[Federal Register Volume 66, Number 205 (Tuesday, October 23, 2001)]
[Proposed Rules]
[Pages 53566-53573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26095]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 257 and 258

[FRL-7076-5]
RIN 2050-AE86


Criteria for Classification of Solid Waste Disposal Facilities 
and Practices and Criteria for Municipal Solid Waste Landfills: 
Disposal of Residential Lead-Based Paint Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In order to help accelerate the pace of lead-based paint 
removal from residences, and thereby reduce exposure to children and 
adults from the health risks associated with lead, EPA is proposing to 
revise the definition of ``municipal solid waste landfill unit'' in 
both the Criteria for Classification of Solid Waste Disposal Facilities 
and Practices and the Criteria for Municipal Solid Waste Landfills. EPA 
is also proposing to add two new definitions for ``construction and 
demolition (C&D) landfill'' and ``residential lead-based paint waste.'' 
This rule would expressly allow residential lead-based paint waste to 
be disposed of in construction and demolition landfills by clearly 
stating that a construction and demolition landfill accepting 
residential lead-based paint waste, and no other household waste, is 
not a municipal solid waste landfill unit. Today's action would not 
prevent a municipal solid waste landfill unit from continuing to 
receive residential lead-based paint waste.
    In the ``Rules and Regulations'' section of the Federal Register, 
we are approving these definitions as a direct final rule without prior 
proposal because we view this rule as a noncontroversial action and 
anticipate no adverse comment. We have explained our reasons for this 
approval in the preamble to the direct final rule. If we receive no 
adverse comment, we will not take further action on this proposed rule. 
If we receive adverse comment, we will withdraw the direct final rule 
and it will not take effect. We will address all public comments in a 
subsequent final rule based on this proposed rule. We will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

DATES: Written comments must be received by November 23, 2001.

ADDRESSES: Commenters must send an original and two copies of their 
comments referencing docket number

[[Page 53567]]

F-2001-LBPP-FFFFF to: (1) If using regular US Postal Service mail: RCRA 
Docket Information Center, Office of Solid Waste (5305G), U.S. 
Environmental Protection Agency Headquarters (EPA, HQ), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460-0002, or 
(2) if using special delivery, such as overnight express service: RCRA 
Docket Information Center (RIC), Crystal Gateway One, 1235 Jefferson 
Davis Highway, First Floor, Arlington, VA 22202. Comments may also be 
submitted electronically through the Internet to: [email protected]. 
Comments in electronic format should also be identified by the docket 
number F-2001-LBPP-FFFFF and must be submitted as an ASCII file 
avoiding the use of special characters and any form of encryption.
    Commenters should not submit electronically any confidential 
business information (CBI). An original and two copies of CBI must be 
submitted under separate cover to: RCRA CBI Document Control Officer, 
Office of Solid Waste (5305W), U.S. EPA, Ariel Rios Building, 1200 
Pennsylvania Avenue, NW, Washington, DC 20460-0002.
    Public comments and supporting materials are available for viewing 
in the RCRA Information Center (RIC), located at Crystal Gateway I, 
First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is 
open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal 
holidays. To review docket materials, it is recommended that the public 
make an appointment by calling 703 603-9230. The public may copy a 
maximum of 100 pages from any regulatory docket at no charge. 
Additional copies cost $0.15/page. The index and some supporting 
materials are available electronically. See the Supplementary 
Information section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing 
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323.
    For information on specific aspects of this rule, contact Sue 
Nogas, Office of Solid Waste (mail code 5306W), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460; 
(703) 308-7251, [email protected].

SUPPLEMENTARY INFORMATION: The index and some supporting materials are 
available on the Internet. You can find these materials at http://www.epa.gov/epaoswer/non-hw/muncpl/landfill/pb-paint.htm.
    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the address in ADDRESSES at the 
beginning of this document.
    EPA responses to comments, whether the comments are written or 
electronic, will be in a notice in the Federal Register or in a 
response to comments document placed in the official record for this 
rulemaking. EPA will not immediately reply to commenters electronically 
other than to seek clarification of electronic comments that may be 
garbled in transmission or during conversion to paper form, as 
discussed above.

Affected Entities

    You may be potentially affected by this proposed rule if you 
generate residential lead-based paint (LBP) waste as a result of LBP 
activities (including abatement, rehabilitation, renovation and 
remodeling) in homes, residences, and other households. By 
``households,'' we mean single and multiple residences, hotels and 
motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic 
grounds, and day-use recreation areas.
    Affected categories and entities would include:

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                Category                  Examples of affected entities
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Individuals and firms who generate       Contractors and do-it-
 residential LBP waste.                   yourselfers who generate and
                                          dispose of residential LBP
                                          waste as a result of
                                          abatement, rehabilitation,
                                          renovation and remodeling
                                          activities in homes,
                                          residences, and other
                                          household.
Construction and demolition waste        Owners or operators of
 disposal firms.                          construction and demolition
                                          landfills that accept
                                          residential LBP waste for
                                          disposal.
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    This table is not intended to be exhaustive, but rather lists the 
types of entities that EPA is now aware of that could potentially be 
affected by this action. Other types of entities not listed in this 
table could also be affected. (Please see Sections X.A. and X.B. of 
this preamble for further discussion of affected entities. Also, in the 
docket for today's rule, see ``Economic Analysis of EPA's Direct Final 
Rule Amending 40 CFR part 257 and 258.'') If you have any questions 
regarding the applicability of this action to a particular entity, 
consult the persons listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

Acronyms

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             Acronym                             Definition
------------------------------------------------------------------------
CDC..............................  Centers of Disease Control and
                                    Prevention.
C&D..............................  Construction and Demolition.
CFR..............................  Code of Federal Regulations.
EA...............................  Economic Analysis.
EPA..............................  Environmental Protection Agency.
FR...............................  Federal Register.
HUD..............................  U.S. Department of Housing and Urban
                                    Development.
IQ...............................  Intelligence Quotient.
LBP..............................  Lead-Based Paint.
MSWLF............................  Municipal Solid Waste Landfill.
OMB..............................  Office of Management and Budget.
OPPTS............................  Office of Prevention, Pesticides, and
                                    Toxic Substances.
OSWER............................  Office of Solid Waste and Emergency
                                    Response.
RCRA.............................  Resource Conservation Recovery Act.
RIC..............................  RCRA Docket Information Center.
TC...............................  Toxicity Characteristic.
TSCA.............................  Toxic Substances Control Act.
USEPA............................  United States Environmental
                                    Protection Agency.
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Outline

I. Legal Authority
II. Why are Lead and Lead-Based Paint Concern?
III. Congressional Response to Lead Hazards: Title X
IV. RCRA as a Barrier to Cost-Effective LBP Abatements, and 
Stakeholders' Requests for Regulatory Relief from EPA
V. EPA's Implementation of Title X and Response to Stakeholders' 
Requests
    A. 1998 Proposed Rules
    1. TSCA Proposal
    2. RCRA Proposal
    B. Contractor-Generated Residential Lead-Based Paint Memorandum
VI. What Would Today's Proposed Rule Do?
    A. Revision to the Definition of a Municipal Solid Waste 
Landfill Unit
    B. Addition of Construction and Demolition Landfill Definition
    C. Addition of Residential Lead-Based Paint Waste Definition
VII. Analytic Basis for Today's Proposed Rule

[[Page 53568]]

VIII. Other Applicable Federal, State, Tribal, and Local 
Requirements
IX. How Would States and Tribes Implement this Rule?
X. How Would this Rule Comply with Applicable Statutes and Executive 
Orders?
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. National Technology Transfer and Advancement Act of 1995
    I. Executive Order 12898: Environmental Justice Strategy
    J. Executive Order 13211: Energy Effects

I. Legal Authority

    EPA is proposing this rule pursuant to section 1008(a)(3), 2002(a), 
4004(a) and 4010(c) of the Resource Conservation and Recovery Act 
(RCRA), 42 U.S.C. Secs. 6907(a), 6912(a), 6944(a), 6949a(c). We are 
also proposing to correct a typographical error in the existing 
statement of authority in part 257 by amending the citation to 42 
U.S.C. 6949(c) to read ``6949a(c).''

II. Why Are Lead and Lead-Based Paint a Concern?

    The Centers for Disease Control and Prevention (CDC) have estimated 
that approximately 900,000 children, or about 4.4% of children under 
the age of 6 years old, may have unacceptably high levels of lead in 
their blood. (See: ``Update: Blood Lead Levels--United States, 1991-
1994.'' Morbidity and Mortality Weekly Report, Vol. 46, No. 7, February 
21, 1997. CDC, U.S. Department of Health and Human Services.) Children 
are more susceptible than adults to the toxic effects of lead because 
their nervous systems are still developing and their bodies more 
readily absorb lead once exposed to it. (For a fuller discussion of 
this issue, see 66 FR 1206-1240, January 5, 2001). The most common 
sources of residential lead exposure include contaminated dust and 
paint chips from deteriorated lead-based paint (LBP) in older homes, 
activities that disturb LBP (such as abatement, deleading, home 
renovation and remodeling), lead-contaminated drinking water, and lead-
contaminated soil around homes and play areas. It is estimated that 
approximately 38 million homes in the United States contain interior 
LBP. (See ``Economic Analysis of EPA's Direct Final Rule Amending 40 
CFR Part 257 and 258,'' p. 31.

III. Congressional Response to Lead Hazards: Title X

    In response to this health threat, Congress enacted the Residential 
Lead-Based Paint Hazard Reduction Act of 1992 (hereinafter referred to 
as Title X of the Housing and Community Development Act of 1992, or as 
Title X). Among other provisions, Title X amended the Toxic Substances 
Control Act (TSCA) and directed the Environmental Protection Agency 
(EPA) to develop and finalize standards governing: (1) the training and 
certification of individuals engaged in LBP activities; (2) the 
accreditation of training programs; and (3) the process by which LBP 
activities are conducted by certified individuals. Congress also 
directed EPA to identify by regulation LBP hazards, lead-contaminated 
dust, and lead-contaminated soil. As a result of the enactment of Title 
X, there is an increasing effort to reduce the hazards posed by LBP 
(especially to children) in residential housing and other buildings.

IV. RCRA as a Barrier to Cost-Effective LBP Abatements, and 
Stakeholders' Requests for Regulatory Relief From EPA

    The Resource Conservation and Recovery Act (RCRA) was enacted in 
1976 to address management of solid waste, including industrial and 
municipal wastes. Subtitle C of RCRA governs the generation, 
transportation, treatment, storage and disposal of hazardous waste. A 
solid waste is a ``hazardous waste'' if it exhibits one or more of the 
characteristics of hazardous waste pursuant to 40 CFR part 261, subpart 
C (toxicity, ignitability, corrosivity, and reactivity) or if it is 
listed as a hazardous waste in part 261 subpart D. Subtitle D of RCRA 
addresses the management of nonhazardous solid waste (including 
municipal and nonmunicipal waste). Subtitle D was amended in 1984 to 
address two classes of hazardous wastes exempt from Subtitle C 
hazardous waste requirements: conditionally exempt small quantity 
generator (CESQG) waste and household hazardous waste. Household waste 
is defined in 40 CFR 258.2 as ``any solid waste (including garbage, 
trash, and sanitary waste in septic tanks) derived from households 
(including single and multiple residences, hotels and motels, 
bunkhouses, ranger stations, crew quarters, campgrounds, picnic 
grounds, and day-use recreation areas).'' Household waste is excluded 
from RCRA hazardous waste regulations at 40 CFR 261.4(b)(1).
    Abatements, renovations, and remodeling activities in housing units 
with LBP can generate large quantities of residential LBP waste. In 
cases where the waste exhibits the toxicity characteristic for lead, 
the waste would be classified as a hazardous waste subject to the 
comprehensive ``cradle to grave'' hazardous waste management 
regulations of RCRA Subtitle C, unless they qualify for an exemption. 
Lead abatement contractors and public housing agencies argued that the 
application of these hazardous waste rules to residential LBP waste 
poses a barrier to the cost-effective abatement of lead hazards. EPA 
and HUD met to review the disposal requirements for lead-based paint 
waste and to consider regulatory relief from the applicability of RCRA 
Subtitle C to waste generated from residential LBP activities. 
Additionally, several States and advocacy groups (such as the Alliance 
to End Childhood Lead Poisoning) expressed concern that the RCRA 
requirements were considerably reducing the number of residential LBP 
abatements by imposing significant waste disposal costs. They argued 
that the benefits of handling lead-based paint waste as a hazardous 
waste were outweighed by the potential risk to children resulting from 
the disincentive the RCRA regulations created for lead-based paint 
abatement. They requested that EPA consider ways to minimize management 
and disposal costs and provide an appropriate regulatory framework that 
would both accelerate the pace of lead abatements (by lowering costs) 
and ensure that waste from such activities be managed and disposed of 
reliably, effectively, and in a manner which protects human health and 
the environment. They further contended that any regulatory relief that 
would avoid the cost of managing LBP waste as a hazardous waste would 
allow public housing authorities to use cost savings to perform 
additional abatements, thus reducing current and future exposure of 
children to residential lead-based paint.

V. EPA's Implementation of Title X and Response to Stakeholders' 
Requests

A. 1998 Proposed Rules

    In order to facilitate efforts to address lead-based paint hazards 
to children and respond to stakeholders' requests for regulatory 
relief, EPA analyzed waste characterization, laboratory leachate, and 
the risk and cost of disposal for lead-based paint debris. Based on 
those analyses, EPA published two proposals on December 18, 1998--the 
TSCA Proposed Rule (``Management

[[Page 53569]]

and Disposal of Lead-Based Paint Debris''), and the RCRA Proposed Rule 
(``Temporary Suspension of Toxicity Characteristic Rule for Specified 
Lead-Based Paint Debris''). The Agency believed that these rules, if 
finalized, would help reduce the costs associated with the management 
and disposal of LBP debris, increasing the number of LBP abatements, 
while continuing to protect human health and the environment.
1. TSCA Proposal (``Management and Disposal of Lead-Based Paint 
Debris'')
    Under the mandate of Title X of TSCA, we proposed new TSCA 
management and disposal standards for LBP debris generated by 
contractors from pre-1978 homes and public and commercial buildings (63 
FR 70190-70233, December 18, 1998). These standards would allow the 
disposal of contractor-generated LBP debris in a variety of facilities, 
including construction and demolition (C&D) landfills. EPA based the 
C&D landfill disposal option on the results of the groundwater risk 
analysis performed to support the proposal. The results showed that the 
potential impact to groundwater resources from the disposal of LBP 
debris in C&D landfills would be negligible. (For further details, see 
``USEPA. June 1998, Groundwater Pathway Analysis for Lead-Based Paint 
(LBP) Architectural Debris; Background Document'' in the docket for 
today's rule. Also, see Section VII of this preamble.) The TSCA 
proposal has not been finalized.
    The preamble to the proposed TSCA rule also clarified that the RCRA 
Subtitle C household waste exclusion in 40 CFR 261.4(b)(1) applies to 
residential LBP waste generated by do-it-yourselfers in their homes 
(see 63 FR 70241-70242). This clarification remains in place.
2. RCRA Proposal (``Temporary Suspension of Toxicity Characteristic 
Rule for Specified Lead-Based Paint Debris'')
    In 1998, EPA proposed to temporarily suspend the applicability of 
the Toxicity Characteristic (TC) rule to contractor-generated LBP 
debris that would be subject to the TSCA management and disposal 
standards cited above. The Agency proposed this suspension in order to 
avoid duplication with other statutes implemented by EPA as mandated 
under RCRA Section 1006(b)(1).

B. Contractor-Generated Residential Lead-Based Paint Memorandum

    On July 31, 2000, EPA issued a memorandum clarifying the regulatory 
status of waste generated as a result of LBP activities (including 
abatement, renovation and remodeling, and rehabilitation) in homes and 
other residences.
    Specifically, the memorandum clarified that contractors can manage 
residential LBP waste as household waste and thus are not subject to 
RCRA Subtitle C requirements. This means contractors can dispose 
residential LBP waste as household waste in municipal solid waste 
landfills or municipal solid waste combustors, according to State and 
local requirements. Dumping and open burning of residential LBP waste 
are not allowed. (See RCRA Sections 1008 and 4004.)
    By interpreting residential LBP waste as a household waste under 40 
CFR 261.4(b)(1), the July 2000 memorandum could be construed as 
allowing land disposal of LBP waste only in municipal solid waste 
landfill units complying with the requirements of 40 CFR part 258. This 
is because a ``municipal solid waste landfill unit'' is defined in 40 
CFR 258.2 as receiving ``household waste.'' Therefore, under section 
258.2, a C&D landfill that receives residential LBP waste could be 
deemed to be receiving household waste and may need to comply with 
EPA's Municipal Solid Waste Landfill Criteria found in 40 CFR part 258. 
Today's rule is designed to expressly state that C&D landfills can 
receive residential LBP waste without becoming subject to the 
requirements for a MSWLF in part 258.
    Please note that the memorandum does not affect the regulatory 
status of nonresidential LBP waste, such as that generated during the 
abatement or renovation and remodeling of a commercial building. In 
addition, the memorandum does not cover residential demolition and 
deconstruction. EPA does not consider demolition and deconstruction 
waste to be household waste, since it is not similar to those wastes 
generated by a consumer in the home in the course of daily living. (For 
more information visit, http://www.epa.gov/lead/hhwmemo-july00fnl.pdf 
for a direct link to the memorandum. See ``Regulatory Status of Waste 
Generated by Contractors and Residents from Lead-Based Paint Activities 
Conducted in Households'' by visiting http://www.epa.gov/lead/fslbp.htm, or call the RCRA Hotline at 1-800-424-9346.)
    The Agency evaluated if and how to finalize the 1998 RCRA and TSCA 
proposals. EPA decided to use alternative policy and regulatory 
vehicles (i.e., the July 31, 2000 policy memorandum and today's rule) 
in order to expeditiously accomplish some of the same goals of the 1998 
proposals for certain key noncontroversial aspects. The Agency has no 
further plans to finalize the 1998 RCRA proposal.

VI. What Would Today's Proposed Rule Do?

A. Revision to the Definition of a Municipal Solid Waste Landfill Unit

    Today's rule would expressly allow construction and demolition 
landfills to receive residential lead-based paint waste, by adding a 
statement to the definition of MSWLF unit. The definition of MSWLF unit 
in 40 CFR 257.2 and 258.2 would be amended by inserting at the end of 
the definition, the sentence, ``A construction and demolition landfill 
that receives residential lead-based paint waste and does not receive 
any other household waste is not a MSWLF unit.'' As previously 
explained, the existing definition of a MSWLF unit includes language 
which states that a disposal unit ``that receives household waste'' is 
a municipal solid waste landfill unit. This language can be construed 
to prohibit the disposal of any household waste into a facility that is 
not designed and operated in conformance with 40 CFR part 258 
regulations. Today, we are proposing to amend the definition of MSWLF 
unit, in order to distinguish residential lead-based paint waste, which 
has been determined to be a household waste, from other types of 
household waste, for purposes of disposal.
    The amended definition would read, ``Municipal solid waste landfill 
(MSWLF) unit means a discrete area of land or an excavation that 
receives household waste, and that is not a land application unit, 
surface impoundment, injection well, or waste pile, as those terms are 
defined in this section. A MSWLF unit also may continue to receive 
other types of RCRA Subtitle D wastes, such as commercial solid waste, 
nonhazardous sludge, and industrial solid waste. Such a landfill may be 
publicly or privately-owned. A MSWLF unit may be a new MSWLF unit, an 
existing MSWLF unit or a lateral expansion. A construction and 
demolition landfill that receives residential lead-based paint waste 
and does not receive any other household waste is not a MSWLF unit.''
    It is important to understand that today's proposed change to the 
definition of a municipal solid waste

[[Page 53570]]

landfill unit would not in any way affect these disposal units. This 
change would simply distinguish residential lead-based paint waste from 
other household wastes. Today's amendment would not alter what a MSWLF 
can or cannot receive. MSWLFs can continue to receive residential LBP 
waste as household waste. The proposed rule would expressly provide an 
additional land-based waste disposal option for residential LBP waste. 
Furthermore, this rule would in no way affect or change the operation 
and design requirements for municipal solid waste landfills or any 
other MSWLF criteria.

B. Addition of Construction and Demolition Landfill Definition

    As stated above, the revised definition of ``municipal solid waste 
landfill unit'' would allow a subset of household waste--residential 
LBP waste--to be disposed of in construction and demolition landfills 
as well as MSWLF units. Today's proposed rule would also add a 
definition of a construction and demolition landfill in order to 
expressly allow only C&D landfills, and no other types of land disposal 
units that meet the criteria of 40 CFR part 257 to receive this subset 
of household waste.
    Based on a groundwater risk analysis used to support the TSCA 
proposal, we believe that the disposal of residential LBP debris in C&D 
landfills is appropriate and would not pose adverse health risks to 
residents living near C&D landfills. (For more information, see Section 
VII of this preamble.)
    A C&D landfill would be defined in 40 CFR part 257 as follows: 
``Construction and demolition (C&D) landfill means a solid waste 
disposal facility subject to the requirements of subparts A or B of 
this part that receives construction and demolition waste and does not 
receive hazardous waste (defined in Sec. 261.3 of this chapter) other 
than conditionally exempt small quantity generator waste (defined in 
Sec. 261.5 of this chapter), or industrial solid waste (defined in 
Sec. 258.2 of this chapter). A C&D landfill typically receives any one 
or more of the following types of solid wastes: roadwork material, 
excavated material, demolition waste, construction/renovation waste, 
and site clearance waste.'' A parallel definition would also be added 
to 40 CFR part 258.
    EPA proposed a similar definition of C&D landfill in the TSCA 
proposal, and received no germane comments on the definition during the 
public comment period.

C. Addition of Residential Lead-Based Paint Waste Definition

    Today's proposed rule would also add a definition of ``residential 
lead-based paint waste'' in order to clarify the scope of the waste 
stream addressed by today's rule. The proposed definition of 
residential lead-based paint waste states: ``Residential lead-based 
paint waste means waste generated as a result of lead-based paint 
activities (including abatement, rehabilitation, renovation and 
remodeling) in homes and other residences. The term residential lead-
based paint waste includes, but is not limited to, lead-based paint 
debris, chips, dust, and sludges.'' Not included in the proposed 
definition of residential LBP waste are residential LBP demolition and 
deconstruction waste, and LBP waste from nonresidential structures such 
as public and commercial buildings, warehouses, bridges, water towers, 
and transmission towers.
    In drafting this definition, we included these particular LBP 
activities because they are those limited to residences and that could 
pose lead hazards to occupants, especially to children. We included 
these particular waste types (i.e., debris, chips, dust, and sludges) 
because they are those that are typically generated during the named 
LBP activities.

VII. Analytic Basis for Today's Proposed Rule

    The technical basis for today's proposal is the analytical data and 
groundwater risk analysis used to support the 1998 TSCA proposal. (See 
``USEPA. June 1998, Groundwater Pathway Analysis for Lead-Based Paint 
(LBP) Architectural Debris; Background Document'' in the docket for 
today's rule.) Based on that data and analysis, EPA has concluded that 
residential LBP waste is not hazardous household waste when disposed of 
in C&D landfills. What follows is a discussion of that data and 
analysis and how they support today's proposed rule.
    In the groundwater risk analysis used to support the 1998 TSCA 
proposal, we assumed that all lead-based paint from the entire pre-1978 
U.S. housing stock would be disposed of in C&D landfills, and that the 
LBP would be removed from housing while it was still attached to 
architectural (i.e., building) components that are removed during LBP 
activities. Examples of architectural components are doors, window 
frames, moldings, painted plaster boards, concrete, and bricks. We 
assumed that the components would be removed with intact LBP because we 
believed that component removal, if cost-effective, would be preferred 
over paint scraping and other paint removal options, since the latter 
pose worker and occupant exposure concerns. This assumption was 
necessary due to the lack of data indicating what portion of pre-1978 
housing would undergo paint removal vs. component removal and what 
types and quantities of LBP waste are generated at what frequency from 
various residential LBP activities. Also, in the groundwater analysis, 
we used the term ``LBP debris'' to refer to architectural components 
with intact LBP.
    To estimate lead loading from residential LBP debris in C&D 
landfills around the country, we relied upon the 1990 Report to 
Congress prepared by the U.S. Department of Housing and Urban 
Development (HUD). The Report estimated total quantities of building 
components from pre-1978 homes in the U.S. From the amount of painted 
surfaces per housing unit reported in the HUD Report, we estimated the 
total quantities of building materials with LBP that would be disposed 
of in the landfills.
    Then, in our groundwater risk analysis, we used leachate data, 
calculated the potential lead concentration in groundwater, and 
estimated risks from the disposal of LBP debris in C&D landfills. We 
also assumed that all of the lead from the LBP debris (which in this 
analysis meant the equivalent of all of the lead in all of the lead-
based paint from the entire pre-1978 U.S. housing stock) would 
eventually end up in the leachate. The lead concentration in C&D 
landfill leachate varied depending on the landfill size. These lead 
concentrations served as inputs to the groundwater modeling we 
conducted to simulate the subsurface movement of landfill leachate and 
the resultant potential contamination of groundwater with lead.
    The results from this analysis show that the lead concentration in 
groundwater would potentially exceed the drinking water action level of 
0.015 mg/L for lead in less than 1% of the receptor wells in the 
vicinity of C&D landfills receiving LBP debris during the first 2,000 
years after disposal. During the first 10,000 years after disposal of 
LBP debris, the drinking water action level would be exceeded in fewer 
than 5% of the receptor wells.
    Based on these groundwater modeling results and the general 
geochemical behavior of lead in a subsurface environment, the Agency 
concluded that, on a national scale, the disposal of LBP debris in C&D 
landfills would, in

[[Page 53571]]

general, be protective of human health and the environment at the 95th 
percentile protection level. This level of protectiveness is at the 
high end (i.e., most protective) of the levels that the Agency has used 
in regulating hazardous wastes under the RCRA program. (See 63 FR 
70203, December 18, 1998.) When deciding whether to regulate industrial 
solid wastes as hazardous wastes, the Agency has considered a 90th 
percentile or higher level as the appropriate protection level and so 
has not regulated wastes satisfying this level of protection as 
hazardous wastes. Thus, in the 1998 TSCA proposal, we concluded that 
the disposal of LBP debris in C&D landfills is appropriate and would 
not pose adverse health risks to residents living near C&D landfills. 
Note that the Agency received many public comments addressing various 
aspects of the groundwater risk analysis. The comments were generally 
supportive of the proposed provision to allow LBP debris to be disposed 
of in C&D landfills and provided no data supporting a contrary 
decision.\1\
---------------------------------------------------------------------------

    \1\ All comments and data received in response to the 1998 TSCA 
proposal may be accessed via Docket Control OPPTS-62160, located in 
the TSCA Nonconfidential Information Center, Rm. NE-B607, 401 M St., 
SW, Washington, DC 20460. The TSCA Nonconfidential Information 
Center telephone number is 202-260-7099. For a summary of the 
comments, especially those related to the groundwater risk analysis, 
see ``Summary of Comments on: Management and Disposal of Lead-Based 
Paint Debris; Proposed Rule, and Temporary Suspension of Toxicity 
Characteristic Rule for Specified Lead-Based Paint Debris; Proposed 
Rule'' in the docket for today's rule.
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    EPA believes that the technical basis for the 1998 TSCA proposal, 
as discussed above, also supports today's proposed rule. This is 
because our groundwater risk analysis assumed that the total mass of 
lead-based paint from pre-1978 U.S. housing was disposed of in C&D 
landfills, and that all of the lead from that lead-based paint ended up 
in the C&D landfill leachate. Hence, it was irrelevant to the results 
of the analysis whether or not the LBP entered the C&D landfills by 
being attached to architectural components (i.e., as LBP debris), or 
rather did so in the form of other types of LBP waste, such as chips, 
dusts, and sludges.
    In conclusion, we have determined that residential LBP waste from 
abatement, rehabilitation, renovation and remodeling activities does 
not pose a substantial hazard to human health and the environment when 
disposed of in C&D landfills. The disposal of residential LBP waste in 
C&D landfills is therefore an appropriate and legal disposal option.

VIII. Other Applicable Federal, State, Tribal, and Local 
Requirements

    Today's proposed rule would not alter the authority of State, local 
and Tribal governments to regulate LBP waste more stringently than does 
EPA. Generators of residential LBP waste should contact State 
environmental agencies to determine if there are additional or more 
stringent disposal requirements for residential LBP waste. Also, 
generators should comply with applicable HUD and/or TSCA regulations 
when addressing residential LBP hazards.

IX. How Would States and Tribes Implement This Proposed Rule?

    Because today's proposed rule would be less stringent than existing 
federal criteria, States would not be required to amend permit programs 
which have been determined to be adequate under 40 CFR Part 239. States 
would have the option to amend statutory or regulatory definitions 
pursuant to today's proposed rule. If a state chooses to amend its 
permit program pursuant to today's action, the State would be required 
to notify the Regional Administrator of the modification as provided by 
40 CFR 239.12.
    Today's proposed amendments would be directly applicable to 
landfills in States without an approved permit program under Part 239 
and in Indian Country. We would also encourage Tribes to adopt today's 
proposed amendments into their programs in order to promote lead-based 
paint abatement activities in homes and other residences in Indian 
Country.

X. How Would This Proposed Rule Comply With Applicable Statutes and 
Executive Orders?

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and therefore subject to Office of 
Management and Budget (OMB) review and the other provisions of the 
Executive Order. The Order defines a significant regulatory action as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or rights and 
obligations or recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in Executive Order 12866.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.
    EPA has performed a full economic analysis, ``Economic Analysis of 
EPA's Direct Final Rule Amending 40 CFR parts 257 and 258,'' which is 
available in the docket for today's rule. The EA concludes that this 
rule will impose no additional costs to parties, but may result in cost 
savings and incremental public health benefits. The rule authorizes the 
disposal of residential LBP waste in C&D landfills, where previously, 
under the July 31, 2000 policy memorandum, disposal was authorized only 
in MSWLFs. As a result, EPA believes that, in those parts of the 
country where it is cheaper to transport and dispose of residential LBP 
waste in C&D landfills compared to MSWLFs, some residential LBP waste 
will be diverted from MSWLFs to C&D landfills. Where this occurs, 
generators will benefit from lower waste management and disposal costs.
    EPA assumes that only residential LBP waste generators in the 
Midwest, Northeast, and South regions will shift disposal from MSWLFs 
to C&D landfills, based on an analysis of the relative costs of MSWLF 
and C&D landfill disposal by region. EPA further assumes that the 
percentage of residential LBP waste that is affected is proportional to 
the share of these three regions in the number of housing units with 
LBP, which is 84.4 percent. Under these assumptions, an estimated 0.87 
million tons of residential LBP waste will be diverted from MSWLFs to 
C&D landfills annually. This represents 0.73 percent of the total 
volume of all waste disposed of in MSWLFs annually. This shift in 
disposal would save residential LBP waste generators in the Midwest, 
Northeast, and South regions up to an estimated $16.76 million 
annually. The savings accruing to generators of residential LBP 
abatement waste is estimated at $0.79 million per year, while the 
savings accruing to generators of residential renovation and remodeling 
waste is $15.98 million per year.
    EPA estimates that of the $0.79 million in savings that could 
accrue to generators of residential LBP abatement waste, an estimated 
39.7 percent, or $0.31 million, will be generated annually in the 
public housing sector.

[[Page 53572]]

EPA assumes that in the public sector, any savings in residential LBP 
waste management and disposal costs will be used to conduct additional 
LBP abatements. Given an average cost for LBP abatement in public 
housing units of $3,650, the $0.31 million in annual savings would fund 
an additional 86 abatements each year. This ensuing increase in LBP 
abatement projects would result in a more rapid reduction in the 
potential for exposure to the hazards of LBP, especially for children. 
These hazards include decreased intelligence (i.e., lower IQ), 
behavioral problems, reduced physical stature and growth, and impaired 
hearing.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business that 
meets the Small Business Administration size standards established for 
industries as described in the North American Industry Classification 
System (see http://www.sba.gov/size/NAICS-cover-page.html); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any new requirements on small entities. 
The rule will provide an additional non-mandatory option for the 
disposal of residential LBP waste.

C. Paperwork Reduction Act

    Today's proposed rule is in compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. This proposed rule does not require the 
collection of information from the States, Federal Agencies, or 
industry. Therefore, we do not need to prepare an Information 
Collection Request.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of regulatory actions on State, local, and Tribal governments, 
and the private sector. Under Section 202 of the UMRA, EPA generally 
must prepare a written statement, including a cost-benefit analysis, 
for proposed and final rules with ``Federal mandates'' that may result 
in expenditures to State, local, and tribal governments, in the 
aggregate, or to the private sector, of $100 million or more in any one 
year. Before promulgating an EPA rule for which a written statement is 
needed, Section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of alternatives and adopt the least 
costly, most cost effective or least burdensome alternative that 
achieves the objective of the rule. The provisions of Section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
Section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
Section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. This proposed rule would 
impose no enforceable duty on any State, local or tribal governments or 
the private sector. Thus, today's proposed rule is not subject to the 
requirements of sections 202 and 205 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. As explained in Section IX of 
this preamble, none of today's proposed revisions are more stringent or 
broaden the scope of the existing Federal requirements. Therefore, 
States are not required to adopt the revision to the definition of 
MSWLF unit nor the additional definitions of construction and 
demolition (C&D) landfill and residential lead-based paint waste in 
today's rule. Thus, Executive Order 13132 does not apply to this 
proposed rule.

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Today's proposed rule would expressly provide an additional option for

[[Page 53573]]

disposal of certain waste applicable in Indian Country, but would not 
create any mandate on Indian tribal governments. Thus, Executive Order 
13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
it is not an economically significant rule as defined by Executive 
Order 12866. However, this rule will affect decisions involving the 
environmental health or safety risks to children. It will benefit 
children by allowing environmentally protective disposal of residential 
lead-based paint waste in C&D landfills, which is less costly than 
disposal in MSWLFs in certain areas of the U.S., therefore reducing the 
cost of lead abatements. Reducing the cost of LBP abatements will also 
reduce the amount of time needed to complete abatements in public 
housing. Lower abatement costs may increase the amount of private homes 
undergoing abatements. By reducing costs associated with the disposal 
of LBP waste, the Agency believes that the number of abatements may 
marginally increase, thus resulting in a reduction of the number of 
children exposed to LBP.

H. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272 
note) directs us to use voluntary consensus standards in our regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (for example, materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when we decide not to 
use available and applicable voluntary consensus standards. Today's 
proposed rule does not involve technical standards, voluntary or 
otherwise. Therefore, the NTTAA does not apply to today's proposed 
rule.

I. Executive Order 12898: Environmental Justice Strategy

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' as well as through EPA's April 1995, ``Environmental 
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda 
Report,'' and National Environmental Justice Advisory Council, EPA has 
undertaken to incorporate environmental justice into its policies and 
programs. EPA is committed to addressing environmental justice 
concerns, and is assuming a leadership role in environmental justice 
initiatives to enhance environmental quality for all residents of the 
United States. The Agency's goals are to ensure that no segment of the 
population, regardless of race, color, national origin, or income, 
bears disproportionately high and adverse human health and 
environmental effects as a result of EPA's policies, programs, and 
activities.
    Today's proposed rule is not expected to negatively impact any 
community, and therefore is not expected to cause any 
disproportionately high and adverse impacts to minority or low-income 
communities versus non-minority or affluent communities. On the 
contrary, since the rule will reduce the cost of performing LBP 
abatements in certain regions of the U.S., EPA assumes that the savings 
will afford public housing authorities, in particular, the opportunity 
to conduct additional abatements of LBP hazards in affected housing 
units. Tenants of public housing units are possibly more likely to be 
minority and lower-income households, and the rule should have the 
effect of providing a differential benefit to such populations.

J. Executive Order 13211: Energy Effects

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 Fed. Reg. 28355 (May 22, 2001) 
because it is not a significant regulatory action under Executive Order 
12866.

List of Subjects

40 CFR Part 257

    Waste treatment and disposal.

40 CFR Part 258

    Reporting and recordkeeping requirements, Waste treatment and 
disposal, Water pollution control.

    Dated: September 28, 2001.
Christine Todd Whitman,
Administrator.
[FR Doc. 01-26095 Filed 10-22-01; 8:45 am]
BILLING CODE 6560-50-P