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Criteria for Classification of Solid Waste Disposal Facilities and Practices and Criteria for Municipal Solid Waste Landfills: Disposal of Residential Lead-Based Paint Waste
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 23, 2001 (Volume 66, Number 205)]
[Proposed Rules]
[Page 53566-53573]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc01-29]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 257 and 258
[FRL-7076-5]
RIN 2050-AE86
Criteria for Classification of Solid Waste Disposal Facilities
and Practices and Criteria for Municipal Solid Waste Landfills:
Disposal of Residential Lead-Based Paint Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In order to help accelerate the pace of lead-based paint
removal from residences, and thereby reduce exposure to children and
adults from the health risks associated with lead, EPA is proposing to
revise the definition of ``municipal solid waste landfill unit'' in
both the Criteria for Classification of Solid Waste Disposal Facilities
and Practices and the Criteria for Municipal Solid Waste Landfills. EPA
is also proposing to add two new definitions for ``construction and
demolition (C&D) landfill'' and ``residential lead-based paint waste.''
This rule would expressly allow residential lead-based paint waste to
be disposed of in construction and demolition landfills by clearly
stating that a construction and demolition landfill accepting
residential lead-based paint waste, and no other household waste, is
not a municipal solid waste landfill unit. Today's action would not
prevent a municipal solid waste landfill unit from continuing to
receive residential lead-based paint waste.
In the ``Rules and Regulations'' section of the Federal Register,
we are approving these definitions as a direct final rule without prior
proposal because we view this rule as a noncontroversial action and
anticipate no adverse comment. We have explained our reasons for this
approval in the preamble to the direct final rule. If we receive no
adverse comment, we will not take further action on this proposed rule.
If we receive adverse comment, we will withdraw the direct final rule
and it will not take effect. We will address all public comments in a
subsequent final rule based on this proposed rule. We will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
DATES: Written comments must be received by November 23, 2001.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number
[[Page 53567]]
F-2001-LBPP-FFFFF to: (1) If using regular US Postal Service mail: RCRA
Docket Information Center, Office of Solid Waste (5305G), U.S.
Environmental Protection Agency Headquarters (EPA, HQ), Ariel Rios
Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460-0002, or
(2) if using special delivery, such as overnight express service: RCRA
Docket Information Center (RIC), Crystal Gateway One, 1235 Jefferson
Davis Highway, First Floor, Arlington, VA 22202. Comments may also be
submitted electronically through the Internet to: rcra-docket@epa.gov.
Comments in electronic format should also be identified by the docket
number F-2001-LBPP-FFFFF and 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), U.S. EPA, Ariel Rios Building, 1200
Pennsylvania Avenue, NW, Washington, DC 20460-0002.
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC), located at Crystal Gateway I,
First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is
open 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. The public may copy a
maximum of 100 pages from any regulatory docket at no charge.
Additional copies cost $0.15/page. The index and some supporting
materials are available electronically. See the Supplementary
Information section for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323.
For information on specific aspects of this rule, contact Sue
Nogas, Office of Solid Waste (mail code 5306W), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460;
(703) 308-7251, nogas.sue@epa.gov.
SUPPLEMENTARY INFORMATION: The index and some supporting materials are
available on the Internet. You can find these materials at http://
www.epa.gov/epaoswer/non-hw/muncpl/landfill/pb-paint.htm.
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments 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 paper record maintained at the address in ADDRESSES at the
beginning of this document.
EPA 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
rulemaking. 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.
Affected Entities
You may be potentially affected by this proposed rule if you
generate residential lead-based paint (LBP) waste as a result of LBP
activities (including abatement, rehabilitation, renovation and
remodeling) in homes, residences, and other households. By
``households,'' we mean single and multiple residences, hotels and
motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic
grounds, and day-use recreation areas.
Affected categories and entities would include:
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Category Examples of affected entities
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Individuals and firms who generate Contractors and do-it-
residential LBP waste. yourselfers who generate and
dispose of residential LBP
waste as a result of
abatement, rehabilitation,
renovation and remodeling
activities in homes,
residences, and other
household.
Construction and demolition waste Owners or operators of
disposal firms. construction and demolition
landfills that accept
residential LBP waste for
disposal.
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This table is not intended to be exhaustive, but rather lists the
types of entities that EPA is now aware of that could potentially be
affected by this action. Other types of entities not listed in this
table could also be affected. (Please see Sections X.A. and X.B. of
this preamble for further discussion of affected entities. Also, in the
docket for today's rule, see ``Economic Analysis of EPA's Direct Final
Rule Amending 40 CFR part 257 and 258.'') If you have any questions
regarding the applicability of this action to a particular entity,
consult the persons listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
Acronyms
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Acronym Definition
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CDC.............................. Centers of Disease Control and
Prevention.
C&D.............................. Construction and Demolition.
CFR.............................. Code of Federal Regulations.
EA............................... Economic Analysis.
EPA.............................. Environmental Protection Agency.
FR............................... Federal Register.
HUD.............................. U.S. Department of Housing and Urban
Development.
IQ............................... Intelligence Quotient.
LBP.............................. Lead-Based Paint.
MSWLF............................ Municipal Solid Waste Landfill.
OMB.............................. Office of Management and Budget.
OPPTS............................ Office of Prevention, Pesticides, and
Toxic Substances.
OSWER............................ Office of Solid Waste and Emergency
Response.
RCRA............................. Resource Conservation Recovery Act.
RIC.............................. RCRA Docket Information Center.
TC............................... Toxicity Characteristic.
TSCA............................. Toxic Substances Control Act.
USEPA............................ United States Environmental
Protection Agency.
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Outline
I. Legal Authority
II. Why are Lead and Lead-Based Paint Concern?
III. Congressional Response to Lead Hazards: Title X
IV. RCRA as a Barrier to Cost-Effective LBP Abatements, and
Stakeholders' Requests for Regulatory Relief from EPA
V. EPA's Implementation of Title X and Response to Stakeholders'
Requests
A. 1998 Proposed Rules
1. TSCA Proposal
2. RCRA Proposal
B. Contractor-Generated Residential Lead-Based Paint Memorandum
VI. What Would Today's Proposed Rule Do?
A. Revision to the Definition of a Municipal Solid Waste
Landfill Unit
B. Addition of Construction and Demolition Landfill Definition
C. Addition of Residential Lead-Based Paint Waste Definition
VII. Analytic Basis for Today's Proposed Rule
[[Page 53568]]
VIII. Other Applicable Federal, State, Tribal, and Local
Requirements
IX. How Would States and Tribes Implement this Rule?
X. How Would this Rule Comply with Applicable Statutes and Executive
Orders?
A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. National Technology Transfer and Advancement Act of 1995
I. Executive Order 12898: Environmental Justice Strategy
J. Executive Order 13211: Energy Effects
I. Legal Authority
EPA is proposing this rule pursuant to section 1008(a)(3), 2002(a),
4004(a) and 4010(c) of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. Secs. 6907(a), 6912(a), 6944(a), 6949a(c). We are
also proposing to correct a typographical error in the existing
statement of authority in part 257 by amending the citation to 42
U.S.C. 6949(c) to read ``6949a(c).''
II. Why Are Lead and Lead-Based Paint a Concern?
The Centers for Disease Control and Prevention (CDC) have estimated
that approximately 900,000 children, or about 4.4% of children under
the age of 6 years old, may have unacceptably high levels of lead in
their blood. (See: ``Update: Blood Lead Levels--United States, 1991-
1994.'' Morbidity and Mortality Weekly Report, Vol. 46, No. 7, February
21, 1997. CDC, U.S. Department of Health and Human Services.) Children
are more susceptible than adults to the toxic effects of lead because
their nervous systems are still developing and their bodies more
readily absorb lead once exposed to it. (For a fuller discussion of
this issue, see 66 FR 1206-1240, January 5, 2001). The most common
sources of residential lead exposure include contaminated dust and
paint chips from deteriorated lead-based paint (LBP) in older homes,
activities that disturb LBP (such as abatement, deleading, home
renovation and remodeling), lead-contaminated drinking water, and lead-
contaminated soil around homes and play areas. It is estimated that
approximately 38 million homes in the United States contain interior
LBP. (See ``Economic Analysis of EPA's Direct Final Rule Amending 40
CFR Part 257 and 258,'' p. 31.
III. Congressional Response to Lead Hazards: Title X
In response to this health threat, Congress enacted the Residential
Lead-Based Paint Hazard Reduction Act of 1992 (hereinafter referred to
as Title X of the Housing and Community Development Act of 1992, or as
Title X). Among other provisions, Title X amended the Toxic Substances
Control Act (TSCA) and directed the Environmental Protection Agency
(EPA) to develop and finalize standards governing: (1) the training and
certification of individuals engaged in LBP activities; (2) the
accreditation of training programs; and (3) the process by which LBP
activities are conducted by certified individuals. Congress also
directed EPA to identify by regulation LBP hazards, lead-contaminated
dust, and lead-contaminated soil. As a result of the enactment of Title
X, there is an increasing effort to reduce the hazards posed by LBP
(especially to children) in residential housing and other buildings.
IV. RCRA as a Barrier to Cost-Effective LBP Abatements, and
Stakeholders' Requests for Regulatory Relief From EPA
The Resource Conservation and Recovery Act (RCRA) was enacted in
1976 to address management of solid waste, including industrial and
municipal wastes. Subtitle C of RCRA governs the generation,
transportation, treatment, storage and disposal of hazardous waste. A
solid waste is a ``hazardous waste'' if it exhibits one or more of the
characteristics of hazardous waste pursuant to 40 CFR part 261, subpart
C (toxicity, ignitability, corrosivity, and reactivity) or if it is
listed as a hazardous waste in part 261 subpart D. Subtitle D of RCRA
addresses the management of nonhazardous solid waste (including
municipal and nonmunicipal waste). Subtitle D was amended in 1984 to
address two classes of hazardous wastes exempt from Subtitle C
hazardous waste requirements: conditionally exempt small quantity
generator (CESQG) waste and household hazardous waste. Household waste
is defined in 40 CFR 258.2 as ``any solid waste (including garbage,
trash, and sanitary waste in septic tanks) derived from households
(including single and multiple residences, hotels and motels,
bunkhouses, ranger stations, crew quarters, campgrounds, picnic
grounds, and day-use recreation areas).'' Household waste is excluded
from RCRA hazardous waste regulations at 40 CFR 261.4(b)(1).
Abatements, renovations, and remodeling activities in housing units
with LBP can generate large quantities of residential LBP waste. In
cases where the waste exhibits the toxicity characteristic for lead,
the waste would be classified as a hazardous waste subject to the
comprehensive ``cradle to grave'' hazardous waste management
regulations of RCRA Subtitle C, unless they qualify for an exemption.
Lead abatement contractors and public housing agencies argued that the
application of these hazardous waste rules to residential LBP waste
poses a barrier to the cost-effective abatement of lead hazards. EPA
and HUD met to review the disposal requirements for lead-based paint
waste and to consider regulatory relief from the applicability of RCRA
Subtitle C to waste generated from residential LBP activities.
Additionally, several States and advocacy groups (such as the Alliance
to End Childhood Lead Poisoning) expressed concern that the RCRA
requirements were considerably reducing the number of residential LBP
abatements by imposing significant waste disposal costs. They argued
that the benefits of handling lead-based paint waste as a hazardous
waste were outweighed by the potential risk to children resulting from
the disincentive the RCRA regulations created for lead-based paint
abatement. They requested that EPA consider ways to minimize management
and disposal costs and provide an appropriate regulatory framework that
would both accelerate the pace of lead abatements (by lowering costs)
and ensure that waste from such activities be managed and disposed of
reliably, effectively, and in a manner which protects human health and
the environment. They further contended that any regulatory relief that
would avoid the cost of managing LBP waste as a hazardous waste would
allow public housing authorities to use cost savings to perform
additional abatements, thus reducing current and future exposure of
children to residential lead-based paint.
V. EPA's Implementation of Title X and Response to Stakeholders'
Requests
A. 1998 Proposed Rules
In order to facilitate efforts to address lead-based paint hazards
to children and respond to stakeholders' requests for regulatory
relief, EPA analyzed waste characterization, laboratory leachate, and
the risk and cost of disposal for lead-based paint debris. Based on
those analyses, EPA published two proposals on December 18, 1998--the
TSCA Proposed Rule (``Management
[[Page 53569]]
and Disposal of Lead-Based Paint Debris''), and the RCRA Proposed Rule
(``Temporary Suspension of Toxicity Characteristic Rule for Specified
Lead-Based Paint Debris''). The Agency believed that these rules, if
finalized, would help reduce the costs associated with the management
and disposal of LBP debris, increasing the number of LBP abatements,
while continuing to protect human health and the environment.
1. TSCA Proposal (``Management and Disposal of Lead-Based Paint
Debris'')
Under the mandate of Title X of TSCA, we proposed new TSCA
management and disposal standards for LBP debris generated by
contractors from pre-1978 homes and public and commercial buildings (63
FR 70190-70233, December 18, 1998). These standards would allow the
disposal of contractor-generated LBP debris in a variety of facilities,
including construction and demolition (C&D) landfills. EPA based the
C&D landfill disposal option on the results of the groundwater risk
analysis performed to support the proposal. The results showed that the
potential impact to groundwater resources from the disposal of LBP
debris in C&D landfills would be negligible. (For further details, see
``USEPA. June 1998, Groundwater Pathway Analysis for Lead-Based Paint
(LBP) Architectural Debris; Background Document'' in the docket for
today's rule. Also, see Section VII of this preamble.) The TSCA
proposal has not been finalized.
The preamble to the proposed TSCA rule also clarified that the RCRA
Subtitle C household waste exclusion in 40 CFR 261.4(b)(1) applies to
residential LBP waste generated by do-it-yourselfers in their homes
(see 63 FR 70241-70242). This clarification remains in place.
2. RCRA Proposal (``Temporary Suspension of Toxicity Characteristic
Rule for Specified Lead-Based Paint Debris'')
In 1998, EPA proposed to temporarily suspend the applicability of
the Toxicity Characteristic (TC) rule to contractor-generated LBP
debris that would be subject to the TSCA management and disposal
standards cited above. The Agency proposed this suspension in order to
avoid duplication with other statutes implemented by EPA as mandated
under RCRA Section 1006(b)(1).
B. Contractor-Generated Residential Lead-Based Paint Memorandum
On July 31, 2000, EPA issued a memorandum clarifying the regulatory
status of waste generated as a result of LBP activities (including
abatement, renovation and remodeling, and rehabilitation) in homes and
other residences.
Specifically, the memorandum clarified that contractors can manage
residential LBP waste as household waste and thus are not subject to
RCRA Subtitle C requirements. This means contractors can dispose
residential LBP waste as household waste in municipal solid waste
landfills or municipal solid waste combustors, according to State and
local requirements. Dumping and open burning of residential LBP waste
are not allowed. (See RCRA Sections 1008 and 4004.)
By interpreting residential LBP waste as a household waste under 40
CFR 261.4(b)(1), the July 2000 memorandum could be construed as
allowing land disposal of LBP waste only in municipal solid waste
landfill units complying with the requirements of 40 CFR part 258. This
is because a ``municipal solid waste landfill unit'' is defined in 40
CFR 258.2 as receiving ``household waste.'' Therefore, under section
258.2, a C&D landfill that receives residential LBP waste could be
deemed to be receiving household waste and may need to comply with
EPA's Municipal Solid Waste Landfill Criteria found in 40 CFR part 258.
Today's rule is designed to expressly state that C&D landfills can
receive residential LBP waste without becoming subject to the
requirements for a MSWLF in part 258.
Please note that the memorandum does not affect the regulatory
status of nonresidential LBP waste, such as that generated during the
abatement or renovation and remodeling of a commercial building. In
addition, the memorandum does not cover residential demolition and
deconstruction. EPA does not consider demolition and deconstruction
waste to be household waste, since it is not similar to those wastes
generated by a consumer in the home in the course of daily living. (For
more information visit, http://www.epa.gov/lead/hhwmemo-july00fnl.pdf
for a direct link to the memorandum. See ``Regulatory Status of Waste
Generated by Contractors and Residents from Lead-Based Paint Activities
Conducted in Households'' by visiting http://www.epa.gov/lead/
fslbp.htm, or call the RCRA Hotline at 1-800-424-9346.)
The Agency evaluated if and how to finalize the 1998 RCRA and TSCA
proposals. EPA decided to use alternative policy and regulatory
vehicles (i.e., the July 31, 2000 policy memorandum and today's rule)
in order to expeditiously accomplish some of the same goals of the 1998
proposals for certain key noncontroversial aspects. The Agency has no
further plans to finalize the 1998 RCRA proposal.
VI. What Would Today's Proposed Rule Do?
A. Revision to the Definition of a Municipal Solid Waste Landfill Unit
Today's rule would expressly allow construction and demolition
landfills to receive residential lead-based paint waste, by adding a
statement to the definition of MSWLF unit. The definition of MSWLF unit
in 40 CFR 257.2 and 258.2 would be amended by inserting at the end of
the definition, the sentence, ``A construction and demolition landfill
that receives residential lead-based paint waste and does not receive
any other household waste is not a MSWLF unit.'' As previously
explained, the existing definition of a MSWLF unit includes language
which states that a disposal unit ``that receives household waste'' is
a municipal solid waste landfill unit. This language can be construed
to prohibit the disposal of any household waste into a facility that is
not designed and operated in conformance with 40 CFR part 258
regulations. Today, we are proposing to amend the definition of MSWLF
unit, in order to distinguish residential lead-based paint waste, which
has been determined to be a household waste, from other types of
household waste, for purposes of disposal.
The amended definition would read, ``Municipal solid waste landfill
(MSWLF) unit means a discrete area of land or an excavation that
receives household waste, and that is not a land application unit,
surface impoundment, injection well, or waste pile, as those terms are
defined in this section. A MSWLF unit also may continue to receive
other types of RCRA Subtitle D wastes, such as commercial solid waste,
nonhazardous sludge, and industrial solid waste. Such a landfill may be
publicly or privately-owned. A MSWLF unit may be a new MSWLF unit, an
existing MSWLF unit or a lateral expansion. A construction and
demolition landfill that receives residential lead-based paint waste
and does not receive any other household waste is not a MSWLF unit.''
It is important to understand that today's proposed change to the
definition of a municipal solid waste
[[Page 53570]]
landfill unit would not in any way affect these disposal units. This
change would simply distinguish residential lead-based paint waste from
other household wastes. Today's amendment would not alter what a MSWLF
can or cannot receive. MSWLFs can continue to receive residential LBP
waste as household waste. The proposed rule would expressly provide an
additional land-based waste disposal option for residential LBP waste.
Furthermore, this rule would in no way affect or change the operation
and design requirements for municipal solid waste landfills or any
other MSWLF criteria.
B. Addition of Construction and Demolition Landfill Definition
As stated above, the revised definition of ``municipal solid waste
landfill unit'' would allow a subset of household waste--residential
LBP waste--to be disposed of in construction and demolition landfills
as well as MSWLF units. Today's proposed rule would also add a
definition of a construction and demolition landfill in order to
expressly allow only C&D landfills, and no other types of land disposal
units that meet the criteria of 40 CFR part 257 to receive this subset
of household waste.
Based on a groundwater risk analysis used to support the TSCA
proposal, we believe that the disposal of residential LBP debris in C&D
landfills is appropriate and would not pose adverse health risks to
residents living near C&D landfills. (For more information, see Section
VII of this preamble.)
A C&D landfill would be defined in 40 CFR part 257 as follows:
``Construction and demolition (C&D) landfill means a solid waste
disposal facility subject to the requirements of subparts A or B of
this part that receives construction and demolition waste and does not
receive hazardous waste (defined in Sec. 261.3 of this chapter) other
than conditionally exempt small quantity generator waste (defined in
Sec. 261.5 of this chapter), or industrial solid waste (defined in
Sec. 258.2 of this chapter). A C&D landfill typically receives any one
or more of the following types of solid wastes: roadwork material,
excavated material, demolition waste, construction/renovation waste,
and site clearance waste.'' A parallel definition would also be added
to 40 CFR part 258.
EPA proposed a similar definition of C&D landfill in the TSCA
proposal, and received no germane comments on the definition during the
public comment period.
C. Addition of Residential Lead-Based Paint Waste Definition
Today's proposed rule would also add a definition of ``residential
lead-based paint waste'' in order to clarify the scope of the waste
stream addressed by today's rule. The proposed definition of
residential lead-based paint waste states: ``Residential lead-based
paint waste means waste generated as a result of lead-based paint
activities (including abatement, rehabilitation, renovation and
remodeling) in homes and other residences. The term residential lead-
based paint waste includes, but is not limited to, lead-based paint
debris, chips, dust, and sludges.'' Not included in the proposed
definition of residential LBP waste are residential LBP demolition and
deconstruction waste, and LBP waste from nonresidential structures such
as public and commercial buildings, warehouses, bridges, water towers,
and transmission towers.
In drafting this definition, we included these particular LBP
activities because they are those limited to residences and that could
pose lead hazards to occupants, especially to children. We included
these particular waste types (i.e., debris, chips, dust, and sludges)
because they are those that are typically generated during the named
LBP activities.
VII. Analytic Basis for Today's Proposed Rule
The technical basis for today's proposal is the analytical data and
groundwater risk analysis used to support the 1998 TSCA proposal. (See
``USEPA. June 1998, Groundwater Pathway Analysis for Lead-Based Paint
(LBP) Architectural Debris; Background Document'' in the docket for
today's rule.) Based on that data and analysis, EPA has concluded that
residential LBP waste is not hazardous household waste when disposed of
in C&D landfills. What follows is a discussion of that data and
analysis and how they support today's proposed rule.
In the groundwater risk analysis used to support the 1998 TSCA
proposal, we assumed that all lead-based paint from the entire pre-1978
U.S. housing stock would be disposed of in C&D landfills, and that the
LBP would be removed from housing while it was still attached to
architectural (i.e., building) components that are removed during LBP
activities. Examples of architectural components are doors, window
frames, moldings, painted plaster boards, concrete, and bricks. We
assumed that the components would be removed with intact LBP because we
believed that component removal, if cost-effective, would be preferred
over paint scraping and other paint removal options, since the latter
pose worker and occupant exposure concerns. This assumption was
necessary due to the lack of data indicating what portion of pre-1978
housing would undergo paint removal vs. component removal and what
types and quantities of LBP waste are generated at what frequency from
various residential LBP activities. Also, in the groundwater analysis,
we used the term ``LBP debris'' to refer to architectural components
with intact LBP.
To estimate lead loading from residential LBP debris in C&D
landfills around the country, we relied upon the 1990 Report to
Congress prepared by the U.S. Department of Housing and Urban
Development (HUD). The Report estimated total quantities of building
components from pre-1978 homes in the U.S. From the amount of painted
surfaces per housing unit reported in the HUD Report, we estimated the
total quantities of building materials with LBP that would be disposed
of in the landfills.
Then, in our groundwater risk analysis, we used leachate data,
calculated the potential lead concentration in groundwater, and
estimated risks from the disposal of LBP debris in C&D landfills. We
also assumed that all of the lead from the LBP debris (which in this
analysis meant the equivalent of all of the lead in all of the lead-
based paint from the entire pre-1978 U.S. housing stock) would
eventually end up in the leachate. The lead concentration in C&D
landfill leachate varied depending on the landfill size. These lead
concentrations served as inputs to the groundwater modeling we
conducted to simulate the subsurface movement of landfill leachate and
the resultant potential contamination of groundwater with lead.
The results from this analysis show that the lead concentration in
groundwater would potentially exceed the drinking water action level of
0.015 mg/L for lead in less than 1% of the receptor wells in the
vicinity of C&D landfills receiving LBP debris during the first 2,000
years after disposal. During the first 10,000 years after disposal of
LBP debris, the drinking water action level would be exceeded in fewer
than 5% of the receptor wells.
Based on these groundwater modeling results and the general
geochemical behavior of lead in a subsurface environment, the Agency
concluded that, on a national scale, the disposal of LBP debris in C&D
landfills would, in
[[Page 53571]]
general, be protective of human health and the environment at the 95th
percentile protection level. This level of protectiveness is at the
high end (i.e., most protective) of the levels that the Agency has used
in regulating hazardous wastes under the RCRA program. (See 63 FR
70203, December 18, 1998.) When deciding whether to regulate industrial
solid wastes as hazardous wastes, the Agency has considered a 90th
percentile or higher level as the appropriate protection level and so
has not regulated wastes satisfying this level of protection as
hazardous wastes. Thus, in the 1998 TSCA proposal, we concluded that
the disposal of LBP debris in C&D landfills is appropriate and would
not pose adverse health risks to residents living near C&D landfills.
Note that the Agency received many public comments addressing various
aspects of the groundwater risk analysis. The comments were generally
supportive of the proposed provision to allow LBP debris to be disposed
of in C&D landfills and provided no data supporting a contrary
decision.\1\
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\1\ All comments and data received in response to the 1998 TSCA
proposal may be accessed via Docket Control OPPTS-62160, located in
the TSCA Nonconfidential Information Center, Rm. NE-B607, 401 M St.,
SW, Washington, DC 20460. The TSCA Nonconfidential Information
Center telephone number is 202-260-7099. For a summary of the
comments, especially those related to the groundwater risk analysis,
see ``Summary of Comments on: Management and Disposal of Lead-Based
Paint Debris; Proposed Rule, and Temporary Suspension of Toxicity
Characteristic Rule for Specified Lead-Based Paint Debris; Proposed
Rule'' in the docket for today's rule.
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EPA believes that the technical basis for the 1998 TSCA proposal,
as discussed above, also supports today's proposed rule. This is
because our groundwater risk analysis assumed that the total mass of
lead-based paint from pre-1978 U.S. housing was disposed of in C&D
landfills, and that all of the lead from that lead-based paint ended up
in the C&D landfill leachate. Hence, it was irrelevant to the results
of the analysis whether or not the LBP entered the C&D landfills by
being attached to architectural components (i.e., as LBP debris), or
rather did so in the form of other types of LBP waste, such as chips,
dusts, and sludges.
In conclusion, we have determined that residential LBP waste from
abatement, rehabilitation, renovation and remodeling activities does
not pose a substantial hazard to human health and the environment when
disposed of in C&D landfills. The disposal of residential LBP waste in
C&D landfills is therefore an appropriate and legal disposal option.
VIII. Other Applicable Federal, State, Tribal, and Local
Requirements
Today's proposed rule would not alter the authority of State, local
and Tribal governments to regulate LBP waste more stringently than does
EPA. Generators of residential LBP waste should contact State
environmental agencies to determine if there are additional or more
stringent disposal requirements for residential LBP waste. Also,
generators should comply with applicable HUD and/or TSCA regulations
when addressing residential LBP hazards.
IX. How Would States and Tribes Implement This Proposed Rule?
Because today's proposed rule would be less stringent than existing
federal criteria, States would not be required to amend permit programs
which have been determined to be adequate under 40 CFR Part 239. States
would have the option to amend statutory or regulatory definitions
pursuant to today's proposed rule. If a state chooses to amend its
permit program pursuant to today's action, the State would be required
to notify the Regional Administrator of the modification as provided by
40 CFR 239.12.
Today's proposed amendments would be directly applicable to
landfills in States without an approved permit program under Part 239
and in Indian Country. We would also encourage Tribes to adopt today's
proposed amendments into their programs in order to promote lead-based
paint abatement activities in homes and other residences in Indian
Country.
X. How Would This Proposed Rule Comply With Applicable Statutes and
Executive Orders?
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, EPA must determine whether a
regulatory action is significant and therefore subject to Office of
Management and Budget (OMB) review and the other provisions of the
Executive Order. The Order defines a significant regulatory action as
one that is 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
entitlements, grants, user fees, or loan programs or rights and
obligations or 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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
EPA has performed a full economic analysis, ``Economic Analysis of
EPA's Direct Final Rule Amending 40 CFR parts 257 and 258,'' which is
available in the docket for today's rule. The EA concludes that this
rule will impose no additional costs to parties, but may result in cost
savings and incremental public health benefits. The rule authorizes the
disposal of residential LBP waste in C&D landfills, where previously,
under the July 31, 2000 policy memorandum, disposal was authorized only
in MSWLFs. As a result, EPA believes that, in those parts of the
country where it is cheaper to transport and dispose of residential LBP
waste in C&D landfills compared to MSWLFs, some residential LBP waste
will be diverted from MSWLFs to C&D landfills. Where this occurs,
generators will benefit from lower waste management and disposal costs.
EPA assumes that only residential LBP waste generators in the
Midwest, Northeast, and South regions will shift disposal from MSWLFs
to C&D landfills, based on an analysis of the relative costs of MSWLF
and C&D landfill disposal by region. EPA further assumes that the
percentage of residential LBP waste that is affected is proportional to
the share of these three regions in the number of housing units with
LBP, which is 84.4 percent. Under these assumptions, an estimated 0.87
million tons of residential LBP waste will be diverted from MSWLFs to
C&D landfills annually. This represents 0.73 percent of the total
volume of all waste disposed of in MSWLFs annually. This shift in
disposal would save residential LBP waste generators in the Midwest,
Northeast, and South regions up to an estimated $16.76 million
annually. The savings accruing to generators of residential LBP
abatement waste is estimated at $0.79 million per year, while the
savings accruing to generators of residential renovation and remodeling
waste is $15.98 million per year.
EPA estimates that of the $0.79 million in savings that could
accrue to generators of residential LBP abatement waste, an estimated
39.7 percent, or $0.31 million, will be generated annually in the
public housing sector.
[[Page 53572]]
EPA assumes that in the public sector, any savings in residential LBP
waste management and disposal costs will be used to conduct additional
LBP abatements. Given an average cost for LBP abatement in public
housing units of $3,650, the $0.31 million in annual savings would fund
an additional 86 abatements each year. This ensuing increase in LBP
abatement projects would result in a more rapid reduction in the
potential for exposure to the hazards of LBP, especially for children.
These hazards include decreased intelligence (i.e., lower IQ),
behavioral problems, reduced physical stature and growth, and impaired
hearing.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business that
meets the Small Business Administration size standards established for
industries as described in the North American Industry Classification
System (see http://www.sba.gov/size/NAICS-cover-page.html); 
(2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any new requirements on small entities.
The rule will provide an additional non-mandatory option for the
disposal of residential LBP waste.
C. Paperwork Reduction Act
Today's proposed rule is in compliance with the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. This proposed rule does not require the
collection of information from the States, Federal Agencies, or
industry. Therefore, we do not need to prepare an Information
Collection Request.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of regulatory actions on State, local, and Tribal governments,
and the private sector. Under Section 202 of the UMRA, EPA generally
must prepare a written statement, including a cost-benefit analysis,
for proposed and final rules with ``Federal mandates'' that may result
in expenditures to State, local, and tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. Before promulgating an EPA rule for which a written statement is
needed, Section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of alternatives and adopt the least
costly, most cost effective or least burdensome alternative that
achieves the objective of the rule. The provisions of Section 205 do
not apply when they are inconsistent with applicable law. Moreover,
Section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
Section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. This proposed rule would
impose no enforceable duty on any State, local or tribal governments or
the private sector. Thus, today's proposed rule is not subject to the
requirements of sections 202 and 205 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. As explained in Section IX of
this preamble, none of today's proposed revisions are more stringent or
broaden the scope of the existing Federal requirements. Therefore,
States are not required to adopt the revision to the definition of
MSWLF unit nor the additional definitions of construction and
demolition (C&D) landfill and residential lead-based paint waste in
today's rule. Thus, Executive Order 13132 does not apply to this
proposed rule.
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Today's proposed rule would expressly provide an additional option for
[[Page 53573]]
disposal of certain waste applicable in Indian Country, but would not
create any mandate on Indian tribal governments. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not an economically significant rule as defined by Executive
Order 12866. However, this rule will affect decisions involving the
environmental health or safety risks to children. It will benefit
children by allowing environmentally protective disposal of residential
lead-based paint waste in C&D landfills, which is less costly than
disposal in MSWLFs in certain areas of the U.S., therefore reducing the
cost of lead abatements. Reducing the cost of LBP abatements will also
reduce the amount of time needed to complete abatements in public
housing. Lower abatement costs may increase the amount of private homes
undergoing abatements. By reducing costs associated with the disposal
of LBP waste, the Agency believes that the number of abatements may
marginally increase, thus resulting in a reduction of the number of
children exposed to LBP.
H. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272
note) directs us to use voluntary consensus standards in our regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (for example, materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when we decide not to
use available and applicable voluntary consensus standards. Today's
proposed rule does not involve technical standards, voluntary or
otherwise. Therefore, the NTTAA does not apply to today's proposed
rule.
I. Executive Order 12898: Environmental Justice Strategy
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' as well as through EPA's April 1995, ``Environmental
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda
Report,'' and National Environmental Justice Advisory Council, EPA has
undertaken to incorporate environmental justice into its policies and
programs. EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States. The Agency's goals are to ensure that no segment of the
population, regardless of race, color, national origin, or income,
bears disproportionately high and adverse human health and
environmental effects as a result of EPA's policies, programs, and
activities.
Today's proposed rule is not expected to negatively impact any
community, and therefore is not expected to cause any
disproportionately high and adverse impacts to minority or low-income
communities versus non-minority or affluent communities. On the
contrary, since the rule will reduce the cost of performing LBP
abatements in certain regions of the U.S., EPA assumes that the savings
will afford public housing authorities, in particular, the opportunity
to conduct additional abatements of LBP hazards in affected housing
units. Tenants of public housing units are possibly more likely to be
minority and lower-income households, and the rule should have the
effect of providing a differential benefit to such populations.
J. Executive Order 13211: Energy Effects
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 Fed. Reg. 28355 (May 22, 2001)
because it is not a significant regulatory action under Executive Order
12866.
List of Subjects
40 CFR Part 257
Waste treatment and disposal.
40 CFR Part 258
Reporting and recordkeeping requirements, Waste treatment and
disposal, Water pollution control.
Dated: September 28, 2001.
Christine Todd Whitman,
Administrator.
[FR Doc. 01-26095 Filed 10-22-01; 8:45 am]
BILLING CODE 6560-50-P