[Federal Register Volume 66, Number 205 (Tuesday, October 23, 2001)]
[Rules and Regulations]
[Pages 53535-53542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26094]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: [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.
    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, [email protected].

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]]



------------------------------------------------------------------------
                Category                  Examples of affected entities
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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

------------------------------------------------------------------------
             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.
------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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