for this action will be kept in paper form.

Accordingly, EPA will transfer all comment received electronically into

paper form and place them in the official record, which will also

include all comments submitted directly in writing. The official record

is the record maintained at the address in the beginning of this

document. EPA

[[Page 70245]]

responses to comments, whether the comments are written or electronic,

will be in a notice in the Federal Register or in a response to

comments document placed in the official record for this proposal. EPA

will not immediately reply to commenters electronically other than to

seek clarification of electronic comments that may be garbled in

transmission or during conversion to paper form, as discussed above.

VIII. References

The following books, articles, reports and sources were used in

preparing this notice and were cited in this proposal by the number

indicated below:

1. U.S. Department of Health and Human Services, Center for Disease

Control. Update: Blood Lead Levels-United States, 1991-1994, Morbidity

and Mortality Weekly Report. Vol. 46, No. 7. February 21, 1997.

2. HUD. Department of Housing and Urban Development, ``National

Housing Survey.'' Washington, DC. 1994.

3. Task Force on Lead-Based Paint Hazard Reduction and Financing,

Letter to Honorable Carol Browner, Administrator, USEPA, Washington,

DC, April 13, 1994.

4. HUD. Lead-Based Paint Hazard Reduction and Financing Task Force,

Putting the Pieces Together: Controlling Lead Hazards in the Nation's

Housing. HUD-1547-LBP. July 1995.

5. Science Applications International Corporation (SAIC).

Analytical Results of Lead in Construction Debris. May 1992.

6. SAIC. Background Document on Lead Abatement Waste Study (Interim

Draft). Prepared for USEPA, Office of Solid Waste. September 1994.

7. USEPA. TSCA Title IV, Sections 402/404: Lead-Based Paint Debris

Management and Disposal Standards Proposed Rule Economic Analysis.

Office of Pollution Prevention and Toxics. September 24, 1998.

8. USEPA. RCRA/Superfund Hotline Summary - RCRA Question No. 6

(March 1990).

9. USEPA. Table 1: Home Improvement Products Market 1980 to 2000

and Table 2: Retail Sales for Lumber and Other Building Materials and

Hardware - 1980 to 1995. June 1997.

IX. Regulatory Assessment Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether a regulatory action is ``significant''

and, therefore, subject to review by the Office of Management and

Budget (OMB) and the requirements of the Executive Order. A significant

regulatory action is defined as an action likely to result in a rule

that may:

1. Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or Tribal governments or

communities;

2. Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

3. Materially alter the budgetary impact of entitlement, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

4. Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

Executive Order 12866.

Pursuant to the terms of the Executive Order, EPA has determined

that today's proposed rule is a ``significant regulatory action''

because it raises novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order. Changes made in response to OMB suggestions or

recommendations are documented in the public record.

In addition, EPA has prepared an economic analysis of the impact of

this action and the companion TSCA rule, which is contained in a

document entitled, ``TSCA Title IV, Secs. 402/404: Lead-Based Paint

Debris Management and Disposal Proposed Rule: Economic Analysis,''

which is available in the public record for this proposal.

The proposed TSCA and RCRA rules will result in an estimated cost

savings of $119 million annually after the first year. The cost savings

results from reduced disposal costs minus new compliance costs.

Compliance costs of these two rules, due primarily to recordkeeping and

notification, are $30.86 million annually after the first year. States

are expected to incur $0.95 million in the first year to apply for EPA

approval and then 0.06 million in the second and third years and

biennially thereafter to submit reports.

The public housing sector will benefit from reduced costs of

disposal of LBP debris. Decreased disposal costs should lead to a

decrease in the costs of abatements, saving the public housing

authorities $17.13 million per year. This money, earmarked specifically

for abatement activity, will allow an increase in the number of

abatements in public housing conducted per year, thus eliminating the

stock of public housing containing LBP 1 year earlier than predicted in

the absence of these proposed rules.

Please refer to the companion TSCA proposal for a further

discussion of the costs and benefits of this and the TSCA proposal.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-12, as

amended by the Small Business Regulatory Enforcement and Fairness Act,

whenever an agency is required to publish a general notice of

rulemaking for any proposed or final rule, it must prepare and make

available for public comment a regulatory flexibility analysis which

describes the impact of the rule on small entities (i.e., small

businesses, small organizations, and small governmental jurisdictions).

However, under the Regulatory Flexibility Act, an agency is not

required to prepare a regulatory flexibility analysis for a proposed

rule if the agency head certifies that the proposal will not have a

significant adverse economic impact on a substantial number of small

entities.

This proposed rule will generally provide regulatory relief to

small and medium entities that are involved in lead abatement,

renovation, remodeling, deleading, and demolition. For this reason, I

certify that this proposed rule will not have a significant adverse

impact on a substantial number of small entities. Therefore, a

regulatory flexibility analysis is not required. The proposed rule will

offer cost savings to homeowners and public/private property owners of

target housing and public or commercial buildings faced with LBP

abatements, deleadings, renovations, and demolitions. For further

discussion of the cost savings associated with this proposed suspension

of the TC rule, see the Economic Analysis prepared for the TSCA LBP

debris management and disposal standards (Ref. 7).

C. Paperwork Reduction Act

Today's proposed rule, which would temporarily suspend the TC rule

for specified LBP debris, does not add any new burden as defined by the

Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The existing RCRA

information collection requirements have been previously approved by

the Office of Management and Budget (OMB) under OMB control number

2050-0041 (EPA ICR No. 969). This proposed rule would temporarily

suspend the RCRA TC requirements for specified LBP debris, which would

be replaced by TSCA Title IV requirements which are proposed elsewhere

in today's Federal Register. As indicated

[[Page 70246]]

in the TSCA Title IV proposed rule entitled ``Lead; Management and

Disposal of Lead-Based Paint Debris,'' an Information Collection

Request (ICR) document has been prepared by EPA (EPA ICR No. 1822.01)

and submitted to OMB in accordance with the Paperwork Reduction Act, 44

U.S.C. 3501 et seq. and the procedures at 5 CFR 1320.11. For

information on the TSCA requirements and the accompanying ICR, please

refer to the TSCA Title IV proposed rule. A copy of the ICR can be

obtained from Sandy Farmer, OPPE Regulatory Information Division

(2137), Environmental Protection Agency, 401 M St., SW., Washington, DC

20460, by calling (202) 260-2740, or electronically by sending an e-

mail message to, ``[email protected].'' An electronic copy of the

ICR has also been posted with the Federal Register notice on EPA's

Homepage at ``http://www.epa.gov/icr.'' The RCRA temporary suspension

and the new information requirements contained in the TSCA proposal are

not effective until promulgation. An agency may not conduct or sponsor

and a person is not required to respond to a collection of information

subject to OMB approval under PRA unless it displays a currently valid

OMB control number. The OMB control numbers for EPA's regulations after

initial publication in the final rule, are maintained in a list at 40

CFR part 9.

D. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995 (the

Act), Public Law 104-4, which was signed into law on March 22, 1995,

EPA generally must prepare a written statement for rules with Federal

mandates that may result in estimated costs to State, local, and Tribal

governments in the aggregate, or to the private sector, of $100 million

or more in any 1 year. When such a statement is required for EPA rules,

under section 205 of the Act, EPA must identify and consider

alternatives, including the least costly, most cost-effective or least

burdensome alternative that achieves the objectives of the rule. EPA

must select that alternative, unless the Administrator explains in the

final rule why it was not selected or it is inconsistent with law.

Before EPA establishes regulatory requirements that may significantly

or uniquely affect small governments, including Tribal governments, it

must develop under section 203 of the Act a small government agency

plan. The plan must provide for notifying potentially affected small

governments, giving them meaningful and timely input in the development

of EPA regulatory proposals with significant Federal intergovernmental

mandates, and informing, educating, and advising them on compliance

with the regulatory requirements.

EPA has determined that adoption of the proposed temporary

suspension of the TC rule for LBP debris is voluntary; therefore, there

is no unfunded mandate. The proposed rule would relieve generators,

including States, local or Tribal governments, and the private sector,

of their obligation to comply with the TC rule, which may lead to

significant cost savings from both not having to sample and conduct the

TCLP on LBP debris but, more importantly, from not having to manage LBP

debris as a RCRA hazardous waste if the waste is determined to be

hazardous. EPA has estimated that the cost savings to the private

sector from this temporary suspension of the TC rule would be

approximately $120 million annually.

Moreover, the Act generally excludes from the definition of a

``Federal intergovernmental mandate'' (in sections 202, 203, and 205)

duties that arise from participation in a voluntary Federal program.

Adoption by States of this proposed temporary TC suspension is

voluntary and imposes no Federal intergovernmental mandate within the

meaning of the Act. Rather, States may continue to impose more strict

standards for LBP debris by choosing to maintain the TC rule in their

authorized State programs. The only costs to States which choose to

adopt the temporary TC suspension would be that cost of certifying that

it has a State TSCA Title IV LBP debris management and disposal program

at least as protective as the Federal program. EPA estimates that it

may cost States $0.40 million to provide a certification to EPA (Ref.

7).

In response to section 203 of the Act, EPA has determined that the

proposed rule will not significantly or uniquely affect small

governments, including Tribal governments. As indicated above, if small

governments, such as small municipalities or Tribes, are generators of

LBP debris, then they would save the costs of complying with the TC

rule and any of the costs of complying with the RCRA Subtitle C

hazardous waste standards if the debris failed the TCLP and a temporary

suspension of the TC rule had not been promulgated. Under this proposed

rule, small governments, including Tribal governments, are not being

treated in an unique way.

EPA has, however, worked closely with States and small governments

in the development of the temporary suspension of the TC rule. EPA held

a stakeholder meeting in the fall of 1994 and sent a stakeholder

mailing in the summer of 1996 to discuss a temporary suspension of the

TC for lead abatement waste and new TSCA management and disposal

standards. Among the attendees/recipients were representatives from

State governments, environmental groups, labor organizations,

professional organizations representing the building and waste

management trades, and private LBP abatement contractors. EPA has also

transmitted a draft proposed rule to a number of State government

regulatory agencies which act as co-regulators under RCRA and TSCA

Title IV.

In working with these various States and other organizations, EPA

has provided notice to small governments of the potential regulatory

relief provided by the temporary TC suspension; obtained meaningful and

timely input from them; and informed, educated, and advised small

governments on how to comply with the requirements of the proposed

rule. Thus, any applicable requirements of the Act have been met.

E. Executive Order 12898

Pursuant to Executive Order 12898 entitled ``Environmental Justice

Considerations'' (59 FR 7629, February 16, 1994), the Agency has

considered environmental justice related issues with regard to the

potential impacts of this proposed action on the environmental and

health conditions in low-income and minority communities. This

examination shows that existing LBP hazards are a risk to all segments

of the population living in pre-1978 housing. However, literature

indicates that some segments of our society are at relatively greater

risk than others.

A recent study by the National Health and Nutrition Examination

Survey (NHANES) indicates that children of urban, minority (e.g.,

African American, Asian Pacific American, Hispanic American, American

Indian), or low-income families, or who live in older housing, continue

to be most vulnerable to lead poisoning and elevated blood-lead levels.

The February 21, 1997 Center for Disease Control's Morbidity and

Mortality Weekly Report states that: ``Despite the recent and large

declines in BLLs [blood lead levels], the risk for lead exposure

remains disproportionately high for some groups, including children who

are poor, non-Hispanic black, Mexican American, living in large

metropolitan areas, or living in older housing'' (Ref. 1).

Although the baseline risks from lead-based paint fall

disproportionately on

[[Page 70247]]

poorer sub-populations, it may be more likely that abatements will take

place in residential dwellings occupied by mid- to upper-level income

households. Abatements are voluntary, and wealthier households are more

likely to have the financial resources to abate an existing problem in

their home, or to avoid LBP hazards by not moving into a residential

dwelling with LBP. Even though a national strategy of eliminating LBP

hazards targets a problem affecting a greater share of poor households

and minorities, the impact of income on the ability to undertake

voluntary abatements may result in an inequitable distribution of LBP

risks.

By making abatements more affordable, today's proposal helps to

address this situation. To the extent that the proposal results in

additional abatements, renovation and remodeling, and demolitions that

reduce LBP hazards, there is a likelihood that poor and minority

populations will benefit the most from risk reductions. This potential

will likely be realized to the greatest extent in the case of public

housing units with LBP hazards. The decrease in the cost of abatements

in public housing will lead to an increase in abatement activity in

public housing and a subsequent acceleration in the depletion of public

housing with LBP hazards. The occupants of these public housing units

are disproportionately lower income and minority populations. As the

price of abatements is lowered as a result of cost savings associated

with today's proposed rule, more low-income families will be able to

afford to make the decision to remove LBP hazards from their homes.

EPA also determined that the potential impact on minority-owned

businesses in industries affected by the proposed rule would be

minimal. Available information suggests that minority-owned business

would not particularly benefit from this proposed rule, since minority

ownership rates for firms that generate LBP debris are no higher than

average.

F. Executive Order 13045

This proposed rule is not subject to Executive Order 13045,

entitled ``Protection of Children from Environmental Health Risks and

Safety Risks'' (62 FR 19885, April 23, 1997), because this proposal is

not an economically significant regulatory action as defined by E.O.

12866. The environmental health or safety risks addressed by this

action have a beneficial effect on children. This proposal will benefit

children by allowing less costly management and disposal of lead-based

paint therefore lessening the cost of abatements. Reducing the costs of

abatements will also reduce the amount of time needed to complete

abatements in public housing. Lower abatement costs will increase the

amount of private homes undergoing abatements. By reducing costs

associated with management and disposal of LBP debris, the Agency

believes that the number of abatements will increase thus resulting in

a reduction of children exposed to LBP. Children are the primary

beneficiaries of this proposed rule.

G. National Technology Transfer and Advancement Act

Under section 12(d) of the National Technology Transfer and

Advancement Act, the Agency is directed to use voluntary consensus

standards in its regulatory activities unless to do so would be

inconsistent with applicable law or otherwise impractical. Voluntary

consensus standards are technical standards (e.g., material

specifications, test methods, sampling procedures, business practices,

etc.) that are developed or adopted by voluntary consensus standard

bodies. Where available and potentially applicable voluntary consensus

standards are effective. The Act requires the Agency to provide

Congress, through OMB, an explanation of the reasons for not using such

standards.

EPA is not proposing any new test methods or other technical

standards as part of today's proposed temporary suspension of the TC

rule for LBP debris. Thus, the Agency has no need to consider the use

of voluntary consensus standards in developing this proposed rule. EPA

invites comments on this analysis.

H. Executive Order 12875

Under Executive Order 12875, entitled ``Enhancing Intergovernmental

Partnerships'' (58 FR 58093, October 28, 1993), EPA may not issue a

regulation that is not required by statute and that creates a mandate

upon a State, local or tribal government, unless the Federal government

provides the funds necessary to pay the direct compliance costs

incurred by those governments. If the mandate is unfunded, EPA must

provide to the Office of Management and Budget a description of the

extent of EPA's prior consultation with representatives of affected

State, local and tribal governments, the nature of their concerns,

copies of any written communications from the governments, and a

statement supporting the need to issue the regulation. In addition,

Executive Order 12875 requires EPA to develop an effective process

permitting elected officials and other representatives of State, local

and tribal governments ``to provide meaningful and timely input in the

development of regulatory proposals containing significant unfunded

mandates.''

Today's proposed rule does not create a mandate on State, local or

tribal governments. The proposed rule does not impose any enforceable

duties on these entities. Accordingly, the requirements of section 1(a)

of Executive Order 12875 do not apply to this proprosed rule.

I. Executive Order 13084

Under Executive Order 13084, entitled ``Consultation and

Coordination with Indian Tribal Governments'' (63 FR 27655, May 19,

1998), EPA may not issue a regulation that is not required by statute,

that significantly or uniquely affects the communities of Indian tribal

governments, and that imposes substantial direct compliance costs on

those communities, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by the tribal

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's proposed rule does not significantly or uniquely affect the

communities of Indian tribal governments. The proposed rule does not

impose any enforceable duties on these entities. Accordingly, the

requirements of section 3(b) of Executive Order 13084 do not apply to

this proposed rule.

List of Subjects

40 CFR Part 260

Environmental protection, Administrative practive and procedure,

Confidential business information, Hazardous waste.

40 CFR Part 261

Environmental protection, Hazardous waste, Recycling, Reporting and

recordkeeping requirements.

[[Page 70248]]

Dated: December 9, 1998.

Carol M. Browner,

Administrator.

Therefore, it is proposed that chapter I of 40 CFR be amended as

follows:

PART 260--[AMENDED]

1. In part 260:

a. The authority citation for part 260 continues to read as

follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,

6937, 6938, 6939, and 6974.

b. Section 260.10 is amended by alphabetically adding the following

definitions to read as follows:

Sec. 260.10 Definitions.

* * * * *

Abatement means any measure or set of measures designed to

permanently eliminate lead-based paint hazards. Abatement includes, but

is not limited to:

(1) The removal of lead-based paint and lead-contaminated dust, the

permanent enclosure or encapsulation of lead-based paint, the

replacement of lead-painted surfaces or fixtures, and the removal or

covering of lead-contaminated soil.

(2) All preparation, cleanup, disposal, and post-abatement

clearance testing activities associated with such measures.

(3) Specifically, abatement includes, but is not limited to:

(i) Projects for which there is a written contract or other

documentation, which provides that an individual or firm will be

conducting activities in or to a residential dwelling or child-occupied

facility [target housing] that:

(A) Shall result in the permanent elimination of lead-based paint

hazards; or

(B) Are designed to permanently eliminate lead-based paint hazards

and are described in paragraphs (1) and (2) of this definition.

(ii) Projects resulting in the permanent elimination of lead-based

paint hazards, conducted by firms or individuals certified in

accordance with Sec. 745.226 of this chapter, unless such projects are

covered by paragraph (4) of this definition.

(iii) Projects resulting in the permanent elimination of lead-based

paint hazards, conducted by firms or individuals who, through their

company name or promotional literature, represent, advertise, or hold

themselves out to be in the business of performing lead-based paint

activities as identified and defined by this section, unless such

projects are covered by paragraph (4) of this definition; or

(iv) Projects resulting in the permanent elimination of lead-based

paint hazards (at target housing), that are conducted in response to

State or local abatement orders.

(4) Abatement does not include renovation, remodeling, landscaping

or other activities, when such activities are not designed to

permanently eliminate lead-based paint hazards, but, instead, are

designed to repair, restore, or remodel a given structure or dwelling,

even though these activities may incidentally result in a reduction or

elimination of lead-based paint hazards. Furthermore, abatement does

not include interim controls, operations and maintenance activities, or

other measures and activities designed to temporarily, but not

permanently, reduce lead-based paint hazards.

* * * * *

Commercial building means any building which is used primarily for

commercial or industrial activity including but not limited to:

manufacturing, service, repair, or storage.

* * * * *

Deleading means activities conducted by a person who offers to

eliminate lead-based paint or lead-based paint hazards or to plan such

activities in public buildings or commercial buildings.

Demolition means the wrecking, razing, or destroying any building

or significant element thereof using a method that generates

undifferentiated rubble.

* * * * *

Lead-based paint (LBP) means paint or other surface coatings that

contain lead equal to or in excess of 1.0 milligrams per centimeter

squared or more than 0.5% by weight.

Lead-based paint architectural component debris (LBPACD) means:

(1) Elements or fixtures, or portions thereof, of commercial

buildings, public buildings, or target housing that are coated wholly

or in part with or adhered to by LBP. These include, but are not

limited to interior components such as: ceilings, crown molding, walls,

chair rails, doors, door trim, floors, fireplaces, radiators and other

heating units, shelves, shelf supports, stair treads, stair risers,

stair stringers, newel posts, railing caps, balustrades, windows and

trim, including sashes, window heads, jambs, sills, stools and troughs,

built-in cabinets, columns, beams, bathroom vanities, and counter tops;

and exterior components such as: painted roofing, chimneys, flashing,

gutters and downspouts, ceilings, soffits, fascias, rake boards, corner

boards, bulkheads, doors and door trim, fences, floors, joists, lattice

work, railings and railing caps, siding, handrails, stair risers and

treads, stair stringers, columns, balustrades, window sills or stools

and troughs, casings, sashes, and wells.

(2) LBPACD is generated when an architectural component which is

coated wholly or in part with or adhered to by LBP is displaced and

separated from commercial buildings, public buildings, or target

housing as a result of abatement, deleading, renovation or remodeling

activities.

(3) LBPACD does not include other types of LBP waste such as paint

chips, paint dust, sludges, solvents, vacuum filter materials, wash

water, contaminated and decontaminated protective clothing and

equipment except that paint chips and dust which are created after LBP

debris is placed in a container or vehicle for transport to a disposal

or reclamation facility specified in 40 CFR 745.309 is considered

LBPACD.

(4) LBPACD which is reused in compliance with 40 CFR 745.311 is no

longer LBPACD.

Lead-based paint debris (LBP debris) means lead-based paint

architectural component debris (LBPACD) or lead-based paint demolition

debris.

Lead-based paint demolition debris means any solid material which

results from the demolition of target housing, public buildings, or

commercial buildings which are coated wholly or in part with or adhered

to by LBP at the time of demolition.

* * * * *

Public building means any building constructed prior to 1978, which

is generally open to the public or occupied or visited by the public,

including but not limited to schools, day care centers, museums,

airport terminals, hospitals, stores, restaurants, office buildings,

convention centers, and government buildings. Note: ``child-occupied

facilities'' as defined in 40 CFR 745.223 of this chapter are included

in the definition of public building.

* * * * *

Remodeling means any construction-related work on an existing

property intended to either maintain or improve the property.

Renovation means the modification of any existing structure, or

portion thereof, that results in the disturbance of painted surfaces,

unless that activity is performed as part of an abatement as defined in

this part. The term renovation includes but is not limited to: the

removal or modification of painted surfaces or painted components

(e.g., modification of painted doors, surface preparation activity

(such as sanding, scraping, or other such

[[Page 70249]]

activities that may generate paint dust)); the removal of large

structures (e.g., walls, ceiling, large surface replastering, major re-

plumbing); and window replacement.

* * * * *

Reuse means to use again for any purpose other than reclamation or

disposal. Examples of reuse include moving doors, windows, or other

components from one structure to another to be put to similar use.

* * * * *

Target housing means any housing constructed prior to 1978, except

housing for the elderly or persons with disabilities (unless any child

who is less than 6 years of age or under resides or is expected to

reside in such housing for the elderly or person with disabilities) or

any 0-bedroom dwelling.

* * * * *

PART 261--[AMENDED]

2. In part 261:

a. The authority section for part 261 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

b. Section 261.4 is amended by adding (b)(15) to read as follows:

Sec. 261.4 Exclusions.

* * * * *

(b) * * *

(15)(i) Lead-based paint architectural component debris subject to

the management and disposal standards under part 745, subpart P of this

chapter which results from abatements conducted at target housing;

deleading activities conducted at public buildings or commercial

buildings; or renovation or remodeling activities conducted at target

housing, public buildings, or commercial buildings. This exclusion does

not apply if the LBP architectural component debris is hazardous for

any other reason than failure of the Toxicity Characteristic

(Sec. 261.24) for lead (Hazardous Waste Code D008),

(ii) Lead-based paint demolition debris resulting from

demolition(s) conducted at target housing, public building(s), or

commercial building(s) which is subject to the management and disposal

standards under part 745, subpart P of this chapter. This exclusion

does not apply if the LBP architectural component debris is hazardous

for any other reason than failure of the Toxicity Characteristic

(Sec. 261.24) for lead (Hazardous Waste Code D008).

(iii) The exclusions set forth in paragraph (b)(15)(i) and (ii) of

this section shall apply in any State which has an EPA authorized

program for management and disposal of LBP debris under TSCA Title IV;

or in any State in which the Federal TSCA Title IV program has become

effective.

(iv) If the Administrator determines that the State satisfies the

standards in paragraph (b)(15)(iii) of this section, the Administrator

shall publish a notice in the Federal Register to suspend the TC in

that State. The suspension shall be effective immediately upon

publication of the Federal Register notice.

* * * * *

[FR Doc. 98-33327 Filed 12-17-98; 8:45 am]

BILLING CODE 6560-50-F