[Federal Register Volume 63, Number 243 (Friday, December 18, 1998)]
[Proposed Rules]
[Pages 70190-70233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33326]
[[Page 70189]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
Management and Disposal of Lead-Based Paint Debris; Proposed Rule
Temporary Suspension of Toxicity Characteristic Rule for Specified
Lead-Based Paint Debris; Proposed Rule
Federal Register / Vol. 63, No. 243 / Friday, December 18, 1998 /
Proposed Rules
[[Page 70190]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 745
[OPPTS-62160; FRL-5784-3]
RIN 2070-AC72
Lead; Management and Disposal of Lead-Based Paint Debris
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing a rule under the Toxic Substances Control Act
(TSCA) to provide new standards for the management and disposal of
lead-based paint (LBP) debris generated by individuals or firms. In
another document in today's Federal Register, the Agency is also
separately proposing to suspend temporarily the applicability of
regulations under Subtitle C of the Resource Conservation and Recovery
Act (RCRA) which currently apply to LBP debris. The companion RCRA
proposal, issued elsewhere in today's Federal Register, is necessary to
avoid inconsistent or duplicative Federal requirements under RCRA and
TSCA. In addition, this proposal finds LBP debris which is disposed of
improperly to be a lead-based paint hazard under TSCA. Today's proposed
TSCA standards do not address LBP debris generated by homeowners in
their own homes. The Agency is concerned that current RCRA requirements
for the identification, management, and disposal LBP debris may be
reducing the number of residential LBP abatements by imposing
significant disposal costs for LBP debris that is determined to be a
hazardous waste under RCRA. Today's proposed rule would provide new
management and disposal standards for generators of LBP debris under
TSCA. These standards would be generally less burdensome than current
RCRA hazardous waste requirements, yet the standards are reliable,
effective, safe, and protective of human health and the environment. By
reducing costs associated with management and disposal of LBP debris,
the Agency believes that the number of abatements will increase thus
resulting in a reduction of children exposed to LBP. The Agency is also
applying today's proposed standards to LBP debris from renovation,
remodeling, public and commercial buildings in order to simplify
requirements to generators and transporters of LBP debris.
DATES: Written comments in response to this proposed rule must
bereceived on or before February 16, 1999. The Agency is having two
public meetings, where oral comments will be heard, one in Washington
DC on Thursday, January 14, 1999, from 9 a.m. to 4 p.m. and one in San
Francisco, CA on Thursday, January 21, 1999, from 9 a.m. to 4 p.m.
ADDRESSES: Comments may be submitted by regular mail, electronically,
or in person. Please follow the detailed instructions for each method
as provided in Unit I. of the SUPPLEMENTARY INFORMATION section of this
proposal.
The Washington DC meeting will be held at the Omni Shoreham Hotel,
2500 Calvert St., NW., Washington, DC 20008, telephone: (202) 234-0700.
The San Francisco meeting will be held at the Holiday Inn Civic
Center, 50 Eight St., San Francisco, CA 94103, telephone: (415) 626-
6103.
FOR FURTHER INFORMATION CONTACT: For general information contact:
National Lead Information Center at: 1-800-424-LEAD(5323). For
technical questions relating to TSCA: Tova Spector, (202) 260-3467; for
RCRA-related questions: Rajani Joglekar, (703) 308-8806.
SUPPLEMENTARY INFORMATION: The following outline is provided to assist
the reader in locating specific topics in the preamble.
Table of Contents
I. General Information
A. Does this Notice Apply to Me?
B. How Can I Get Additional Information or Copies of this
Document or Other Support Documents?
C. How and to Whom Do I Submit Comments?
D. How Should I Handle CBI Information that I Want to Submit to
the Agency?
II. Introduction
A. Purpose of this Proposed Rule
B. Background: The Hazards of LBP and Federal Efforts to Reduce
Exposure
III. Statutory Framework and Authority
A. TSCA Title IV
B. RCRA Subtitle C and the Toxicity Characteristic Rule
IV. Overview of Proposed Rule
A. Summary of Management and Disposal Standards
B. State and Tribal Programs
V. Policy Basis for Today's Proposal
A. Stakeholder Consultation
B. RCRA Coverage of LBP Debris
C. LBP Debris Exclusions/Exemptions from RCRA Subtitle C
D. Difficulties in Conducting the TCLP on LBP Debris
E. Economic Impacts of RCRA Subtitle C Regulation on LBP
Abatements
F. TSCA Coverage of LBP Debris
VI. Analytic Basis for Landfill Disposal Options in Today's Proposed
Rule
A. Leaching and Mobility of Lead from LBP Debris
B. Ground Water Risks from C&D Landfills
C. Preliminary Conclusions on Disposal of LBP Debris in C&D
Landfills
D. Other Non-hazardous Waste Disposal Options
VII. Proposed Rule Provisions: Secs. 745.301 - 745.319
A. General
B. What Types of Materials Are Covered?
C. What Activities Are Covered?
D. Who Must Comply With This Proposal?
E. When Does LBP Debris Become Subject to This Proposal?
F. What Structure Types Are Covered?
G. What Are the Proposed Disposal and Reclamation Options for
LBP Debris?
H. What Controls on the Management of LBP Debris are Included in
the Proposal?
I. What Are the Notification and Recordkeeping Requirements?
Sec. 745.313
VIII. State and Tribal Programs
A. General
B. Submission of an Application
C. State Program Certification
D. EPA Approval
E. Withdrawal of Authorization: Sec. 745.356
F. Model State and Tribal Program
G. Tribal LBP Debris Management and Disposal Programs
H. Enforcement and Compliance Provisions
IX. Rulemaking Record
X. References
XI. Regulatory Assessment Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 12875
F. Executive Order 13084
G. Executive Order 12898
H. National Technology Transfer and Advancement Act
I. Executive Order 13045
I. General Information
A. Does this Notice Apply to Me?
You may be potentially affected by this proposed rule if you
generate, store, transport, reuse, offer for reuse, reclaim (defined in
today's proposal at Sec. 745.303 in the regulatory text) or dispose of
LBP debris from abatements, renovations, and demolitions of target
housing, and from deleading and demolition of public buildings and
commercial buildings (definitions of structure types and activities
appear at Sec. 745.303 of the regulatory text).
Regulated categories and entities would include:
[[Page 70191]]
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Examples of Regulated
Category Entities
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Individuals and firms who generate and/or Contractors who generate and/
store LBP debris or store LBP debris from
abatements, renovations,
and demolitions of target
housing, and deleading or
demolition of public
buildings, and commercial
buildings
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Waste transporters Firms providing
transportation services for
LBP debris
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Reusers of LBP debris Firms or individuals who
reuse LBP debris
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Reclamation facility owner/operators Owners or operators of
facilities which accept LBP
debris for reclamation
Disposal facility owner/operators Owners or operators of
facilities which accept LBP
debris for disposal
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This table is not intended to be exhaustive, but rather provides a
guide regarding entities likely to be regulated by this action. This
table lists the types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
listed in this table could also be regulated. To determine whether you
or your business may be regulated by this action, you should carefully
examine the provisions of Secs. 745.301 through 745.319 of the
regulatory text. If you have any questions regarding the applicability
of this action to a particular entity, consult the person listed in the
``FOR FURTHER INFORMATION CONTACT'' unit above.
B. How Can I Get Additional Information or Copies of this Document or
Other Support Documents?
1. Electronically. You may obtain electronic copies of this
document and various support documents from the EPA internet Home Page
at http://www.epa.gov/. On the Home Page select ``Laws and
Regulations'' and then look up the entry for this document under the
``Federal Register - Environmental Documents.'' You can also go
directly to the ``Federal Register'' listings at http://www.epa.gov/
homepage/fedrgstr/.
2. In person or by phone. If you have any questions or need
additional information about this action, please contact the technical
person identified in the ``FOR FURTHER INFORMATION CONTACT'' section.
In addition, the official record for this notice, including the public
version, has been established under docket control number OPPTS-62160,
(including comments and data submitted electronically as described
below). A public version of this record, including printed, paper
versions of any electronic comments, which does not include any
information claimed as Confidential Business Information (CBI), is
available for inspection from noon to 4 p.m., Monday through Friday,
excluding legal holidays. The public record is located in the TSCA
Nonconfidential Information Center, Rm. NE-B607, 401 M St., SW.,
Washington, DC 20460. The TSCA Nonconfidential Information Center
telephone number is 202-260-7099.
C. How and to Whom Do I Submit Comments?
You may submit comments through the mail, in person, or
electronically. Be sure to identify the appropriate docket control
number (i.e., ``OPPTS-62160'') in your correspondence.
1. By mail. Submit written comments to: Document Control Office
(7407), Office of Pollution Prevention and Toxics (OPPT), Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460.
2. In person or by courier. Deliver written comments to: Document
Control Office in Rm. G-099, Waterside Mall, 401 M St., SW.,
Washington, DC, telephone: 202-260-7093.
3. Electronically. Submit your comments and/or data electronically
by E-mail to: oppt.ncic@epamail.epa.gov.'' Please note that you
should not submit any information electronically that you consider to
be CBI. Electronic comments must be submitted as an ASCII file avoiding
the use of special characters and any form of encryption. Comment and
data will also be accepted on standard computer disks in WordPerfect
5.1/6.1 or ASCII file format. All comments and data in electronic form
must be identified by the docket control number OPPTS-62160. Electronic
comments on this notice may also be filed online at many Federal
Depository Libraries.
D. How Should I Handle CBI Information that I Want to Submit to the
Agency?
You may claim information that you submit in response to this
document as CBI by marking any part or all of that information as CBI.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. A copy of the comment that does
not contain CBI must be submitted for inclusion in the public record.
Information not marked confidential will be included in the public
docket by EPA without prior notice. If you have any questions about CBI
or the procedures for claiming CBI, please consult with the technical
person identified in the ``FOR FURTHER INFORMATION CONTACT'' section.
II. Introduction
Unit II. of this preamble provides an overview of today's proposed
rule and background information; the succeeding units cover the
proposal and rationale in more detail.
A. Purpose of this Proposed Rule
This document proposes new management and disposal standards for
LBP debris, which is defined at Sec. 745.303 of today's proposed rule
to be (1) Debris resulting from demolitions where LBP is present and/or
(2) LBP architectural component debris (such as windows, doors,
molding, etc) from abatement, renovation, and deleading activities.
These proposed standards have been developed under TSCA sections 402
and 404 and in coordination with the RCRA Temporary Suspension of the
Toxicity Characteristic Proposed Rule for LBP Debris. (For a detailed
discussion of the regulatory authority refer to Unit III. of this
preamble). The primary objective of this proposed rule is to address
obstacles to the removal of LBP hazards in target housing and other
child-occupied facilities, such as schools and day-care centers. The
Agency has concluded for this proposal that disposal of LBP debris
resulting from abatements, deleading, renovations, remodeling and
demolitions of target housing, child-occupied facilities, and public
and commercial buildings in certain non-hazardous solid waste disposal
facilities (discussed in Unit III. of this preamble) is safe, reliable,
effective, and protective of human health and the environment.
Accordingly, the coverage of today's RCRA and TSCA proposals would
include LBP debris generated during deleading, demolitions, and
renovation and remodeling activities in all target housing, public
buildings, and commercial buildings. EPA believes it is important to
provide a clear and consistent regulatory scheme for those who conduct
these activities and to avoid the imposition of unnecessary costs on
the regulated community.
The Agency believes the LBP debris management and disposal
standards contained in this proposal would provide increased protection
of human health by: (1) Reducing the cost of LBP abatements and
deleading so as to
[[Page 70192]]
facilitate the removal of LBP from areas that children and others
frequent; and (2) addressing gaps in coverage of LBP debris under the
current RCRA management and disposal requirements. This proposal is
designed to minimize the burdens associated with LBP debris management
and disposal through enacting a TSCA program that is less costly than
the current RCRA scheme but is nonetheless safe, effective, and
reliable.
The standards in today's proposal would apply only to LBP debris.
If LBP architectural component debris or LBP demolition debris contain
any substance or constituent subject to regulations (in addition to
LBP), the generator would still have to comply with those requirements.
For example, if LBP debris also contained asbestos, it would have to be
disposed of in facilities subject to both today's proposed standards
and to the existing asbestos disposal standards found at 40 CFR part
61, subpart M.
The disposal of soil is not addressed under the proposed TSCA
standards. For a further discussion of soil and why it was excluded
from this proposed rule please see Unit VII.B.4. of this preamble.
B. Background: The Hazards of LBP and Federal Efforts to Reduce
Exposure
The Centers for Disease Control and Prevention (CDC) has estimated
approximately 900,000 children, or about 4.4% of children under the age
of 6, may have unacceptably high levels of lead in their blood (Ref.
1). Lead exposure in young children is of particular concern, because
children absorb lead more readily than adults and their nervous systems
are particularly vulnerable to the effects of lead. Common sources of
lead exposure to children include contaminated dust and paint chips
from deteriorating LBP in older homes and renovation activities which
disturb LBP. Children with high levels of lead in their body can suffer
from learning disabilities, behavioral and learning problems, and
mental retardation. The effects of long-term lead exposure or poisoning
in children are well-documented: higher school failure rates and
reductions in lifetime earnings due to permanent loss of intelligence
and increased social pathologies. Fetuses are also at risk, as lead can
pass from a pregnant woman's bloodstream to the developing child. There
is also some indication that lead exposure contributes to high blood
pressure, reproductive and memory problems in adults. Lead has no known
use in the body and is difficult to remove from blood and bones in
cases where medical intervention is necessary.
Over the past 2 decades the Federal government has taken a number
of steps to address the problems of lead exposure. In 1978, the
Consumer Product Safety Commission banned the residential use of paint
containing more than 0.06% lead by weight on interior and exterior
surfaces, toys, and furniture. EPA placed controls on lead in gasoline
in 1978 and lowered the maximum levels of lead permitted in public
water systems (40 CFR parts 141 and 142). CDC has set and lowered blood
lead levels of concern several times, most recently in 1991. The
Department of Housing and Urban Development (HUD) began in 1986 to
abate lead hazards in public housing that is being renovated or in
structures occupied by a child with elevated blood lead levels. These
efforts, and those of State and local agencies and the private sector,
have reduced the incidence of lead poisoning.
It is estimated that more than half the housing stock in the U.S.
(an estimated 64 million pre-1980 homes) still contain some LBP (Ref.
2). Further, the LBP Hazard Reduction and Financing Task Force
established by HUD pursuant to section 1015 of Title X (the LBP Hazard
Reduction Act of 1992) estimates that between 5 and 15 million housing
units contain hazards associated with the presence of LBP.
In response to this health threat, Congress enacted the Residential
LBP Hazard Reduction Act of 1992 (hereinafter referred to as Title X of
the Housing and Community Development Act of 1992 or as Title X) Pub.
L. No. 102-550, 106 Stat. 3897. The purposes of Title X include: (1) To
develop a national strategy to build the infrastructure necessary to
eliminate LBP hazards in all housing as expeditiously as possible; (2)
to reorient the national approach to the presence of LBP in housing to
implement a broad program to evaluate and reduce LBP hazards in the
Nation's housing stock; and (3) to encourage effective action to
prevent childhood lead poisoning by establishing a framework for LBP
hazard evaluation and reduction and by ending confusion pertaining to
reasonable standards of care (Pub. L. 102-550, Title X, Sec. 1003
(codified at 42 U.S.C. 4851a)).
To further these goals, Title X requires that HUD provide public
housing authorities and other owners of Federally assisted properties
with guidelines for evaluating and reducing lead hazards in their
properties. Title X also amended TSCA by adding a new Title IV, which
directs EPA to promulgate standards to govern: (1) The training and
certification of individuals engaged in LBP activities; (2) the
accreditation of training programs; and (3) the process by which LBP
activities are conducted by certified individuals (TSCA section 402(a),
15 U.S.C. 2682(a)). TSCA Title IV also directs EPA to identify by
regulation LBP hazards, lead-contaminated dust, and lead-contaminated
soil (TSCA section 403, 15 U.S.C. 2683). States and Indian Tribes may
seek to administer and enforce these requirements (TSCA section 404, 15
U.S.C. 2684).
As a result of the enactment of Title X, there is an increasing
effort to reduce the hazards posed by LBP in residential housing and
other buildings. Although there are a number of methods to reduce LBP
exposure, abatements (which under TSCA Title IV involve any set of
measures designed to eliminate permanently LBP hazards) are typically
conducted in situations where LBP exposure has resulted in elevated
blood lead levels in children and in other situations where permanent
removal of LBP is desired. Abatement efforts frequently result in the
production of LBP waste which may currently be subject to regulatory
controls under Subtitle C of the Resource Conservation and Recovery Act
(RCRA) (discussed in Unit V. of this preamble).
The Agency has spent considerable resources working with health
specialists, environmental groups, the lead abatement industry, and
State and local governments to develop regulatory options for lead
abatement activities. EPA believes that there is an overwhelming
consensus that action should be taken as quickly as possible to reduce
lead exposure hazards to young children.
The Lead-Based Paint Hazard Reduction and Financing Task Force
established by HUD pursuant to section 1015 of Title X (42 U.S.C.
4852a), representing the spectrum of interests affected by LBP issues,
released final recommendations on evaluating and reducing LBP hazards
in private housing on July 11, 1995. Their report is entitled ``Putting
the Pieces Together: Controlling Lead Hazards in the Nation's Housing''
(Ref. 3). In addition, a letter from the Task Force to EPA
Administrator Carol Browner dated April 13, 1994, specifically
recommended that the Agency ``shift regulation of discarded
architectural components from the hazardous waste regulatory program to
a tailored management program under TSCA Secs. 402/404'' (Ref. 4). The
Task Force recommendations enjoy the support of a broad range of the
groups and interests
[[Page 70193]]
affected by LBP activities and regulations. The Agency has given
substantial weight to the Task Force recommendations in the development
of today's proposal. EPA has developed and is proposing a regulatory
approach it believes will both work to speed the conduct of lead
abatement and deleading activities (by lowering costs) and, at the same
time, ensure that LBP debris from all activities is managed and
disposed of in safe, reliable, and effective manner.
III. Statutory Framework and Authority
As noted above, today's action consists of two proposed rules: (1)
this TSCA proposal introducing new LBP debris management and disposal
standards; and (2) a companion RCRA proposal, issued elsewhere in
today's Federal Register, to temporarily suspend the applicability of
the RCRA Toxicity Characteristic (TC) Rule (40 CFR 261.24) to LBP
debris. Unit III.A. below discusses TSCA Title IV and Unit III.B.
discusses RCRA Subtitle C and the TC Rule.
A. TSCA Title IV
The Agency is issuing today's proposed rule under the authority of
sections 402 and 404 of TSCA (15 U.S.C. 2682 and 2684). Section 402 of
TSCA, LBP Activities Training and Certification, directs EPA to
promulgate regulations governing the training and certification of
individuals engaged in LBP activities, the accreditation of training
programs, and standards for conducting LBP activities. Section 404 of
TSCA, Authorized State Programs, provides authority for EPA to
authorize States to administer and enforce the requirements established
by the Agency under section 402 of TSCA.
1. LBP activities. On August 29, 1996 (61 FR 45778) (FRL-5389-9),
EPA promulgated a rule under sections 402 and 404 of TSCA (hereafter,
the LBP training and certification rule) addressing the conduct of
certain LBP activities in target housing and child-occupied facilities
(40 CFR part 745). The LBP training and certification rule requires
that individuals and firms conducting specified LBP activities in
target housing and child-occupied facilities receive training from
accredited training programs and be certified to conduct LBP
activities. The rule also contains standards for conducting LBP
activities. The LBP training and certification rule did not
specifically address the management and disposal of LBP debris. Today's
proposal would create standards under TSCA for the management and
disposal of LBP debris and clarifies that other LBP wastes remain
subject to RCRA management and disposal requirements.
The term ``LBP activities'' includes, among other activities,
abatements in target housing. 15 U.S.C. 2682(b)(1). TSCA section 401(1)
defines ``abatement'' as ``any set of measures designed to permanently
eliminate LBP hazards'' including, among other things, all ``clean-up,
disposal, and post-abatement clearance testing activities.'' 15 U.S.C.
2681(1)(B). Because the term ``abatement'' includes all clean-up and
disposal activities, TSCA Title IV provides the Agency with clear legal
authority to promulgate regulations establishing standards for the
management and disposal of LBP (including any LBP found on debris)
resulting from the abatement of target housing. TSCA Title IV defines
``target housing'' generally to mean any housing constructed prior to
1978, except for housing for the elderly or those with disabilities
(unless any child who is less than 6 years of age resides or is
expected to reside in such housing for the elderly or persons with
disabilities) or any 0-bedroom dwelling. TSCA section 401(17). 15
U.S.C. 2681.
In addition to target housing, the LBP Activities Training and
Certification Rule (40 CFR part 745) included in the TSCA section 402
requirements a sub-category of public buildings called ``child-occupied
facilities.'' A child-occupied facility is defined as `` a building, or
portion of a building, constructed prior to 1978, visited regularly by
the same child, 6 years of age or under, on at least 2 different days
within any week (Sunday through Saturday period), provided that each
day's visit lasts at least 3 hours and the combined weekly visits last
at least 6 hours, and the combined annual visits last at least 60
hours. Child-occupied facilities may include, but are not limited to,
day-care centers, preschools and kindergarten classrooms.'' Thus, EPA
is also covering ``child-occupied facilities'' in today's proposal
consistent with the LBP Training and Certification rule.
TSCA section 402 excludes homeowners who conduct LBP activities
(including abatement or renovation and remodeling activities)
themselves in target housing that they own, unless the housing is
occupied by a person or persons other than the owner or the owners'
immediate family while the LBP debris is being generated. See Unit
VII.C1. below for a further discussion of the homeowner exclusion.
In the case of public buildings constructed before 1978 and
commercial buildings, TSCA section 402 defines the term ``LBP
activities'' to include deleading and demolition. ``Deleading'' is
defined to mean ``activities conducted by a person who offers to
eliminate LBP or LBP hazards or to plan such activities.'' Id.
Management and disposal of LBP debris from public and commercial
buildings are among the activities a person conducts to eliminate LBP
or LBP hazards, and, therefore, are considered to constitute
``deleading'' activities under TSCA section 402(b)(2). Although section
402(b)(2) uses terms such as ``identification'' and ``deleading''
instead of the terms used in 402(a) such as ``inspection,'' ``risk
assessment,'' and ``abatement,'' EPA believes that, given the
similarity of the population to be protected and the nature of the risk
they face, the section 402(b)(2) terms can be understood to include the
same types of LBP activities as specified in section 402(b)(1).
``Deleading'' under section 402(b)(2) is equivalent to ``abatement''
under section 402(b)(1). As such, management and disposal of LBP debris
from deleading and demolition are among the LBP activities EPA has the
authority to regulate in public buildings and commercial buildings
under TSCA section 402.
2. LBP hazards. TSCA section 402 (c) addresses LBP risks associated
with renovation and remodeling activities in target housing, public
buildings and commercial buildings. EPA was directed under section
402(c)(1) to develop guidelines for conducting such activities. These
guidelines, ``Reducing Lead Hazards When Remodeling Your Home'' (EPA
747-R-94-002), were published in April 1994, (updated September 1997)
and are available through the National Lead Information Center
(Telephone: 1-800-424-LEAD). EPA was also directed under section
402(c)(2) to conduct a study of the extent to which renovation and
remodeling activities create a ``LBP hazard'' on a regular or
occasional basis. EPA has not completed this study, however, the study
did not examine management or disposal of LBP debris. EPA is authorized
under section 402(c)(3) of TSCA to apply the standards developed under
section 402(a) of TSCA for LBP activities to renovation and remodeling
activities that create LBP hazards. EPA has determined for this
proposal, as described in Unit V.F. of this preamble, that improper
management and disposal of LBP debris, including debris from renovation
and remodeling activities constitutes a LBP hazard and has included LBP
debris from renovation and remodeling activities within the scope of
today's proposal. The proposed
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rule determination that improper management and disposal of LBP debris
constitutes a LBP hazard is included in the regulatory text of this
proposal.
Today's proposal also includes certain restrictions on the reuse of
LBP debris. The proposed restrictions are designed to prevent the
transfer of LBP hazards from one structure to another. For example,
today's proposal would prohibit reuse of LBP debris which would be
identified as a ``LBP hazard.'' For a more in depth discussion of reuse
of LBP debris, see Unit VII.G.1. of this preamble.
3. Certification. Section 402(a)(1) of TSCA directs the Agency to
promulgate regulations which ensure that individuals engaged in LBP
activities are:
. . .properly trained; that training programs are accredited;
and that contractors engaged in such activities are certified. Such
regulations shall contain standards for performing LBP activities,
taking into account reliability, effectiveness, and safety.
Today's action proposes standards for the management and disposal of
LBP debris which take into account reliability, effectiveness, and
safety. It does not, however, create training requirements for
individuals engaged in the management and disposal of LBP debris.
The Agency believes that the activities covered by this proposal,
and the requirements governing them do not warrant any specialized
training. These activities and requirements are similar, if not,
identical to the types of waste management activities already being
conducted by generators, transporters, and disposal facility owner/
operators and parties reusing LBP debris. The proposed requirements are
designed to be as simple as possible while continuing to meet the TSCA
section 402 standard of ``taking into account reliability,
effectiveness, and safety.'' The addition of training requirements
would add to the burden of conducting LBP debris management and
disposal activities without providing a measurable reduction in risk of
exposure to LBP hazards.
The primary reason for requiring the certification of individuals
is to ensure that the individual has received proper training. However,
because the Agency would not require specialized training for the
management and disposal of LBP debris, Sec. 745.315 proposes to certify
all individuals who comply with the requirements of the rule.
Certification would be extended only to individuals and firms engaged
in management and disposal of LBP debris. To perform other LBP
activities, individuals and firms would need to be certified in
accordance with TSCA sections 402 and 404 rules (40 CFR part 745). This
``certification by rule'' for management and disposal of LBP debris
allows the Agency to efficiently fulfill the TSCA section 402 mandate
noted above to ``ensure that. . .contractors engaged in such activities
are certified'' without sacrificing safety, effectiveness, or
reliability.
Today the Agency is proposing under section 402 of TSCA to
establish a clear regulatory environment covering the management and
disposal of LBP debris from abatements, deleading, demolitions,
renovations and remodeling from target housing, public buildings, and
commercial buildings. The TSCA standards being proposed today represent
a common sense approach to management and disposal of LBP debris which
addresses the problems associated with current RCRA regulation of LBP
debris.
B. RCRA Subtitle C and the Toxicity Characteristic Rule
Subtitle C of RCRA, 42 U.S.C. 6921-39b, establishes a comprehensive
program for the regulation of hazardous waste. In enacting RCRA,
however, Congress did not set forth a list of hazardous wastes nor
provide a specific test for determining whether a waste is hazardous.
Instead, in RCRA section 1004(5), Congress defined ``hazardous waste''
broadly as a ``solid waste'' which ``may. . .pose a substantial present
or potential hazard to human health or the environment when improperly
treated, stored, transported, disposed or otherwise managed.'' Under
RCRA section 3001(a), EPA is responsible for defining which solid
wastes are hazardous by either identifying the characteristics of
hazardous waste or listing particular hazardous wastes.
In response to the Congressional directive in RCRA section 3001(a),
EPA adopted a two-part definition for identified or listed ``hazardous
wastes'' (45 FR 33084, May 19, 1980). First, EPA published lists of
specific hazardous wastes, in which EPA described the wastes and
assigned a ``waste code'' to each of them (40 CFR part 261, subpart D).
These wastes are known as ``listed'' hazardous wastes. Second, the
Agency identified four characteristics of hazardous waste that are
subject to objective measurement: ignitability, corrosivity,
reactivity, and toxicity (see 45 FR 33121-22, May 19, 1980). Any solid
waste exhibiting one or more of these characteristics is a
``characteristic hazardous waste'' subject to regulation under RCRA
Subtitle C (see 40 CFR parts 262, 264 to 268, and 270).
To measure objectively the characteristic of ``toxicity'' under
RCRA Subtitle C, EPA established the Toxicity Characteristic Leaching
Procedure (TCLP) test as part of the Toxicity Characteristic (TC) rule.
(55 FR 11798, March 29, 1990). Under the TC rule, a waste may be a
hazardous waste if any chemicals identified in the rule, such as lead,
are present in leachate from the waste (generated from use of the TCLP)
at or above the specified regulatory levels (40 CFR 261.24).
Under the TC rule, generators of solid waste must either use their
knowledge of the waste or perform the TCLP test using a representative
sample of the waste ``as generated'' to determine if the waste exhibits
a toxicity characteristic. The regulatory level for lead in the waste
extract (i.e., leachate) is 5 milligrams per liter (mg/L). If the
leachate of waste contains lead at this level or higher, then the waste
is a ``characteristic'' hazardous waste, and the generator must comply
with the applicable RCRA Subtitle C requirements in 40 CFR parts 262
through 266, 268, and 270.
IV. Overview of Proposed Rule
This Unit is designed to provide a brief review of the main
provisions in this proposal. Rationale, analyses supporting the
proposal, and the details of the provisions outlined in this section
are discussed later in this preamble.
A. Summary of Management and Disposal Standards
1. Scope of proposed standards. This proposal would apply to
persons who generate, store, transport, reuse, transfer for reuse,
reclaim and/or dispose of LBP debris from the following structures and
activities: (1) Abatement, demolition, renovation and remodeling in
target housing and child-occupied facilities; and (2) deleading,
demolition, renovation and remodeling in public buildings and
commercial buildings. The definition of LBP debris at Sec. 745.303 of
the regulatory text does not include concentrated LBP wastes such as
LBP chips, dust, blast media, solvents, sludges, and treatment
residues. Such wastes would remain subject to RCRA requirements
(discussed further in Unit VII.B. of this preamble).
The proposal would not apply to LBP debris generated by persons who
conduct abatement or renovation and remodeling activities themselves in
target housing in which they reside. Such debris may, also, be exempt
from RCRA Subtitle C requirements under the household hazardous waste
exclusion. For a further discussion please refer to
[[Page 70195]]
the companion proposed RCRA Toxcity Characteristic Suspension document
issued elsewhere in today's Federal Register. Under this TSCA proposal,
if a homeowner hires an individual or firm to perform abatement,
demolition, or renovation activities and LBP debris is created, the
individual or firm would be considered to be a generator of LBP debris.
In such cases, the individual or firm would be responsible for
compliance with the generator requirements in today's proposal rather
than the homeowner.
One important distinction between this proposal and current RCRA
Subtitle C requirements is that today's proposal would apply to all LBP
debris (as defined at Sec. 745.303), whereas RCRA Subtitle C
requirements apply only if LBP debris is a waste and is determined to
be ``hazardous.'' The comprehensive coverage of today's TSCA proposal
would resolve the current problems involved in conducting the TCLP test
on heterogenous LBP debris and in leaving largely unregulated large
quantities of ``non-hazardous'' LBP debris. Today's proposal would have
the effect of subjecting all LBP debris to one common sense regulatory
scheme including management controls which take into account the risks
that LBP debris poses to humans, particularly children--even if LBP
debris has not been found to be `` hazardous'' under the TCLP test. See
Unit VII.B. through VII.D. of this preamble for an in-depth discussion
of the wastes, activities, and structures covered in this proposal.
2. Disposal/reclamation options. Section 745.309 of today's
proposal would allow disposal of LBP debris in a variety of facilities,
specifically:
i. Construction and demolition landfills.
ii. Nonmunicipal landfills which accept conditionally exempt small
quantity generated waste.
iii. Hazardous waste disposal facilities, including hazardous waste
incinerators and landfills.
iv. In the case of incineration, facilities subject to specified
Clean Air Act requirements.
Each of the disposal options listed above is discussed in greater
detail in Unit VII.F. of this preamble. Under the proposal, LBP debris
would be able to be reclaimed (either for recovery of lead, or for
energy combustion value) only in facilities which meet the Clean Air
Act requirements specified at Sec. 745.309(b) of today's proposal.
3. Controls on transportation, storage, and reuse. The Agency has
included proposed controls on the transportation, storage, reuse and
transfer for reuse of LBP debris in Secs. 745.308 and 745.311. If
finalized, today's proposed rule would stipulate that when LBP debris
is stored for more than 72 hours, there must be access limitations, and
that LBP debris must not be stored for more than 180 days
(Sec. 745.311). There are also proposed limitations on when LBP debris
may be transferred for reuse (Sec. 745.311). In addition, the proposal
would require that LBP debris be transported in covered vehicles to
prevent any inadvertent release of LBP chips or dust (Sec. 745.308).
These controls are discussed at length in Unit VII.G. of this preamble.
4. Notification and recordkeeping. In order to promote compliance
and provide for effective enforcement of the standards contained in
today's proposal, the Agency has included a proposed requirement that
when LBP debris is transferred from one party to another, the recipient
should be notified in writing that the material is LBP debris
(Sec. 745.313(a)). Both parties to any transfer of LBP debris would
also be required to keep a copy of the notification on record for 3
years (Sec. 745.313(b)). The notification and recordkeeping
requirements are discussed in Unit VII.H. of this preamble.
B. State and Tribal Programs
Today's proposal contains provisions for EPA authorization of State
or Tribal LBP debris management and disposal programs. States and
Indian Tribes are encouraged to develop and seek EPA authorization of
their own LBP debris management and disposal programs. EPA invites
States and Tribes to submit their applications 60 days after
promulgation of the final rule.
Sections 745.350 and 745.352 of today's proposal identify key
program elements which EPA believes are needed to administer and
enforce a LBP debris management and disposal program which is at least
as protective as the Federal standards at Secs. 745.307 through 745.319
and provides for adequate enforcement. The proposed required program
elements found at Sec. 745.350 are: (1) Requirements governing the
reuse and storage of LBP debris; (2) requirements governing the
transportation of LBP debris; (3) requirements for the disposal or
reclamation of LBP debris; and (4) requirements for notification and
recordkeeping. The proposed required elements found at Sec. 745.352 are
designed to ensure that State or Tribal programs provide adequate
enforcement.
The proposed Secs. 745.341 through 745.359 also contain procedures
for States and Indian Tribes to follow when applying to EPA for LBP
debris management and disposal program authorization. State or Tribal
programs would be required to be ``at least as protective as'' the
Federal requirements at Secs. 745.307 through 745.319 and to provide
adequate enforcement. In their application, States and Tribes would be
free to retain or establish more stringent requirements for the
management and disposal of LBP debris in their jurisdictions. State and
Tribal program requirements are discussed in Unit VIII. of this
preamble.
V. Policy Basis for Today's Proposal
It is important to understand the relationship between today's
proposal and the existing RCRA Subtitle C regulations. The regulated
community has expressed a variety of concerns about the appropriateness
of current RCRA requirements governing the management and disposal of
LBP debris.
In keeping with EPA's responsibility under TSCA Title IV to promote
and facilitate the expeditious reduction of risks related to LBP, the
Agency has explored alternative options for management and disposal of
LBP debris. The result of this investigation is today's proposed rule
providing safe, effective, and reliable TSCA management and disposal
standards for LBP debris. Sections A through F of this unit describe
stakeholder consultation and the policy basis for today's proposal.
A. Stakeholder Consultation
The input and comments of stakeholders have been important in the
development of today's proposal. As mentioned in Unit II. of this
preamble, the TSCA section 1015 Task Force, which represented a wide
array of interested parties, specifically requested that EPA ``shift
regulation of discarded architectural components from the hazardous
waste regulatory program to a tailored management program under TSCA
sections 402/404.''
In addition, the Agency held a stakeholders' meeting on September
28, 1994, to discuss possible approaches to improving management and
disposal requirements for LBP debris. Stakeholders participating in the
meeting included HUD, State agency representatives, environmental and
advocacy groups, labor representatives, professional organizations
representing the building and waste management trades and private
contractors. The participants provided many opinions and suggestions.
As noted, many stakeholders have urged EPA to develop today's
proposal. A number of commenters on the LBP Training and Certification
rule (40 CFR
[[Page 70196]]
part 745) specifically requested that EPA issue disposal standards for
LBP debris under TSCA. In response, the Agency has, in today's
proposal, identified new disposal options for LBP debris (in addition
to those currently allowed under RCRA Subtitle C). The new LBP debris
disposal options are discussed in Units VI. and VII. of this preamble.
Stakeholder concerns about this proposed rule have generally focused on
the risk of ground water contamination resulting from alternative
disposal options, a question which is addressed by the analyses
conducted for this proposal (as discussed in Unit VI. of this
preamble).
Other stakeholders have expressed concern about the Agency's
characterization of the current market for disposal, believing the
Agency may have overestimated costs of disposal under RCRA Subtitle C.
The Agency has reviewed current data as part of the economic analysis
conducted for this proposal and believes that Agency estimates of the
current costs of LBP debris disposal are accurate. It is clear from the
economic analysis that management and disposal costs for LBP debris
which fails the TCLP for lead are high and that these high costs can
act as a deterrent to the removal of LBP hazards.
Stakeholders have also noted that under current RCRA requirements,
all LBP debris is not treated equally. First, the RCRA regulations only
apply if the debris is a waste. There are no RCRA standards for the
management of LBP debris that is intended for re-use. For LBP that is a
waste, difficulties conducting the TCLP (discussed in section D. of
this unit) can result in insufficient management and disposal standards
for potentially hazardous LBP debris (debris which does not exhibit the
TC due to anomalous TCLP results) while other, similar LBP debris fails
the TCLP and is subject to the strict and costly requirements of RCRA
Subtitle C. Stakeholder concerns about the unequal requirements and
regulations governing the management and disposal of LBP debris are
addressed in today's TSCA proposal.
In June of 1996, EPA sent a stakeholders' mailing to a large list
of parties the Agency had identified as potentially having an interest
in today's proposed rule. The stakeholder mailing included an outline
of provisions under consideration for inclusion in today's proposal,
the draft background document for the Groundwater Pathway Analysis for
LBP Architectural Debris conducted in support of today's proposal, and
names of Agency staff to contact with questions. Further input by
stakeholders as a result of the mailing has been considered during
development of today's proposal.
B. RCRA Coverage of LBP Debris
Under current RCRA requirements, all LBP debris is not treated
equally. Some LBP debris, specifically, debris which fails the TCLP for
lead or is assessed by the generator to exhibit the Toxicity
Characteristic, is subject to the strict and costly requirements of
RCRA Subtitle C. However, LBP debris which passes the TCLP or is
correctly determined by the generator to be nonhazardous solid waste is
not subject to Subtitle C management and disposal standards.
Unfortunately as further described in section D. of this unit, TCLP
results are not reproducible on LBP debris. Therefore, one piece of LBP
debris might fail the TCLP in one instance and pass it in another,
subjecting the debris to radically different management and disposal
requirements in each case.
During the development of this proposal, it has become clear to the
Agency that the two management and disposal standards which apply to
LBP debris under RCRA are both inappropriate. In cases where LBP debris
is determined to be hazardous, the Agency has concluded that RCRA
Subtitle C management and disposal requirements are unnecessarily
strict and costly (see Unit VI. of this preamble for a discussion of
the analytical basis for this finding).
Conversely, in cases where LBP debris passes the TCLP or is
determined by the generator to be nonhazardous, EPA believes that the
absence of clear management and disposal standards is inappropriate and
could result in LBP hazards. Today's proposal would resolve the
problems associated with RCRA regulation of LBP debris by affording
equal and appropriate standards for all LBP debris.
C. LBP Debris Exclusions/Exemptions from RCRA Subtitle C
Currently, certain types of waste are excluded from RCRA hazardous
waste requirements. Some LBP wastes, including certain types of LBP
debris eligible for exclusion from RCRA requirements, are not covered
by today's TSCA proposal (see Unit VII.B. of this preamble for a
discussion of LBP wastes not covered by this proposal). The Agency
believes that the RCRA exclusions clearly and adequately address
management and disposal of these types of waste and new TSCA standards
are not necessary for these RCRA-exempted LBP wastes. The exclusions
described in the RCRA proposal include: (1) The household waste
exclusion; (2) the conditionally exempt small quantity generator
(CESQG) exclusion; and (3) the scrap metal exemption. See today's RCRA
proposal published elsewhere in today's Federal Register for a thorough
discussion of these exemptions.
D. Difficulties in Conducting the TCLP on LBP Debris
An important factor the Agency considered in developing today's
proposal is the difficulty of performing reproducible TCLP tests on LBP
debris. Proper TCLP testing requires the collection of a representative
sample of the waste ``as generated.'' LBP debris typically includes a
mixture of painted and unpainted material, and debris generated at a
single site often includes a variety of building materials (e.g., wood,
metal, brick, plaster, etc.). In addition, different components of the
debris frequently have different numbers of layers of paint--often with
different formulations--each of which may contain varying amounts of
lead. Collection of manageable-sized samples that are representative of
the entire heterogeneous waste stream presents obvious challenges.
A second testing difficulty is sample preparation. The particle
size reduction step of the TCLP requires that samples be small enough
to pass through a \3/8\-inch sieve. Thus, the various components of the
sample may require different procedures in order to accomplish size
reduction. For example, grinding may be the most appropriate procedure
to apply to plaster components of a sample, but may not be practicable
for the sample's metal components. One consequence of this is that
paint layers originally on the surface of different types of materials
can vary widely after the size-reduction step, ranging from a powdered
state to \3/8\ inch-sized pieces. Because of sample preparation
difficulties, the result from one sample (e.g., lead present above the
regulatory level) may not be duplicated by the result from another
sample of the same waste. EPA is concerned that this situation creates
an uncertain regulatory environment and that it may lead to
inappropriate regulation or lack of regulation of LBP debris.
A third difficulty is introduced by the physical state of the paint
matrix. LBP on exposed exterior components will usually have been
subject to years of weathering, since it was almost exclusively applied
before the late 1970s. In contrast, paint from interior surfaces would
likely not be weathered and the paint matrix would still be intact. It
is reasonable to expect that the integrity of the paint matrix would be
a
[[Page 70197]]
factor in the leachability of lead from the paint when it is subjected
to the TCLP test and that the amount of weathered exterior paint versus
interior paint in the sample would affect test results. Variability of
weathering in painted surfaces poses a significant problem in
collecting a representative, reproducible sample of LBP debris.
The Agency believes that these factors contribute significantly to
variation in TCLP results for LBP debris, causing considerable
difficulty in characterizing LBP debris under the Toxicity
Characteristic. These problems are reflected both in stakeholder
comments and in the Agency's empirical data on TCLP testing of LBP
debris.
In March 1993, EPA completed a study that examined the RCRA status
of various waste materials from abatement projects. The study had three
components: First, the Agency evaluated data on waste that HUD
collected during its nationwide abatement demonstration project (Ref.
5). Second, EPA carried out a detailed testing program for two
categories of waste--large solid debris and protective plastic
sheeting. Third, EPA examined the waste disposal experience of HUD's
contractor on the abatement project in order to obtain preliminary
estimates of the volume of hazardous waste that was generated and the
cost of disposal. The goal was to determine whether the Agency could
provide useful guidance to individuals and firms conducting abatements,
on the likely result of TCLP testing for various types of waste
generated during abatements.
The study identified three major categories of waste produced
during abatements: filtered wash water, solid architectural debris, and
plastic sheets and tape used to cover floors and other surfaces. The
study concluded that filtered wash water is generally nonhazardous. The
results for solid architectural debris demonstrated that LBP debris
tends to fail the TCLP when the lead in the paint, as measured by
Atomic Absorption Spectrometry (AAS) exceeds 4 milligrams per square
centimeters (mg/cm2). However, TCLP failure in the study was
not well-correlated with results of on-site testing of lead levels in
paint using an X-Ray Fluorescence (XRF) device. The study's failure
rate for plastic sheeting tended to depend on the abatement method. For
example, removal and replacement tends to generate nonhazardous plastic
sheeting, but use of a heat gun for LBP removal tends to result in
plastic sheeting which exhibits a hazardous characteristic. The study
also notes that other categories of waste, such as sludges, LBP chips,
mops and rags, often exceed the RCRA regulatory limit for lead.
The Agency learned from this study that there is no clear and well-
defined sampling strategy for LBP debris, and that the TCLP may not
give consistently reproducible results for LBP debris. Today's proposal
addresses these difficulties.
E. Economic Impacts of RCRA Subtitle C Regulation on LBP Abatements
RCRA Subtitle C requirements for the management and disposal of a
hazardous waste include making the determination that the waste is
hazardous, the completion of a manifest which tracks waste from the
generator to ultimate disposal, maintenance of records for 3 years,
treatment subject to land disposal restrictions, transport to a
hazardous waste facility, and disposal at a hazardous waste facility.
Disposal in a RCRA Subtitle C facility is not required for hazardous
lead waste which is treated (i.e., decharacterized) such that it no
longer exhibits the Toxicity Characteristic for lead. This alternative
requires the generator to test the waste after treatment using the TCLP
to demonstrate compliance with the land disposal restrictions at 40 CFR
268.9. For further explanation of RCRA Subtitle C, please see Unit
III.B. of this preamble or the RCRA companion document to this proposed
rule published elsewhere in today's Federal Register.
RCRA Subtitle C hazardous waste management and disposal
requirements can substantially increase the costs of performing
abatements which remove and replace painted architectural components
(e.g. doors and windows), a technique which results in a relatively
large volume of waste but which minimizes dust generation that can
cause further human exposure to LBP. In a 1991 report on its
demonstration project on LBP abatement in public housing, HUD noted
that the abatement strategy chosen relates directly to a unit's
eventual passing of post-abatement dust clearance tests (Ref. 6). HUD
found that units which had undergone removal and replacement abatements
were more likely to pass clearance tests, suggesting that these
activities tend to generate less lead-containing dust than other
abatement options.
Among the materials generated during abatement, LBP architectural
component debris (e.g., doors, windows and window frames, external
woodwork) represent largest volume. Other materials, such as LBP chips
and dust, treatment residues, solvents, blast media, waste water,
plastic sheets, and worker equipment and clothing, are generated in
smaller quantities, are comparatively easy to sample and analyze, and
are not covered under today's proposal (see Unit VII.B. of this
preamble for a discussion of the scope of materials covered in this
proposal).
However, the cost of disposal of the large volume of LBP debris
which frequently results from removal and replacement abatements can be
very high. EPA estimates these costs to be $316 per ton, including the
cost of waste analysis, transportation, and disposal. Disposal as a
RCRA hazardous waste of an average amount of LBP debris from an
abatement project in a single-family home can represent up to 18.9% of
the total cost of the project (Ref. 7). Individuals and firms do not
necessarily know when beginning an abatement project whether the
resulting debris will require management as a hazardous waste, but they
may frequently account for this possibility in cost estimates. In some
cases, sampling and analysis performed prior to bidding on a project
allows estimation of disposal cost, which affects the decision about
whether or not to undertake an abatement project.
RCRA subtitle C requirements may also interfere with achieving
economies of scale in LBP debris disposal. RCRA requires that LBP
debris which is determined to be hazardous be sent directly from the
site of generation to a hazardous waste treatment, storage, and
disposal facility and thereby precludes the aggregation of waste from
different work sites at a central collection site, which would allow
for lower transportation and disposal costs.
As noted above, RCRA Subtitle C testing, transportation and
disposal costs can add up to approximately $316 per ton (Ref. 7). The
estimated cost to dispose of LBP debris in a construction and
demolition landfill, taking into account the costs of the management
and disposal requirements in today's proposal is approximately $37.20
per ton (including average transport and disposal costs) (Ref. 7).
Thus, the management and disposal cost of 100 tons of LBP debris which
failed the TCLP from an abatement at a 100 unit apartment complex would
be $31,600 under Subtitle C requirements as opposed to $3,720 under
today's proposal.
The alternatives to RCRA hazardous waste management and disposal
presented in today's proposal would result in significant cost saving
for the conduct of LBP abatement activities. These savings would be
achieved primarily by allowing disposal of LBP debris in construction
and demolition
[[Page 70198]]
landfills and eliminating the testing and other requirements associated
with RCRA Subtitle C regulations. These cost savings could stimulate
demand for abatements which would in turn serve to reduce hazards to
human health and mitigate the economic impacts associated with human
exposure to LBP hazards including: reduced lifetime earnings due to
diminished intelligence, increased educational costs, increased health
care costs, lost work days and productivity, and costs associated with
increased morbidity and mortality. In the public housing sector alone,
where a fixed amount of funds are currently designated specifically for
modernization including the performance of abatements (24 CFR part 965,
subpart H), the cost savings associated with today's proposal would
result in an increase in the number of LBP abatements of more than
5,454 annually. These economic and risk considerations were also
important factors leading the Agency to identify the alternative
management controls and disposal options being proposed today.
F. TSCA Coverage of LBP Debris
The legislative history of TSCA Title X shows clearly that by
enacting TSCA Title IV, Congress wanted to ``remove all major obstacles
to progress, making important changes in approach and laying the
foundation for more cost-effective and widespread activities for
reducing LBP hazards.'' S. Rep. No. 102-332, 102nd Cong., 2nd Sess. 111
(1992). As the Senate Committee on Banking, Housing and Urban Affairs
stated, `` . . . by establishing realistic, cost-effective procedures
for achieving hazard reduction, Title X will speed the clean-up of lead
paint hazards . . . and greatly decrease the incidence of childhood
lead poisoning.'' (Id. at 112.)
Given the demonstrated risks that LBP poses and the clear
Congressional intent for risks from LBP hazards to be reduced, the
Agency is using today's proposal to improve the regulatory program
governing the management and disposal of LBP debris from abatement,
deleading, renovation, remodeling, and demolition activities.
It is important to note that although EPA is proposing to suspend
the RCRA Subtitle C regulations which apply to LBP debris (see
companion RCRA proposal), the Agency is not basing the proposed
suspension on a determination that regulation of LBP debris is
unnecessary. On the contrary, EPA believes that regulation of the
management and disposal of LBP debris is necessary, and that TSCA,
Title IV is the more appropriate and effective authority for such
regulation.
EPA is today proposing a determination that improper management of
LBP debris or reuse of certain LBP debris constitute LBP hazards.
According to TSCA, Title IV, ``LBP hazard'' means ``any condition
that causes exposure to lead from lead-contaminated dust, lead-
contaminated soil, lead-contaminated paint that is deteriorated or
present in accessible surfaces, friction surfaces, or impact surfaces
that would result in adverse human health effects'' as established by
EPA. EPA believes that, in the absence of appropriate controls, the
management and disposal of LBP debris creates a ``LBP hazard.'' This
preliminary determination is a statutory prerequisite to EPA's
application of the TSCA management and disposal requirements developed
for abatements and deleading activities to debris from renovations.
(TSCA section 402(c)(3)).
Historically, research on hazards associated with residential LBP
has focused upon deteriorated paint in homes, rather than on the debris
generated during abatements and renovation. In today's determination
that improper management of LBP debris is a hazard, the Agency believes
that the same exposure pathways are relevant for debris and that, in
general, debris by its very nature would tend to pose a greater hazard
than deteriorated LBP in a home. This is because, except in the case of
re-use, the debris has little or no value and there is no motivation to
maintain the integrity of the paint on the debris surfaces. Hence, even
the intact paint on debris would be expected to deteriorate (e.g.,
flake or peel off) rapidly.
Exposures to lead from deteriorated LBP can occur in several ways.
First, children who exhibit pica, a hunger for substances not fit for
food, may eat paint chips from accessible waste piles, resulting in the
ingestion of substantial amounts of lead (Ref. 8). Also, the
deteriorated paint from uncontrolled piles of debris is likely to fall
onto the ground resulting in potentially high soil-lead levels. (LBP,
as defined in today's proposal, contains at least 5,000 ppm lead.) Such
contaminated soil can be inadvertently ingested by children through
their normal hand-to-mouth activity. In addition, the lead-contaminated
soil can be tracked into a residence, introducing lead into the
household dust.
These scenarios have been demonstrated in various studies that used
stable isotopes of lead as tracers. Basically, this technique relies
upon the fact that the isotope ratios of lead ores vary by deposit.
Consequently, lead-containing products such as LBPs, leaded gasolines,
etc. can have unique ratios of the stable isotopes in the lead.
Comparison of the isotope ratios in these products to those of
environmental media and blood can in some cases identify these products
as the source of lead in the environmental media and/or lead in the
blood.
Rabinowitz reports use of this technique to investigate the
specific sources and pathways of lead exposure in three cases of
chronic, high-level lead poisoning (blood-lead concentrations of 120,
83, and 66 g/dl) (Ref. 9). In each case, blood, feces, and the
child's home environment (paint, dust, and soil) were sampled and
analyzed. All of the children had deteriorated paint present in their
homes. Additionally, a series of environmental samples were collected
and analyzed to characterize background lead throughout the city.
In the first two cases, the isotopic composition of the blood
(indicative of chronic exposure) and the feces (indicative of exposure
during the preceding day) were nearly identical. In the first case,
they resembled the paint sample from the child's bedroom wall (which
was similar to the exterior soil). In the second case, they closely
matched the lead in window sill paint, but not the kitchen wall or
garden soil. In the third case, the blood lead was close to that of the
paint in the child's bedroom, which was believed to be the source of
his chronic exposure, whereas the fecal lead appeared to be similar to
fallout from current automobile emissions in the area. While such data
do present some ambiguities, they are consistent with paint being the
proximate or remote source of the child's lead exposure and the
conclusion that, in cases of severe lead poisoning, the lead in the
child's blood and feces closely resembles lead in paint on an
accessible surface. Additionally, based upon isotopic comparisons
between household dust and urban soils, the study also concluded that:
(1) In the absence of lead paint, the lead in urban soils and household
dust have nearly the same isotopic composition, and (2) lead paint,
when present, can be responsible for 20-70% of lead in household dust
and much of the lead in yard soil.
Yaffe, et al. presented two cases which also included measurement
of the isotopic ratios of lead in blood, paint, dust, and soil (Ref.
10). In both cases, it was unlikely that direct ingestion of paint
chips was the cause of the elevated blood-lead concentrations. This was
based on the
[[Page 70199]]
facts that: (1) There was no indication that the children were pica-
prone based upon interviews with the children and their parents, and
(2) higher than exhibited blood-lead concentrations would be expected
if paint chips were being ingested, given the very high lead levels in
the paint.
The first case involved 10 children with blood-lead concentrations
from 28 to 43 g/dl. The isotopic ratios of the children's
blood lead were similar, suggesting a common set of lead exposures.
These ratios were quite similar to those of soil samples collected
around the house and interior dust samples. The close agreement between
the average isotopic ratios of exterior paint samples and the soils
near the house suggested that the soil was contaminated by the exterior
paint, which was badly deteriorated.
The second case involved twin 2-year-old males with blood-lead
concentrations of 37 and 43 g/dl. The isotopic ratios of the
twins' blood lead were similar to the soil in their side yard and in
the back yard of a nearby house where they often played. These soils
had similar ratios to adjacent exterior walls. This suggests that the
lead in the soils was primarily derived from the weathering of nearby
painted surfaces and that the contaminated soil was a significant
source of the twins' exposure. The interior dust sample lead was not
similar to the exterior soil or the twins' blood lead.
The scientific literature also includes several studies that have
identified a statistically significant relationship between
deteriorated paint and children's blood-lead concentrations. One study
suggests that infant blood-lead concentrations are a function of paint
deterioration and lack of maintenance of the residence (Ref. 11). In
this study, deteriorated housing was classified as deteriorated if the
exterior was not well maintained or had peeling paint, as observed from
the street. For infants at 12 to 18 months old, geometric mean blood-
lead concentrations were twice as high in deteriorated housing (33
g/dl) than in housing graded as satisfactory (15 g/
dl).
Improper management and disposal of LBP debris could cause a LBP
hazard by allowing the accumulation and deterioration of LBP in
locations, such as uncontrolled waste piles, where it may be accessible
to children or contaminate the soil.
EPA believes that allowing such a LBP hazard to go unregulated
would undermine benefits gained through the elimination or reduction of
exposure to LBP in target housing, public buildings and commercial
buildings. The proposed controls on storage and transportation which
are included in today's proposal (see Unit VII.G. of this preamble for
a more thorough discussion of these controls) are intended to
facilitate safe management of LBP debris.
In order to prevent the transfer of LBP hazards from one structure
to another, today's proposal also prohibits the reuse and transfer for
reuse of any LBP debris which is identified as a LBP hazard in today's
TSCA proposal. The proposal identifies a LBP hazard as the presence of
any deteriorated LBP on the debris. Under today's proposal, reuse or
transfer for reuse of LBP debris which is identified as a LBP hazard
(i.e., LBP debris with deteriorated LBP) would be prohibited. The
prohibition would not apply if the LBP is removed prior to reuse or
transfer for reuse. See Unit VII.G.1. of this preamble for a more in-
depth discussion of reuse of LBP debris.
In authorizing EPA under TSCA Title IV to promulgate management and
disposal standards for LBP debris, Congress did not directly address
the conflict that would arise concerning the overlapping jurisdiction
of the RCRA TC rule and any new TSCA management and disposal standards.
Nor did Congress clearly address the obstacles to the conduct of lead
abatements and deleading that could result if LBP debris is determined
to be hazardous and subject to the high costs of compliance with RCRA
Subtitle C. The concurrent proposal of today's RCRA TC suspension and
new TSCA standards should resolve the duplication inherent in the
statutory schemes. The new TSCA standards would be less burdensome than
RCRA Subtitle C requirements and therefore would remove obstacles to
the conduct of LBP activities while identifying standards to prevent
improper management, disposal, and reuse of LBP debris.
VI. Analytic Basis for Landfill Disposal Options in Today's
Proposed Rule
Identification of safe, effective, and reliable alternative
landfill disposal options for LBP debris has been an important
component of this proposed rulemaking. EPA believes that landfill
disposal is the most common waste management practice for LBP debris,
and, as noted above in Unit V. of this preamble, disposal of LBP debris
in RCRA Subtitle C landfills (hazardous waste landfills) is very
expensive. To identify safe and accessible alternative landfill
disposal options, the Agency considered the following information.
A. Leaching and Mobility of Lead from LBP Debris
Under RCRA, LBP debris is considered hazardous if it exhibits the
hazardous waste characteristic of toxicity (other hazardous waste
characteristics of ignitability, corrosivity, and reactivity are not
likely relevant). EPA changed the test to determine whether a waste
exhibits the characteristic of toxicity under RCRA in 1990, when the
Agency promulgated the Toxicity Characteristic (TC) rule (40 CFR
261.24). In addition to adding more hazardous compounds that are
regulated under that characteristic, the TC rule replaced the
Extraction Procedure (EP) test with the Toxicity Characteristic
Leaching Procedure (TCLP). The test was designed to indicate a waste's
potential to leach hazardous constituents into groundwater if the waste
was co-disposed in a landfill with municipal wastes. In such a
landfill, the decomposition of municipal wastes would produce organic
acids creating relatively more aggressive leaching conditions than in
landfills without co-disposal with municipal waste. (55 FR 11862, March
29, 1990.)
After the promulgation of the TC rule, concerns were expressed to
the Agency that TCLP tests conducted on LBP debris for determining lead
concentrations in leachate produced higher lead leachate levels than
the old EP test. The results of TCLP testing caused certain previously
nonhazardous LBP debris to be classified as hazardous waste under RCRA
Subtitle C. Thus, the higher lead leachate levels produced by the TCLP
effectively limited disposal options for LBP debris. LBP debris that
had previously been managed as nonhazardous waste now often became
subject to RCRA hazardous waste management requirements. In response,
the Agency conducted a study to investigate which LBP wastes would be
hazardous under the TC rule. This report contained EP test results from
some wastes and TCLP results from others. While the study did not
include testing of duplicate samples with both tests, in general, TCLP
results were higher than EP results for similar materials.
The Agency conducted another study to investigate the leaching
behavior of lead from LBP wastes under the TCLP as compared with the
Agency's ``Synthetic Precipitation Leaching Procedure'' (SPLP). While
the TCLP is designed to simulate leaching in a municipal landfill
environment, the SPLP is designed to simulate the leaching of wastes
disposed in landfills that do not accept municipal garbage
[[Page 70200]]
and other putrescible wastes that could decompose and form organic
acids that could aggressively leach hazardous constituents in waste.
Accordingly, the SPLP uses a mild inorganic leaching solution that
would be typical of acid rain instead of the organic (acetic) acid used
in the TCLP. This study indicated that LBP waste leached considerably
lower levels of lead in the SPLP than in the TCLP (Ref. 12).
In a third study of LBP waste, the Agency analyzed more samples of
LBP debris using both the TCLP and SPLP methods to compare lead
concentration in the leachate (Ref. 13). The results showed that when
LBP debris was subjected to the TCLP analysis, the leachate
concentration of lead exceeded the TC limit of 5.0 mg/L for lead in
approximately 75% of the cases. However, when the samples were
subjected to the SPLP, in only a few cases did the lead in leachate
exceed 5.0 mg/L. In general, for those materials that comprise LBP
debris as defined at Sec. 745.303 of the regulatory text, lead in
leachate samples subjected to the SPLP was approximately \1/10\ of the
amount of lead measured in leachate samples subjected to the TCLP.
Lead was the only contaminant for which analysis was done in the
LBP debris leachate testing described in the above three studies. This
was simply because these studies focused on lead as the principal
hazardous constituent in LBP debris. The Agency has no reason to
believe that LBP debris would be a TC hazardous waste for any other
reason. However, EPA requests comments and information on whether
contaminants other than lead associated with LBP debris may cause LBP
debris to be identified as a TC hazardous waste.
The relative immobility of lead in subsurface soils under non-
highly acidic conditions, and its increased mobility under conditions
of higher acidity, has been documented in many studies (Ref. 14).
Deutsch provides a review of lead geochemistry and has summarized some
of these studies. Lead entering the subsurface environment may be
strongly affected by adsorption and/or chemical precipitation onto the
solid-phase surfaces. Due to their strong adsorption affinity for lead,
soils appear to have large capacities for immobilization of lead. Lead
generally is likely to be confined to the top soil layers due to
adsorption to the soils. Whatever lead moves past the top soil zone,
iron and manganese oxides in the subsurface soil may play the greatest
roles in the adsorption and chemical precipitation of lead.
While Deutsch concludes that lead is one of the least mobile of the
common metal contaminants in the environment, he also states that lead
can be relatively mobile, as with most metals, if the contaminant
source is very acidic and the environment does not have the capacity to
neutralize the acid. These conclusions are consistent with the findings
of the leaching tests described above. That is, lead, in general, tends
to be less mobile in less aggressive acidic conditions than in a highly
acidic environment. For LBP debris, the organic acid of the TCLP (which
is predictive of conditions in a municipal waste landfill) is
considerably more aggressive in leaching lead than the milder, ``acid
rain'' type of inorganic acid of the SPLP (nonmunicipal landfill
scenario).
Regardless of the mobility issues noted above, there are certain
other environmental conditions in the United States where lead, if
soluble, might move appreciably with groundwater. For example, the
existence of highly fractured bedrock, or highly porous soils, karst
formations, soils with low cation exchange capacity or low organic
content, and dissolved organic acids in the groundwater can appreciably
increase the mobility of lead in the subsurface soil.
Upon review of the above-cited studies and the LBP debris leachate
testing data, EPA made some preliminary conclusions regarding the
potential for lead leachability in non-municipal versus municipal
landfills. Based on these data, because non-municipal landfills are
likely to be less aggressive environments for the leaching of lead, the
Agency focused its further analysis on these types of landfills.
Specifically, the Agency has focused on evaluating the safety of
disposal of LBP debris in construction and demolition (C&D) landfills.
However, the Agency recognizes a need to conduct further analyses
to come to more definitive conclusions regarding the potential for lead
leachability and mobility from disposal of LBP debris under various
types of landfill conditions. Therefore, the Agency plans to conduct
such additional studies. The results of such analyses could potentially
cause the Agency to revise its current conclusions regarding the
leachability and mobility of lead in various landfill environments.
However, until that time, the Agency maintains its long-held position
that, in general, municipal solid waste landfills represent a more
aggressive leaching environment for lead (and other hazardous
constituents) than many non-municipal landfill environments. Municipal
landfill disposal remains the worst-case, generic mismanagement
scenario that the Agency has determined, under RCRA, to be a plausible
scenario for disposal of non-municipal solid wastes. The TCLP remains
the appropriate leaching test to mimic municipal landfill conditions
for determining whether solid waste exhibits the RCRA toxicity
characteristic. The TCLP is also an important factor used by the
Agency, when determining whether industrial process waste should be
listed as a RCRA hazardous waste.
B. Ground Water Risks from C&D Landfills
The Agency has performed several studies providing data on leachate
quality and on the environmental performance of some C&D landfills.
One study investigated leachate quality in C&D landfills (Ref. 15).
The results indicated that of 21 C&D landfills for which there were
leachate data, 18 landfills monitored leachate for lead, and of these,
15 had detectable lead concentrations. Although the existence of lead
in landfill leachate at levels above the detection level is not
unusual, the Agency intends to conduct further studies on the presence
of lead in leachate from various types of landfills.
Additionally, the Agency has performed two studies which provide
data on the environmental performance of some C&D landfills. Because
these two studies were completed for the purpose of identifying cases
of environmental releases from C&D landfills, they do not include data
from the vast majority of C&D landfills for which there is no evidence
of groundwater contamination.
The first of the two studies, ``Damage Cases: Construction and
Demolition Waste Landfills,'' identified 11 C&D landfills for which
there was adequate evidence to find that they may have threatened or
damaged human health or the environment (Ref. 16). The second report
``Hazardous Waste Characteristics Scoping Study,'' reviewed the 11 C&D
landfill cases documented by the first report but used more stringent
criteria pertaining to proof of damage (Ref. 17). In particular, the
second report eliminated from consideration 5 of the 11 cases
documented by the first report, due to the fact that these 5 C&D
landfills, in addition to receiving C&D wastes, also received
municipal, hazardous or other improper wastes. Disposal of the
inappropriate wastes at these C&D landfills may have adversely
influenced their environmental performance.
[[Page 70201]]
Of the six damage cases that are described in the Hazardous Waste
Characteristics Scoping Study, two are documented to have lead
concentrations in groundwater that, at least once, exceeded a State or
Federal standard. The highest reported values of lead in these cases
are 0.090 and 0.056 mg/L, exceeding 0.015 mg/L, the Safe Drinking Water
action level for lead at the tap. The site having the higher of these
lead concentrations in ground water (0.090 mg/L) was operated during
its entire life as an illegal dumpsite with no regulatory oversight.
Therefore, it is not particularly surprising that release of lead has
occurred at this site. The Agency is currently conducting further
studies to better understand the circumstances that have resulted in
these levels of lead being detected in groundwater at these C&D
landfills.
To provide a more comprehensive understanding of the potential
ground water risks of allowing LBP debris to be disposed in C&D
landfills, the Agency conducted a groundwater modeling analysis. This
analysis was done on a national scale, using groundwater modeling
techniques similar to those used in previous EPA rulemakings (e.g., the
Toxicity Characteristics Final rule (40 CFR 261.24); the Hazardous
Waste Identification Proposed Rule (60 FR 66344, 66406, December 21,
1995) (FRL-5337-9); and the Petroleum Refining Listing Determination
(62 FR 16747, April 8, 1997) (FRL-5807-5)). The groundwater modeling
analysis is summarized briefly below and in more detail in the
background document ``Groundwater Pathway Analysis for LBP
Architectural Debris,'' a copy of which is in the docket for today's
proposal (Ref. 18).
The Agency recognizes that any ``national'' modeling analysis is
limited in its ability to reflect every relevant siting and operational
condition at any particular landfill. Public comments and supporting
data are invited on this approach.
1. Parameters used for the groundwater pathway analysis--i.
Leachate composition. SPLP data from the 1995 report on LBP debris was
used to estimate the concentration of lead from LBP debris in the
leachate emanating from the modeled C&D landfills. As noted above, the
SPLP data, which represent the disposal of LBP debris in RCRA Subtitle
D non-municipal solid waste landfills was designed to be more
representative of the C&D landfill environment than the TCLP data,
which is intended to represent co-disposal in an environment with
wastes containing predominantly municipal garbage. Although the Agency
is aware that organic matter and putrescible wastes have been found to
be present in some unknown number of C&D landfills, the Agency believes
that C&D landfills generally produce less organic acids than municipal
solid waste landfills (MSWLFs) (Ref. 19).
Thus, the SPLP data is more appropriate for this analysis. The
Agency specifically solicits comments on the use of the SPLP leachate
test data for the LBP debris risk analysis. EPA has initiated studies
to obtain data concerning C&D and municipal solid waste landfill
leachate quality and to determine whether organic waste disposed in C&D
landfills generates leachate that could facilitate the leaching of lead
in C&D landfills.
ii. LBP debris quantity. Using information from a 1990 HUD Report
to Congress, the Agency first estimated total quantities of LBP debris
likely to be generated from abatement of housing and day-care
facilities (Ref. 20). For this estimate, the Agency conservatively
assumed that all abatements would result in removal and replacement of
painted architectural components from pre-1978 housing and day-care
facilities. The analysis estimated that approximately 19 million tons
of debris will be generated annually over the next 34 years comprised
mainly of three types of LBP debris: doors, exterior wood (e.g.,
soffits, clapboards), and miscellaneous components (e.g., windows,
window sills) (Ref. 20). The Agency used this quantity estimate for LBP
abatement debris for the groundwater risk analysis.
The Agency also estimated total quantities of C&D waste and
building construction and demolition waste that is disposed of in C&D
landfills (Refs. 18 and 20). Data for waste quantities from renovation
and remodeling (R&R) activities are not available separately and are
likely to fluctuate from year-to-year. EPA assumed that part of the
demolition waste could be attributed to R&R waste. The Agency used the
quantities of LBP demolition waste in conjunction with the LBP
abatement debris volumes to assess the combined groundwater risks from
the disposal of these wastes in C&D landfills (Ref. 18).
For the ground water risk analysis, based on finite source modeling
(i.e., each C&D landfill would contain a pre-determined quantity of LBP
debris over the operating life of a landfill), the Agency
conservatively assumed that only one-half (900) of the nation's
existing 1,800 C&D landfills would receive the 19 million tons of LBP
debris for disposal until LBP debris generation ceases (approximately
after the next 34 years). It was also assumed that all C&D landfills
would receive building construction, demolition, and R&R debris and
other C&D waste equally. The Agency requests comment on these
assumptions and their use in the groundwater risk analysis.
iii. C&D landfill characteristics. The Agency has information on
the number of commercial C&D landfills (1,800) and a distribution of
their sizes (areas). However, the Agency does not have other site-
specific data (e.g., hydrogeology) for these C&D landfills. These data
representing the national distribution of various parameters are
required as input for the groundwater risk modeling. Therefore, for the
site-specific parameters with no data specific to C&D landfills, the
Agency decided to use information from the Industrial Subtitle D
Landfill Survey discussed below. The basis for this decision was that
both C&D and Industrial D landfills are subject to the Federal
regulations at 40 CFR part 257, subpart A (which includes some
restrictions on siting of landfills), and therefore, both types of
these facilities would be located in similar hydrogeologic regions of
the country.
The national survey of Industrial Subtitle D landfills was
conducted in the late 1980's and the results are presented in the
background documents to this proposal (Refs. 18 and 22(b), (c), (d)).
This stratified and weighted survey represents the nationwide
distribution of the Industrial D landfills (e.g., geographic location,
area, etc.), and represents the best available data on Industrial
Subtitle D landfills on a nationwide basis. The survey represents a
snapshot of the Industrial Subtitle D universe in the U.S. and has been
used by the Agency in support of other regulatory (RCRA) programs.
The Agency assumed that the national distribution of C&D landfill
locations is similar to that of Industrial D landfills. Therefore, this
modeling analysis used the surficial soil and hydrogeologic data from
the Industrial D landfill data base in order to represent relevant
characteristics of C&D landfills (Refs. 18 and 22(a), (b), (c), (d)).
These assumptions add some uncertainty to the overall results, the
exact magnitude of uncertainty is presently unknown. However, EPA
believes it to be low, because the Agency used only the locational
information from the Industrial D survey. The errors resulting from
some differences in locations are not likely to add major errors in the
national Monte Carlo analyses, as long as the respective modeled site
locations are in the same hydrogeologic region as the original site
locations.
[[Page 70202]]
The Agency has information from a survey on the location of closest
downgradient drinking-water wells relative to municipal solid waste
landfills, but, similar information is not available for C&D or
Industrial D landfills. Therefore, the Agency used the distances to the
closest downgradient drinking-water wells from the distribution of
distances from the municipal solid waste landfill survey (Refs. 18 and
22(b), (c), (d)). In characterizing the drinking-water well
distribution with respect to municipal landfills, the Agency collected
information on the receptor wells closest to the landfills that were
located within a radial distance of 1 mile from the downgradient edge
of the landfill. The distribution of receptor well distances from
municipal landfills used in the modeling analysis for the LBP debris
rule is the best information available to the Agency on distances to
receptor wells. As discussed later in this section, for this proposal,
the Agency estimated lead concentrations in the drinking water wells
located downgradient anywhere within a radial distance of 1 mile.
However, the Agency intends to examine the effect on lead levels if the
downgradient drinking water wells were restricted in location to the
plume centerline or within the plume, as opposed to downgradient well
location within a radial distance of one mile, prior to the
promulgation of the final rule.
The data from the Industrial D and municipal solid waste landfill
surveys, and all other data used as inputs in the modeling exercise are
described in detail in the background documents for this proposal.
The Agency seeks comment on whether other data exist for C&D
landfill locations and drinking water well locations that could be used
as inputs to achieve a reduction in the uncertainty in the modeling
analysis. Also, the Agency seeks leachate composition data for C&D
landfills.
2. Modeling approach. The Agency modeled lead leachate migration
from the bottom of unlined C&D landfills into the subsurface
environment, and estimated the overall percentage of C&D landfills
across the nation which might indicate peak lead concentrations in the
closest down gradient receptor wells above the lead health-based levels
(i.e., the Federal regulatory action level for lead in drinking water
of 0.015 mg/L). As in previous RCRA rulemakings (e.g., the TC rule),
the groundwater modeling analysis used a ``Monte Carlo'' approach to
determine the national probability distribution of peak receptor well
concentrations over the exposure time horizon. Also, as in many other
EPA groundwater risk analyses, a modeling time horizon of 10,000 years
was used.
The Agency recently enhanced the subsurface transport model used to
support RCRA rulemakings. The new model is called EPACMTP (EPA's
Composite Model for Leachate Migration with Transformation Products).
The model simulates the migration of contaminants in three dimensions
to take into consideration the mounding effects beneath waste
management units. The model also can simulate the fate and transport of
primary constituents and their secondary reaction, decay products. The
model is particularly appropriate for the LBP debris risk analysis,
because it can consider the nonlinear nature of the lead isotherm (the
relation between the mass of lead adsorbed or precipitated on the
solids and the concentration of lead in water). The Agency developed a
technique for the nonlinear isotherms and this was incorporated in to
the EPACMTP analyses for lead (Ref. 23). The Agency also invites
comments on the use of this nonlinear isotherm approach.
For the 1990 TC rule, EPA assumed that the source of contamination
was infinite; i.e., waste would be disposed within a landfill
continuously, therefore, hazardous constituent loading would never be
depleted. For this reason, EPA limited its application to selected
chemical constituents which correspond to infinite source behavior. The
EPACMTP has a new modeling methodology. The new approach is called
Regional Site-Based finite source methodology (Ref. 22(b)). The Monte
Carlo-based approach uses all site-specific data and, if some site-
specific data are not available, it uses data from regional
distributions as the default data. If regional data are not available,
then data from national distributions are used. The approach uses the
best available data and keeps the site-correlated hydrogeological
parameters together for each Monte Carlo realization in the modeling
analyses.
For this risk analysis, the Agency used the Regional Site-Based
approach to reduce data gaps related to the EPACMTP model input
parameters. For example, since site-specific depth-to-groundwater
information was not available, EPA used groundwater depth data within
the Monte Carlo framework for the geographical region in which the site
is located. The Agency assigned specific values for the climatic and
hydrogeological model parameters based on the geographical locations of
waste disposal sites across the U.S. This approach preserves the
interdependence between the site location and the climatic and
hydrogeological region.
As mentioned in the previous section, when specific locational data
for C&D landfills were lacking, the Agency used data from the EPA
Survey of Industrial Subtitle D Waste Management Facilities. In certain
instances (e.g., well location), information from the Agency's
municipal solid waste landfill database was used. The underlying
assumption in using these data is that, in general, the overall C&D
site distribution is similar in terms of climatic and hydrogeological
settings to other non-hazardous waste landfill sites. Thus, even if the
locations of these types of landfills do not coincide exactly, the
regional climatic and hydrogeologic characteristics would not be
expected to vary widely and, therefore, would not significantly affect
the results in a nationwide Monte Carlo framework. The size of the
landfill and waste volumes, however, tend to be significant factors
influencing the outcome of the Monte Carlo results as long as the sites
under consideration are within the same climatic region. EPA requests
comments on whether assumptions related to landfill size and waste
volume are appropriate, as well as any supporting data.
The Agency's modeling approach assessed a full range of fate and
transport conditions, including the climatic and hydrogeological
properties which were assumed to characterize C&D landfills across the
nation. Correlated hydrogeologic characteristics were utilized, based
on a survey conducted by the National Water Association, in the Monte
Carlo analysis. Impossible combinations of site conditions are rejected
in the Monte Carlo analysis; e.g., very low rainfall and high
infiltration. However, some assumptions can lead to overestimation or
underestimation of risks. For example, the approach assumed that the
receptor well may be located anywhere, within a radial distance of a
mile from the edge of the landfill, on the down gradient side of the
landfill. This may underestimate the risk compared to sites where the
receptor well was restricted in location to the plume centerline or
within the plume. However, the risk modeling approach also assumes that
the receptor wells pump water from the uppermost layer of groundwater
below the ground surface, where leachate releases from landfills would
be most likely. This may overestimate potential exposure, because many
private wells gather water from deeper layers of groundwater which may
not be exposed to the landfill leachate. The Agency seeks comment on
the modeling
[[Page 70203]]
approach and data to improve the modeling analyses.
The new model (EPACMTP) and the Regional Site-Based Monte Carlo
approach were favorably reviewed by EPA's Science Advisory Board (SAB)
(Ref. 24). The SAB also provided suggestions for improving the model,
which EPA has considered. The Agency's response to the SAB's review is
also in the docket for today's proposal (Ref. 25). The Agency believes
it is applying the best available modeling approach for this national
assessment. EPA may conduct additional analyses using this modeling
approach should additional data for C&D landfills become available.
This Monte Carlo approach avoids the compounding effects of
conservatism that may occur if, for example, single, reasonable-worst-
case values were used for each parameter.
The MINTEQA2 (geochemical speciation model) is another EPACMTP
model component which determines subsurface lead sorption isotherms
under a range of environmental conditions i.e., variation in pH and
other factors controlling the subsurface mobility of lead (Refs. 18 and
22(a), (b), (c), (d)). The Agency considered the subsurface behavior of
lead in combination with waste volume, hydrogeological, climatological
and soil characteristics to generate the distribution of concentrations
of lead in drinking water wells.
3. Modeling results. The results of the LBP debris modeling effort
are summarized below. These findings result from application of the
parameters described in section B.1. of this unit, including the use of
SPLP data for leachate composition, to the modeling approach described
in section B.2. of this unit.
The peak receptor well lead concentration would be between
zero and 0.015 mg/L over the 110,000 year modeled time frame in
approximately 95% of the modeling simulations. (Each simulation
corresponds to a single downgradient well located within a radial
distance of a mile. Every Monte Carlo simulation picks a different
downgradient well location within a radial distance of a mile along
with an input data set, including landfill size, soil hydraulic
conductivity, etc.)
In less than 4.5% of the cases would the receptor well
lead concentration exceed the Federal regulatory action level for lead
in drinking water of 0.015 mg/L over the full modeling time horizon,
and most of these exceedances would occur between 5,000 and 10,000
years after the disposal of LBP debris in C&D landfills.
The drinking water action level for lead was not exceeded
in any receptor well during the first 500 years and, between 500 and
1,000 years, it was potentially exceeded at only one site in 10,000
Monte Carlo realized sites (i.e., 0.01%).
Thus, at the national level, the modeling results indicate that the
impact on groundwater at drinking-water wells down gradient of C&D
landfills accepting LBP debris appears to be very low and would only
occur after an extremely long period of time.
For this proposal, modeling efforts indicate that the disposal of
LBP debris in C&D landfills would be protective of human health at the
95th percentile protection level. This level of protectiveness is at
the high end (most protective) of the levels of protectiveness that the
Agency has used in regulating hazardous wastes under the RCRA program.
Historically, the EPA RCRA program has used levels of protectiveness
ranging from 85 to 95%, when considering the results of various risk
analyses. For example, for the TC rule, the level was 85% (40 CFR
261.24); for hazardous waste delistings, the level was 95% (56 FR
67197, December 30, 1991); and for the Hazardous Waste Identification
Rule for Process Wastes (HWIR), the level was 90% (60 FR 66344,
December 21, 1995) (FRL-5337-9).
4. Monte Carlo Modeling uncertainties. Monte Carlo analysis is a
statistical technique that can be used to simulate the effects of
natural variability and informational uncertainty which often accompany
many environmental conditions. It is a process by which an outcome is
calculated repeatedly for many actual situations, using in each
iteration randomly selected values from the distribution of each of the
variable input parameters. Information on the range and likelihood of
possible values for these parameters is produced using this technique.
When compared with alternative approaches for assessing parameter
uncertainty or variability, the Monte Carlo technique has the
advantages of very general applicability, no inherent restrictions on
input distributions or input-output relationships, and relatively
straightforward computations. Monte Carlo application results can also
be expressed in easily understood graphs, can be used to satisfactorily
calculate uncertainty, and can be used to quantitatively specify the
degree of conservativeness used. With deterministic analyses (e.g.,
worst-case analyses), an alternative to Monte Carlo, it is often not
possible to quantify the level of protection represented by the
results. However, some potential limitations may also exist when
applying Monte Carlo techniques for modeling risks depending on the
data and model utilized for the analyses.
The Agency has been using the Monte Carlo modeling methodology in
various rulemakings for many years. EPA has conducted numerous
sensitivity analyses and comparison with deterministic approaches in
those rulemakings (e.g., Proposed rule for Petroleum Refining Waste
Listing Determination, 62 FR 16747, April 8, 1997). The methodology and
the model have gone through many reviews and evaluations by the SAB and
EPA's Office of Research and Development (Ref. 24). Additionally, these
analyses were subjected to the public review and comment process.
Consequently, the model and the modeling methodology have been
significantly enhanced over a number of years as noted by the SAB in
their latest review.
The modeling analyses conducted on disposal of LBP debris in C&D
landfills have some uncertainties associated with them, like any other
modeling analyses. The uncertainties may include the following: (1) The
use of the Industrial Subtitle D locational data; (2) the exact nature
of the leachate environment in C&D landfills; (3) the likelihood that
lead which may leach from LBP debris would form soluble or insoluble
organic complexes which may increase or decrease the potential for lead
migration; (4) the possibility of the existence of certain environments
underneath the modeled C&D landfills that might increase or decrease
the migration of lead from C&D landfills, e.g., highly fractured or
highly impermeable subsurface environments; (5) the location of
drinking water wells, exposed to leachate from C&D landfills, that
might not have been factored in the distribution of well locations; (6)
limitations associated with model validation and verification; and (7)
the difficulties in predicting conditions over very long periods of
time into the future.
This analysis may have certain other limitations. For example, the
Agency did not model some specific environmental conditions (e.g.,
karst and fractured rocks, highly porous soils, presence of excessive
amounts of organics in groundwater). To attempt to compensate for the
inability to address all possible environmental conditions where C&D
landfills may be located, the Agency modeled the disposal of LBP debris
conservatively. For example, the Agency made a number of assumptions to
help ensure protectiveness: (1) The fate and transport of lead in the
subsurface environment was modeled
[[Page 70204]]
over a time horizon of 10,000 years; and (2) The total amount of waste
in C&D landfills was doubled by assuming the waste is managed in 900
landfills instead of the actual 1,800 landfills.
The Agency specifically invites comments and data on the areas of
uncertainty within the LBP debris modeling analysis.
C. Preliminary Conclusions on Disposal of LBP Debris in C&D Landfills
Based on the data and analyses discussed in sections A and B of
this unit, the Agency is proposing to allow disposal of LBP debris in
C&D landfills as defined at Sec. 745.303 of the regulatory text.
The relative immobility of lead in the soil and subsoil environment
under non-highly acidic conditions is described in section A of this
unit. The results of comparative leaching studies using the SPLP and
TCLP tests are generally consistent with those findings. That is, under
conditions of higher acidity, the potential for lead to leach from LBP
debris is greater than under low acidity conditions. Once released, the
subsurface movement of lead depends on the hydrogeologic conditions
which may contribute to the increased or decreased movement of lead
through soils and subsoils. The environment in a C&D landfill is not
considered likely to be highly acidic and generally should not result
in high levels of lead leaching. The Agency conducted groundwater
modeling (as described in section B of this unit) of the fate and
transport of lead from C&D landfills that would accept LBP debris and
found in this modeling that the likelihood of contamination of
groundwater in drinking-water wells downgradient from C&D/landfills
appears to be remote.
These modeling results (in combination with the TCLP and SPLP data
for LBP debris and the general geochemical behavior of lead in the
subsurface environment) were convincing factors leading the Agency to
propose a rule allowing disposal of LBP debris in C&D landfills. EPA
believes that such disposal would, in general, be a safe, effective,
and reliable option for management of LBP debris.
As discussed in section B of this unit, EPA recognizes that
uncertainty in the national groundwater modeling analysis exists,
especially relating to site-specific conditions that might be present
at some C&D landfills. This concern is perhaps reinforced by the Agency
studies on environmental releases from a limited number of C&D
landfills which raise questions regarding the mobility of lead and the
potential for groundwater contamination. As stated above, the Agency is
further examining the sites addressed in these studies.
States with C&D landfills regulate them to some degree, but the
extent of regulatory coverage varies. Twenty-nine States require the
facilities to have some form of groundwater monitoring and 22 have
corrective action requirements. In addition, 22 States require C&D
landfills to have a liner and 18 require a leachate collection system
(Ref. 15). The State requirements for groundwater monitoring and
leachate collection are deterrents against the migration of hazardous
constituents.
EPA is proposing that LBP debris may be disposed of in C&D
landfills subject only to the requirements in 40 CFR part 257, subpart
A. These criteria do not include groundwater monitoring or corrective
action requirements, but do include some location and other standards.
The Agency solicits comments on whether it should require disposal of
LBP debris only in the C&D landfills with ground water monitoring and
corrective action systems. In addition, EPA is interested in comments
on whether the Agency should restrict the disposal of LBP debris to C&D
landfills which satisfy additional State requirements. Data
demonstrating the need for these protective measures is particularly
requested, as is information on whether such requirements would
significantly limit disposal options for LBP debris.
D. Other Non-hazardous Waste Disposal Options
1. Non-municipal landfills accepting conditionally exempt small
quantity generator hazardous wastes. The Agency believes that
preliminary conclusions reached regarding C&D landfills meeting 40 CFR
part 257, subpart A requirements also apply to industrial and C&D
landfills meeting 40 CFR part 257, subpart B requirements that would
accept hazardous waste from conditionally exempt small quantity
generators (CESQG). These preliminary conclusions, however, do not
apply to industrial waste landfills subject to 40 CFR part 257, subpart
A requirements since the industrial facilities may generate leachate
with different leachate characteristics. If LBP debris were to be
disposed of in these landfills, the landfill conditions may accelerate
lead leaching. Because EPA has not studied this possibility, EPA has
not proposed disposal of LBP debris in industrial solid waste landfills
meeting 40 CFR part 257, subpart A requirements.
Under the 1995 promulgated regulations for the disposal of CESQG
wastes (61 FR 34252), CESQG wastes must be disposed of at either: (1)
Subtitle C hazardous waste landfills; or (2) municipal solid waste
landfills subject to 40 CFR part 258 landfill design criteria; or (3)
nonmunicipal, nonhazardous waste disposal units subject to part 257,
subpart B requirements. These subpart B requirements for nonmunicipal,
nonhazardous waste disposal units accepting the CESQG wastes for
disposal include location standards, groundwater monitoring, and
corrective action provisions. If LBP debris disposal occurs in C&D
landfills or Industrial D landfills accepting CESQG hazardous wastes
for disposal, these requirements would, during the landfill operating
life and post-closure period, allow detection and control against
potential migration of not only lead leachate but also leachate
containing other hazardous constituents associated with CESQG hazardous
wastes. Because of the recent promulgation of the CESQG waste disposal
requirements, it is unclear at this time, how many of the approximately
1,800 C&D landfills nationwide will accept CESQG waste.
Currently, more than half the States require groundwater monitoring
and some also require corrective action at C&D landfills. C&D landfills
in these States can accept CESQG waste for disposal. The Agency
believes it is unlikely that disposal of LBP debris in landfills
subject to 40 CFR part 257, subpart B requirements (whether or not
these landfills are also C&D landfills) would pose a threat to
groundwater. Accordingly, the Agency is also proposing today to allow
disposal of LBP debris in those landfills that receive CESQG wastes and
are subject to part 257, subpart B requirements. Public comments are
invited on this disposal option.
2. Municipal solid waste landfills. The Agency has not included
municipal solid waste landfills (MSWLF) in the list of allowable
disposal facilities at Sec. 745.309 of today's proposed rule. However,
the Agency is actively considering whether MSWLFs are acceptable for
disposal of LBP debris, and the Agency solicits comments, data and
studies that are relevant to this question.
As stated above, the Agency decided, based on concerns about
disposal of LBP debris in the organic-acid-generating environment of
MSWLFs, as well as the supporting TCLP and SPLP leachate test data, to
focus its analytic effort in preparing for today's proposal on the
disposal of LBP debris in C&D landfills. However, the Agency has
recently also completed a groundwater risk analysis on the disposal of
LBP
[[Page 70205]]
debris in MSWLFs. This risk analysis has been incorporated into the
background document describing the groundwater pathway analysis
supporting this proposed rule (Ref. 22(a)).
Although the results of the groundwater risk analysis for MSWLFs,
as described in the background document, are quite similar to those for
C&D landfills (i.e., the calculated risks are quite low), the Agency
remains concerned about the results of the leaching tests that were
described earlier. That is, lead leachate levels resulting from use of
the TCLP (intended to mimic leaching in a MSWLF) on LBP debris samples
were found, in general, to be an order of magnitude greater than those
resulting from use of the SPLP (intended to mimic leaching in a non-
municipal waste landfill). Given these higher rates of predicted
leaching of lead from MSWLFs, the Agency decided not to propose a
regulation allowing the disposal of LBP debris in MSWLFs at this time,
but to study this issue further.
EPA seeks information concerning quantities of lead-containing
waste disposed in municipal landfills, MSWLF leachate characteristics
(pH, nature of organic acids) and empirical data for groundwater/
leachate monitoring from older MSWLFs and new MSWLFs operated according
to 40 CFR part 258 requirements. Also, the Agency requests comment on:
(1) Whether engineered landfill systems will be operational for
extended time periods (since groundwater modeling shows it can take
hundreds, if not thousands, of years for lead to reach hazardous
concentrations at downgradient drinking water wells), and (2) other
options that might be available to ensure that, if EPA allows MSWLFs to
receive LBP debris, those options are fully protective of human health
and the environment over such long time frames. Depending on the
information received, the results of planned EPA analyses, and public
comments on this proposal, EPA might allow the disposal of LBP debris
in MSWLFs when it finalizes today's proposed rule.
VII. Proposed Rule Provisions: Secs. 745.301 - 745.319
A. General
Should today's TSCA proposal and the companion RCRA proposal become
effective, the current Federal requirements that generators of LBP
debris waste conduct the TCLP test or use their knowledge to determine
whether their waste is hazardous, and Federal requirements that
hazardous LBP debris waste be managed and disposed of under RCRA
Subtitle C rules would be suspended. Instead, the TSCA standards in
today's proposal or the equally (or more) protective standards of an
authorized State or Tribal TSCA program would become effective.
However, RCRA Subtitle C requirements will remain applicable to LBP
debris if it is a hazardous waste by virtue of the presence of any
hazardous constituent other than lead or if a State with an authorized
RCRA TC program elects not to suspend the applicability of the TC for
LBP debris.
The language in TSCA Title IV compelled the Agency to tailor
today's proposed standards to specific types of materials generated
during the conduct of specific activities in specific structure types.
Sections B., C., and D. of this unit outline the applicability of the
proposed rule to material type, activity type, and structure type.
Those units also explain the Agency's rationale for the scope of the
proposal. Sections F., G., and H. of this unit discuss the disposal
options, management controls and notification and recordkeeping
requirements respectively.
B. What Types of Materials Are Covered?
The proposed TSCA standards and suspension of the RCRA TC rule are
limited in applicability to LBP architectural component debris (e.g.,
doors, windows, etc.) and LBP demolition debris (both terms are defined
in Sec. 745.303 of the regulatory text). As noted at the beginning of
this preamble, these types of debris are referred to collectively as
LBP debris (the term LBP debris is also defined at Sec. 745.303). LBP
refers to paint or other surface coatings that contain lead equal to or
in excess of 1.0 mg/cm2 or more than 0.5 percent by weight.
The definitions and coverage of these terms are designed to capture
high-volume LBP materials that are the most difficult to test and most
costly to manage and dispose of under RCRA Subtitle C. Other types of
LBP waste, which would not be considered to be LBP debris such as LBP
chips, dust, blast media, solvents or treatment residues (as outlined
in section B.1. and B.2. of this unit) are not covered.
There would be no de minimis threshold for the management and
disposal standards in this proposal. Therefore, even small amounts of
LBP debris would be subject to the standards in the proposal. The
Agency believes that improper management or disposal of any amount of
LBP debris represents a LBP hazard.
The practical effect of this decision is that LBP debris from very
small renovations or abatements should be managed and disposed of
subject to today's proposed standards (it should be noted that there is
a 72-hour grace period for access limitations as described in section
H.4. of this unit). EPA believes this is a common sense approach given
the potential for children to chew LBP debris, to track LBP into homes,
or to otherwise ingest LBP resulting from improper management. An
alternative approach might be to set a de minimis level below which LBP
debris would not become subject to today's proposed management
standards. One option would be to set a de minimis threshold based on
the amount of LBP disturbed. The Agency seeks comment on its decision
not to set a de minimis level in these proposed standards and
specifically requests suggestions and support for possible de minimis
levels that could be established in the final rule.
1. Concentrated LBP wastes not covered. Many abatement approaches
are available to address LBP hazards. These various approaches and the
wide range of renovation and remodeling techniques generate a variety
of LBP wastes. EPA is not, however, including materials (from any
activity) other than LBP architectural component debris and LBP
demolition debris in today's proposed rule. LBP wastes, such as paint
chips or paint dust, blast media, solvents or treatment residues are
homogenous in physical characteristics, easy to test for toxicity using
the TCLP, and are easily recognizable. Some of these wastes are more
likely than LBP debris to consistently and significantly exceed the
TCLP regulatory level for lead (see section B.3. of this unit for a
discussion of dust and paint chips generated during demolitions). These
wastes, because of their high lead concentration, may pose a higher
risk of groundwater contamination than LBP debris if disposed of in
nonhazardous solid waste (i.e., C&D) landfills. The analyses described
in Unit VI. of this preamble did not study these types of concentrated
lead-contaminated wastes. The focus of the Agency's risk analysis was
LBP debris, as defined at Sec. 745.303 of the regulatory text.
Given the smaller volume of these concentrated wastes, it is not
extremely costly to manage them under RCRA Subtitle C. Also, the
regulated community has not identified management and disposal of these
wastes as a substantial cost factor in abatement projects. Thus, under
today's proposal, waste of this nature would still be subject to RCRA
regulations, and
[[Page 70206]]
if it fails the TCLP (i.e., exceeds the TC regulatory limit of 5 ppm
for lead in TCLP Leachate) or is determined through knowledge to be
hazardous, must still be managed as hazardous waste under RCRA Subtitle
C. Public comment on this approach and data regarding disposal options
for these wastes is encouraged.
2. Heterogenous/incidental waste not covered. Another category of
waste not covered by today's proposal is heterogenous materials
incidental to LBP activities. These wastes may include items such as
contaminated HEPA vacuum filters, plastic sheeting, worker clothing,
and equipment. These materials would remain subject to RCRA
requirements under today's proposal. Because of the lower volume of
these wastes, if they are determined to be hazardous, generators can
manage and dispose of them without excessive costs. Public comment on
this approach and data regarding disposal options for these wastes are
encouraged.
3. LBP demolition debris. The definition of ``LBP demolition
debris'' in today's proposal includes all materials that result from
demolition of target housing, public buildings, or commercial buildings
which are coated wholly or in part with or adhered to by LBP at the
time of demolition. LBP demolition debris includes dust, paint chips,
and other solid wastes which would not be covered under today's
proposal if they were generated during a LBP activity other than
demolition (for example, abatement or deleading). Quantities of LBP
waste are small in proportion to the overall volume of unpainted waste
generated during demolition activities. As described in Unit IV. of
this preamble, in order to make a RCRA hazardous waste determination,
the generator must obtain a representative sample of waste. In the case
of demolition debris, a representative sample for a TCLP analysis would
represent both painted and unpainted components in the proportion that
they are present in the debris. A representative sample of demolition
debris subjected to the TCLP, is not likely to exceed the TC regulatory
limit for lead because of the small amount of paint in relation to the
overall waste stream (Ref. 26). The Agency requests adequate scientific
and historical data which would confirm anecdotal evidence that
demolition debris never or almost never fails the TC regulatory level
for lead.
Separation of dust, particulate matter, and paint chips from other
demolition material is virtually impossible and the Agency believes
that requiring such a separation would be impractical and unnecessary.
Therefore, all materials generated during demolitions, including dust,
paint chips, or other particulate matter are included in the definition
of demolition debris and, therefore, covered by today's proposal.
If LBP demolition debris fails the TC regulatory level for a
hazardous constituent other than lead, it would remain subject to all
applicable RCRA Subtitle C requirements. Thus, this proposed rule would
not relieve a generator of LBP demolition debris from requirements
related to other kinds of hazardous waste in the debris. He or she must
still determine whether any of the regulatory levels for TC hazardous
constituents (other than lead) are met or exceeded or if a listed
hazardous waste is present.
Today's proposal includes management and disposal of LBP debris
from demolitions. The Agency believes that demolition debris is
identical to debris generated from other types of LBP activities such
as abatements and renovations and that waste transporters and disposal
facilities will not be able to distinguish LBP demolition debris from
other LBP debris. The Agency requests relevant data and comments on the
coverage of LBP demolition debris under today's proposal.
4. LBP contaminated soil. LBP contaminated soil is not included in
the scope of this proposal and is not addressed in the proposed RCRA
suspension of the TC with respect to LBP architectural components. The
Agency has not extended this proposal to include LBP contaminated soil,
because the analysis to support its inclusion does not exist at this
time. Also, EPA believes that the disposal of LBP contaminated soil has
already been addressed, for the most part, in the RCRA household waste
exclusion.
When a homeowner or contractor removes LBP contaminated soil from
residences, the LBP contaminated soil is eligible for the household
waste exclusion under the existing RCRA hazardous waste rules if the
LBP contaminated soil has been contaminated as a result of routine
household maintenance or the weathering or chalking of the paint. EPA
believes that this exclusion addresses the disposal of LBP contaminated
soil in most instances. EPA is interested in receiving comments and
information about the potential impacts of the current regulations and
exemptions, as well as alternative approaches related to the disposal
of LBP contaminated soil from residences. EPA is also interested in any
information about the potential number of soil abatements and costs
currently associated with the disposal of LBP contaminated soil,
whether or not the disposal is conducted pursuant to the RCRA
exclusion. Because EPA's interim guidance for addressing LBP hazards
recommends soil abatements under certain conditions, EPA is
particularly interested in receiving comments on whether the completion
and implementation of other lead rules promulgated under the LBP Hazard
Reduction Act of 1992 or ``Title X'' (such as 403: Identification of
Dangerous Levels of Lead (63 FR 30302, June 3, 1998) (FRL-5791-9); 402:
LBP Activities Training and Certification (61 FR 45778, August 29,
1996) (FRL-5389-9); 406: Requirements for Lead Hazard Education before
Renovation of Target Housing (63 FR 29908, June 1, 1998) (FRL-5751-7);
1018: Requirements for Disclosure of Known Lead Based Paint and/or Lead
Based Paint Hazards in Housing (61 FR 9064, March 6, 1996) (FRL-5347-
9)) would have an impact on the number of soil abatements.
As also indicated in the proposed RCRA Suspension of the TC for LBP
Debris, the Agency does not currently have a sufficient technical basis
for reducing the RCRA subtitle C requirements for LBP contaminated
soil. In that proposal, EPA is seeking other data to determine whether
there is a sound technical basis for reducing the subtitle C
requirements that might apply to some soil removed from residences.
(Comments on this issue should be submitted in accordance with the
instructions in the RCRA proposal, found elsewhere in today's Federal
Register). In addition, EPA is interested in receiving information or
data on the fate of LBP contaminated soil in landfill environments.
C. What Activities Are Covered?
Today's proposed rule would cover: LBP architectural component
debris generated during the following activities: abatement, deleading,
renovation, and remodeling at target housing, public buildings, and
commercial buildings; and LBP demolition debris generated by demolition
of target housing, public buildings and commercial buildings that
contain LBP at the time of demolition.
The Agency is including deleading, renovation, and demolition
activities in the scope of today's TSCA proposal, because the LBP
debris these activities produce is similar and in some cases identical
to the LBP debris produced by abatement activities. The analyses
conducted for today's proposal show no significant risk associated with
disposal of LBP debris (from any activity or structure) in C&D
landfills. These analytical conclusions (as discussed in
[[Page 70207]]
Unit VI. of this preamble) combined with EPA's desire to subject all
LBP debris to one clear regulatory scheme resulted in the inclusion of
LBP debris from renovation and remodeling, deleading and demolition
activities under today's proposal. While the Agency feels that
inclusion of these activities under the proposed standards is a logical
decision, public comments on the inclusion of the activities and
structures in today's proposal are encouraged.
1. Catastrophic events. Catastrophic events (such as fires,
hurricanes, floods, tornadoes, earthquakes, etc.) may, in many cases,
generate materials similar or identical to those from planned
demolitions. Therefore, today's definition of LBP demolition debris
includes debris generated by catastrophic events as well as by planned
activities.
2. Deconstruction. Some stakeholders have brought an activity
commonly referred to as ``deconstruction'' to the Agency's attention.
Generally, deconstruction refers to the salvaging of building
components by removing them prior to demolition or during remodeling
and renovation. The goal of such salvaging is usually to resell the
components for reuse. Anecdotal evidence leads the Agency to believe
that deconstruction may be a fairly common practice in structures
containing LBP architectural components (Ref. 27). LBP architectural
components which are removed prior to a demolition, as part of a
``deconstruction'' or similar activity would be subject to today's
proposal under the definition of renovation at Sec. 745.303:
Renovation means the modification of any existing structure, or
portion thereof, that results in the disturbance of painted
surfaces, unless that activity is performed as part of an abatement
as defined in this section. The term renovation includes but is not
limited to: the removal or modification of painted surfaces or
painted components. . . .
Deconstruction or similar activities would result in the
``disturbance'' or ``removal'' of ``painted structures'' and therefore
LBP debris generated during these activities would be subject to this
proposal. It should be noted that reuse of LBP debris or transfer of
LBP debris for reuse is permitted under this proposal provided that the
components are not considered ``LBP hazards'' at the time of reuse or
transfer. Reuse of LBP debris is discussed in more detail in Unit
VII.G.1. of this preamble. EPA encourages recycling or reuse of waste
products when such activities do not pose health threats.
D. Who Must Comply With This Proposal?
Firms and individuals who generate, store, transport, reuse, offer
for reuse, reclaim, or dispose of LBP debris from activities which are
covered by this proposal, explained in Unit VI.C. of this preamble,
would have to comply with today's proposed regulations. Regulated
entities include firms and individuals who offer to conduct, in whole
or part, abatement, renovation, remodeling, deleading or demolition in
target housing and public and commercial buildings for compensation.
Homeowners who perform abatement, renovation or remodeling work in
their own homes are not subject to today's proposed regulations, unless
the housing is occupied by persons other than the owner or the owner's
immediate family. EPA recognizes, though, that not all abatements,
renovation, and remodeling are performed solely by a home owner. In
some cases a homeowner may hire a ``handyman'' to assist in conducting
these activities. The Agency believes that the homeowner exclusion
would not apply to ``handymen'' assisting the homeowner in the work
unless the homeowner generates the majority of the LBP debris and
serves as direct supervisor to the ``handyman.'' EPA encourages
comments on this topic as insufficient information is available to
determine how often ``handymen'' are hired to assist in abatements,
renovations and remodeling, how much LBP debris is generated by
``handymen,'' and whether or not ``handymen'' should be subject to
today's proposal.
Although homeowners are not subject to today's proposed
requirements, EPA encourages homeowners performing work in their own
home to follow the management requirements outlined in the proposal.
The Agency believes that the management requirements in today's
proposal reduce risks to LBP hazards, and homeowners following these
management practices will be able to reduce LBP hazards in their home.
The proposal allows the disposal of debris in C&D landfills, as
defined at Sec. 745.303. Although these landfills are subject to the
RCRA requirements in 40 CFR part 257, subparts A or B, the proposal
does not require that, for purposes of these TSCA rules, the landfills
in fact be in compliance with 40 CFR part 257, subparts A or B. Because
EPA generally lacks the authority under RCRA to enforce the
requirements at 40 CFR part 257, subpart A (44 FR 53438, September 13,
1979), EPA requests comment on whether the final TSCA rule should
specify that C&D landfills accepting LBP debris must be in compliance
with 40 CFR part 257, subpart A or B.
Being in compliance would require adherence to all or a subset of
the provisions in 40 CFR part 257 that are relevant to LBP debris.
Examples include limiting access to the landfill and groundwater
monitoring requirements. With TSCA authority, EPA would be able to
enforce these requirements on any landfill that accepts LBP debris. EPA
recognizes that many states already enforce 40 CFR part 257
requirements under their State RCRA programs. EPA expects that, even
with Federal TSCA enforcement authority regarding the provisions of 40
CFR part 257, subpart A for C&D landfills accepting LBP debris, most
enforcement actions for such landfills would be taken by states. If the
proposed rule were modified to provide for Federal enforcement of RCRA
40 CFR part 257, subpart A requirements for C&D landfills accepting LBP
debris, a necessary consequence is that, as part of a state approval
process, EPA would evaluate each State's program to determine the
adequacy of enforcement capability of state requirements that are as
least as stringent as those found at 40 CFR part 257. EPA requests
public comments on whether landfills that accept LBP debris and are
found not to be in compliance with 40 CFR part 257, subpart A or B,
should be subject to enforcement under TSCA. EPA would also like
comment on whether enforcement of 40 CFR part 257, subpart A or B under
TSCA would confuse and complicate the requirements for disposal of LBP
debris. For example, a landfill owner or operator may become confused
between the requirements under RCRA for landfills, and the requirements
under TSCA for disposal, and inadvertently fall out of compliance from
lack of understanding of the requirements for disposal of LBP debris.
Finally, the Agency requests comment on whether imposition of TSCA
enforcement on landfills that accept LBP debris would discourage or
deter C&D landfill owners and operators from accepting this material.
E. When Does LBP Debris Become Subject to This Proposal?
In the case of LBP demolition debris, the proposal is designed to
cover all material that is created by demolitions when LBP is present
in the structure being demolished. The definition of LBP demolition
debris at Sec. 745.303 states:
LBP Demolition Debris means any solid material which results
from the demolition of target housing, public buildings, or
[[Page 70208]]
commercial buildings which are coated wholly or in part with or
adhered to by LBP at the time of demolition.
This definition subjects LBP debris generated by demolitions to the
standards in this proposal as soon as a demolition occurs.
In the case of LBP architectural component debris, the definition
at Sec. 745.303 states:
. . .LBP architectural component debris is generated when an
architectural component which is coated wholly or in part with or
adhered to by LBP is displaced and separated from commercial
buildings, public buildings, or target housing as a result of
abatement, deleading, renovation or remodeling activities. . . .
This clause in the definition makes LBP debris subject to today's
proposal when it is ``separated'' from a structure. In the context of
this definition, ``separated'' does not necessarily imply that the
component is taken out of the structure, although it may be. For
example, doors detached from a structure and stacked inside that
structure are considered to be ``separated'' from the structure. This
definition is designed to require that the management controls in
today's proposal (particularly access limitations where applicable)
take effect as soon as LBP debris is generated.
Under this proposal, if a homeowner hires a individual or firm to
perform any of the above activities and LBP debris is created, the
individual or firm is considered to be the generator. In such cases,
the individual or firm who generated the debris would be responsible
for compliance with the requirements in today's proposal rather than
the homeowner.
Any generator of LBP debris from the activities covered in this
proposal may choose to separate components containing LBP from the rest
of the waste stream. LBP debris separated from the rest of the waste
stream would be subject to today's proposed standards. However, the
remaining wastestream which does not contain LBP would not be subject
to today's proposed standards. Although the Agency believes that
complying with the requirements in today's proposal would generally be
easier than separating LBP debris from the waste stream, the proposal
gives the generator of LBP debris the flexibility to determine the best
course of action for each individual activity.
During the development of this proposal, the issue of paint chips
or dust generated incidentally during the transportation of LBP debris
for disposal or reuse was raised. EPA believes that chips or dust
generated during transportation for disposal or reuse should be subject
to the provisions of this proposal and disposed of as LBP debris. For
example, if LBP debris is transported to a C&D landfill in a covered
dumptruck, the whole load (including paint chips that fall off the LBP
debris during transport) should be disposed of together. Similarly,
chips and dust loosened from debris during storage in a dumpster or
during transport is covered by today's proposal. Subjecting such
incidentally-generated chips or dust to RCRA Subtitle C requirements
would create an impractical waste management scenario requiring
separation and TCLP testing of the waste after transportation to the
LBP debris disposal site. Given the small volumes of such incidental
chips and dust expected to be generated, EPA does not believe that
there is any justification for regulation of such waste under RCRA.
The Agency considers chips and dust that fall off of LBP debris
during storage and transport for disposal or reuse to continue to be
LBP debris. Such waste would therefore be subject to today's proposal.
The Agency is seeking comments or relevant data on this subject.
F. What Structure Types Are Covered?
Structures covered under today's proposal include target housing,
public buildings, and commercial buildings. Covering target housing and
other child-occupied facilities, such as day care centers in today's
proposal is expected to reduce the risk of lead exposure to children,
who are likely to spend a great deal of time in residences, schools,
and day care centers. The term ``child-occupied facility'' was defined
by EPA in the LBP certification and training rule (40 CFR 745.223). For
the purposes of today's proposal, child-occupied facilities are
considered to be a subset of public buildings and are covered by the
definition of that term in today's proposal at Sec. 745.303. Therefore,
a separate definition for child-occupied facilities is not included in
this proposal.
As noted in Unit VI.C. of this preamble, coverage of LBP debris
from activities in structures which are not considered to be target
housing or child-occupied facilities (i.e., many commercial buildings
and public buildings) is not expected to result in as great a direct
reduction of LBP risks to children. The Agency, however, wishes to
provide one common sense regulatory scheme for the management and
disposal of LBP debris with similar characteristics regardless of the
structure from which the debris originates. Having different management
and disposal requirements for identical wastes would likely create
enforcement problems as well as confusion for generators, transporters,
and landfill facility operators.
LBP debris from only target housing, public buildings, and
commercial buildings is included in today's proposal. However, the
Agency believes the rulemaking should also cover housing excluded from
the definition of target housing such as housing for the elderly, or
persons with disabilities and ``0 bedroom'' dwellings such as
dormitories and efficiencies, as well as post-1978 housing that may
have LBP hazards. EPA thinks that LBP debris from these dwellings is
identical to LBP debris for target housing, public buildings and
commercial buildings. Additionally, individuals and firms receiving LBP
debris may not be able to distinguish LBP debris from target housing
versus LBP debris from non-target housing. In order to provide one
common sense regulatory scheme and encourage the reduction of LBP
hazards from all housing, the Agency would like to extend today's
proposed standards to all housing. The Agency encourages comment on
whether LBP debris from non-target housing should be subject to the
same requirements as LBP debris in target housing.
The fact that structures other than target housing and child-
occupied facilities often produce similar or identical LBP debris made
extension of today's proposed standards to all such structures a
logical decision. As noted in Unit VI. of this preamble, the analyses
conducted for today's proposal show no significant risk associated with
disposal of LBP debris (from any activity or structure) in C&D
landfills, and, therefore, no need for the stringent and costly RCRA
Subtitle C testing, management and disposal requirements. These factors
have resulted in the inclusion of LBP debris from public buildings and
commercial buildings under today's proposal. Public comment on the
decision to cover LBP debris from public buildings and commercial
buildings in today's proposal is encouraged.
EPA has not included debris generated during activities in steel
structures and superstructures in this proposal. The wastes from steel
structures and superstructures are fundamentally different than those
from occupied structures. The Agency also believes that most large
volume wastes from steel structures will be composed of and recycled as
scrap metal and will therefore qualify for the scrap metal exemption
from RCRA Subtitle C
[[Page 70209]]
requirements (see the RCRA proposed rule published elsewhere in today's
Federal Register for a discussion of the scrap metal exemption). Even
if steel structures and superstructures were covered by today's
proposal, the concentrated LBP wastes resulting from deleading of such
structures (paint chips, treatment residues, blast media, filters,
etc.) would remain subject to RCRA requirements, including possible
regulation as hazardous wastes. (See section B.1. of today's preamble).
In addition, the risk analyses conducted for this proposal did not
study the volume or other characteristics of debris from steel
structures and superstructures (e.g., leachability of lead compounds
present in the rust-inhibiting paints used on steel structures).
EPA requests comments on whether its assumptions regarding wastes
generated at steel structures and superstructures are correct and on
whether it is appropriate to exclude LBP debris from such structures
from this proposal. To include debris from steel structures and
superstructures in the final rule, EPA would need additional
information regarding the character of wastes from such structures. The
Agency encourages submission of relevant data on this subject.
G. What Are the Proposed Disposal and Reclamation Options for LBP
Debris?
Section 745.309 of today's proposed rule requires that LBP debris
be disposed in one of the following: (1) A construction and demolition
landfill as defined at Sec. 745.303; (2) a landfill subject to the
requirements in 40 CFR part 257, subpart B, applicable to non-
municipal, non-industrial, non-hazardous waste disposal units receiving
conditionally exempt small quantity generated waste (as defined in 40
CFR 261.5); (3) a hazardous waste disposal facility permitted under 40
CFR part 270; (4) a hazardous waste disposal facility authorized to
manage hazardous waste by a State that has a hazardous management
program approved under 40 CFR part 271; (5) a hazardous waste
treatment, storage and disposal facility that has qualified for interim
status to manage hazardous waste under RCRA section 3005(e); or (6)
RCRA hazardous waste incinerators subject to the requirements of 40 CFR
part 60, subparts Cb, Eb, or part 63, subpart X.
These disposal options include all of the categories of solid waste
landfills which were identified by the Agency as being safe for the
disposal of LBP debris (see Unit VI. of this preamble for a discussion
of the analytical basis for these findings), as well as certain
incinerators. Under the proposal, it would still be permissible to
dispose of LBP debris in hazardous waste landfills regulated under
Subtitle C of RCRA or equivalent State programs if the generator of the
LBP debris wishes to do so, or if it is required under State law. Note
that the proposal does not preclude the reclamation of lead from LBP
debris in secondary lead smelters subject to 40 CFR part 63, subpart X
requirements or the reclamation of energy, such as burning in waste-to-
energy facilities operated subject to specified Clean Air Act
requirements (discussed in Unit VII.G.2. of this preamble).
During the development of today's proposal, some State solid waste
officials have raised the issue of separate cells within larger
landfill facilities. The officials wanted to know if separate
construction and demolition cells of larger non-C&D facilities would be
acceptable options for the disposal of LBP debris under the proposed
rule. The issue of separate cells of larger landfills is not
specifically addressed in the regulatory text. Section 745.309(a)(1)
identifies facilities which may accept LBP debris for disposal. If both
the separate cell or unit of the larger facility satisfy any of the
criteria for an acceptable landfill specified in Sec. 745.309(a)(1),
then LBP debris may be disposed in either the separate cell or that
facility. For example, a separate cell for construction and demolition
debris meeting the criteria specified in Sec. 745.309(a)(1)(iii) within
a hazardous waste disposal facility permitted under 40 CFR part 270
would likely be an allowable disposal site for LBP debris. On the other
hand, a separate C&D cell within the physical or permitted area of a
landfill not included in the proposal as a permissible disposal site
for LBP debris (such as an MSWLF permitted under 40 CFR part 258) would
not be an allowable disposal option unless the separate cell was
permitted separately as a construction and demolition landfill.
H. What Controls on the Management of LBP Debris are Included in the
Proposal?
In addition to the disposal and reclamation standards included in
today's proposal, EPA is proposing controls on the management of LBP
debris. EPA believes that LBP debris should be subject to common sense
management standards in order to minimize risks. The management
standards outlined below are designed to be as simple as possible while
taking into account safety, effectiveness and reliability. EPA believes
improper reuse, storage or transportation of LBP debris constitute LBP
hazards and has included controls on those activities in today's
proposal.
To assess the need for management controls, the Agency took a
number of steps. First, the Agency identified management alternatives
or activities that are currently practiced or may be feasible. Second,
the Agency determined whether any of these management practices might
pose health risks, particularly from inhalation and direct ingestion of
LBP. Third, the Agency ascertained whether practices which might pose
health risks are already subject to regulation by EPA or other Federal
agencies. Fourth, the Agency assessed whether management practices not
subject to current regulation require controls to curb potential health
hazards.
The Agency identified the following current or plausible practices
as potential public health risks: (1) Application of LBP debris as
mulch or wood chips or use of LBP debris as ground cover or for any
landscaping purpose; (2) compacting or burying LBP debris for use as
fill material, roadbed material, or for site leveling purposes; (3)
reuse of LBP debris which has deteriorated paint; (4) reclamation
through burning of LBP debris (whether for the purpose of reclamation
of lead or reclamation of energy value) in facilities without controls
on lead emissions; (5) transporting LBP debris in uncovered vehicles;
and (6) storage of LBP debris without access limitations.
The application of LBP debris as mulch, ground cover, or topsoil or
for site leveling, fill or roadbed material may cause health risks
through ingestion of LBP, dust, or contaminated soil. Such an
application is considered improper disposal under today's proposal. The
shredding, compacting, burying, or chopping of LBP debris may also make
it difficult to identify the presence of LBP, leading to unwitting
handling of a potentially hazardous material. Therefore, today's
proposal permits these types of applications only if LBP is removed
from LBP debris prior to such applications . In cases where LBP is
removed, all LBP must be removed (i.e., the level of lead on the
substrate must be below 1 mg/cm2) prior to applying it to
the ground. See Sec. 745.301(d)) of the regulatory text.
EPA is aware of several States, including Connecticut, New
Hampshire, and New Jersey, that have similar regulatory prohibitions.
Note that any paint chips, dust, or other stripping waste from LBP
debris that may be generated during removal of LBP are
[[Page 70210]]
subject to RCRA requirements; chips or flakes that the generator does
not contain may be considered illegal hazardous waste disposal under
RCRA Subtitle C.
EPA is unaware of data on the prevalence and methods associated
with application of LBP debris as landscape material, roadbed material
or fill material. Such applications would constitute improper disposal
under today's proposal, unless LBP is first removed. The Agency
requests data and further information on these practices and encourages
public comment on how these activities should be regulated in the final
rule.
The remainder of this Unit addresses the management standards
included in this proposal to address concerns about the practices noted
above.
1. Reuse of LBP debris: Sec. 745.311(a). The Agency believes that
current prevalent practice for managing LBP debris is landfill
disposal. However, some LBP debris is being reused and transferred for
reuse as architectural components, decorative pieces or in another
manner. For the purposes of today's proposal, reuse means ``to use
again for any purpose other than reclamation or disposal.'' This
definition is intended to capture all potentially hazardous reuses of
LBP debris and subject them to the controls in today's proposal.
Reuse of architectural component debris may be a practice in
historic building preservation or on occasions when homeowners are
replacing hard-to-find doors, windows, or other components. Historic
preservation projects have the goal of keeping properties intact, so
LBP removal or covering of LBP with protective coating (encapsulation)
may be a desirable abatement approach. Even so, there may be benefits
to replacement in these properties, such as increased energy efficiency
from replaced windows (Ref. 28). The Agency is aware of reuses of LBP
debris ranging from the transfer of components for reuse within or
between structures, and the application of unique items as decorative
pieces or artifacts.
Reuse of LBP debris is not currently subject to Federal regulation.
Today's proposal would permit reuse or the transfer for reuse of LBP
debris as a building or structural component or artifact (defined in
today's proposal at Sec. 745.303) only if the article to be reused does
not constitute a ``LBP hazard'' as defined in Sec. 745.305 of today's
proposed regulation. Section 745.305 states that reuse of components
with deteriorated LBP is a LBP hazard. Today's proposal defines
``deteriorated paint'' as paint that is cracking, flaking, chipping,
peeling, or otherwise separating from the substate of a building
component. Today's proposal would prohibit the reuse or transfer for
reuse by individuals subject to the rule of components which are
identified as LBP hazards at Sec. 745.305 (i.e., components with
deteriorated paint) as described above.
The Agency feels that reuse of components with any deteriorated
paint would pose a LBP hazard, and should be prohibited unless LBP is
first removed.
It is important to note that waste resulting from removal of LBP
prior to reuse (e.g., paint chips, paint dust, treatment sludges,
solvents and residues) is not covered by today's proposal and would
remain subject to RCRA requirements. For example, a generator of such
waste would have to make a hazardous waste determination, and if the
waste was determined to be hazardous, it would be subject to RCRA
Subtitle C requirements.
EPA is aware that the limitations on reuse of LBP debris included
in today's proposal would not preclude all reuses of LBP debris. For
example, reuse of LBP debris with no deteriorated paint would be
permissible under the proposal. EPA considers the standards in today's
proposal to be the minimum acceptable limitations on the reuse of LBP
debris. Other approaches to the regulation of reuse of LBP debris were
considered during the development of this proposal and have not been
ruled out by EPA as possible components of a final regulation. The
Agency seeks public comment on the prevalence and methods of reuse, the
approach contained in this proposal, and other possible approaches to
the issue as well as any unintended effects of this proposed rule on
the reuse of architectural components.
Some stakeholders have expressed concern that reuse of LBP debris
which has no deteriorated paint may pose a future LBP hazard. As noted
above, such reuse would be allowed under the proposal, but the Agency
is requesting comment on these provisions. Allowing such reuse would be
in keeping with EPA's desire to encourage recycling of materials while
continuing to protect human health. Perhaps the most relevant question
for public comment on the subject is: Do the reuse standards proposed
today adequately protect human health?
One possible alternative approach would be to require that warning
labels be placed on all components which contain LBP and are destined
for reuse. Another possible approach might be to prohibit reuse of all
LBP debris regardless of the condition of the paint, unless all LBP is
removed. However, EPA does not believe that components with intact LBP
necessarily represent LBP hazards, so such an approach may prohibit
reuse of LBP debris which would not pose a hazard. EPA specifically
seeks comment, however, on whether the reuse of LBP debris by a
homeowner who is not advised of the presence of LBP should be
considered a hazard, not because of the present condition of the paint
but due to the possibility that an uninformed homeowner may sand or
strip the LBP without taking proper precautions.
Many historic preservation projects reuse antique or historically
significant architectural components. Since many of these components
were created before 1978, they can contain a variable amount of LBP.
The Agency is proposing that all LBP should be removed from
architectural components which have deteriorated paint before the
components are reused in order to reduce the spread of potential LBP
hazards. Removal of LBP is especially important on friction or impact
surfaces where paint is more likely to wear off, creating lead
contaminated dust and exposing the layers of lead paint. The Agency
defines ``deteriorated paint'' as paint that is cracking, flaking,
chipping, peeling, or otherwise separating from the substrate of a
building component.
However, the Agency recognizes that in order to preserve as much of
the original historic fabric and the historic character of the antiques
or historical architectural components as possible, removal of all LBP
may not be an option. Sometimes the architectural component is too
fragile to undergo LBP removal or the process of removing the LBP may
damage the design or ornate woodwork which makes the piece an antique
or historically significant. The Agency requests information on
whether, in these cases, encapsulation or other techniques not allowed
under the proposed rule may be less invasive and a better restoration
practice when preserving antique and historic architectural components.
The Agency would also like information on relevant historic
preservation practices used when restoring and fixing architectural
components of antique or historic value with LBP.
Under the proposal, generators or transporters of LBP debris, or
owners or operators of disposal facilities which accept LBP debris may
not transfer LBP debris to entities (such as antique dealers or
salvagers) which intend to reuse the debris or offer it for reuse if
the LBP debris has deteriorated paint. For example, the proposal is
designed to
[[Page 70211]]
prevent transfers of LBP debris with deteriorated paint from a
generator to a business which then offers the debris for sale. Even
though the business selling the LBP debris is not technically using it,
the term ``transferring for reuse'' is defined in today's proposal to
prevent generators, transporters, or others from transferring LBP
debris with deteriorated paint which will ultimately be reused.
Generators and transporters of LBP debris, owners or operators of
disposal or reclamation facilities accepting LBP debris, or owners or
operators of any enterprise which transfer LBP debris with deteriorated
paint for reuse without first removing the LBP would not be in
compliance with today's proposal. However, LBP debris may be
transferred specifically for the purpose of LBP removal. For example,
if a generator of a door with deteriorated LBP gave or sold the door to
an individual who then reused it, the generator would be in violation
of the transfer-for-reuse restrictions in today's proposal. Generators
wishing to avoid this potential liability could remove the LBP prior to
transfer of a component, could transport the LBP debris to a
reclamation facility for removal of LBP or could decide not to transfer
the component for reuse. If the generator transferred the door to a
reclamation facility for removal of LBP before reusing or selling the
door, the generator would be in compliance with today's rule. Once the
LBP is completely removed from an architectural component (as described
in Sec. 745.301(d)) it is no longer considered LBP debris and is no
longer subject to today's proposed regulations.
EPA is seeking public comment on the provision in today's proposal
which would prohibit a generator or transporter from transferring LBP
debris with deteriorated paint to antique dealers or other businesses
or entities for reuse or to offer for reuse. EPA is concerned that the
requirement may prevent transfers of debris to enterprises specializing
in paint removal and restoration of building components with a historic
value. The Agency would like to know what effect this provision might
have on antique and salvaging businesses and what alternatives might be
available which would also prevent the transfer of LBP hazards from one
structure to another.
2. Reclamation: Sec. 745.309(b). Companies that reclaim lead waste
(either for recovery of lead, or for energy combustion value) have
voiced concerns to EPA that the provisions in today's proposed rule
would discourage the reclamation of LBP debris by lowering landfill
disposal costs. Today's proposed standards would not preclude the
reclamation of LBP debris for lead and/or energy recovery in facilities
that meet Clean Air Act requirements. EPA wishes to stress that
reclamation can be a viable alternative to landfill disposal and
encourages this activity in situations where it is safe and practical.
However, estimates have shown that currently, the costs (to a
generator) of sending LBP debris to a reclamation facility can be
comparable to the cost of disposal in RCRA Subtitle C facilities. Such
high costs may lead generators to seek alternatives to reclamation of
LBP debris. EPA encourages generators of LBP debris to identify
reclamation facilities meeting the requirements described in this unit
to determine the feasibility of reclamation as an alternative to
disposal.
EPA is concerned about risk of lead exposure from the processing of
LBP debris in smelters, combustors, and incinerators without proper
controls on emissions. Burning of wooden LBP debris may allow energy
recovery facilities or power plants to rely less on fossil fuels and
virgin wood. Paint, as noted in a report prepared for EPA's Office of
Air Quality and Planning and Standards, makes up a small percentage of
the weight of painted wood, and metals (including lead) comprise only a
fraction of this percentage (Ref. 29). However, burning or incineration
of LBP debris may result in lead releases. Therefore, prior to
accepting LBP debris for any of these activities, a facility should
ensure that it will not be in violation of Clean Air Act permit
conditions.
EPA has promulgated a national emission standard for hazardous air
pollutants (NESHAP) that is based on the use of Maximum Achievable
Control Technology (MACT) for meeting emission standards for lead
compounds released from existing and new secondary lead smelters (40
CFR part 63, subpart X). EPA also has promulgated new source
performance standards (NSPS) for new municipal waste combustor (MWC)
units, and emission guidelines for existing MWC units, which establish
emission limits for nine pollutants, including lead. (See 40 CFR part
60, subparts Eb and Cb, respectively; 60 FR 65389, December 19, 1995).
New MWC units are those that either commenced construction after
September 20, 1994, or commenced reconstruction after June 19, 1996;
existing MWC units are those for which construction commenced on or
before September 20, 1994. As a result of a recent Court of Appeals
decision, 40 CFR part 60, subparts Cb and Eb apply only to MWC units
with individual capacity to combust more than 250 tons per day of
municipal solid waste (large MWC's). See Davis County Solid Waste
Management and Recovery District v. EPA, 101 F.3d 1395 (D.C. Cir.
1996), amended 108 F.3d 1454 (D.C. Cir. 1997) (the Davis decision).
EPA believes that the NESHAP for new and secondary lead smelters,
the NSPS emission standard for lead for large MWCs, and the lead
emission guidelines for large MWCs are sufficient to ensure safe
management of LBP debris in these facilities. Thus, EPA is proposing to
prohibit burning of debris in any facility that does not meet the
applicable Clean Air Act standards/guidelines for lead emissions set
forth in 40 CFR parts 60, subparts Cb and Eb (as amended by the Davis
decision) and part 63, subpart X. LBP debris would be allowed to be
incinerated in industrial boilers and furnaces for energy recovery
provided that boilers and industrial furnaces are subject to the RCRA
40 CFR part 266, subpart H requirements.
Today's definition of reclamation includes the practice of removing
existing LBP from debris in order to reuse or recycle such debris. The
Agency encourages the transport of LBP debris to reclamation facilities
for removal of LBP before reuse of any components. Reclamation
practices employed to remove existing LBP from a component include
stripping, blasting, sanding, etc. Once debris has been entirely
stripped of LBP as described in Sec. 745.301(d), it would no longer be
considered LBP debris, and therefore, would no longer be subject to the
requirements in today's proposal. Wastes, such as sludges and
concentrated LBP generated by the removal of LBP, continue to be
subject to RCRA disposal requirements. Firms and individuals receiving
LBP debris for reclamation would be subject to the storage and access
limitations in Secs. 745.311 and 745.313 of today's proposed rule.
3. Transportation of LBP debris: Sec. 745.308. Shipping or
transport of LBP debris in uncovered vehicles is a possible source of
releases in the form of paint chips or dust. The U.S. Department of
Transportation does not specifically regulate the transport of non-
hazardous LBP debris. Many individual States or local authorities,
however, have requirements for covering vehicles which carry debris or
rubble of any kind.
Today's proposed rule would prohibit shipment of LBP debris off-
site in vehicles without covers that prevent identifiable releases of
material. Proper management requires the covering of vehicles or
containers used for
[[Page 70212]]
transportation of LBP debris to minimize possible releases of
particulate matter. Some practical approaches might include but are not
limited to: transportation of LBP debris in a vehicle covered with
secured tarp or plastic, transport in covered containers/drums,
transport in covered dumpsters, or transport in covered mobile
trailers.
Although LBP debris could under today's proposal be moved within a
work site without using a covered vehicle, EPA encourages those
managing LBP debris to keep LBP debris covered at all times including
when moving LBP debris within a site in order to prevent the release of
LBP chips, dust or debris.
The HUD ``Guidelines for the Evaluation and Control of LBP Hazards
in Housing'' (hereafter referred to as the HUD Guidelines ) recommend
wrapping LBP debris in plastic upon generation, and through storage and
shipment (Chapter 14) (Ref. 30). Although EPA does not feel that
plastic wrap alone represents an adequate access limitation (see Unit
VII.G.4. below) during storage, some stakeholders have suggested that
plastic wrap used in accordance with the HUD Guidelines may present a
satisfactory alternative to covering vehicles for transportation.
Although wrapping LBP debris in plastic would not be an allowable
transportation method under this proposal (unless the transport vehicle
is also covered), the Agency is seeking comment on whether such
wrapping would be sufficient to prevent releases of particulate matter
during transport as well as on the cost of using plastic wrap. EPA
particularly seeks comment from transporters on their experience in
delivering plastic-wrapped debris to disposal facilities, and whether
or not the plastic wrap is punctured during loading or transport.
4. Access and storage time limitations: Sec. 745.311(b)--i. Access
limitations. As explained in Unit V.F. of this preamble, the Agency
considers improper management and disposal of LBP debris to be a LBP
hazard. As discussed in detail earlier in Unit V.F. of this preamble,
improper storage pending disposal of LBP debris can cause a LBP hazard
by allowing the storage or deterioration of LBP in locations, such as
uncontrolled waste piles, where it may be accessible to children or
contaminate the soil. Therefore, EPA is proposing common sense access
limitations for LBP debris, with the exception of LBP debris generated
from demolitions, which is stored for more than 3 days (72 hours). The
access limitations in today's proposal are designed to ensure safe
management of LBP debris while minimizing dispersal of and access to
LBP debris by anyone other than persons performing work, or managing or
otherwise needing access to the debris.
Under today's proposal, acceptable access limitations (described at
Sec. 745.311(b) of the regulatory text) include:
Enclosing LBP debris in closed or covered receptacles
(e.g., containers, drums, mobile trailers, covered dumpsters or covered
transport vehicle.).
Keeping LBP debris in a dumpster or container which is at
least 6 feet tall.
Keeping LBP debris in fenced areas that are locked when
work activities are not being performed on the site.
Keeping LBP debris in an unoccupied structure which is
locked when work activities are not being performed on the site.
Keeping LBP debris on an unoccupied level of a multi-story
structure and keeping the level locked when work activities are not
being performed on the site.
Access and storage limitations do not apply to debris which is
reused in compliance with this rule. See Unit VII.G.1. entitled Reuse
of LBP Debris for a detailed discussion of reuse.
Access limitations apply to LBP Architectural Component Debris
(LBPACD) which is transferred for reuse but has not yet been reused.
LBPACD must be stored in a fenced or enclosed area such as within a
store or salvage yard and locked when not monitored. Cases where LBPACD
have been transferred for reuse but have not yet been used include
mantles, doors, windows, banisters, cabinets or any other type of
LBPACD offered for sale in an antique store or a salvage yard. Once the
LBPACD has been reused it is no longer subject to these access
limitations.
While common sense dictates some degree of control on the storage
of LBP debris, the Agency has attempted to identify logical measures
which would impose the least burden while still taking into account
safety, effectiveness, and reliability. For example, item b. above
allows use of the standard type of large dumpster which is generally
used at renovation or abatement projects which last more than a few
days. The Agency encourages comments on current ``real world''
practices which may represent adequate access limitations, but are not
included in this proposal. EPA does not want to preclude from a final
rule any access limitations which may be appropriate but have been
inadvertently omitted from those being proposed today.
The Agency is exempting demolitions from access limitation
requirements in this proposed rule. Many demolition projects require a
permit issued by local governments which require some type of access
limitations. In addition, EPA believes that demolitions, due to
liability from other type of hazards such as falling debris, are
required to prevent access to these hazards. In places where access
limitations are not required by the permiter, EPA believes that the
permiter would have sufficient justification, such as demolitions in
remote areas, not to require these access limitations. Therefore, EPA
is not requiring any further access limitations for demolitions. EPA
encourages comments on the adequacy of the proposed access
restrictions, the types of access requirements needed for obtaining a
demolition permit, and whether demolition permits generally require
access limitations.
Access limitations for LBP debris which are more stringent than the
disposal requirements at C&D landfills are necessary for safety,
effectiveness, and reliability. The Agency believes that most LBP
debris is generated in residential areas where children and adults may
have access to an uncontrolled LBP debris wastepile as opposed to C&D
landfills which EPA believes are located is less populated areas. The
Agency requests more information on controlling public access to and
the location of C&D landfills.
LBP debris which is stored for less than 3 days is not required to
have access limitations under today's proposal. This de minimis cut-off
level is intended to allow small renovation and abatement projects to
accumulate LBP debris prior to disposal without incurring the expense
of implementing additional access limitations. While investigating the
issue of access limitations, the Agency determined that as many as 51%
of renovation and remodeling projects last less than 3 days (Ref 31).
The Agency believes that the access limitations which are prescribed in
today's proposal represent common practice in these smaller projects,
and would not therefore impose significant additional costs.
The Agency is aware that alternative approaches to setting a de
minimis level for requiring access limitations exist. Some alternative
approaches might be based on: (1) The volume of waste produced; (2)
square footage of paint surface disturbed; or (3) time limits other
than 3 days. The Agency chose 3 days as the de minimis level for access
limitations because it appeared to
[[Page 70213]]
represent a natural dividing line between smaller projects and projects
which last significantly longer. EPA factored in the resources needed
to implement access limitations for these smaller jobs and concluded
that the costs associated with access limitations for short timeframes
less than 72 hours outweighed the potential benefits. Risk-benefit
analysis is the principle analytical tool available to the Agency to
measure the effectiveness of using resources to reduce human health
risks. EPA feels that the 72-hour threshold for access limitations
represents a clear and logical standard for the regulated community to
comply with and will be safe and effective. EPA solicits comment on
this approach and suggested alternative approaches to establishing a de
minimus exclusion for access limitations.
The Agency would like interested parties to comment on or submit
data related to the appropriateness of the proposed access limitations.
Specific design requirements for fencing or containers are not, with a
few exceptions, detailed in today's proposal. The Agency believes that
the general descriptions provided in the proposal are sufficient and
would result in adequate access limitations; however comments or
relevant data on alternative approaches including additional design
criteria are encouraged.
ii. Storage time limitations. Today's proposal establishes a 180-
day time limit on the storage of LBP debris. EPA believes that the
access limitations in this proposal would minimize risk; however,
access limitations can and do fail. The cumulative probability of
access limitation failure increases the longer LBP debris is in
storage. The management and disposal options for LBP debris presented
in this proposal are numerous and inexpensive. Therefore the Agency
believes that lengthy storage of LBP debris will be unnecessary. The
180-day time limitation for storage of LBP debris contained in today's
proposal is the same as the minimum storage time limit for generators
of between 100 and 1,000 kilograms of hazardous waste per month (51 FR
10148; March 24, 1986).
The storage time limit begins on the date of generation of the LBP
debris. Transfer of LBP debris to a different storage site is permitted
under the proposal, but the storage time limit remains 180 days from
the date of generation regardless of the number of storage sites for
any given LBP debris.
Situations may occur for which generation of LBP debris at one site
occurs over an extended time period and the debris is commingled (e.g.,
debris is disposed of in a dumpster at different times over a 90-day
period). In such cases, the 180-day storage time limit would begin on
the date that LBP debris was first generated, and that limitation would
apply to all of the commingled LBP debris. EPA believes that 180 days
provides an adequate amount of time to arrange for the transport and
disposal of LBP debris but encourages public comment on the length of
this proposed storage limitation.
5. Size reduction/processing of LBP debris. It is possible that a
generator may need to chop, trim, or otherwise reduce in size LBP
debris to fit it in storage containers, drums or transport vehicles.
EPA believes there is the possibility of a release of dust, LBP chips,
or particulate matter during this activity. Generators working where
LBP is present should use processing or size reduction techniques that
will control releases, such as use of a plastic contained area with a
plastic floor, top and sides, or a mobile enclosure. As noted,
previously, paint chips and dust generated during such activities are
still subject to RCRA requirements under today's proposal and may be
considered hazardous waste.
Today's proposal does not include standards regulating size
reduction of LBP debris or other similar activities. The Occupational
Safety and Health Administration (OSHA) Lead in Construction standards,
however do apply to the following:
Alteration, renovation, or repair of substrates containing
lead.
Removal of materials containing lead.
Transportation, disposal, storage, or containment of
materials containing lead on the site.
Maintenance activities associated with the construction
activities listed above.
The OSHA standard establishes maximum limits of exposure to lead
for all workers covered, including a permissible exposure limit (PEL)
and an action level. Under the standard, no employee may be exposed to
lead at airborne concentrations greater than 50 g/m averaged over an 8-
hour period (58 FR 26598; May 4, 1993).
EPA believes that compliance with the OSHA Lead in Construction
standards represents sufficient controls on LBP debris size reduction
activities and that additional regulation under today's proposal would
be duplicative. The Agency requests comment, however, on whether TSCA
standards for such activities are warranted.
I. What Are the Notification and Recordkeeping Requirements?
Sec. 745.313
In order to ensure that LBP debris is managed and disposed of
properly, the Agency is proposing a requirement that when LBP debris is
transferred from one party to another, the recipient should be notified
in writing of the presence of LBP debris (Sec. 745.313(a)). The
notification document should: (1) Disclose the presence of LBP debris;
(2) indicate the date of generation of the LBP debris; (3) be signed
and dated by the recipient; (4) be signed and dated by the transferor;
(5) contain the generator's name and address; and (6) notify the
recipient of the need to comply with LBP debris management and disposal
standards. The proposal requires both parties (the transferor and the
recipient) to any transfer of LBP debris to retain a record of the
notification for 3 years (Sec. 745.313(b)).
LBPACD transferred for reuse, including components intended for
sale, are also subject to notification and recordkeeping requirements
at Sec. 745.313. Notification requirements begin upon generation of the
debris intended for reuse and terminate at the point at which the
LBPACD is reused. For example, a salvage yard which sells LBPACD
generated by an abatement, renovation, or demolition must notify, in
writing, any purchaser or user of any LBPACD of the presence of LBP
debris and keep records of the notification and transfer as required by
this proposed rule Sec. 745.313. Once the LBPACD is reused further
notification is not required.
Without notification requirements, a recipient (e.g., transporter
or owner/operator of a disposal facility) might unknowingly accept LBP
debris and then violate the provisions of today's proposal by
improperly managing or disposing of the material. For example, if a
generator transferred LBP debris to a transporter for disposal without
notifying the transporter of the presence of LBP debris, the
transporter might not cover the vehicle or might dispose of the LBP
debris in a facility not allowed to receive LBP debris under this
proposal.
The effect of the notification requirement will be that each person
who receives LBP debris for any reason would be aware that they are
receiving LBP debris and will be referred to the requirements for LBP
debris management and disposal in this proposal. Any person who manages
LBP debris in compliance with this proposal, including proper
notification, will generally be deemed to have fulfilled their
responsibilities under the proposal. EPA would view any
[[Page 70214]]
noncompliance with the proposed requirements subsequent to a transfer
(which included proper notification) to be the responsibility of the
person who is not in compliance with the requirements, not of any
person who had prior possession of the LBP debris. However, a party in
prior possession may be in noncompliance if the party knew or had
reason to know that the person receiving the LBP debris would not
handle it properly. In addition, a generator who incorrectly determines
that LBP debris is not present, would be liable for any and all
subsequent violations of today's proposal.
EPA believes a recordkeeping requirement is a necessity from the
standpoint of enforcement because it establishes a clear chain-of-
custody. This would allow inspectors to identify and locate the
generators and recipient(s) of LBP debris for questioning and to gather
further material evidence from them to aid an investigation, if
necessary. In addition, the recordkeeping requirement would result in
the retention of important evidence that is likely to be used should an
enforcement action be necessary. The notification document contains
information needed to establish a foundation for enforcement actions.
The Agency would like comment on whether there are less expensive
or more efficient ways that maintain safety, reliability, and
effectiveness of notifying and keeping records of LBP debris for
transport and disposal than the one outlined in the proposal. An
example of an alternative to the suggested paper notification and
recordkeeping may be a system of notification and recordkeeping with
electronic signature and storage. Any type of alternative notification
and recordkeeping system should: (1) Disclose the presence of LBP
debris; (2) indicate the date that the LBP debris was generated; (3) be
signed and dated by the recipient; (4) be signed and dated by the
transferor, (5) contain the generator's name and address, and (6)
notify the recipient of the need to comply with LBP debris management
and disposal standards.
A sample notification which meets the requirements of proposed
Sec. 745.313 is included at the end of this unit. The sample is
intended to serve as an example and does not represent the only format
or wording that might meet the requirements of the proposal. The sample
is not included in the regulatory text itself and nothing in the
proposal would require the use of any specific form or format. Instead,
the regulatory text, at Sec. 745.313 contains the specific information
which must be included in the notification.
[[Page 70215]]
------------------------------------------------------------------------
SAMPLE
NOTIFICATION
Notification of the
Presence of LBP Debris
Lead Warning Statement
Lead from paint can pose health hazards if not managed,
transported and disposed of properly. Lead exposure is
especially harmful to young children and pregnant women.
Before transferring LBP (LBP) debris to any party for
any reason, transferors must notify recipients of the
presence of LBP debris.
Notification of Presence of LBP Debris
LBP debris is present in the materials being transferred
from
------------------ (Transferor name) to ------------------
(Recipient name).
When Was this Lead-Based Paint Generated?
This LBP debris was generated on ----------------------
(Date).
Who Generated this Lead-Based Paint Debris?
(Name and Address of Generator)
John Doe
1000 Main Street
Hope, Arkansas 12345
Requirements for the Management and Disposal of LBP
Debris
LBP debris is subject to EPA regulations found at 40 CFR
745.301-745.319. See those regulations for further
details. Requirements and restrictions on the MANAGEMENT
OF LBP debris include the following:
(1) LBP debris MUST BE COVERED when it is transported.
(2) LBP debris stored for more than 72 hours after
initial generation MUST HAVE ACCESS LIMITATIONS (except
for demolition debris).
(3) LBP debris MAY NOT BE STORED for more than 180 days
after it is generated.
(4) LBP debris with deteriorated paint MAY NOT BE REUSED
or TRANSFERRED FOR REUSE.
Requirements and restrictions on the DISPOSAL OR
RECLAMATION of LBP debris include the following:
(1) LBP debris MAY NOT be disposed of in any landfill
which accepts municipal or industrial waste.
(2) LBP debris MAY ONLY be reclaimed, incinerated or
recycled at facilities subject to the regulations
specified at 40 CFR 745.309(b).
------------------ ------------ ---------
----------- --------------------
Transferor Date Recipie
nt Date
NOTE: Both parties (transferor and recipient) must keep a
copy of this Notification for at least 3 years from the
date it is signed.
------------------------------------------------------------------------
[[Page 70216]]
VIII. State and Tribal Programs
This section outlines the State and Indian Tribe (including Alaskan
Native Villages where appropriate) program approval process for today's
proposed rule.
A. General
Section 404(a) of TSCA Title IV provides that any State which seeks
to administer and enforce the standards, regulations, or other
requirements established under TSCA section 402 may submit an
application to EPA for approval of such a program. TSCA section 404(b)
states that EPA may approve such an application only after finding
that: (1) The State program is at least as protective of human health
and the environment as the Federal program; and (2) that the program
provides adequate enforcement. Although TSCA does not specifically
address Tribal lead programs; EPA is extending to Tribes the same
opportunity as States to apply for authorization (see section G. of
this unit for further discussion.)
EPA's final rule addressing LBP training and certification (61 FR
45778), outlined specific procedures for program approval under the
authority of TSCA section 402 at 40 CFR 745.320. Today's proposed rule
adopts a similar process with some alterations including specific
requirements for LBP debris management and disposal program
applications. A State or Tribe may apply for LBP debris management and
disposal program authorization if it does not have an authorized LBP
training and certification program.
Political subdivisions of States or Tribes (e.g., cities, towns,
counties, etc.), are not eligible for authorization.
B. Submission of an Application
Under this proposal, before developing an application for
authorization, a State or Indian Tribe would have to distribute
publicly a notice of intent to seek such authorization and provide an
opportunity for a public hearing. The State or Indian Tribe is free to
conduct this hearing and provide an opportunity for comment in any
manner it chooses. Upon completion of an application that reflects this
public participation, the State or Indian Tribe may submit the
application to the appropriate EPA Regional Office.
As proposed at Sec. 745.344, an application for program
authorization should include the following seven elements: (1) A
transmittal letter from the Governor or Tribal Chairperson (or
equivalent official); (2) a summary of the State or Tribal program; (3)
a description and analysis of the program; (4) a statement which
identifies resources the State or Tribe intends to devote to the
administration of its compliance and enforcement program; (5) a
statement agreeing to submit to EPA the Summary on Progress and
Performance of LBP debris management and disposal compliance and
enforcement activities as described at Sec. 745.355(b)(2); (6) an
Attorney General or Tribal equivalent's statement attesting to the
adequacy of the State or Indian Tribe's program authority; and (7)
copies of all applicable State or Tribal statutes, regulations,
standards and other materials that provide the State or Indian Tribe
with the authority to administer and enforce a LBP debris management
and disposal program.
Sections B.1., B.2., and B.3. of this unit outline the application
elements.
1. Program description: Sec. 745.346. A program application should
contain information, specified in Sec. 745.346, that describes the
program. The program description is the portion of the application that
the State or Indian Tribe will use to characterize the elements of
their program. The Agency would use this information to make an
approval or disapproval decision on a State or Indian Tribe's
application. The program description contains four distinct sections
(five in the case of Tribal applications).
In the first section (Sec. 745.346(a)), the State or Indian Tribe
should list the name of the State or Tribal agency that will administer
and enforce the program and the name of a contact at that agency, and
if there will be more than one agency administering or enforcing the
program, describe the relationship between or among these agencies.
Second (Sec. 745.346(b)), the State or Indian Tribe should
demonstrate that the program has all of the required program elements
specified in Sec. 745.350. These elements represent the minimum
elements or requirements a State or Tribal program should have to be
considered for authorization.
Third (Sec. 745.346(c)), the application should provide an analysis
of the entire State or Tribal program that describes any dissimilarity
from the Federal requirements in Secs. 745.301 through 745.319. The
analysis should explain why, considering these differences, the State
or Tribal program is at least as protective as the provisions outlined
at Secs. 745.301 through- 745.319 and provides adequate enforcement.
The Agency would like to be as flexible as possible in reviewing
applications which contain provisions different from the Federal
requirements; however in such cases, the State or Tribe should
demonstrate in its program analysis that its program is at least as
protective as the Federal program and provides for adequate
enforcement. The Agency will use this analysis, along with its own
comparison, to evaluate the protectiveness of the State or Tribal
program.
Fourth (Sec. 745.346(d)), the State or Tribal application should
demonstrate that the program meets the compliance and enforcement
requirements at Sec. 745.352. This section of the application is
discussed in more detail in section H. of this unit.
In addition to the above, the program description for a Tribe
should also include the information required by Sec. 745.346(e)
(special requirements for Tribal Program Descriptions).
2. Attorney General's Statement: Sec. 745.347. The State or Indian
Tribe should provide an assurance that it has the legal authority
necessary to administer and enforce the LBP debris management and
disposal program. The State or Tribal Attorney General (or equivalent
Tribal official) should sign this statement.
3. Public availability of application: Sec. 745.344(c)-(d). Section
404(b) of TSCA requires EPA to provide notice and an opportunity for a
public hearing on a State or Tribal application for authorization.
Accordingly, the Agency will publish in the Federal Register a notice
announcing the receipt of a State or Tribe's application, a summary of
the State or Tribal program (to be provided by the applicant
(Sec. 745.344(b)(2)), the location of copies of the application
available for public review, and the dates and times that the
application will be available for public review. Individuals may at
that time submit a request to the Agency for a public hearing on the
State or Tribal application. It should be noted that this opportunity
for public hearing is separate and distinct from the public comment,
discussed in section B. of this unit, that the State or Indian Tribe
should seek before preparing an application for program approval.
C. State Program Certification
Pursuant to TSCA section 404(a), at the time of submitting an
application for program authorization, a State may also certify to the
Administrator that the State program is at least as protective as the
Federal program proposed at Secs. 745.301 - 745.319 and that it
provides adequate enforcement.
If this certification is contained in a State application, the
program will be deemed authorized until/unless EPA disapproves the
program's application or withdraws the program's
[[Page 70217]]
authorization. This certification should be contained in a letter from
the Governor or the Attorney General, to EPA, and should reference the
program analysis contained in the program description portion of the
application as the basis for concluding that the State program is at
least as protective as the Federal program and provides for adequate
enforcement. If a State application does not contain such
certification, the State program will be considered authorized only
after EPA approves the State application.
This program certification provision is not available to Indian
Tribes because Indian Tribes should first demonstrate to the Agency
that they meet the criteria proposed at Sec. 745.324(b)(4) for
treatment in the same manner as a State (TAS). Although Indian Tribes
may be able to demonstrate that they have been approved for TAS for
another environmental program (satisfying two of the four TAS
criteria), the Agency must make a separate determination that an Indian
Tribe has adequate jurisdictional authority and administrative and
programmatic capability regarding its LBP debris management and
disposal program before it can determine that the Tribe should be
treated in the same manner as a State. These criteria are discussed in
greater detail in section F. of this unit.
TSCA section 404(b) limits Agency review of program applications to
180 days. EPA encourages States and Indian Tribes to submit their
authorization applications as soon as possible after the final rule is
promulgated. Because the Agency anticipates needing the full 180 days
allowed under today's proposal to properly review and act on an
application, States and Indian Tribes are strongly encouraged to work
with the appropriate EPA Regional office to develop and submit a
complete application before promulgation of the final rule.
D. EPA Approval
Within 180 days following receipt of a complete State or Tribal
application, EPA will approve or disapprove the application. EPA will
authorize a program only if, after notice and opportunity for public
hearing, EPA finds that:
(1) The program is at least as protective of human health and the
environment as the Federal program contained at Secs. 745.301 -
745.319.
(2) The program provides adequate enforcement of the appropriate
State or Tribal regulations.
The Agency will notify the State or Indian Tribe in writing of the
decision. As described in proposed Sec. 745.354(a)(4), upon
authorization of a State or Tribal program, it will be unlawful under
TSCA section 15 and section 409, for any person to violate, fail or
refuse to comply with any requirements of such a program.
The Agency believes that TSCA section 404 and the decision criteria
above give it reasonably broad latitude in approving or disapproving
State and Tribal programs. EPA interprets the TSCA section 404(b)
standard ``. . . at least as protective as. . .'' to mean that a
program need not be identical to, or administered and enforced in a
manner identical to, the Federal program for that program to be
authorized. The Agency expects to receive applications for State and
Tribal programs that will differ in some respects from the Federal
program established in this proposed rulemaking. This is unavoidable
(and even desirable) given the differences that undoubtedly exist
between LBP debris management and disposal programs at the State and
Tribal level. The Agency will make every attempt to accommodate these
differences while following the statutory requirement of ensuring that
every State or Tribal program is at least as protective as the Federal
program and provides for adequate enforcement.
1. Establishment of the Federal program. If a State or Indian Tribe
does not have a program authorized under this proposed rule and in
effect by the date that is 2 years from the promulgation date of the
final regulation, EPA will, as of such date, establish the Federal
program under 40 CFR part 745, subpart P in that State or Indian
Country.
Although the definition of Indian Country is contained in a
criminal statute, 18 U.S.C. 1151 (1994), it ``generally applies as well
to questions of civil jurisdiction.'' DeCoteau v. District County Ct.,
420 U.S. 425, 427 n. 2 (1975). In addition, several cases have
interpreted its scope, including the Supreme Court's recent decision,
Alaska v. Native Village of Venetie, No. 96-1577, 1998 U.S. LEXIS 1449
(S.Ct. February 25, 1998) finding that an Alaska Native Village's lands
held in fee simple were not Indian country; Solem v. Bartlett, 465 U.S.
463 (1984).
2. EPA overfiling authority. The Agency reserves the right to bring
an enforcement action against a violator if a State or Indian Tribe
fails to impose the proper penalty against a violator. However, before
doing so, the Agency will notify the State or Indian Tribe in writing
of its failure to impose the appropriate penalty. The State or Indian
Tribe will have 30 days from receipt of such notice from the
Administrator to adjust the improper penalty amount. In the event that
the State or Indian Tribe fails to rectify the situation, the Agency
may issue an administrative penalty order against the violator with the
appropriate penalty amount. In addition, if a State or Indian Tribe
fails to bring an action against a violator, then the Agency has the
authority to commence the appropriate action after giving the State 30
days notice to bring an action against the violator.
E. Withdrawal of Authorization: Sec. 745.356
As required by section 404 of TSCA, if a State or Indian Tribe is
not administering and enforcing its authorized program according to the
standards, regulations, and other requirements of TSCA Title IV,
including section 404(b)(1) and (b)(2), the Agency will so notify the
State or Indian Tribe. If corrective action is not completed within a
reasonable time, not to exceed 180 days, EPA will withdraw
authorization of such program and establish a Federal LBP debris
management and disposal program pursuant to TSCA Title IV in that State
or Tribal land. Procedures for withdrawal of authorization can be found
at Sec. 745.356 of the regulatory text.
F. Model State and Tribal Program
Section 404(d) of TSCA directs the Agency to promulgate a model
program that may be adopted by any State or Tribe that seeks to
administer and enforce a LBP debris management and disposal program.
For the purposes of this proposal, the Federal requirements at proposed
Secs. 745.301 through 745.319 serve as the model State and Tribal
program.
G. Tribal LBP Debris Management and Disposal Programs
Today's action proposes a system that would provide Federally-
recognized Indian Tribes the opportunity to apply for program
authorization in a manner similar to States. Providing Indian Tribes
with this opportunity is consistent with EPA's Policy for the
Administration of Environmental Programs on Indian Reservations
(hereinafter referred to as EPA's Indian Policy). This policy, formally
adopted in 1984 and reaffirmed on March 14, 1994, by the Administrator,
``. . . view[s] Tribal Governments as the appropriate non-Federal
parties for making decisions and carrying out program responsibilities
affecting Indian reservations, their environments, and the health and
welfare of the reservation populace,'' consistent with Agency standards
and regulations.
[[Page 70218]]
A major goal of EPA's Indian Policy is to eliminate statutory and
regulatory barriers to Tribal administration of Federal environmental
programs to the greatest extent possible. Today's proposal represents
another step in the Agency's continuing commitment toward achieving
this goal. However, EPA recognizes that some eligible Indian Tribes may
choose not to apply for program authorization. Regardless of the choice
made by a Tribe, the Agency remains committed to providing technical
assistance and training when possible to Tribal entities as they work
to resolve their LBP management and disposal concerns.
1. EPA's authority to review and approve Tribal LBP debris
management and disposal programs. EPA believes it has adequate
authority under TSCA to allow Indian Tribes to seek LBP debris
management and disposal program authorization. EPA's interpretation of
TSCA is governed by the principles of Chevron, Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984). Where ``Congress has
not directly addressed the precise question at issue'' in a statute,
Id. at 843, the Agency charged with implementing that statute may adopt
any interpretation which, in the Agency's expert judgment, is
reasonable in light of the goals and purposes of the statute as a
whole. Id. at 844. Interpreting TSCA to allow Indian Tribes to apply
for program authorization satisfies the Chevron test.
TSCA, including sections 402 and 404, does not explicitly define a
role for Indian Tribes. Therefore, Congress did not directly address
the precise question at issue. Indian Tribes' status as sovereign
governments, see, e.g., Worcester v. Georgia, 31 U.S. (10 Pet.) 515
(1832); United States v. Wheeler, 485 U.S. 313 (1978), precludes the
operation of State law within Tribal jurisdictions except in very
limited circumstances. See California v. Cabazon Band of Mission
Indians, 480 U.S. 202 (1987). There is no indication in TSCA or its
legislative history that Congress intended to abrogate any sovereign
Tribal authority by extending State jurisdiction into Indian Country.
The Supreme Court has stated that the ``choice between [possible
statutory constructions] must be dictated by a principle deeply rooted
in this Court's Indian jurisprudence: statutes are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit.''' County of Yakima v. Yakima Indian
Nation, 502 U.S. 251, 268 (1992). Further, any statutory limitations on
Tribal sovereignty must be stated explicitly. Santa Clara Pueblo v.
Martinez, 436 U.S. 49 (1978); Montana v. Blackfeet Indian Tribe, 471
U.S. 759 (1985) (Congressional intent must be ``unmistakably clear'').
In addition, the Supreme Court has consistently admonished that Federal
statutes and regulations relating to Tribes and Tribal activities must
be construed generously in order to comport with traditional notions of
Indian sovereignty and with the Federal policy of encouraging Tribal
independence. Ramah Navajo School Board v. Bureau of Revenue, 458 U.S.
832, 846 (internal quotations, ellipsis and brackets removed).
A recent decision of the U.S. Court of Appeals for the D.C. Circuit
found that RCRA did not authorize EPA to review and approve certain
Tribal solid waste programs in the same manner as States. Backcountry
Against Dumps v. EPA, 100 F.3d 147 (9th Cir. 1996). In that case, the
court found under the first step of the Supreme Court's analysis in
Chevron, that RCRA was ``neither silent nor ambiguous'' on the role of
Tribes. Id. at 151. The inclusion of Indian Tribes in the definition of
``municipality'' and the absence of Indian Tribes from the definition
of ``State'' precluded EPA from interpreting RCRA section 4005(c)(1)(C)
to authorize review and approval of Tribal programs. Id.
Importantly, however, the court noted that ``if Indian Tribes were
not defined anywhere in the statute . . . we would move to Chevron's
second step.'' Id. Because Indian Tribes are not defined or even
mentioned in TSCA, Backcountry Against Dumps supports EPA position that
the Agency may, under step two of Chevron, adopt a reasonable
interpretation of TSCA.
The D.C. Circuit held up Nance v. EPA, 645 F.2d 701 (9th Cir.
1981), as an example of such a case. Backcountry at 151. The Nance
court recognized the reasonableness of EPA's actions in filling
regulatory gaps on Indian Country. In Nance, the U.S. Court of Appeals
for the Ninth Circuit upheld EPA's regulations which authorized Indian
Tribes to redesignate the level of air quality applicable to Indian
Country under the Prevention of Significant Deterioration (PSD) program
of the Clean Air Act similar to the manner in which States could
redesignate other lands. The Court found that EPA could reasonably
interpret the Clean Air Act to allow for Tribal redesignation, rather
than allowing the States to exercise that authority or exempting Indian
Country from the redesignation process. Nance, 745 F.2d 713. The Court
noted that EPA's rule was reasonable in light of the general existence
of Tribal sovereignty over activities in Indian Country. Id. at 714.
Interpreting TSCA to allow EPA to review and approve Tribal LBP
debris management and disposal programs is reasonable. Today's proposed
rule is analogous to the rule upheld in Nance. Failure to authorize
Tribal LBP debris management and disposal programs would deny Indian
Tribes the option available to States to administer their programs in
lieu of the Federal program. As with the redesignation program at issue
in Nance, this proposal, however, would enable the most direct
regulation of LBP debris management and disposal in Indian Country.
Today's proposed rule would conform with the Congressional intent that
the local sovereigns with program and enforcement authority--the States
and Tribes--rather than the Federal government regulate. Approving
Tribal regulation by eligible Tribes in lieu of Federal regulation also
follows general principles of Federal Indian law and the Agency's
Indian Policy. EPA believes that allowing Indian Tribes to apply for
program authorization is consistent with the sovereign authority of
Indian Tribes. EPA also has allowed Indian Tribes to seek program
approval despite the lack of an explicit Congressional language in the
past. (61 FR 45778, August 29, 1996 and 55 FR 30632, July 26, 1990)
Nance v. EPA, 645 F.2d 701 (9th Cir. 1981) and (CAA PSD Program).
Furthermore, EPA has broad expertise in reconciling Federal
environmental and Indian policies. Washington Dept. of Ecology v. EPA,
752 F.2d 1465, 1469 (1985).
For a more detailed discussion of EPA's authority to treat Tribes
in the same manner as States under TSCA, see 61 FR 45778, 45805-07,
August 29, 1996, LBP activities.
2. Tribal eligibility requirements. Under several environmental
statutes, including the Clean Water Act (CWA), and the Safe Drinking
Water Act (SDWA), Congress specified certain criteria for EPA to
determine whether it may treat an Indian Tribe in the same manner as a
State. These criteria generally require that the Indian Tribe:
Be recognized by the Secretary of the Interior.
Have an existing government exercising substantial
governmental duties and powers.
Have adequate civil regulatory jurisdiction over the
subject matter and entities to be regulated.
Be reasonably expected to be capable of administering the
Federal environmental program for which it is seeking approval.
EPA proposes to require Indian Tribes seeking program authorization
and grants under TSCA section 404 to demonstrate in the program
description
[[Page 70219]]
that they meet the four criteria listed above. The Agency has
simplified its process for determining Tribal eligibility to administer
environmental programs under several other environmental statutes (59
FR 64339; December 14, 1994). The proposed process for determining
eligibility for TSCA section 404 programs parallels the simplification
rule. Generally, the fact that an Indian Tribe has met the recognition
or governmental function requirement under another environmental
statute allowing for Tribal assumption of environmental programs (e.g.,
the CWA, SDWA, CAA) will establish that it meets those particular
requirements for purposes of TSCA section 404 authorization. To
facilitate review of Tribal applications, EPA requests that the Indian
Tribe demonstrate that it has been approved for ``TAS'' (under the old
TAS process) or been deemed eligible to receive authorization (under
the simplified process) for any other program.
If an Indian Tribe has not received TAS approval or been deemed
eligible to receive authorization, the Indian Tribe must demonstrate,
pursuant to Sec. 745.324(b)(5)(ii), that it meets the recognition and
governmental function criteria described above. A discussion on how to
make these showings can be found at 59 FR 64339, December 14, 1994.
EPA believes, on the other hand, that the Agency must make a
separate determination that an Indian Tribe has adequate jurisdictional
authority and administrative and programmatic capability before it
approves each Tribal LBP debris management and disposal program. To
have its LBP debris management and disposal program authorized by EPA
under today's proposed rule, an Indian Tribe would need adequate
authority over the regulated activities.
EPA proposes to require under Sec. 745.346(e) that Indian Tribes
provide a discussion of their jurisdiction to run a LBP debris
management and disposal program. The Tribe should include copies of all
documents, such as treaties, statutes, executive orders, constitutions,
bylaws, charters, codes, ordinances, and/or resolutions which support
the Indian Tribe's assertions of jurisdiction. EPA will review this
documentation and comments submitted by appropriate governmental
entities during the public comment period, and then will make a
determination whether the Tribe has adequately demonstrated its
jurisdiction over LBP debris activities in Indian Country. The Indian
Country standard provides the guideline of the areas over which a Tribe
may demonstrate jurisdiction for purposes of Tribal programs. EPA,
however, will not rely solely on the Indian Country standard, but will
consider, on a case-by-case basis whether a Tribe has demonstrated its
jurisdiction over LBP debris management and disposal in particular
areas under principles of Federal Indian law.
The jurisdiction of Indian Tribes generally extends ``over both
their members and their territory.'' United States v. Mazurie, 419 U.S.
544, 557 (1975). However, Indian reservations may include lands owned
in fee by nonmembers. ``Fee lands'' are privately owned by nonmembers
and title to the lands can be transferred without restriction. The
Supreme Court, in Montana v. U.S., 450 U.S. 544, 565-66 (1981) noted
that Tribes may have authority over nonmember activities on reservation
fee lands in certain circumstances, including when the nonmember
conduct ``threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of the
Indian Tribe.''
The Supreme Court in several cases since Montana has explored
several criteria to assure that the impacts upon Indian Tribes of the
activities of non-Indians on fee land, under the Montana test, are more
than de minimis. To date, however, the Court has not agreed in a case
on point on any one reformulation of the test. In response to this
uncertainty, in 1991 EPA decided in the context of a regulation under
the CWA that it would apply a more rigorous formulation of the Montana
test, establishing an ``operating rule'' that requires Tribes seeking
eligibility to set water quality standards governing activities of
nonmembers on fee lands to show that the effects are ``serious and
substantial'' (56 FR 64878). EPA noted that ``[t]he choice of an Agency
operating rule containing this standard is taken solely as a matter of
prudence in light of judicial uncertainty and does not reflect an
Agency endorsement of this standard per se.'' Since 1991, however, the
Supreme Court has reaffirmed Montana's impacts test verbatim without
addressing the need for ``serious'' or ``substantial'' impacts. e.g.,
Strate v. A-1 Contractors, 117 S. Ct. 1404 (1997); South Dakota v.
Bourland, 508 U.S. 679 (1993). While it appears that the Montana test
may not require ``serious and substantial'' impacts, for the time-
being, as a matter of prudence, EPA will continue to look to see
whether such impacts exist when evaluating Tribal authority over LBP
debris activities under the Montana test.
In Strate, 117 S.Ct. at 1414, the Supreme Court made clear that
Montana remains the controlling standard for evaluating Tribal
authority over nonmember activities on fee lands. The Court emphasized
in Strate that the purpose of Montana's impacts test is to ensure that
Tribes retain their powers of self-government. EPA believes that
protecting the public through environmental protection programs from
serious and substantial effects on health and welfare is a core
governmental function whose exercise is critical to self-government.
(see 56 FR 64879).
Whether an Indian Tribe has jurisdiction over activities of
nonmembers on fee lands, will be determined case-by-case, based on
factual findings. The determination as to whether the required effect
is present in a particular case depends on the circumstances and will
likely vary from Indian Tribe to Indian Tribe. The Agency believes,
however, that the activities regulated under the various environmental
statutes, including TSCA, generally have the potential for direct
impacts on human health and welfare that are serious and substantial.
See 56 FR 64878.
The process that the Agency will use for Indian Tribes to
demonstrate their authority over nonmembers on fee lands includes a
submission of a statement pursuant to Secs. 745.346 and 745.347
explaining the legal basis for the Indian Tribes' regulatory authority.
The Indian Tribe must explicitly assert and demonstrate jurisdiction,
i.e., show that LBP debris management and disposal activities conducted
by nonmembers on fee lands could have impacts on the health and welfare
of the Indian Tribe and its members that are serious and substantial.
The Tribal submission should make a showing of facts that there are or
may be activities regulated under TSCA Title IV by nonmembers on fee
lands within the territory for which the Indian Tribe is seeking
authorization, and that the Indian Tribe or Tribal members could be
subject to exposure to LBP hazards from such activities through, e.g.,
dust, soil, air, and/or direct contact.
As noted above, the Supreme Court emphasized in Strate that the
purpose of the Montana test is to ensure that Tribes retain their
powers of self-government. While EPA believes generally that protecting
Tribal health and welfare from serious and substantial environmental
effects is essential to Tribal self-government, the Tribal submission
should also discuss the extent to which Tribal implementation of the
LBP debris management and
[[Page 70220]]
disposal program over nonmembers on fee lands is essential to Tribal
self-government. However, EPA will also rely on its generalized
findings regarding the relationship of LBP activities and related
hazards to Tribal health and welfare.
Appropriate governmental entities (e.g., an adjacent Indian Tribe
or State) will have an opportunity to comment on the Indian Tribe's
jurisdictional assertions during the public comment period prior to
EPA's action on the Indian Tribe's application.
The Agency recognizes that jurisdictional disputes between Indian
Tribes and States can be complex and difficult and that it may, in some
circumstances, be most effective to address such disputes by attempting
to work with the parties in a mediative fashion. However, EPA's
ultimate responsibility is protection of human health and the
environment. In view of the mobility of environmental problems, and the
interdependence of various jurisdictions, it is imperative that all
affected sovereigns work cooperatively for environmental protection.
Finally, capability is a determination that will be made on a case-
by-case basis. Ordinarily, the information regarding programmatic
capability provided in the application for program approval submitted
under proposed Secs. 745.350 and 745.352 will be sufficient.
Nevertheless, EPA may request, in individual cases, that the Indian
Tribe provide a narrative statement or other documents showing that the
Indian Tribe is capable of administering the program for which it is
seeking approval. See 59 FR 64341.
Consistent with the simplification rule, no pre-qualification
process will be required for Indian Tribes to obtain program approval
for the LBP debris management and disposal program. EPA will evaluate
whether Indian Tribes have met the four eligibility criteria listed
above during the program approval process.
H. Enforcement and Compliance Provisions
1. General. As noted above, before approving a State or Tribal
application for authorization to run a LBP debris management and
disposal program, the Agency is required to determine that a State or
Tribe will provide for the adequate enforcement of its regulations.
The Agency has developed, at proposed Sec. 745.352, minimum
requirements that a State or Tribal LBP debris management and disposal
compliance and enforcement program should meet in order to receive
authorization. The Agency believes that a State or Indian Tribe that
develops an enforcement program based on these requirements would
provide ``adequate enforcement'' as that term is used in TSCA section
404(b)(2).
These requirements were developed based on the Agency's experience
evaluating and approving other State and Tribal compliance and
enforcement programs, as well as the Agency's experience in enforcing
its own regulations. These requirements are also generally consistent
with those found in the LBP certification and training rule (61 FR
45778, August 29, 1996). Further, the Agency's own compliance and
enforcement program for these LBP debris management and disposal
regulations will contain most of the elements described at
Sec. 745.352.
The compliance and enforcement portion of a State or Tribal LBP
debris management and disposal program application should be submitted
simultaneously with the other required elements. Today's proposal does
not provide separate or interim approval procedures for compliance and
enforcement portions of State or Tribal applications. This represents a
notable distinction between the compliance and enforcement components
in today's proposal and those found in the LBP certification and
training rule. The Agency believes that because LBP debris is currently
regulated by many authorized State RCRA programs, most States already
have the necessary infrastructure in place to administer and enforce a
LBP debris management and disposal program. In comparison, relatively
few States had LBP certification and training programs in place at the
time of the promulgation of that rule (August 29, 1996). EPA believes
that the compliance and enforcement application procedures in today's
proposal are simpler and will be easier to complete than those in the
LBP certification and training rule. Comments from States and Tribes on
this issue are encouraged.
Approval will be given to any State or Indian Tribe which has in
place all of the elements of proposed Sec. 745.352, provided the
program is also found to be ``at least as protective as'' the Federal
program. If a State or Indian Tribe does not have a LBP debris
management and disposal program authorized by the Agency within 2 years
after final promulgation of the LBP Debris Management and Disposal
Rule, the Agency will enforce the provisions at proposed Secs. 745.301
through 745.319 as the Federal program.
In order for a LBP debris management and disposal compliance and
enforcement program to be considered adequate for approval, the State
or Indian Tribe should certify it has the legal authority and ability
to immediately implement the elements at proposed Sec. 745.352. States
or Indian Tribes should submit copies of all applicable State or Tribal
statutes, regulations, standards and other material that provide the
State or Indian Tribe with authority to administer and enforce the lead
debris compliance and enforcement program, and copies of the policies,
certifications, plans, reports, and any other documents that
demonstrate that the program meets the requirements established at
proposed Sec. 745.352.
Finally, the State or Indian Tribe must agree to submit to EPA the
Summary on Progress and Performance as described at Sec. 745.355(b)(2).
This report should be submitted to EPA by the primary agency for each
authorized State or Indian Tribe beginning 12 months after the date of
program authorization. Each authorized program will be required to
submit the report to the EPA Regional Administrator for the Region in
which the State or Indian Tribe is located. The report should be
submitted at least once every 12 months for the first 3 years after
program approval. As long as these reports indicate that the authorized
program is successful, the reporting interval will automatically be
extended to every 2 years. If the reports demonstrate problems with
implementation, EPA will revert to annual reporting in order to assist
the State or Indian Tribe in resolving the problems. These programs
will return to biannual reporting after demonstration of successful
program implementation.
2. Required enforcement and compliance elements. The remainder of
this Unit describes in more detail the required enforcement and
compliance elements at proposed Sec. 745.352. Section 745.352 ``State
and Tribal Compliance and Enforcement'' requires that a State or Indian
LBP debris management and disposal program should at a minimum have the
compliance and enforcement elements discussed below.
i. Authority to enter (Sec. 745.352(a)(1)). State or Tribal
officials should be able to enter premises or facilities where LBP
debris management or disposal violations may occur. A State or Tribe
must be able to subpoena any person who has possession of records or
reports pertaining to LBP debris to produce such documents; in
addition, a State or Tribe must be able to compel the appearance of any
person to testify concerning any matter relating to LBP debris. A State
or Tribe must also designate a judicial body that will have the
authority to hold any person in
[[Page 70221]]
contempt who fails or refuses to obey such a duly issued subpoena. They
should have the authority to take samples, if necessary, as part of the
inspection process. A State or Indian Tribe should have the authority
to seek a warrant if access is denied to inspect any place or vehicle.
ii. Flexible remedies (Sec. 745.352(a)(2)). State or Tribal LBP
debris management and disposal programs should provide for a diverse
and flexible array of enforcement remedies, which must be reflected in
a Standard Enforcement Response Policy. A LBP debris management and
disposal program should be able to select from among the available
alternatives an enforcement remedy that is particularly suited to the
gravity of the violation, taking into account potential or actual risk,
including:
Warning letters, or notices of noncompliance, or notices
of violation, or the equivalent.
Administrative or civil actions (e.g., administrative or
civil penalty assessment).
Authority to apply criminal sanctions or other criminal
authority using existing State or Tribal laws, as applicable.
The Agency understands that Indian Tribes may have restrictions on
their ability to levy criminal sanctions. e.g., Oliphant v. Suquamish
Indian Tribe, 435 U.S. 191 (1978); 25 U.S.C. 1302(7). This limitation
will not necessarily have a negative impact on the ability of an Indian
Tribe to receive program authorization. The Indian Tribe should,
however, explain in its application the nature and extent of any
limitation on its ability to levy criminal sanctions.
The Agency realizes that requiring Indian Tribes to demonstrate the
same criminal authority as States might effectively prohibit any Indian
Tribe from obtaining program authorization. The Agency, in Unit VII.F.
of this preamble has stated that Indian Tribes are not required to
exercise comprehensive criminal enforcement jurisdiction as a condition
for LBP debris management and disposal program authorization. Under
this proposal, Indian Tribes are required to provide for the timely and
appropriate referral of criminal enforcement matters to the EPA
Regional Administrator when Tribal enforcement authority does not exist
or is not sufficient. Section 745.352(b) of today's proposal requires
that such procedures be established in a formal Memorandum of Agreement
with the Regional Administrator. This approach is the same as that
which the Agency has taken in the context of Tribal programs under the
Safe Drinking Water Act and the Clean Water Act. EPA emphasizes that
this referral mechanism is not available where limitations on Tribal
enforcement arise under purely Tribal law, for example, the Tribal
constitution or statutes. It should be further noted that, as in
authorized States, EPA retains the authority to take enforcement action
if an authorized Indian Tribe does not (or cannot) take such action or
fails to enforce adequately.
iii. Training for compliance and enforcement personnel
(Sec. 745.352(a)(3)). A LBP debris management and disposal program
should offer training for compliance/enforcement personnel to ensure
that the personnel are well trained. Enforcement personnel should
understand case development procedures and the maintenance of proper
case files. Inspectors should successfully demonstrate knowledge of the
requirements of the particular discipline for which they have
compliance monitoring and enforcement responsibilities. Inspectors
should also be trained in violation discovery, evidence gathering,
preservation of evidence and chain-of-custody, and sampling procedures.
Instruction should take the form of both hands-on or on-the-job
training and the use of prepared training materials. A State and Tribal
LBP debris management and disposal program should also implement a
process for continuing education of enforcement and inspection
personnel.
iv. Compliance assistance (Sec. 745.352(a)(4)). LBP debris
management and disposal compliance and enforcement programs should
provide compliance assistance to the public and the regulated community
to facilitate awareness and understanding of and compliance with the
State or Indian Tribe's LBP debris management and disposal program(s).
v. Sampling techniques (Sec. 745.352(a)(5)). A State or Tribal
compliance and enforcement program should show that the State or Indian
Tribe is technologically capable of ensuring compliance with LBP debris
management and disposal compliance and enforcement program
requirements. As a result, an authorized program should have access to
the facilities and equipment necessary to conduct the proper analysis
of samples gathered from inspections of sites such as waste facilities,
reclamation facilities, and vehicles. A State or Indian Tribe should
use a laboratory facility as defined at 40 CFR 745.223 or implement a
quality assurance program that ensures appropriate quality of
laboratory personnel and protects the integrity of analytical data.
vi. Handling tips and complaints (Sec. 745.352(a)(6)). An
authorized LBP debris management and disposal program should have a
method in place to respond to tips from the general public. The
compliance and enforcement program should demonstrate the ability to
process and react to tips and complaints or other information
indicating a violation. EPA expects that the ability to process and
react to tips and complaints would, as appropriate, include:
A method for funneling complaints to a central
organizational unit for review.
A logging system to record the receipt of complaints and
to track the stages of a follow-up investigation.
A mechanism for referring complaints to the appropriate
investigative personnel.
A system for allowing a determination of the status of
cases and ensuring correction of any violations.
A procedure for notifying citizens of the ultimate
disposition of their complaints.
A procedure to conduct swift preliminary investigations of
complaints, especially those that allege serious threats to public
safety and the environment.
A pledge of confidentiality to all informants, to
encourage members of the public to come forward with tips and
complaints.
vii. Targeting inspections (Sec. 745.352(a)(7)). LBP debris
management and disposal compliance and enforcement programs should
demonstrate the ability to target inspections to ensure compliance with
the LBP debris management and disposal program requirements.
viii. Follow-up to inspection reports (Sec. 745.352(a)(8)). A State
or Indian Tribe should develop a quick turnaround time to review and
follow-up on identified violations and information that are gathered
from inspections. Such information should be processed within a
reasonable time to avoid risks associated with a stagnant
investigation. The State or Indian Tribe should be in a position to
ensure correction of violations, and, as appropriate, develop and issue
enforcement remedies/responses in follow-up to the identification of
violations.
ix. Compliance monitoring and enforcement (Sec. 745.352(a)(9)). A
compliance and enforcement program should ensure correction of
violations, and encompass either planned and/or responsive lead hazard
reduction inspections and development/issuance
[[Page 70222]]
of State or Tribal enforcement responses which are appropriate to the
violations.
x. Tribal memorandum of agreement (MOA)(Sec. 745.352(b)). Indian
Tribes should enter into an MOA with the appropriate EPA Regional
Administrator regarding criminal enforcement. The MOA should be
executed by the Indian Tribe's counterpart to the State Director; e.g.,
the Director of Tribal Environmental Office, Program or Agency. The MOA
should include a provision for timely and appropriate referral to the
Regional Administrator of criminal enforcement matters for which the
Indian Tribe does not have authority.
3. Summary on progress and performance. An authorized State or
Indian Tribe should provide periodic reports to EPA as specified in
Sec. 745.355(b)(2). Section 745.355(b)(2) requires authorized States or
Indian Tribes to submit a report which summarizes the results of
implementing the State or Indian Tribe's LBP debris management and
disposal compliance and enforcement program, including: (1) A summary
of the scope of the regulated community within the State or Indian
Tribe; (2) the inspections conducted; (3) Enforcement actions taken;
(4) compliance assistance provided; and (5) the level of resources
committed by the State or Indian Tribe to these activities and any
other LBP debris management and disposal administrative and compliance/
enforcement activities.
The report should describe any significant changes in the
enforcement of the State or Tribal LBP debris management and disposal
program implemented during the last reporting period. The report should
also summarize the results of the State or Indian Tribe's
implementation activities and what the State or Indian Tribe
discovered, in general, with regard to compliance and enforcement in
the State or Indian Tribe as a result of these activities. The report
should also describe how any measures of success were achieved, and
directly assess the impact of compliance/enforcement activities on
reducing threats to public health.
IX. Rulemaking Record
EPA has established a record for this proposed rule under docket
control number OPPTS-62160. A public version of the record without any
information claimed to be confidential is available in the TSCA Non-
Confidential Information Center (NCIC) from noon to 4 p.m., Monday
through Friday, excluding legal holidays. The TSCA NCIC is located at
EPA headquarters, Rm. NE-B607, 401 M St., SW., Washington, DC 20460.
The rulemaking record contains information considered by the EPA in
developing this proposed rule. The record includes: (1) All Federal
Register notices, (2) relevant support documents, (3) reports, (4)
memoranda and letters and (5) other documents related to this proposed
rulemaking.
Unit X. of this preamble contains the list of documents which the
Agency relied upon while developing today's regulation and can be found
in the docket. Other documents, not listed there, such as those
submitted with written comments from interested parties, are contained
in the TSCA Docket office as well. A copy of today's proposed rule is
also contained in the public record.
X. References
The following books, articles, reports and sources were used in
preparing this notice and were cited in this proposal by the number
indicated below:
1. U.S. Department of Health and Human Services, Centers for
Disease Control. February 21, 1997. ``Update: Blood Lead Levels- United
States, 1991-1994.'' Morbidity and Mortality Weekly Report. Vol. 46,
No. 7.
2. HUD. 1994. Department of Housing and Urban Development, National
Housing Survey. Washington, DC.
3. Lead-Based Paint Hazard Reduction and Financing Task Force. July
1995. Putting the Pieces Together: Controlling Lead Hazards in the
Nation's Housing. HUD-1547-LBP.
4. Task Force on Lead-Based Paint Hazard Reduction and Financing.
April 13, 1994. Letter to Honorable Carol Browner, Administrator,
USEPA. Washington, DC.
5. USEPA. March 1993. Applicability of RCRA Disposal Requirements
to Lead-Based Paint Abatement Wastes; Final Report. EPA 747-R-93-006.
6. HUD. April 1991. ``The HUD Lead-Based Paint Abatement
Demonstration (FHA).'' Office of Policy Development and Research.
7. USEPA. September 1998. TSCA Title IV, Secs. 402/404: Lead-Based
Paint Debris Management and Disposal Standards Proposed Rule Economic
Analysis. Office of Pollution Prevention and Toxics.
8. Stedman's Medical Dictionary. 1976. William and Wilken Co.,
Baltimore.
9. Rabinowitz, Michael. 1987. ``Stable Isotope Mass Spectrometry in
Childhood Lead Poisoning.'' Biological Trace Element Research. Vol. 12:
223-229.
10. Yaffe, Y., C.P. Flessel, J.J. Wesolowski, A. del Rosario, G.N.
Guirguis, V. Matias, J.W. Gramlich, W.R. Kelly, T.E. Degarmo, and G.C.
Coleman. 1983. ``Identification of lead sources in California children
using the stable isotope ratio technique.'' Arch Environmental Health.
Jul-Aug 38(4):237-45.
11. Clark, C.S., R.L. Bornschein, P. Succop, S.S. Que Hee, P.B.
Hammond, and B. Peace. 1985. ``Condition and Type of Housing as an
Indicator of Potential Environmental Lead Exposure and Pediatric Blood
Lead Levels.'' Environmental Research. 38:46-53.
12. Science Application International Corporation. May 1992.
Analytical Results of Lead in Construction Debris. Prepared for USEPA's
Office of Solid Waste.
13. Science Application International Corporation. September 1994.
Background Document on Lead Abatement Waste Study; Interim Draft.
Prepared for USEPA's Office of Solid Waste.
14. Deutsch, W.J. 1997. Groundwater Geochemistry. Woodward-Clyde,
Seattle, WA.
15. ICF Incorporated. 1995. Construction and Demolition Waste
Landfills. EPA 530-R-95-018.
16. ICF Incorporated. Damage Cases: Construction and Demolition
Waste Landfills. EPA 530-R-020.
17. USEPA. 1996. Hazardous Waste Characteristics Scoping Study. EPA
530-R-96-053.
18. USEPA. June 1998. Groundwater Pathway Analysis for Lead-Based
Paint (LBP) Architectural Debris; Background Document.
19. Clinch, J. Michael. 1994. Summary of C&D Leachate Studies.
Prepared for Ohio EPA C&D Landfill Regulation Negotiated Rulemaking
Committee.
20. HUD, Office of Policy Development and Research. December 1990.
``Comprehensive and Workable Plan for the Abatement of Lead-Based Paint
in Privately Owned Housing.'' Report to Congress.
21. USEPA. 1995. Estimates for Disposal of LBP Debris in C&D
Landfills. Developed for C&D landfill risk analysis.
22. EPA. 1997. EPA's Composite Model for Leachate Migration with
Transformation Products (EPACMTP). Office of Solid Waste.
(a) Background Document
(b) Users Manual
(c) Background Document for Finite Source Methodology
(d) Background Document for Metals: Methodology
23. Wu et al. January 1997. Water Resources Research, pp. 21-29.
24. EPA Science Advisory Board. August 1995. An SAB Report: Review
of EPA's Composite Model for Leachate
[[Page 70223]]
Migration with Transformation Products-EPACMTP. Prepared by the OSWER
Exposure Model Subcommittee of the Environmental Engineering Committee.
EPA-SAB-EEC-95-010
25. USEPA. January 1996. Office of Solid Waste. Response by USEPA
Office of Solid Waste to SAB Review of EPACMTP.
26. National Association of Demolition Contractors. October 21,
1997. Letter to Tim Torma, Office of Pollution Prevention and Toxics,
USEPA, Washington, DC.
27. Holmes. Hannah 1997. ``Bringing Down the House: Home
Deconstructionists Make Salvaging a Class Act.'' Sierra Club Magazine;
September/October, 1997: pp. 20-21.
28. U.S. Department of the Interior. 1995. National Park Service,
Cultural Resources Preservation Assistance. Historic Preservation Brief
#37: Appropriate Methods for Reducing Lead-Based Paint Hazards in
Historic Housing. Washington, DC, April 1995.
29. USEPA. November 1993. Management of Whole-Structure Demolition
Debris Containing Lead-Based Paint, Office of Waste Programs
Enforcement.
30. U.S. Department of Housing and Urban Development. 1995.
Guidelines for the Evaluation and Control of Lead-Based Paint Hazards
in Housing. Office of Lead-Based Paint Abatement and Poisoning
Prevention. June 1995.
31. Lehman, Timothy. September 15, 1997. USEPA, Office of Pollution
Prevention and Toxics. Memorandum to Timothy Torma, USEPA, Office of
Pollution Prevention and Toxics.
32. EPA. November 1984. EPA Policy for the Administration of
Environmental Programs on Indian Reservations.
33. EPA. July 1994. Memorandum of Actions for Strengthening EPA's
Tribal Operations.
XI. Regulatory Assessment Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
action is an ``economically significant regulatory action'' under
Executive Order 12866, entitled ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), because EPA estimates that this action may
result in annual cost savings exceeding $100 million. The Agency
submitted today's proposed rule, along with the proposed Suspension
under RCRA, to OMB for review under this Executive Order. Any changes
made in response to OMB suggestions or recommendations have been
documented in the public record for this proposal.
EPA has prepared an economic analysis of the impact of this action,
which is contained in a document entitled, ``TSCA Title IV, Sections
402/404: LBP Debris Management and Disposal Proposed Rule: Economic
Analysis.'' This document is also available in the public record for
this proposal.
The goal of the economic analysis was to identify, quantify, and
value the cost savings associated with exempting LBP debris from RCRA
Subtitle C and allowing for disposal in C&D landfills, and the
incremental costs of compliance with the LBP debris management
provisions of the proposed rules. Insofar as the cost savings and
reduction in the price of abatements stimulates demand for additional
LBP hazard-reducing activities, the analysis identified potential
social benefits associated with those cost reductions.
The following is a brief summary of that analysis.
1. Costs of the regulatory action. The proposed TSCA rule imposes
three new compliance requirements on regulated entities: notification
and recordkeeping when LBP debris is transferred, access limitations
for LBP debris stored longer than 72 hours, and covering of LBP debris
during transport. The compliance costs associated with the new
notification and recordkeeping requirements total $30.86 million
annually. The access limitation requirement imposes no new compliance
costs, because EPA believes that all affected projects are: (1)
Completed within the 72 hour timeframe, (2) presently using containers
that meet the access limitations requirements (by virtue of their
height or use of covers), or (3) capable of using compliant containers
at no additional cost. The requirements for covering LBP debris during
transport are expected to impose no new costs because transporters
generally cover debris already or can provide covered vehicles or
containers at no additional cost.
In addition to these compliance costs, EPA estimates that LBP
debris generators, transporters, and disposers will incur $21.61
million in the first year following promulgation of the rule to
familiarize themselves and their employees with the requirements of the
proposed rules, and $1.08 million in subsequent years to familiarize
new hires with the provisions of the proposed rules. Finally, as
discussed in Section XI.A.3. of this preamble, states incur costs to
apply for EPA approval to administer the proposed rules at the state
level. EPA estimates that states will incur $0.95 million in the first
year to apply for EPA approval and then $0.06 million in the second and
third years and biennially thereafter to submit annual reports. Thus,
total costs for regulated entities in the first year will be $53.42
million in the first year, $32.00 million in years that states submit
annual reports (second and third years and biennially thereafter), and
$31.94 million in years that state reports are not required.
The renovation and remodeling sector incurs the largest share of
first year compliance costs at $29.34 million, followed by waste
transporters, who will incur $15.86 million in the first year. Waste
disposal facilities are expected to incur compliance costs of $3.98
million in the first year, while abatement and demolition contractors
will each incur $1.38 and $1.91 million in first year compliance costs,
respectively. States incur the least compliance costs in the first year
with $0.95 million.
2. Benefits of regulatory action. The benefits of the proposed rule
are two-fold. First, the proposed rule would result in significant cost
savings for consumers of abatement, renovation, remodeling and
demolition. These savings would be achieved by allowing the use of C&D
landfills as an option for the disposal of LBP debris, and eliminating
the hazardous waste determination currently required for LBP debris
under RCRA Subtitle C. Second, the cost savings and reduced costs of
abatements, renovation, remodeling and demolitions would stimulate
demand for those services. The additional activities (in particular
abatements) would serve to mitigate the economic impacts of lead risk,
including: reduced lifetime earnings due to diminished intelligence,
increased educational costs, increased health care costs, costs
associated with increased morbidity and mortality, lost work days and
lost productivity, and pain and suffering associated with adverse
health effects.
The primary objective of the benefit analysis was to estimate the
potential cost savings that would arise from relief from the expensive
requirements of hazardous waste analysis, management, transportation,
and disposal for LBP debris. Waste generators, in the short-term, would
be relieved of the costly burden of managing LBP debris under RCRA
Subtitle C. In the long-term, the economic benefits to waste generators
are expected to be passed on to the consumers of abatement, renovation,
remodeling, and demolition services in the form of lower costs. The net
cost savings from the proposed rule are calculated as the baseline
costs
[[Page 70224]]
associated with managing and disposing of LBP debris under current
requirements minus the proposed rule compliance costs and the costs of
disposing of the LBP debris as a nonhazardous waste. The net cost
savings represent the potential magnitude of savings that would be
passed on to consumers.
The cost-savings (reduced disposal costs minus new compliance
costs) of the proposal are estimated at $97.91 million in the first
year. In subsequent years, the estimated cost savings increases to
approximately $119 million annually as initial compliance costs are
reduced. The demolition sector is estimated to realize the most benefit
with a $78.95 million cost savings in the first year. The estimated
savings for abatement activities is $36.99 million in the first year
and the savings for renovation and remodeling are estimated at $2.75
million in the first year. The cost savings in these three sectors are
then partially offset by increased costs incurred by waste
transporters, waste disposal facilities, and states. The waste
transportation sector is estimated to incur an additional $15.86
million in costs and the waste disposal industry is estimated to incur
new costs totaling $3.98 million. States applying for EPA approval to
administer the proposed rules will incur $0.95 million in the first
year.
When the net savings are divided by the baseline number of
activities, the demolition sector is expected to see the largest per
activity cost-savings with an average savings of $272.50 per project in
the first year. The average first year savings in the abatement sector
(including target housing, public housing, and commercial buildings)
and the renovation and remodeling sector are $176.26 and $0.62 per
activity respectively. Waste transporters and waste disposal facilities
are expected to incur costs of $3.19 and $0.80, respectively, for each
transaction involving LBP debris.
The secondary objective of the benefit analysis was to determine
how a potential change in demand for abatement, renovation, remodeling,
and demolition activities associated with a reduction in the costs of
those services would reduce the social costs of LBP risk. To the extent
that the costs of abatement, renovation, remodeling and demolition
decline as an outcome of this proposed rule and these savings are
passed on to consumers, there will be a corresponding increase in
demand for these activities.
This increase is likely to be particularly evident in the public
housing sector where local housing authorities operate under fixed
budgets that often include funds which are earmarked specifically for
abatement activity. Thus, any decrease in the cost of abatements should
lead to a direct increase in abatement activity in public housing, and
a subsequent accelerated depletion of the stock of public housing with
LBP hazards. The benefits analysis estimates that if promulgated, the
proposed rule would reduce the cost of public housing abatements from a
current average of $3,650 per unit to $3,444 per unit, a decline of
$206 or 5.6%. In aggregate, the proposal would generate $17.13 million
per year in cost savings for public housing abatements. Under the
assumption that public funding for LBP abatement remains stable, all
public housing units will be abated within 12 years. The estimated
$17.13 million in cost savings per year to public housing could be used
to fund additional abatements, shortening the time frame for completing
all remaining abatements. The analysis estimates that the number of
abatements in public housing will increase by 5,454 per year (an
increase of 6.6% from the current baseline), eliminating the stock of
public housing containing LBP 1 year earlier than predicted in the
absence of the proposed rule.
In the target housing and child-occupied facility sectors, the
decreased price of abatement activities is expected to also stimulate
demand for abatement, R&R and demolition services. Data on the
potential change in the demand for those services is not available,
however, and therefore it is not possible to determine the magnitude of
the potential benefits.
For each additional abatement, renovation, remodeling, and
demolition activity demanded as a result of the proposed rule, there
would be an additional reduction in LBP exposure. The elimination of
exposures to LBP hazards associated with these additional activities
will reduce the baseline number of cases of adverse health effects such
as childhood lead poisoning and increased hypertension among adults.
In addition to the measured benefits of additional abatement,
renovation, remodeling, and demolition activities described in the base
analysis, other qualitative benefit categories exist. These categories
include reductions in neonatal mortality, adult resident health effects
such as hypertension, coronary heart disease and stroke, infant/child
neurological effects, and occupational health effects such as
hypertension, coronary heart disease, and stroke. Due to data
limitations, however, it was not possible to value these benefits.
3. Costs to States. Under the proposed rules, States, Territories
and Tribes may incur costs associated with adopting and implementing
both the RCRA TC suspension rule and the TSCA LBP debris management and
disposal program. States are not required to implement these rules, and
States that do not do so will not incur any costs. Despite the optional
nature of the State requirements, EPA considers these costs
attributable to the proposed rules and has prepared estimates of the
potential costs that will be incurred by States.
Under the proposed TSCA rule, States would need to demonstrate and
certify to EPA that they have adopted requirements at the State level
that are at least as protective as the proposed Federal LBP debris
program. As a conservative assumption (from a cost standpoint), EPA has
assumed that 55 States, Tribes and Territories apply for such
authorization. EPA estimates that each entity would incur costs of
approximately $9,900 in the first year to modify State laws, assemble
an application package, and make the necessary certifications to EPA.
States receiving authorization would be required to submit progress
reports in the first 3 years after receiving authorization and
biennially thereafter on their LBP management programs, which would
cost them an estimated $1,100 for each report, or a total of $0.06
million for all States. In total, the highest costs to States would
occur in the first year, when the combined State costs would total
$0.55 million.
Under the proposed RCRA TC suspension rule, States that are
authorized for TC and that have an approved LBP debris management
program in place (or that have certified to EPA that their programs are
as protective as the Federal requirements) would be eligible to
implement the TC rule at the State level. Presently, there are 35
States with authorized TC programs and another 10 States with TC rules
adopted that are awaiting EPA authorization. Assuming again a
conservative scenario (from a cost standpoint), if all 45 States
eventually apply and incur costs similar to those incurred to implement
the LBP debris program (approximately $8,800 per State), the total
costs of the TC rule to States would be $0.40 million in the first
year.
The combined costs incurred by States to implement both the LBP
debris program and the TC suspension rule would be $0.95 million in the
first year under worst-case assumptions. In the second and third years
and biennially
[[Page 70225]]
thereafter, States would only incur $0.06 million to prepare and submit
the required LBP debris management progress report.
4. Sensitivity analysis. Sensitivity analyses were prepared to
examine the effects of key assumptions and modeling parameters on the
pre- and post-regulatory costs, and their impact on the cost savings of
the proposed rule. These analyses considered the effects of alternative
TCLP failure rates for LBP debris, alternative assumptions concerning
how frequently generators perform TCLP testing on LBP debris,
alternative estimates of how often generators rely on relevant
knowledge rather than TCLP testing to make hazardous waste
determinations, how commonly generators use XRF testing to make
hazardous waste determinations instead of TCLP, the time required to
perform notifications under the proposed rule, and the number of States
that will apply for EPA approval to administer the proposed TC
suspension and LBP debris management and disposal program. In total, 16
different scenarios were generated by varying these assumptions.
In the sensitivity analysis, the net impact of the rule varies from
a net savings of $295.25 million in the first year to a net savings of
$46.04 million in the first year. The upper bound represents over a
300% increase over the results obtained using all of the baseline
assumptions ($97.91 million in the first year) while the lower bound
represents a 53% decrease from the baseline cost savings. The upper
bound scenario assumed more frequent use of XRF testing in the baseline
scenario, which increased the baseline level of testing costs. The
lower bound assumed that less testing and less reliance on relevant
knowledge is used in identifying LBP debris compared to assumptions
used in the baseline scenario. These two assumptions combined to reduce
the baseline costs of waste disposal, thus reducing the potential cost
savings of the proposed rules. The median estimate among the
sensitivity analyses was $107.70 million in the first year (this
scenario assumes a only 23 states would apply for EPA approval under
the TC suspension and 28 states would apply under the TSCA rule). Six
of the sensitivity analyses generated lower cost savings estimates and
10 scenarios generated higher cost savings estimates compared to the
baseline scenario.
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), the Agency hereby certifies that this action will
not have a significant adverse economic impact on a substantial number
of small entities. The factual basis for this certification is included
in the small entity analysis that was conducted as part of the economic
analysis. This proposed rule will result in substantial cost and burden
savings for all of the entities involved in LBP activities, regardless
of the size of the entity. EPA's analysis, as summarized above, shows
that this proposed rule consistently imposes compliance costs that are
less than 1% of any industry's revenues, and in many cases, less than
0.1% of the industry's revenues. Information relating to this
determination is provided upon request to the Chief Counsel for
Advocacy of the Small Business Administration, and is included in the
docket for this rulemaking.
C. Paperwork Reduction Act
The information collection requirements contained in this proposed
rule have been submitted to the Office of Management and Budget under
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and in accordance
with the procedures at 5 CFR 1320.11. An Information Collection Request
(ICR) document has been prepared by EPA (EPA ICR No. 1822.01) and a
copy may be obtained from Sandy Farmer, OPPE Regulatory Information
Division (2137), Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460, by calling (202) 260-2740, or electronically by
sending an e-mail message to, farmer.sandy@epamail.epa.gov.'' An
electronic copy of the ICR has also been posted with the Federal
Register notice on EPA's homepage at ``www.epa.gov/icr.'' The
information requirements contained in this proposal are not effective
until promulgation and OMB approval, which is presented by a currently
valid OMB control number. An agency may not conduct or sponsor and a
person is not required to respond to a collection of information
subject to OMB approval under the PRA unless it displays a currently
valid OMB control number. The OMB control numbers for EPA's regulations
after initial publication in the Federal Register are maintained in a
list at 40 CFR part 9.
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), EPA is
required to estimate the notification, reporting and recordkeeping
costs and burdens associated with the requirements specified in the
proposed rule. The proposed rules contain three requirements that would
impose paperwork burdens: reading and interpreting the proposed rules,
the notification and recordkeeping requirement of the TSCA rule, and
the state application requirement under both rules. In addition to
these new burdens, exempting LBP debris from RCRA subtitle C will
reduce the burden associated with manifesting for LBP debris handled as
hazardous waste. Paperwork burdens are estimated to be 1.6 million
hours annually, with a total costs of $36.9 million annually.
Under the Paperwork Reduction Act ``burden'' means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. The final rule will respond to any OMB
or public comments on the information collection requirements contained
in this proposal.
D. Unfunded Mandates Reform Act (UMRA)
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104-4), EPA has determined that this proposed action
does not contain a Federal mandate that may result in expenditures of
$100 million or more for State, local, and Tribal governments, in the
aggregate, or the private sector in any 1 year. The cost associated
with this action are described in the Executive Order 12866 section
above.
UMRA generally excludes from the definition of a ``Federal
intergovernmental mandate'' (in sections 202, 203, and 205) duties that
arise from participation in a voluntary Federal program. Adoption by
States or Indian Tribes of today's proposed rule and the companion RCRA
temporary TC suspension is voluntary and imposes no Federal
intergovernmental mandate within the meaning of the Act. Because any
possible burden on such governmental units would be incurred
[[Page 70226]]
as a result of voluntary action by those governmental units, there is
not an unfunded mandate.
In addition, EPA has determined that today's proposed rule will not
significantly or uniquely affect small governments, including Tribal
governments, so no action is needed under section 203 of the UMRA. As
indicated in Unit XI.B. of this preamble, if small governments, such as
small municipalities or Tribes, are generators of LBP debris covered
under today's proposed standards, then they will save the costs of
complying with the RCRA TC rule and any costs of complying with RCRA
Subtitle C standards when LBP debris is determined to be hazardous.
As a result, this proposed action is not subject to the
requirements of sections 202, 203, 204, or 205 of UMRA.
E. Executive Order 12875
Under Executive Order 12875, entitled ``Enhancing Intergovernmental
Partnerships'' (58 FR 58093, October 28, 1993), EPA may not issue a
regulation that is not required by statute and that creates a mandate
upon a State, local or tribal government, unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by those governments. If the mandate is unfunded, EPA must
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
State, local and tribal governments, the nature of their concerns,
copies of any written communications from the governments, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's proposed rule does not create a mandate on State, local or
tribal governments. The proposed rule does not impose any enforceable
duties on these entities. Accordingly, the requirements of section 1(a)
of Executive Order 12875 do not apply to this proprosed rule.
Nevertheless, EPA has consulted with these governmental entities.
Throughout the development of today's proposed rules, the Agency has
worked closely with States, Tribal, and local governments. A more
detailed discussion of these activities has been included in Unit V.A.
of this preamble on stakeholder consultation. In working with these
various governmental entities, EPA has provided notice to small
governments of the provisions of today's proposed rule and obtained
meaningful and timely input from them. Furthermore, EPA will continue
these outreach efforts during the comment period and subsequent to
promulgation.
F. Executive Order 13084
Under Executive Order 13084, entitled ``Consultation and
Coordination with Indian Tribal Governments'' (63 FR 27655, May 19,
1998), EPA may not issue a regulation that is not required by statute,
that significantly or uniquely affects the communities of Indian tribal
governments, and that imposes substantial direct compliance costs on
those communities, unless the Federal government provides the funds
necessary to pay the direct compliance costsincurred by the tribal
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments. The proposed rule does not
impose any enforceable duties on these entities. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this proposed rule. Nevertheless, as indicated above and discussed in
more detail in Unit IV.A. of this preamble, EPA has consulted with
State, local and Tribal governments during the development of these
proposed rules. EPA will continue these outreach efforts during the
comment period and subsequent to promulgation.
G. Executive Order 12898
Pursuant to Executive Order 12898 entitled ``Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994), the Agency has
considered environmental justice related issues with regard to the
potential impacts of this proposed action on the environmental and
health conditions in low-income and minority communities. This
examination shows that existing LBP hazards are a risk to all segments
of the population living in pre-1978 housing. However, literature
indicates that some segments of our society are at relatively greater
risk than others.
A recent study by NHANES indicates that children of urban, minority
(e.g., African American, Asian Pacific American, Hispanic American,
American Indian), or low-income families, or who live in older housing,
continue to be most vulnerable to lead poisoning and elevated blood-
lead levels. The February 21, 1997 Center for Disease Control's
Morbidity and Mortality Weekly Report states that: ``Despite the recent
and large declines in BLLs [blood lead levels], the risk for lead
exposure remains disproportionately high for some groups, including
children who are poor, non-Hispanic black, Mexican American, living in
large metropolitan areas, or living in older housing.''
Although the baseline risks from LBP fall disproportionately on
poorer sub-populations, it may be more likely that abatements will take
place in residential dwellings occupied by mid- to upper-level income
households. Abatements are voluntary, and wealthier households are more
likely to have the financial resources to abate an existing problem in
their home, or to avoid LBP hazards by not moving into a residential
dwelling with LBP. Even though a national strategy of eliminating LBP
hazards targets a problem affecting a greater share of poor households
and minorities, the impact of income on the ability to undertake
voluntary abatements may result in an inequitable distribution of LBP
risks.
By making abatements more affordable, today's proposal helps to
address this situation. To the extent that the proposal results in
additional abatements, renovations, remodeling, and demolitions that
reduce LBP hazards, there is a likelihood that poor and minority
populations will benefit the most from risk reductions. This potential
will likely be realized to the greatest extent in the case of public
housing units with LBP hazards. The decrease in the cost of abatements
in public housing will lead to an increase in abatement activity in
public housing and a subsequent acceleration in the depletion of public
housing with LBP hazards. The occupants of these public housing units
are disproportionately lower income and minority populations. As the
price of abatements is lowered as a result of cost savings associated
with today's proposed rule, more low-income families will be able to
afford to make
[[Page 70227]]
the decision to remove LBP hazards from their homes.
EPA also determined that the potential impact on minority-owned
businesses in industries affected by the proposed rule would be
minimal. Available information suggests that minority-owned business
would not particularly benefit from this proposed rule, since minority
ownership rates for firms that generate LBP debris are no higher than
average.
H. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, the Agency is directed to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires the Agency to provide
Congress, through the Office of Management and Budget, an explanation
of the reasons for not using such standards.
EPA is not proposing any new test methods or other technical
standards as part of today's proposed TSCA rule for LBP debris. Thus,
the Agency has no need to consider the use of voluntary consensus
standards in developing this proposed rule. EPA invites public comment
on this analysis.
I. Executive Order 13045
This proposed rule is not subject to E.O. 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' (62 FR 19885, April 23, 1997), because this proposal is not an
economically significant regulatory action as defined by E.O. 12866.
The environmental health or safety risks addressed by this action have
a beneficial effect on children. This proposal will benefit children by
allowing less costly management and disposal of LBP therefore lessening
the cost of abatements. Reducing the costs of abatements will also
reduce the amount of time needed to complete abatements in public
housing. Lower abatement costs will increase the amount of private
homes undergoing abatements. By reducing costs associated with
management and disposal of LBP debris, the Agency believes that the
number of abatements will increase thus resulting in a reduction of
children exposed to LBP. Children are the primary beneficiaries of this
proposed rule as well as from the entire Lead Program.
List of Subjects in 40 CFR Part 745
Environmental protection, Hazardous substances, Hazardous waste,
Lead poisoning, Management and disposal of LBP, Reporting and
recordkeeping requirements.
Dated: December 9, 1998.
Carol M. Browner,
Administrator.
Therefore, 40 CFR part 745 is proposed to be amended as follows:
PART 745--[AMENDED]
1. The authority citation for part 745 is revised to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2681-2692, and 42 U.S.C. 4852d.
2. By adding a new subpart P to read as follows:
Subpart P--Management and Disposal of Lead-Based Paint Debris
Sec.
745.301 Scope and applicability.
745.303 Definitions.
745.305 Lead-based paint hazards.
745.307 Generator responsibilities.
745.308 Transporter responsibilities.
745.309 Disposal and reclamation facility owner or operator
responsibilities.
745.311 General requirements for the reuse and storage of lead-
based paint debris.
745.313 Notification and recordkeeping requirements.
745.315 Certification of workers.
745.317 Enforcement.
745.318 Inspections.
745.319 Effective dates.
Subpart P--Management and Disposal for Lead-Based Paint Debris
Sec. 745.301 Scope and applicability.
(a) Regulated entities. Except as provided in paragraphs (b) and
(d) of this section, this subpart applies to all persons, individuals,
and firms, who generate, store, transport, reuse, offer for reuse,
reclaim and/or dispose of lead-based paint debris.
(b) Exclusion of homeowners. This subpart does not apply to lead-
based paint debris generated by persons who conduct abatement or
renovation and remodeling activities themselves in target housing that
they own, unless the housing is occupied by a person or persons other
than the owner or the owners' immediate family while the lead-based
paint debris is being generated.
(c) Other regulatory authorities. Lead-based paint debris subject
to this subpart may also be subject to additional requirements under
other regulatory authorities (e.g., the Resource Conservation and
Recovery Act (RCRA) and the Clean Air Act (CAA)).
(d) Lead-based paint removal. If lead-based paint is removed from
lead-based paint debris and the remaining material has levels of lead
less than 1 mg/cm2, the material is no longer subject to the
requirements in this subpart. Waste products generated during removal
of lead-based paint (e.g., paint chips, paint dust, solvents) may be
subject to other regulatory authorities (e.g., RCRA, CAA, non-Title IV
TSCA authorities).
Sec. 745.303 Definitions.
The definitions in subparts A and L of this part apply to this
subpart. In addition, the following definitions apply:
Abatement means any measure or set of measures designed to
permanently eliminate lead-based paint hazards. Abatement includes, but
is not limited to:
(1) The removal of lead-based paint and lead-contaminated dust, the
permanent enclosure or encapsulation of lead-based paint, the
replacement of lead-painted surfaces or fixtures, and the removal or
covering of lead-contaminated soil.
(2) All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures.
(3) Specifically, abatement includes, but is not limited to:
(i) Projects for which there is a written contract or other
documentation, which provides that an individual or firm will be
conducting activities in or to a residential dwelling or child-occupied
facility that:
(A) Shall result in the permanent elimination of lead-based paint
hazards; or
(B) Are designed to permanently eliminate lead-based paint hazards
and are described in paragraphs (1) and (2) of this definition.
(ii) Projects resulting in the permanent elimination of lead-based
paint hazards, conducted by firms or individuals certified in
accordance with Sec. 745.226, unless such projects are covered by
paragraph (4) of this definition.
(iii) Projects resulting in the permanent elimination of lead-based
paint hazards, conducted by firms or individuals who, through their
company name or promotional literature, represent, advertise, or hold
themselves out to be in the business of performing lead-based paint
activities as identified and defined by this section, unless such
[[Page 70228]]
projects are covered by paragraph (4) of this definition; or
(iv) Projects resulting in the permanent elimination of lead-based
paint hazards, that are conducted in response to State or local
abatement orders.
(4) Abatement does not include renovation, remodeling, landscaping
or other activities, when such activities are not designed to
permanently eliminate lead-based paint hazards, but, instead, are
designed to repair, restore, or remodel a given structure or dwelling,
even though these activities may incidentally result in a reduction or
elimination of lead-based paint hazards. Furthermore, abatement does
not include interim controls, operations and maintenance activities, or
other measures and activities designed to temporarily, but not
permanently, reduce lead-based paint hazards.
Artifact means an item that is not used as a structural or utility
(e.g., electrical, plumbing, heating, air conditioning) component of a
building or other structure but is used for decorative or other
purposes.
Commercial building means any building which is used primarily for
commercial or industrial activity including but not limited to
manufacturing, service, repair, or storage.
Construction and demolition (C&D) landfill means a solid waste
disposal facility subject to the requirements in part 257, subparts A
or B of this chapter that does not receive hazardous waste (defined in
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. Municipal
solid waste landfill units as defined in Sec. 258.2 of this chapter are
not C&D landfills.
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, commercial buildings, or steel
structures.
Demolition means the wrecking, razing, or destroying of any
building or significant element thereof using a method that generates
undifferentiated rubble.
Deteriorated paint means paint that is cracking, flaking, chipping,
peeling, or otherwise separting from the substrate of a building
component.
Dispose means intentionally or accidentally to discard, throw away,
or otherwise undertake any action resulting in the placement of lead-
based paint debris in any location where it is not destined to be
stored, reused, or reclaimed in accordance with this subpart.
Application of lead-based paint debris as mulch, topsoil, ground cover,
landscaping material, roadbed material, fill material or for any
purpose which would require shredding, grinding, compacting, burying or
mixing with soil is disposal. Any burning of lead-based paint debris
that is not reclamation is disposal.
Encapsulation means the application of a substance that forms a
barrier between lead-based paint and the environment, using a liquid-
applied coating (with or without reinforcement materials) or an
adhesively-bonded covering material.
Generator means any person, by site, whose act or process produces
lead-based paint debris or whose act first causes lead-based paint
debris to become subject to this part.
Indian Country means:
(1) All land within the limits of any American Indian reservation
under the jurisdiction of the U.S. government, notwithstanding the
issuance of any patent, and including rights-of-way running throughout
the reservation.
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or outside the limits of a State.
(3) All Indian allotments, the Indian titles which have not been
extinguished, including rights-of-way running through the same.
Indian Tribe or Tribe means any Indian Tribe, band, nation, or
community recognized by the Secretary of the Interior and exercising
substantial governmental duties and powers.
Lead-based paint means paint or other surface coatings that contain
lead equal to or in excess of 1.0 milligrams per centimeter squared or
more than 0.5 percent by weight.
Lead-based paint architectural component debris (LBPACD) means:
(1) Elements or fixtures, or portions thereof, of commercial
buildings, public buildings, or target housing that are coated wholly
or in part with or adhered to by lead-based paint. These include, but
are not limited to interior components such as: ceilings, crown
molding, walls, chair rails, doors, door trim, floors, fireplaces,
radiators and other heating units, shelves, shelf supports, stair
treads, stair risers, stair stringers, newel posts, railing caps,
balustrades, windows and trim, including sashes, window heads, jambs,
sills, stools and troughs, built-in cabinets, columns, beams, bathroom
vanities, and counter tops; and exterior components such as: painted
roofing, chimneys, flashing, gutters and downspouts, ceilings, soffits,
facias, rake boards, cornerboards, bulkheads, doors and door trim,
fences, floors, joists, lattice work, railings and railing caps,
siding, handrails, stair risers and treads, stair stringers, columns,
balustrades, window sills or stools and troughs, casings, sashes and
wells.
(2) LBPACD is generated when an architectural component which is
coated wholly or in part with or adhered to by lead-based paint is
displaced and separated from commercial buildings, public buildings, or
target housing as a result of abatement, deleading, renovation or
remodeling activities. LBPACD does not include other types of lead-
based paint waste such as paint chips, paint dust, sludges, solvents,
vacuum filter materials, wash water, contaminated and decontaminated
protective clothing and equipment except that paint chips and dust
which are created after LBPACD is placed in a container or vehicle for
transport to a disposal or reclamation facility specified in
Sec. 745.309 is considered LBPACD.
(3) LBPACD which is reused in compliance with this subpart is no
longer LBPACD.
Lead-based paint debris means lead-based paint demolition debris or
lead-based paint architectural component debris.
Lead-based paint demolition debris means any solid material which
results from the demolition of target housing, public buildings, or
commercial buildings which are coated wholly or in part with or adhered
to by lead-based paint at the time of demolition.
Person means any natural or judicial person including any
individual, corporation, partnership, or association; any Indian Tribe,
State or political subdivision thereof; any interstate body; and any
department, agency or instrumentality of the Federal government.
Public building means any building constructed prior to 1978 which
is generally open to the public or occupied or visited by the public,
including but not limited to schools, daycare centers, museums, airport
terminals, hospitals, stores, restaurants, office buildings, convention
centers, and government buildings. Note: ``child-occupied facilities''
as defined at Sec. 745.223 are included in the definition of public
building.
[[Page 70229]]
Reclaim or reclamation means to procure usable substances from
lead-based paint debris. Examples of reclamation include the burning of
lead-based paint debris for energy value, processing of lead-based
paint debris in a smelter to obtain lead, or removing lead-based paint
from debris prior to reuse of a component.
Remodeling means any construction-related work on an existing
property intended to either maintain or improve the property that
results in the disturbance of painted surfaces.
Renovation means the modification of any existing structure, or
portion thereof, that results in the disturbance of painted surfaces,
unless that activity is performed as part of an abatement as defined in
this part. The term renovation includes but is not limited to: the
removal or modification of painted surfaces or painted components
(e.g., modification of painted doors, surface preparation activity
(such as sanding, scraping, or other such activities that may generate
paint dust)); the removal of large structures (e.g., walls, ceiling,
large surface replastering, major re-plumbing); and window replacement.
Reuse means to use again for any purpose other than reclamation or
disposal. Examples of reuse include moving doors, windows or other
components from one structure to another to be put to a similar use.
Site means the same or geographically contiguous property which may
be divided by public or private right-of-way. Non-contiguous properties
owned by the same person but connected by a right-of-way which the
owner controls and to which the public does not have access, are
considered part of a single site.
Storage means the holding of lead-based paint debris for a
temporary period.
Target housing means any housing constructed prior to 1978, except
housing for 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 persons with disabilities) or
any 0-bedroom dwelling.
Transfer for reuse means to physically relocate, or convey
ownership of a building component prior to reuse.
Sec. 745.305 Lead-based paint hazards.
The following are lead-based paint hazards:
(a) Management or disposal of lead-based paint debris not in
compliance with this subpart.
(b) Reuse or transfer for reuse of lead-based paint debris which is
coated in part or in whole with deteriorated paint.
Sec. 745.307 Generator responsibilities.
(a) Determination of presence of lead-based paint debris. (1)
Generators of lead-based paint debris are responsible for determining
if lead-based paint debris is present. To make this determination,
generators may:
(i) Test the waste for the presence of lead-based paint.
(ii) Use their knowledge of the waste.
(iii) Assume that lead-based paint debris is present.
(2) Generators incorrectly determining that lead-based paint debris
is not present are liable as separate violations of TSCA for any
subsequent storage, transportation, disposal, reclamation or reuse of
lead-based paint debris not in compliance with this subpart.
(b) Other generator responsibilities. Generators of lead-based
paint debris must comply with Secs. 745.311 and 745.313 and may not:
(1) Transport, or arrange for the transportation of lead-based
paint debris in any manner other than specified in Sec. 745.308.
(2) Dispose of, or arrange for the disposal of, lead-based paint
debris at any facility not specified in Sec. 745.309(a).
(3) Reclaim, or arrange for the reclamation of, lead-based paint
debris at any facility not specified in Sec. 745.309(b).
(4) Transfer lead-based paint debris to any party other than for
reuse, storage, transport, disposal or reclamation in compliance with
this subpart.
Sec. 745.308 Transporter responsibilities.
Transporters of lead-based paint debris must comply with
Secs. 745.311 and 745.313 and may not:
(a) Transport or arrange for the transportation of lead-based paint
debris off-site in any vehicle without a cover that prevents visibly
identifiable releases of dust or debris.
(b) Dispose of, or arrange for the disposal of, lead-based paint
debris at any facility not specified in Sec. 745.309(a).
(c) Reclaim, or arrange for the reclamation of, lead-based paint
debris at any facility not specified in Sec. 745.309(b).
(d) Transfer lead-based paint debris to any party other than for
reuse, storage, transport, disposal or reclamation in compliance with
this subpart.
Sec. 745.309 Disposal and reclamation facility owner or operator
responsibilities.
(a) Disposal facility responsibilities. Owners or operators of
waste disposal facilities must comply with Secs. 745.311 and 745.313
and may not:
(1) Accept lead-based paint debris for disposal in any facility
other than:
(i) A construction and demolition landfill as defined in this
subpart.
(ii) A facility which does not accept industrial waste but is
subject to the requirements in part 257, subpart B of this chapter
applicable to non-municipal, non-hazardous waste disposal units
receiving conditionally exempt small quantity generated waste (as
defined in Sec. 261.5 of this chapter).
(iii) A hazardous waste disposal facility permitted under part 270
of this chapter.
(iv) A hazardous waste disposal facility that is authorized to
manage hazardous waste by a State that has a hazardous waste management
program approved under part 271 of this chapter.
(v) A hazardous waste disposal facility that has qualified for
interim status to manage hazardous waste under RCRA section 3005(e).
(vi) A facility subject to the requirements of part 60, subparts
Cb, Eb, or part 63, subpart X (such as a secondary lead smelter or a
municipal combustor) of this chapter.
(2) Transport or arrange for the transportation of lead-based paint
debris in any vehicle without a cover that prevents any visibly
identifiable release of dust or debris.
(3) Reclaim lead-based paint debris except in a facility subject to
the requirements of Sec. 745.309(b).
(4) Transfer lead-based paint debris to any party other than for
reuse, storage, transport, disposal, or reclamation in compliance with
this subpart.
(b) Reclamation facility responsibilities. An owner or operator of
a reclamation facility must comply with Secs. 745.311 and 745.313.
Reclamation facilities burning, incinerating or smelting may accept
lead-based paint debris for reclamation only in a facility subject to
the requirements of part 60, subparts Cb, Eb, or part 63, subpart X of
this chapter.
(1) An owner or operator of a reclamation facility may not
transport or arrange for the transportation of lead-based paint debris
in any vehicle without a cover that prevents any visibly identifiable
release of dust or debris.
(2) An owner or operator of a reclamation facility may not dispose
of, or arrange for the disposal of, lead-based paint debris at any
facility not specified in Sec. 745.309(a).
(3) An owner or operator of a reclamation facility may not transfer
lead-based paint debris to any party other than for reuse, storage,
transport, disposal or reclamation in compliance with this subpart.
[[Page 70230]]
Sec. 745.311 General requirements for the reuse and storage of lead-
based paint debris.
Generators and transporters of lead-based paint debris, owners or
operators of disposal or reclamation facilities accepting lead-based
paint debris, or owners or operators of any enterprise offering lead-
based paint debris for reuse may not reuse, offer for reuse, or store
lead-based paint debris, or transfer lead-based paint debris to other
parties for reuse or storage unless the reuse or storage is in
compliance with all requirements in this subpart.
(a) Reuse. Lead-based paint debris that is coated in part or whole
with deteriorated paint identified as a lead-based paint hazard at
Sec. 745.305(b) may not be reused or offered for reuse as a building or
structural component or artifact or transferred to another party for
such reuse unless the lead-based paint is completely removed. lead-
based paint debris may be transferred to a reclamation facility for
removal of lead-based paint prior to reuse.
(b) Storage. (1) With the exception of demolition debris, may not
be stored at any site (including the site where the lead-based paint
debris was generated) for more than 72 hours from the time of
generation without one of the following access limitations:
(i) Enclosing lead-based paint debris in closed or covered
receptacles (e.g., containers, drums, mobile trailers, or covered
dumpsters).
(ii) Keeping lead-based paint debris in a dumpster or container
which is at least 6 feet tall.
(iii) Keeping lead-based paint debris in fenced areas that are
locked when work activities are not being performed on the site.
(iv) Keeping lead-based paint debris in an unoccupied or non-
residential structure which is locked when work activities are not
being performed on the site.
(v) Keeping lead-based paint debris on an unoccupied or non-
residential level of a multi-story structure and keeping the level
locked when work activities are not being performed on the site.
(2) May not be stored at any site or combination of sites for a
period exceeding 180 days.
(3) May be stored in a covered transport vehicle for all or a
portion of this 180-day period.
Sec. 745.313 Notification and recordkeeping requirements.
(a) Notification. When generators and transporters of lead-based
paint debris, owners or operators of disposal or reclamation facilities
accepting lead-based paint debris, or owners or operators of any
enterprise offering lead-based paint debris for reuse transfer lead-
based paint debris (transferor) to any other person (recipient), for
any reason, the transferor must notify the recipient in writing of the
presence of lead-based paint debris. The Notification must:
(1) Disclose the presence of lead-based paint debris.
(2) Indicate the date of generation of the lead-based paint debris.
(3) Be signed and dated by the recipient.
(4) Be signed and dated by the transferor.
(5) Contain the generator's name and address.
(6) Include a citation referring the recipient to this subpart.
(b) Recordkeeping. The transferor and the recipient must each
retain a copy of the Notification for a minimum of 3 years from the
date that the Notification is signed by the recipient.
Sec. 745.315 Certification of workers.
Individuals and firms engaged in the transport, reuse, storage,
disposal or reclamation of lead-based paint debris or in offering lead-
based paint debris for any such activity whose practices are in
compliance with the requirements of this subpart are deemed certified
by this section to engage in the transport, reuse, storage, reclamation
or disposal of lead-based paint debris pursuant to section 402 of the
Toxic Substances Control Act.
Sec. 745.317 Enforcement.
(a) Failure or refusal of any person to comply with Secs. 745.307,
745.308, 745.309, 745.311, 745.313 or 745.315 is a prohibited act under
15 U.S.C. 2689 of the Toxic Substances Control Act and may subject a
violator to civil and criminal sanctions pursuant to 15 U.S.C. 2615 for
each violation.
(b) Failure or refusal of any person to establish, maintain,
provide, copy, or permit access to records or reports as required by
Sec. 745.313 is a prohibited act under 15 U.S.C. 2689 of the Toxic
Substances Control Act.
(c) Failure or refusal of any person to permit entry or inspection
as required by Sec. 745.318 or 15 U.S.C. 2610 of the Toxic Substances
Control Act is a prohibited act under 15 U.S.C. 2689 of the Toxic
Substances Control Act.
Sec. 745.318 Inspections.
EPA may conduct reasonable inspections pursuant to 15 U.S.C. 2610
of the Toxic Substances Control Act to ensure compliance with this
subpart.
Sec. 745.319 Effective dates.
EPA will begin enforcement of the provisions at Secs. 745.307
through 745.318 on [insert the date 2 years after date of publication
of the final rule in the Federal Register] in any State or Indian
Country which does not have a lead-based paint debris management and
disposal program authorized under subpart Q of this part in effect by
that date.
3. By revising the heading for subpart Q to read as follows:
Subpart Q--State and Tribal Lead-Based Paint Debris Management and
Disposal Programs
4. In Sec. 745.320, by adding paragraph (h) to read as follows:
Sec. 745.320 Scope and purpose.
* * * * *
(h) For State or tribal lead-based paint management and disposal
programs, a State or Indian Tribe may seek authorization to administer
and enforce Secs. 745.307 through 745.315. The provisions of
Secs. 745.301, 745.303, 745.317, 745.318 and 745.319 shall be
applicable for the purposes of such program authorization.
5. By adding new Secs. 745.341 through 745.359 to subpart Q to read
as follows:
Sec. 745.341 Options for lead-based paint debris management and
disposal programs in States and Indian Country.
(a) State and Tribal programs. A State or Indian Tribe may apply to
EPA for authorization to administer and enforce a lead-based paint
debris management and disposal program. No program application will be
approved unless EPA finds that the program is at least as protective as
the Federal requirements in Secs. 745.307 through 745.319 and that it
provides adequate enforcement.
(b) EPA administration and enforcement in States and Tribes without
authorized programs. If a State or Indian Tribe does not have a lead-
based paint debris management and disposal program authorized under
this subpart and in effect on or before the date which is 2 years after
the date the final rule is published in the Federal Register, EPA will
on such date, begin enforcement of the provisions at Secs. 745.307
through 745.319 as the Federal program for that State or Indian
Country.
Sec. 745.344 Application for authorization of State and Tribal
programs.
This section establishes requirements for State or Tribal
applications to EPA to administer and enforce a lead-based paint debris
management and disposal program under TSCA section 404. This section
also establishes the public
[[Page 70231]]
participation procedures EPA will follow as part of its review of State
or Tribal applications.
(a) Public comment. Before submitting an application to EPA for
program authorization, a State or Indian Tribe must:
(1) Issue in the State or Indian Country a public notice of intent
to seek authorization. The comment period on the public notice must be
at least 30 days.
(2) Provide an opportunity for public hearing.
(b) Application contents. A State or Tribal application must
include:
(1) A transmittal letter from the State Governor or Tribal
Chairperson (or equivalent official) requesting program authorization.
(2) A program summary that will be published in the Federal
Register by EPA to provide notice to residents of the State or Tribe
that EPA will review the application.
(3) A description of the program in accordance with Sec. 745.346.
(4) An Attorney General's or Tribal Counsel's (or equivalent)
statement in accordance with Sec. 745.347.
(5) A statement which identifies resources the State or Tribe
intends to devote to the administration of its compliance and
enforcement program.
(6) A statement agreeing to submit to EPA the Summary on Progress
and Performance of lead-based paint compliance and enforcement
activities as described at Sec. 745.355(b)(2).
(7) Copies of all applicable State and Tribal statutes,
regulations, standards, and other materials that provide the State or
Indian Tribe with the authority to administer and enforce a lead-based
paint debris management and disposal program.
(c) Public comment on applications. After receipt of a State or
Tribal application, EPA will publish a Federal Register notice
containing:
(1) An announcement of the receipt of the application.
(2) The program summary provided by the State or Tribe in
accordance with paragraph (b)(2) of this section.
(3) A request for public comments to be mailed to the appropriate
EPA Regional Office. The comment period will last at least 45 days. EPA
will consider public comments during its review of the application.
(d) Public hearing. EPA will, if requested, conduct a public
hearing in the State or Indian Country of the Tribe seeking program
authorization and will consider all comments submitted at that hearing
during its review of the State or Tribal application.
Sec. 745.346 State or Tribal Program Description
A State or Tribe applying to administer and enforce a program under
this subpart must submit a description of its program. The State or
Tribal program description must include the following components:
(a) Primary agency and contact. A designation of the agency or
agencies responsible for administering and enforcing the program and an
agency contact. This designation must be in accordance with the
specifications at Sec. 745.324(b)(1).
(b) Program elements. A description of the program demonstrating
that it contains all of the elements specified in Sec. 745.350.
(c) At least as protective as. An analysis of the State or Tribal
program that compares the program to the Federal provisions in
Secs. 745.307 through 745.319. This analysis must demonstrate how the
program is, in the State's or Indian Tribe's assessment, at least as
protective as the Federal provisions in this subpart. EPA will use the
analysis to evaluate the program in making its determination pursuant
to Sec. 745.354(a)(2)(i).
(d) Adequate enforcement. A description of the State or Tribal
compliance and enforcement program demonstrating that the program
contains all of the enforcement requirements specified at Sec. 745.352.
This description must include copies of all policies, certifications,
plans, reports, and other materials that demonstrate that the State or
Tribal program contains all of the requirements specified at
Sec. 745.352.
(e) Special requirements for tribal program descriptions. The
program description for an Indian Tribe must also include the
information and documents specified in Sec. 745.324(b)(4)(i) through
(b)(4)(iii).
Sec. 745.347 State or Tribal Attorney General's statement.
An application for program authorization by a State or Indian Tribe
must include a written statement signed by the Attorney General or
Tribal Counsel (or equivalent). The statement must include all
information and certifications as specified in Sec. 745.324(c)(1)
through (c)(3).
Sec. 745.348 State program certification/interim approval.
(a)(1) When submitting an application, a State may also certify to
EPA that the State program meets the requirements in Secs. 745.350 and
745.352 of this subpart.
(2) If a State application contains this certification, the program
will be considered authorized until EPA disapproves the program or
withdraws the authorization. A program will not be considered
authorized to the extent that jurisdiction is asserted over Indian
Country, including non-member fee lands within an Indian reservation.
(3) If the application does not contain such certification, the
State program will be authorized only after EPA approves it in
accordance with Sec. 745.354.
(4) This certification must be contained in a letter from the
Governor or the Attorney General to the EPA.
(5) The certification must reference the analyses required in
Sec. 745.346(d) as the basis for concluding that the State program is
at least as protective as the Federal program and provides adequate
enforcement.
(b) [Reserved]
Sec. 745.350 State or Tribal programs: required program elements.
To receive authorization from EPA, a State or Tribal program must
contain at least the following program elements for lead-based paint
debris management and disposal activities:
(a) Requirements for reuse and storage. The State or Tribe must
have requirements for the reuse and storage of lead-based paint debris
including but not limited to:
(1) Standards that prevent reuse of hazardous lead-based paint
debris.
(2) Standards that limit access to and prevent dispersal of lead-
based paint debris which is being stored.
(b) Requirements for transportation. The State or Tribe must have
requirements for the transportation of lead-based paint debris
including but not limited to measures to prevent the release of dust or
paint chips from lead-based paint debris while it is being transported.
Requirements for disposal or reclamation. The State or Tribe must have
requirements for the disposal or reclamation of lead-based paint debris
including but not limited to:
(1) Clear standards identifying disposal facilities which may
safely accept lead-based paint debris. These standards must reference
any State or Federal regulations which govern the disposal facilities.
(2) Clear standards identifying reclamation facilities which may
safely accept lead-based paint debris. These standards must reference
any State or Federal regulations which govern the reclamation
facilities.
(c) Notification and recordkeeping. The State or Tribe must have
notification and recordkeeping standards which at a minimum include the
requirements found at Sec. 745.313 or their functional equivalent.
[[Page 70232]]
Sec. 745.352 State or Tribal compliance and enforcement.
(a) Compliance and enforcement program elements. For the compliance
and enforcement portion of a State or Tribal program to be considered
adequate, a State or Indian Tribal application must demonstrate the
following elements:
(1) Authority to enter. State or Tribal officials must be able to
enter premises or facilities where lead-based paint debris management
or disposal violations may occur. A State or Tribe must be able to
subpoena any person who has possession of records or reports pertaining
to lead-based paint debris to produce such documents; in addition, a
State or Tribe must be able to compel the appearance of any person to
testify concerning any matter relating to lead-based paint debris. A
State or Tribe must also designate a judicial body that will have the
authority to hold any person in contempt who fails or refuses to obey
such a duly issued subpoena. A State or Indian Tribe should have the
authority to seek a warrant if it is denied access to inspect any place
or vehicle where lead-based paint is being generated or stored.
(i) State or Tribal officials must be able to enter and inspect
premises, facilities, or vehicles where lead-based paint debris is
generated or transported.
(ii) State or Tribal officials must be able to enter and inspect
disposal and reclamation facilities.
(iii) State or Tribal officials must have authority to take samples
and review records as part of the inspection process.
(2) Flexible remedies. A State or Tribal compliance and enforcement
program must provide for a diverse and flexible array of enforcement
remedies. At a minimum, the program must authorize the remedies
specified at Sec. 745.327(b)(3). Indian Tribes are not required to
exercise criminal enforcement jurisdiction as a condition for program
authorization.
(3) Training. A State or Tribal compliance and enforcement program
must include a process for training enforcement and inspection
personnel. The training must include case development procedures,
proper case files, and methods of conducting inspections and gathering
evidence.
(4) Compliance assistance. A State or Tribal compliance and
enforcement program must provide compliance assistance to the public
and the regulated community to facilitate awareness and understanding
of and compliance with State or Tribal requirements governing lead-
based paint debris management and disposal activities.
(5) Sampling techniques. A State or Tribal application for program
approval must show that the State or Indian Tribe is technologically
capable of conducting a lead-based paint debris management and disposal
compliance and enforcement program. The State or Tribal program must
have access to the facilities and equipment necessary to perform
sampling and laboratory analysis as needed. This laboratory facility
must be a recognized laboratory as defined at 40 CFR 745.223, or the
State or Tribal program must implement a quality assurance program that
ensures appropriate quality of laboratory personnel and protects the
integrity of analytical data.
(6) Tracking tips and complaints. A State or Tribal compliance and
enforcement program must include a process for reacting to tips and
complaints or other information indicating a violation.
(7) Targeting inspections. A State or Tribal compliance and
enforcement program must demonstrate the ability to target inspections
to ensure compliance with the lead-based paint debris management and
disposal program requirements. A State or Tribe should have the ability
to conduct consensual inspections in places where records or reports
are stored, but where no lead debris is present. Such consensual
inspections should include the authority of State or Tribal officials
to physically appear at such places or to issue a consensual
Information Request Letter to gather records or reports on lead debris.
(8) Follow up to inspection reports. A State or Tribal compliance
and enforcement program must demonstrate the ability to reasonably, and
in a timely manner, process and follow-up on inspection reports and
other information generated through enforcement-related activities. The
State or Tribal program must be in a position to ensure correction of
violations and, as appropriate, effectively develop and issue
enforcement remedies/responses to follow up on the identification of
violations.
(9) Compliance monitoring and enforcement. A State or Tribal
compliance and enforcement program must demonstrate in its application
for approval that it is in a position to implement a compliance
monitoring and enforcement program. Such a program must ensure
correction of violations, and encompass either planned and/or
responsive inspections and development/issuance of State or Tribal
enforcement responses which are appropriate to the violations.
(b) Memorandum of Agreement. An Indian Tribe which obtains program
approval must establish a Memorandum of Agreement with the appropriate
Regional Administrator. The Memorandum of Agreement must meet the
requirements at Sec. 745.327(e).
Sec. 745.354 EPA review of State or Tribal program applications.
(a) EPA approval.
(1) EPA will fully review and consider all portions of a State or
Tribal application.
(2) Within 180 days of receipt of a complete State or Tribal
application containing all elements specified in this subpart, EPA must
authorize the program or disapprove the application. EPA will authorize
the program only if it finds that:
(i) The State or Tribal program is at least as protective of human
health and the environment as the corresponding Federal provisions at
Secs. 745.307 through 745.319.
(ii) The State or Tribal program provides adequate enforcement.
(3) EPA will notify the State or Tribe in writing of its decision
to authorize or disapprove the State or Tribal application.
(4) Upon authorization of a State or Tribal program pursuant to
this subpart, it will be an unlawful act under sections 15 and 409 of
TSCA for any person to fail or refuse to comply with any requirements
of such program.
(b) [Reserved]
Sec. 745.355 Oversight and reporting requirements.
(a) Oversight. EPA will periodically evaluate the adequacy of a
State or Indian Tribe's implementation and enforcement of its
authorized program.
(b) Reports. Beginning 12 months after the date of program
authorization, the primary agency for each State or Indian Tribe must
submit a written report to the EPA Regional Administrator for the
Region in which the State or Indian Tribe is located. The report must
be submitted at least once every 12 months for the first 3 years after
program approval. If these reports demonstrate successful program
implementation, the Agency will extend the reporting interval to every
2 years. If the subsequent reports demonstrate problems with
implementation, EPA will require a return to annual reporting until the
reports demonstrate successful program implementation. The report must
include the following information:
(1) Any significant changes in the content, administration, or
enforcement
[[Page 70233]]
of the State or Tribal program implemented since the previous reporting
period.
(2) A Summary on Progress and Performance which summarizes the
results of implementing the State or Tribal lead-based paint debris
management and disposal compliance and enforcement program, including a
summary of the scope of the regulated community within the State or
Indian Tribe, the inspections conducted, enforcement actions taken,
compliance assistance provided, and the level of resources committed by
the State or Indian Tribe to these activities.
Sec. 745.356 Withdrawal of State or Tribal Program authorization.
(a) Withdrawal of authorization. (1) If EPA concludes that a State
or Tribe is not administering or enforcing an authorized program in
compliance with the standards, regulations, and other requirements of
Title IV of TSCA and this part, EPA will notify the primary agency for
the State or Tribe in writing and indicate EPA's intent to withdraw
authorization of the program.
(2) The Notice of Intent to Withdraw Authorization will comply with
the specifications at Sec. 745.324(i)(2).
(3) Any actions taken by EPA related to withdrawal of State or
Tribal program authorization will follow the procedures specified at
Sec. 745.324(i)(3) through (i)(7).
(4) If EPA issues an order withdrawing the authorization of a State
or Tribal program, EPA will establish and enforce the provisions at
Secs. 745.307 through 745.319 as the Federal program for that State or
Indian Country. The Federal program will be established and enforced as
of the effective date of the order withdrawing authorization of the
State or Tribal program.
(b) [Reserved]
Sec. 745.358 Overfiling.
(a) Failure to impose adequate penalty. If EPA finds that a
violator of a State or Indian Tribal lead-based paint debris management
and disposal program approved under this subpart has not been
adequately penalized, EPA will notify the State or Indian Tribe of this
finding. If EPA finds that the penalty against the violator has not
been adjusted appropriately within 30 days after such notice, EPA may
issue an appropriate administrative penalty order against the violator.
(b) Failure to penalize. If upon receipt of any complaint or
information alleging or indicating a significant violation, a State or
Tribal Program has not commenced appropriate enforcement action, EPA
may act upon the complaint or information by instituting an appropriate
action order against the violator.
Sec. 745.359 Effective dates.
States and Indian Tribes may seek authorization to administer and
enforce a lead-based paint debris management and disposal program under
this subpart effective on [insert date 60 days after date of
publication of the final rule in the Federal Register].
[FR Doc. 98-33326 Filed 12-17-98; 8:45 am]
BILLING CODE 6560-50-F
