[Federal Register: October 23, 2001 (Volume 66, Number 205)]
[Rules and Regulations]
[Page 53535-53542]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc01-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 257 and 258
[FRL-7076-4]
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: Direct final 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 taking direct
final action 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 adding two new definitions for
``construction and demolition (C&D) landfill'' and ``residential lead-
based paint waste.'' This rule will 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 does not prevent a municipal solid waste landfill unit from
continuing to receive residential lead-based paint waste.
DATES: This rule is effective on January 22, 2002 unless EPA receives
adverse comment by November 23, 2001. If we receive such comment, we
will publish a timely withdrawal in the Federal Register informing the
public that this rule will not take effect.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number F-2001-LBPP-FFFFF to: (1) if using
regular US Postal Service mail: RCRA Docket Information Center, Office
of Solid Waste (5305G), U.S. Environmental Protection Agency
Headquarters (EPA, HQ), Ariel Rios Building, 1200 Pennsylvania Avenue,
NW, Washington, DC 20460-0002, or (2) if using special delivery, such
as overnight express service: RCRA Docket Information Center (RIC),
Crystal Gateway One, 1235 Jefferson Davis Highway, First Floor,
Arlington, VA 22202. Comments may also be submitted electronically
through the Internet to: rcra-docket@epa.gov. Comments in electronic
format should also be identified by the docket number F-2001-LBPP-FFFFF
and must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption.
Commenters should not submit electronically any confidential
business information (CBI). An original and two copies of CBI must be
submitted under separate cover to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. EPA, Ariel Rios Building, 1200
Pennsylvania Avenue, NW, Washington, DC 20460-0002.
You can view supporting materials for this rule in the Resource
Conservation and Recovery Act (RCRA) Information Center (RIC). The RIC
is located at Crystal Gateway I, First Floor, 1235 Jefferson Davis
Highway, Arlington, VA, and is open from 9 a.m. to 4 p.m., Monday
through Friday, excluding federal holidays. The Docket Identification
Number for this notice is F-2001-LBPF-FFFFF.
To review docket materials, we recommend that you make an
appointment by calling (703) 603-9230. You may copy a maximum of 100
pages from any regulatory docket at no charge. Additional copies cost
$0.15/page. The index and some supporting materials are available
electronically. See the SUPPLEMENTARY INFORMATION section for
information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323.
For information on specific aspects of this rule, contact Sue
Nogas, Office of Solid Waste (mail code 5306W), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460;
(703) 308-7251, nogas.sue@epa.gov.
SUPPLEMENTARY INFORMATION: The index to the rule docket 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.
EPA is publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no adverse comment.
The rule expressly allows another environmentally safe waste disposal
option (i.e., C&D landfills) for residential LBP waste, an option that
may be less expensive than MSWLFs in certain areas of the U.S. For that
reason, EPA believes this rule may hasten the pace with which LBP
hazards are removed from homes, thus reducing the risk of lead
poisoning in children. However, in the ``Proposed Rules'' section of
today's Federal Register publication, we are publishing a separate
document that will serve as the proposal to revise the definition of
municipal solid waste landfill unit and add the definitions of
construction and demolition landfill and residential lead-based paint
waste. We are publishing the proposal to give the public the
opportunity to comment on today's action, although we do not expect to
receive comments. This rule will be effective on January 22, 2002
without further notice unless we receive adverse comment by November
23, 2001. If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. We will address all public comments in a
subsequent final rule based on the proposed rule. We will not institute
a second comment period on this action. Any parties interested in
commenting must do so at this time.
Affected Entities: You may be potentially affected by this direct
final 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:
[[Page 53536]]
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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
households.
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 parts 257 and 258.'') If you have any questions
regarding the applicability of this action to a particular entity,
consult the persons listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
Acronyms
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Acronym Definition
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CDC.............................. Centers of Disease Control and
Prevention.
C&D.............................. Construction and Demolition.
CFR.............................. Code of Federal Regulations.
EA............................... Economic Analysis.
EPA.............................. Environmental Protection Agency.
FR............................... Federal Register.
HUD.............................. U.S. Department of Housing and Urban
Development.
IQ............................... Intelligence Quotient.
LBP.............................. Lead-Based Paint.
MSWLF............................ Municipal Solid Waste Landfill.
OMB.............................. Office of Management and Budget.
OPPTS............................ Office of Prevention, Pesticides, and
Toxic Substances.
OSWER............................ Office of Solid Waste and Emergency
Response.
RCRA............................. Resource Conservation Recovery Act.
RIC.............................. RCRA Docket Information Center.
TC............................... Toxicity Characteristic.
TSCA............................. Toxic Substances Control Act.
USEPA............................ United States Environmental
Protection Agency.
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Outline
I. Legal Authority
II. Why are Lead and Lead-Based Paint A 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 Does Today's 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 Rule
VIII. Other Applicable Federal, State, Tribal, and Local
Requirements
IX. How do States and Tribes Implement this Rule?
X. How does 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. Congressional Review Act
K. Executive Order 13211: Energy Effects
I. Legal Authority
EPA is promulgating 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. 6907(a), 6912(a), 6944(a), 6949a(c). We are also
correcting 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 parts 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,
[[Page 53537]]
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 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
[[Page 53538]]
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 plan to finalize the 1998 RCRA proposal.
VI. What Does Today's Rule Do?
A. Revision to the Definition of a Municipal Solid Waste Landfill Unit
Today's rule expressly allows 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 is 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 amending 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 will now 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 change to the definition
of a municipal solid waste landfill unit does not in any way affect
these disposal units. This change is being made simply to distinguish
residential lead-based paint waste from other household wastes. Today's
amendment does not alter what a MSWLF can or cannot receive. MSWLFs can
continue to receive residential LBP waste as household waste. Today's
rule expressly provides that an additional land-based waste disposal
option exists for residential LBP waste. Furthermore, this rule in no
way affects or changes 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'' allows a subset of household waste--residential LBP
waste--to be disposed of in construction and demolition landfills as
well as MSWLF units. Today's rule will 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 will 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 is also being 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 rule adds a definition of ``residential lead-based paint
waste'' in order to clarify the scope of the waste stream addressed by
today's rule. This 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 residential LBP waste definition 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 Rule
The technical basis for today's rule 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 is concluding 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 rule.
In the groundwater risk analysis used to support the 1998 TSCA
proposal, we
[[Page 53539]]
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 general, be protective of human health and the
environment at the 95th percentile protection level. This level of
protectiveness is at the high end (i.e., most protective) of the levels
that the Agency has used in regulating hazardous wastes under the RCRA
program. (See 63 FR 70203, December 18, 1998.) When deciding whether to
regulate industrial solid wastes as hazardous wastes, the Agency has
considered a 90th percentile or higher level as the appropriate
protection level and so has not regulated wastes satisfying this level
of protection as hazardous wastes. Thus, in the 1998 TSCA proposal, we
concluded that the disposal of LBP debris in C&D landfills is
appropriate and would not pose adverse health risks to residents living
near C&D landfills. Note that the Agency received many public comments
addressing various aspects of the groundwater risk analysis. The
comments were generally supportive of the proposed provision to allow
LBP debris to be disposed of in C&D landfills and provided no data
supporting a contrary decision.\1\
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\1\ All comments and data received in response to the 1998 TSCA
proposal may be accessed via Docket Control OPPTS-62160, located in
the TSCA Nonconfidential Information Center, Rm. NE-B607, 401 M St.,
SW., Washington, DC 20460. The TSCA Nonconfidential Information
Center telephone number is 202-260-7099. For a summary of the
comments, especially those related to the groundwater risk analysis,
see ``Summary of Comments on: Management and Disposal of Lead-Based
Paint Debris; Proposed Rule, and Temporary Suspension of Toxicity
Characteristic Rule for Specified Lead-Based Paint Debris; Proposed
Rule'' in the docket for today's rule.
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EPA believes that the technical basis for the 1998 TSCA proposal,
as discussed above, also supports today's 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 rule will not alter the authority of State, local and
Tribal governments to regulate LBP waste more stringently than does
EPA. The 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 Do States and Tribes Implement This Rule?
Because today's rule is less stringent than existing federal
criteria, States are not required to amend permit programs which have
been determined to be adequate under 40 CFR part 239. States have the
option to amend statutory or regulatory definitions pursuant to today's
direct final rule. If a state chooses to amend its permit program
pursuant to today's action, the State must notify the Regional
Administrator of the modification as provided by 40 CFR 239.12.
Today's amendments are directly applicable to landfills in States
without an approved permit program under Part 239 and in Indian
Country. We also encourage Tribes to adopt today's amendments into
their programs in order to promote lead-based paint abatement
activities in homes and other residences in Indian Country.
X. How Does This 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
[[Page 53540]]
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 Part 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. 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 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 direct final rule
on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
This direct final 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 rule is in compliance with the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. This 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 rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for
[[Page 53541]]
State, local, or tribal governments or the private sector. This rule
imposes no enforceable duty on any State, local or tribal governments
or the private sector. Thus, today's 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 direct final 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 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 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 direct final 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 rule expressly provides an additional option for disposal of
certain waste applicable in Indian Country, but does 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 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, 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
rule does not involve technical standards, voluntary or otherwise.
Therefore, the NTTAA does not apply to today's 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 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. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides
[[Page 53542]]
that, before a rule may take effect, the agency promulgating the rule
must submit a rule report, which includes a copy of the rule, to each
House of the Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective [January 22, 2002].
K. Executive Order 13211: Energy Effects
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
List of Subjects
40 CFR Part 257
Environmental protection, Waste treatment and disposal.
40 CFR Part 258
Environmental protection, Reporting and recordkeeping requirements,
Waste treatment and disposal, Water pollution control.
Dated: September 28, 2001.
Christine Todd Whitman,
Administrator.
For reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 257--[AMENDED]
1. The authority citation for part 257 is revised to read as
follows:
Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a), and
6949a(c); 33 U.S.C. 1345(d) and (e).
2. Section 257.2 is amended:
a. By adding in alphabetical order the definitions for
``Construction and demolition (C&D) landfill'' and ``Residential lead-
based paint waste''.
b. By revising the definition of ``Municipal solid waste landfill
(MSWLF) unit''.
The revision and additions read as follows:
Sec. 257.2 Definitions.
* * * * *
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.
* * * * *
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
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.
* * * * *
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.
* * * * *
PART 258--[AMENDED]
1. The authority citation for part 258 continues to read as
follows:
Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907,
6912(a), 6944, 6945(c) and 6949a(c).
2. Section 258.2 is amended:
a. By adding in alphabetical order the definitions for
``Construction and demolition (C&D) landfill'' and ``Residential lead-
based paint waste''.
b. By revising the definition of ``Municipal solid waste landfill
(MSWLF) unit'' .
The revision and additions read as follows:
Sec. 258.2 Definitions.
* * * * *
Construction and demolition (C&D) landfill means a solid waste
disposal facility subject to the requirements of part 257, subparts A
or B of this chapter 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 this section). 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 (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 under Sec. 257.2 of this chapter. A
MSWLF unit also may 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.
* * * * *
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.
* * * * *
[FR Doc. 01-26094 Filed 10-22-01; 8:45 am]
BILLING CODE 6560-50-P