[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]]



 
------------------------------------------------------------------------
                                                Examples of Regulated
                 Category                             Entities
------------------------------------------------------------------------
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
------------------------------------------------------------------------
Waste transporters                          Firms providing
                                             transportation services for
                                             LBP debris
------------------------------------------------------------------------
Reusers of LBP debris                       Firms or individuals who
                                             reuse LBP debris
------------------------------------------------------------------------
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
------------------------------------------------------------------------

    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: ``[email protected].'' 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

[[Page 70194]]

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, ``[email protected].'' 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