[Federal Register Volume 63, Number 243 (Friday, December 18, 1998)]
[Proposed Rules]
[Pages 70233-70249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33327]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[FRL-5783-7]
RIN 2070-AC72


Temporary Suspension of Toxicity Characteristic Rule for 
Specified Lead-Based Paint Debris

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a rule which would suspend temporarily the 
applicability of the Resource Conservation and Recovery Act (RCRA) 
Toxicity Characteristic (TC) Rule (40 CFR 261.24) to debris generated 
during lead-based paint (LBP) abatements conducted at target housing; 
deleading projects conducted at public or commercial buildings; and 
renovation or remodeling and demolition activities at target housing, 
public buildings, or commercial buildings. Instead of being subject to 
the TC Rule, LBP debris resulting from the above-mentioned activities 
would be subject to the management and disposal standards being 
proposed today under Title IV of the Toxic Substances Control Act 
(TSCA). EPA is proposing this temporary suspension of the TC rule in 
accordance with RCRA sections 1006(b)(1) and 2002 to avoid duplication 
and inconsistent regulation of LBP debris and to allow the Agency 
sufficient time to assess whether any RCRA requirements, in addition to 
TSCA Title IV requirements, are necessary to assure proper management 
and disposal of such debris.

DATES: Comments on this proposed rule must be submitted on or before 
February 16, 1999.

ADDRESSES: Commenters must send an original and two copies of their 
comments to: Docket Clerk, Mail Code 5305W, Docket No. F-98-LPDP-FFFFF, 
U.S. Environmental Protection Agency, 401 M St., SW., Washington, DC 
20460. Comments should include the docket number F-98-LPDP-FFFFF.
    Hand deliveries of comments should be made to the RCRA Information 
Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson 
Davis Highway, Arlington, VA. 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-98-LPDP-FFFFF. All electronic comments 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), Environmental 
Protection Agency, 401 M St., SW., Washington, DC 20460. For additional 
information on electronic submissions refer to Unit VII. of the 
preamble.

FOR FURTHER INFORMATION CONTACT: For general information about this 
proposed rule, contact the RCRA Hotline, Office of Solid Waste, U.S. 
Environmental Protection Agency, Washington, DC 20460, (800) 424-9346 
(toll free); TDD (800) 553-7672 (hearing impaired); in Washington, DC 
metropolitan area the number is (703) 412-9810; TDD (703) 486-3323 
(hearing impaired).
    For technical information on this proposed rule, contact Ms. Rajani 
D. Joglekar in the Office of Solid Waste at (703) 308-8806; and for 
technical information on the proposed TSCA Title IV disposal and 
management standards, contact Tova Spector in the Office of Pollution 
Prevention and Toxics at (202) 260-3467. To obtain copies of the 
reports or other materials referred to in this proposal, contact the 
RCRA Docket at the telephone number or address listed above.

SUPPLEMENTARY INFORMATION:
Regulated Entities
    Entities potentially regulated by this action include:

 
------------------------------------------------------------------------
                Category                 Examples of Regulated  Entities
------------------------------------------------------------------------
Abatement                                Firms contracted to abate lead-
Industry                                  based paint in target housing
                                          and public and commercial
                                          buildings where children under
                                          the age of 6 may be exposed to
                                          lead hazards.
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[[Page 70234]]

 
Renovation and                           Firms involved in renovation
Remodeling                                and remodeling of residences
Industry                                  and other buildings where lead-
                                          based paint debris may be
                                          generated.
------------------------------------------------------------------------
 
Demolition                               Firms involved in demolition
Industry                                  activities where demolition
                                          waste may contain lead-based
                                          paint debris.
------------------------------------------------------------------------

    The preceding table is not intended to be exhaustive, but rather 
provides a guide for readers regarding entities likely to be regulated 
by this action. This table lists the types of entities that EPA is now 
aware could potentially be regulated by this action. Other types of 
entities not listed in the table could also be regulated. To determine 
whether you are affected by this regulatory action, you should 
carefully examine the applicability criteria in Unit V. of this 
preamble. If you have any questions regarding the applicability of this 
section to a particular entity, consult the person listed for technical 
information under FOR FURTHER INFORMATION CONTACT.

I. Background

A. The Hazards of Lead-Based Paint

    Lead poisoning is the most common environmental health problem 
affecting young children in the United States. The Centers for Disease 
Control has estimated that up to 900,000 children, or about 4.4% of 
children under the age of 6, may have unacceptably high levels of lead 
in their blood (Ref. 1). High levels of lead impair mental and 
cognitive development and physical growth, and can cause 
neurobehavioral disorders. Among the other risks to human health 
presented by LBP hazards is neonatal mortality due to the exposure of 
pregnant women to lead and adverse neurological effects in infants and 
children. 59 FR 45900-01 (September 2, 1994). There is also some 
indication that lead exposure contributes to high blood pressure in 
adults. Lead has no known use in the body and is difficult to remove 
from blood and bones in cases where medical intervention is necessary.
    The primary route of exposure to lead in young children is the 
ingestion of dust, paint chips, and soil contaminated by lead from 
deteriorated paint surfaces of walls, doors, and windows. Although lead 
was banned from residential paint in 1978 (when the amount of lead in 
paint was above 0.06% lead by weight), more than half the housing stock 
(an estimated 64 million pre-1980 homes) still contains some lead-based 
paint (LBP) (Ref. 2). The Lead-Based Paint Hazard Reduction and 
Financing Task Force estimates that between 5 and 15 million housing 
units contain LBP hazards (Ref. 3).
    In response to health threats posed by LBP, Congress enacted the 
Residential Lead-Based Paint (LBP) Hazard Reduction Act of 1992 
(hereafter referred to as Title X or the Act) as Title X of the Housing 
and Community Development Act of 1992. The Act amended TSCA by adding a 
new Title IV, which, among other things, provides EPA with the 
authority to promulgate standards to govern: (1) the training and 
certification of individuals engaged in LBP activities; (2) the 
accreditation of training programs; and (3) the process by which LBP 
activities, including abatements, are conducted by certified 
individuals (15 USC section 2682(a)(1)).
    As a result of the enactment of The LBP Act of 1992, there is an 
increasing effort to reduce the hazards posed by LBP in residential 
housing and other buildings. Although there are a number of methods to 
reduce LBP exposure, abatements (which under TSCA Title IV involve any 
set of measures designed to permanently eliminate LBP hazards) are 
typically conducted in situations where LBP exposure has resulted in 
elevated blood lead levels in children. EPA expects that abatements in 
target housing (defined in TSCA as any housing constructed prior to 
1978, except any 0-bedroom housing or dwelling for elderly or persons 
with disabilities (unless any child age 6 years or under resides or is 
expected to reside in such housing for the elderly or person with 
disabilities)), may increase. Abatement efforts result in the 
production of waste which, as explained in more detail below, would 
potentially be subject to overlapping regulatory controls under RCRA 
Subtitle C and TSCA Title IV.
    The Agency has spent considerable resources working with health 
specialists, environmental groups, the lead abatement industry, and 
state and local governments to develop regulatory options to expedite 
the conduct of lead abatement activities so that risks to children from 
lead poisoning will be permanently and expeditiously eliminated. EPA 
believes that there is an overwhelming consensus to act as quickly as 
possible to reduce risks resulting from lead exposure to young 
children.
    The Lead-Based Paint Hazard Reduction and Financing Task Force, 
representing the spectrum of interests affected by lead-based paint 
issues, released final recommendations on evaluating and reducing lead-
based paint hazards in private housing on July 11, 1995, in a report 
entitled Putting the Pieces Together: Controlling Lead Hazards in the 
Nation's Housing (Ref. 4). In addition, in a letter to EPA 
Administrator Carol Browner dated April 13, 1994, the Task Force 
specifically recommended that the Agency, ``shift regulation of 
discarded architectural components from the hazardous waste regulatory 
program to a tailored management program under TSCA Section 402/404'' 
(Ref. 3). The Agency has given substantial weight to these 
recommendations in the development of today's proposals as they are 
supported by a broad range of groups and interests affected by lead-
based paint activities and regulations. EPA has developed a regulatory 
approach it believes will both speed the conduct of lead abatement and 
deleading activities (by lowering costs) and, at the same time, ensure 
that LBP debris is managed and disposed of in an environmentally safe 
manner.

B. Impetus for Today's Rulemaking

    One of EPA's primary purposes in developing this regulatory 
approach for this proposed RCRA TC Rule temporary suspension, and the 
companion proposed TSCA management and disposal standards (issued 
elsewhere in today's Federal Register), is to address obstacles to the 
conduct of LBP abatements in target housing and child-occupied 
facilities, such as schools and day-care centers. The Agency's analysis 
of the risk of alternative disposal facilities also examined the risk 
of disposing LBP debris resulting from other activities. Because the 
Agency has concluded that the disposal of LBP debris (no matter what 
the origin) in certain solid waste disposal facilities, such as 
construction and demolition landfills, is safe, reliable, effective, 
and protective of human health and the environment, EPA has decided to 
extend the coverage of today's RCRA and TSCA proposed rules to LBP 
debris generated during lead-based paint abatement, deleading, 
demolition, renovation, and remodeling projects in all target housing, 
public and commercial buildings. EPA believes it is important to 
provide a clear and consistent regulatory environment for those who 
conduct these activities which generate almost identical LBP debris.

[[Page 70235]]

II. RCRA Subtitle C and the Toxicity Characteristic Rule

    Subtitle C of RCRA, 42 U.S.C. 6921-39b, establishes a comprehensive 
program for the regulation of hazardous waste. In enacting RCRA, 
however, Congress did not set forth a list of hazardous wastes nor 
provide a specific test for determining whether a waste is hazardous. 
Instead, in RCRA section 1004(5), Congress defined ``hazardous waste'' 
broadly as a ``solid waste'' which ``may . . . pose a substantial 
present or potential hazard to human health or the environment when 
improperly treated, stored, transported, disposed, or otherwise 
managed.'' Under RCRA section 3001(a), EPA is responsible for defining 
which solid wastes are hazardous by either identifying the 
characteristics of hazardous waste or by listing particular hazardous 
wastes.
    In response to the Congressional directive in RCRA section 3001(a), 
EPA adopted a two part definition for identified and listed ``hazardous 
wastes'' (45 FR 33084, May 19, 1980). First, EPA published lists of 
specific hazardous wastes, in which EPA described the wastes and 
assigned a ``waste code'' to each of them (40 CFR part 261, subpart D). 
These wastes are known as ``listed'' hazardous wastes and are subject 
to regulations under Subtitle C (See 40 CFR part 262, 264-268, and 
270). Second, the Agency identified four characteristics of hazardous 
waste that are subject to measurement: ignitability, corrosivity, 
reactivity, and toxicity (See 45 FR 33121-22, May 19, 1980). Any solid 
waste exhibiting one or more of these characteristics is a 
``characteristic hazardous waste'' subject to regulation under RCRA 
Subtitle C (See 40 CFR parts 262, 264 to 268, and 270).
    To measure objectively the ``toxicity'' criterion for determining 
whether a waste exhibits the characteristic of toxicity under RCRA 
Subtitle C, EPA has established the Toxicity Characteristic Leaching 
Procedure (TCLP) test as part of the Toxicity Characteristic (TC) rule 
(55 FR 11798, March 29, 1990). The TC rule added 25 organic chemicals 
to the original list of toxic constituents of concern (primarily 
metals, including lead) and established regulatory levels for these 
organic chemicals.
    Under the TC rule, a waste may be a hazardous waste if any 
chemicals listed in the rule, such as lead, are present in leachate 
from the waste (generated from use of the TCLP) at or above the 
specified regulatory levels (40 CFR 261.24). The overall effect of the 
TC rule was to subject additional solid wastes to regulatory control 
under the hazardous waste provisions of Subtitle C of RCRA.
    Under the TC rule, generators of solid waste must either use their 
knowledge or perform the TCLP test using a representative sample of the 
waste as generated to determine if the waste exhibits the toxicity 
characteristic for lead. The regulatory level for lead in the waste 
extract (i.e., leachate) is 5 milligrams per liter (mg/L). If under the 
TCLP test, the leachate extracted from waste contains lead at 5 mg/L or 
higher, then the waste is a ``characteristic'' hazardous waste, and the 
generator must comply with the applicable RCRA Subtitle C requirements 
in 40 CFR parts 262 through 266, 268, and 270.
    Currently, like any other lead-containing waste, the TC rule 
applies to waste (including debris) from construction, demolition, and 
renovation activities, and waste (including debris) from LBP abatement 
activities. The generator of lead-containing waste must make a RCRA 
hazardous waste determination to identify whether it is 
characteristically hazardous and, thus, whether management as a 
hazardous waste is required.

III. The TSCA Title IV Proposed Rule

    As explained in detail in the companion proposal published 
elsewhere in today's Federal Register, Title IV of TSCA provides EPA 
with the authority to promulgate regulations which address the 
management and disposal of LBP debris. In accordance with that 
authority, EPA is proposing a rule under TSCA sections 402 and 404 
which would establish management and disposal standards for ``LBP 
architectural component debris'' from abatement, deleading, renovation, 
and remodeling, and ``demolition debris'' from target housing, and 
public and commercial buildings (collectively referred to as ``LBP 
debris''). Under the TSCA Title IV rule, EPA is specifying that such 
LBP debris must be disposed of in: (1) Construction and demolition 
landfills as defined at proposed Sec. 745.303; (2) a landfill subject 
to the requirements in 40 CFR part 257, subpart B, applicable to non-
municipal, non-hazardous waste disposal units receiving conditionally 
exempt small quantity generator waste (as defined in 40 CFR 261.5); (3) 
a hazardous waste disposal facility that is permitted under 40 CFR part 
270; (4) a hazardous waste disposal facility authorized to manage 
hazardous waste by a State that has a hazardous waste management 
program approved under 40 CFR part 271; or (5) a hazardous waste 
treatment, storage, and disposal facility that has qualified for 
interim status to manage hazardous waste under RCRA section 3005(e). 
For a number of reasons discussed in the preamble of the TSCA proposed 
rule (see Unit V. ``Analytical Basis for Landfill Disposal Options'' 
for details), EPA believes that these disposal options for LBP debris 
are safe, reliable, and effective as required under TSCA section 
402(a)(1). (The preamble to the TSCA Title IV proposal also requests 
comment on the appropriateness of disposing LBP debris in Municipal 
Solid Waste Landfills operated in compliance with 40 CFR part 258 
requirements.)
    EPA has included, in the TSCA Title IV proposed rule, the following 
prohibitions: (1) No application of LBP debris as mulch, ground cover, 
or fill material (e.g., after shredding or grinding) without first 
removing the LBP such that the remaining material contains no visible 
signs/traces of paint; (2) no transfer for reuse of LBP debris with a 
specified level of deteriorating paint (e.g., as a building or 
structural component or artifact) unless the LBP is encapsulated or 
removed such that the remaining material does not pose a LBP hazard; 
(3) no transport of LBP debris in open, uncovered vehicles; (4) no 
storage of LBP debris prior to disposal for any period exceeding 180 
days, and after 72 hours following waste generation such storage must 
include use of an access limitation, such as a receptacle, covered 
dumpster, barrier, or fence; (5) notification and recordkeeping 
requirements; and (6) no reclamation or burning of LBP debris for lead 
or for energy except at facilities meeting specified Clean Air Act 
standards. EPA believes that these prohibitions and management 
standards are appropriate because they are protective of human health 
and the environment, and they ensure that management and disposal of 
LBP debris are conducted in a safe, reliable, and effective manner. For 
further information about the management and disposal standards EPA is 
proposing, see the companion TSCA proposed rule in today's Federal 
Register.

IV. Basis for the Temporary Suspension of the TC Rule

A. Purpose of the Proposed Temporary Suspension

    The purpose of today's proposed temporary suspension of the TC rule 
for LBP debris is to ensure that abatements, deleading, remodeling and 
renovation, and demolition activities where LBP is present are 
conducted expeditiously and that management and disposal of LBP debris 
from these activities are

[[Page 70236]]

governed by appropriate standards. Since enactment of the Lead-Based 
Paint Poisoning Prevention Act, as amended by the McKinney Homeless 
Assistance Act, 42 U.S.C. 4822, and TSCA Title IV, as part of the LBP 
Act of 1992, there has been a significant increase in abatement 
activities in public housing and target housing. These activities 
result in the production of large amounts of solid waste containing 
LBP.
    Based on a 1992 study of LBP waste, EPA concluded that because of 
the high lead content in some paint used in residences built before 
1978, certain LBP waste components (including painted architectural 
debris) may sometimes be a RCRA hazardous characteristic waste, and 
that additional confirmatory analysis would be necessary (Ref. 5). To 
comply with RCRA Subtitle C regulations, contractors conducting 
abatements at Housing and Urban Development (HUD) housing units 
reportedly have been TCLP testing LBP waste and, if the waste ``fails'' 
the TCLP, have managed it according to the RCRA hazardous waste 
management requirements.
    HUD, State public housing authorities (e.g., Maryland and 
Massachusetts), and advocacy groups (e.g., Alliance to End Childhood 
Lead Poisoning and the National Center for Lead Safe Housing), have 
argued against the applicability of the TC rule (and all of the RCRA 
Subtitle C hazardous waste requirements which flow from a ``failure'' 
of the TCLP test) to LBP waste. They argue that the applicability of 
RCRA Subtitle C requirements results in significant interference with 
abatement activities in target housing, and that such interference is 
contrary to the intent of Congress in enacting Title X of the Housing 
and Community Development Act of 1992 (which amended TSCA by adding a 
new Title IV).
    The stakeholders mentioned above have provided a variety of reasons 
explaining why applicability of the TC rule and RCRA Subtitle C 
interferes with LBP abatement efforts. Among the reasons are: (1) 
Technical difficulties in sampling of certain types of LBP debris, 
e.g., doors, windows, and other structural components; (2) uncertainty 
about conducting the TCLP test on LBP waste and about reproducibility 
of test results; and (3) the high cost of compliance with RCRA 
hazardous waste standards in cases where the LBP debris fails the TCLP 
test. The result is that certain LBP abatement and deleading projects 
do not occur or are delayed due to the lack of sufficient funds. EPA 
addresses each of these issues in Unit IV.B. of this preamble.

B. Available Information on the Scope of the Problem and Impacts of 
RCRA Subtitle C

    1. Difficulties in conducting the TCLP test. EPA has received 
comments indicating difficulties in obtaining a representative sample 
of heterogenous waste material such as LBP debris (made up of painted 
doors and windows, plaster boards, and other painted architectural 
components) from abatement, renovation and remodeling, or demolition 
activities and conducting the TCLP test. The sampling methods described 
in EPA's laboratory testing method manual, SW-846, largely focus on 
homogenous waste materials, and are not well suited for sampling LBP 
debris such as door frames, windows, shelves, and banisters. EPA has 
received several inquiries concerning how to obtain a representative 
sample of LBP architectural component debris. Because of the difficulty 
in sampling heterogeneous waste and the lack of a standardized sampling 
methodology, stakeholders argue that TCLP results for such waste are 
inconsistent and not reproducible.
    EPA acknowledges the difficulties that may arise in attempting to 
prepare a sample to conduct the TCLP test on LBP architectural 
component waste. To address some of these difficulties, EPA completed a 
residential LBP architectural component debris study. The intent was 
threefold: (1) To develop heterogenous waste sampling and TCLP sample 
preparation protocols; (2) to obtain additional TC analysis data to 
substantiate earlier EPA study results; and (3) to subject waste 
samples to both the TCLP (which simulates leaching when waste is 
disposed of in a municipal landfill) and the Synthetic Precipitation 
Leaching Procedure (which simulates leaching when waste is disposed of 
in landfills other than a municipal landfill, such as construction and 
demolition--``C&D'' landfills) (Ref. 6).
    A 1992 EPA study identified three major categories of waste 
produced during abatements: filtered wash water, solid architectural 
debris, and plastic sheets and tape used to cover floors and other 
surfaces (Ref. 5). The study concluded that filtered wash water is 
generally nonhazardous. The results for solid architectural debris 
demonstrated that debris tended to fail the TCLP when the lead in the 
paint, as measured by Atomic Absorption Spectrometry (AAS) exceeds 4 
mg/cm2. (Note: TCLP failure in the study was not well-
correlated with results of on-site testing of lead levels in paint 
using an XRF device.) Generators often experience difficulties when 
sampling and conducting the TCLP test on solid architectural debris 
waste. The study's failure rate for plastic sheeting tended to depend 
on the abatement method. For example, removal and replacement tended to 
generate nonhazardous plastic sheeting, but use of a heat gun tended to 
result in the sheeting failing the TCLP. Such material can properly be 
decontaminated (e.g., vacuuming of dust and/or washing) prior to 
disposal. The study also noted that other categories of waste, such as 
sludges and LBP chips, often exceed the RCRA TC rule regulatory limit.
    As discussed in Unit IV.D, of the companion proposal titled 
``Management and Disposal of Lead-Based Paint Debris'' published 
elsewhere in today's Federal Register, the TCLP results for LBP debris 
are not reproducible primarily due to difficulties in obtaining a 
representative sample. Also, even if a representative sample is taken, 
difficulties exist when preparing and obtaining a sample for the TCLP 
analysis. These difficulties may be creating disincentives to LBP 
abatement and other lead hazard reduction activities that generate LBP 
debris.
    EPA intends to study these sampling and analytical difficulties 
further and assess whether questions concerning the consistency and 
validity of TCLP results on LBP architectural components can be 
resolved during the pendency of the temporary suspension.
    2. Economic impacts of Subtitle C regulation on LBP abatements. It 
is clear that RCRA Subtitle C regulation of LBP debris resulting from 
abatements, deleading, renovation, remodeling, and demolition can 
potentially increase the costs of conducting such activities. The 
primary sources of these increased costs are the RCRA Subtitle C 
treatment and disposal requirements that apply if LBP debris fails the 
TCLP. (In addition, waste sampling and analysis costs are approximately 
$100 per sample for TCLP analysis.) For waste which is determined to be 
hazardous, the cost of treatment and disposal (including 
transportation) can be quite high (EPA estimates approximately $316 per 
ton), assuming full compliance (Ref. 7). Individuals undertaking 
abatements and deleadings do not necessarily know when beginning a 
project if the waste will require management as a hazardous waste, but 
they must account for this possibility in their cost estimates. These 
RCRA Subtitle C testing, treatment, and disposal costs may contribute 
to the decision not to conduct an abatement project (Ref. 7).

[[Page 70237]]

    Among abatement waste categories, LBP architectural components are 
the main source of large-volume waste. Other abatement wastes (such as 
LBP chips and dust, treatment residues and waste water, and worker 
equipment and clothing) are generally generated in smaller quantities. 
Moreover, these other types of abatement wastes are relatively easy to 
sample and analyze (with reproducible results), and, even if hazardous, 
generators can manage the wastes without excessive costs (because of 
smaller volumes).
    As noted above, RCRA Subtitle C treatment and disposal costs are 
approximately $316 per ton (of this total, approximately $86 per ton is 
for transportation) as compared with an estimated cost of $37.20 per 
ton based on new United States Forest Service C&D tipping fees survey, 
to dispose of LBP debris in a construction and demolition landfill (a 
solid, nonhazardous waste landfill defined in today's TSCA proposal 
that generally accepts construction wastes), including compliance with 
the management controls in today's proposal. Thus, for the disposal of 
100 tons of debris from a LBP abatement, Subtitle C requirements would 
cost $31,600 as opposed to the $3,720 it would require to dispose of 
the waste in a construction and demolition facility in compliance with 
today's proposed standards (Ref. 7).
    EPA believes that the higher costs associated with RCRA Subtitle C 
may hinder LBP abatements and deleadings from being conducted. The 
Agency has received submissions from members of the public, including a 
number of State governments, indicating that the cost of complying with 
RCRA Subtitle C hazardous waste regulations interferes with or in many 
cases halts the conduct of LBP abatements (Ref. 7).
    3. Conclusions and areas for further consideration. Given the 
demonstrated risks that LBP poses and the clear Congressional intent 
for risks from LBP hazards to be reduced, the Agency believes that it 
is appropriate to assess the adverse impacts that RCRA Subtitle C 
regulations may have on LBP abatement, deleading, renovation, 
remodeling, and demolition activities and decide what (if any) RCRA 
Subtitle C regulation is necessary once the TSCA Title IV regulations 
take effect. Because indications are that the applicability of the TC 
rule and all other Subtitle C requirements may interfere with lead 
hazard reduction activities and may not be necessary to protect human 
health and the environment from LBP debris disposal, EPA is proposing 
this temporary suspension.
    Moreover, under current RCRA requirements, all LBP debris (if not 
derived from a household) is not treated equally. Some LBP debris, 
specifically, debris which fails the TCLP for lead, is subject to the 
strict and costly requirements of RCRA Subtitle C. At the same time, 
LBP debris (if not derived from a household) which passes the TCLP or, 
using generator's knowledge has been determined to be nonhazardous, 
remains non-hazardous solid waste and generally may be disposed of in 
any solid waste disposal facility which meets the requirements in the 
open dumping criteria which EPA promulgated in 1979 (40 CFR part 257, 
subpart A).
    However, any LBP debris which passes the TCLP test (i.e., which is 
identified as nonhazardous) is not currently subject to any management 
standards under RCRA Subtitle D similar to that being proposed under 
TSCA today. These new TSCA management standards (e.g., access control 
during debris storage, covering of trucks used in shipping debris for 
recycling or disposal) take into account the risks that LBP debris may 
pose to humans, particularly children, even if the debris passes the 
TCLP test.
    During the development of this proposal, it has become clear to the 
Agency that the unequal management and disposal standards for LBP 
debris under RCRA are inappropriate. In cases where LBP debris is 
determined to be hazardous, the Agency now believes that RCRA Subtitle 
C management and disposal requirements for LBP debris are unnecessarily 
strict and costly. On the other hand, LBP debris that is found to be 
nonhazardous is not subject to the RCRA Subtitle C management 
requirements (i.e., land disposal restrictions requiring treatment and 
disposal as a RCRA hazardous waste). Thus, in cases where LBP debris 
passes the TCLP or is determined through knowledge to be nonhazardous, 
management and disposal occurs according to solid waste management 
regulations and disposal occurs at solid waste landfills accepting such 
waste for disposal.
    The TSCA standards being proposed today represent a common sense 
approach to management and disposal of LBP debris which addresses the 
problems associated with RCRA regulation of LBP debris. This proposal 
to suspend the TC rule, combined with the TSCA proposal issued today, 
would afford equal and appropriate management and disposal standards 
for all LBP debris.
    Although EPA believes there is sufficient information to propose 
this temporary suspension of the TC rule for LBP debris, the Agency 
plans to proceed to analyze in greater detail the concerns that members 
of the public, including States, have raised concerning the degree to 
which RCRA Subtitle C requirements may impede or frustrate LBP 
abatements in target housing, public and commercial buildings. While 
the temporary TC suspension is in effect, EPA will study further 
related issues such as: (1) are LBP abatements and deleading projects 
occurring on a more frequent and expeditious basis because LBP debris 
is temporarily not subject to RCRA hazardous waste requirements; and 
(2) whether any RCRA Subtitle C requirements are needed to supplement 
the TSCA Title IV standards.
    As indicated in the Agency's proposed Hazardous Waste 
Identification Rule (HWIR), EPA is considering reevaluation of the TC 
regulatory level for lead (see 60 FR 66406, December 21, 1995). Since 
promulgation of the TC rule, EPA has become aware of a number of 
factors which have prompted the Agency to consider initiating a re-
evaluation of the 5 mg/L TC level for lead. First, the human health 
risk evaluation for lead has changed since EPA promulgated the TC rule, 
resulting in the action level (on which the TC is based) for lead being 
reduced from 50 parts per billion (ppb) to 15 ppb. Second, EPA has 
developed a constituent-specific Dilution Attenuation Factor (``DAF'') 
of 5,000 for lead leaching under different disposal scenarios 
(suggesting that lead generally moves slowly in the subsurface 
environment except in specific hydrogeologic situations) which differs 
from the generic DAF of 100 used in the TC rule (See Unit V. of the 
TSCA proposed rule preamble published elsewhere in today's Federal 
Register for a discussion of the lead DAF). Third, EPA has developed a 
multi-pathway, multi-media exposure risk assessment model that allows 
consideration of exposure pathways in addition to ground water 
contamination (which was the pathway considered in the TC rule). 
(Available data suggest that some of the other pathways may be more 
riskier than the ground water exposure pathway.)
    EPA recognizes that the TC level for lead is a matter of 
considerable interest to the public and has initiated efforts to review 
management of lead-bearing waste and other related studies (e.g., lead 
leaching). In the meantime, given the other factors discussed above, 
EPA has decided to propose a temporary suspension of the TC rule for 
LBP debris

[[Page 70238]]

and new standards under TSCA for the management and disposal of LBP 
debris.

C. Alternative Approaches

    Instead of a temporary suspension of the TC rule, EPA is 
considering and seeking comment on a permanent approach under RCRA for 
addressing LBP debris that is subject to the proposed TSCA Title IV 
requirements. Like the proposed temporary TC suspension, a permanent 
rule would eliminate the dual regulation of LBP debris under two 
separate environmental statutes and remove obstacles hindering lead 
abatement and deleading activities.
    Such a rule could be framed as a permanent suspension of the TC for 
LBP debris that is subject to the proposed TSCA Title IV requirements. 
Under such an approach, EPA would determine that the proposed TSCA 
Title IV standards for managing and disposing of LBP debris are safe, 
reliable, and effective in protecting human health and the environment. 
As discussed in Unit V.B. of this preamble, the statutory basis for 
such an approach would be RCRA sections 1006(b)(2) and 2002(a), which 
require the Agency to integrate the provisions of RCRA with other 
environmental statutes. In addition, a permanent rule could be issued 
as a ``conditional exemption'' from RCRA subtitle C for LBP debris 
regulated under the TSCA Title IV management and disposal standards. 
See Military Toxics Project v. EPA, D.C. Cir. No. 97-1343 (June 30, 
1998) (EPA has the authority under RCRA subtitle C to conditionally 
exempt a hazardous waste from subtitle C regulation where an 
alternative regulatory scheme provides adequate protection). EPA 
requests comment on the merits of such a permanent RCRA LBP rule.

V. Explanation of Today's Proposed Rule

A. Introduction

    Today's proposal would suspend temporarily the applicability of the 
TC rule to LBP debris (i.e., LBP architectural component debris 
resulting from LBP abatements, deleadings, renovation and remodeling, 
and LBP debris from demolitions) generated at target housing, public 
and commercial buildings, for which management and disposal standards 
are being proposed today under TSCA Title IV. If promulgated, the 
proposed rule would mean that generators of LBP debris resulting from 
these activities would not have to conduct the TCLP test on LBP debris 
or use their knowledge to determine whether LBP debris is a hazardous 
waste. Nor would generators of LBP debris be required to comply with 
any treatment, storage, or disposal requirements under RCRA Subtitle C. 
Instead, generators of LBP debris would be required to comply with the 
management and disposal standards to be promulgated under TSCA Title IV 
(unless and until the Agency decides that some additional RCRA 
regulation should also apply to LBP debris).
    EPA is proposing this temporary suspension of the TC rule as an 
exclusion from the definition of ``hazardous waste'' in 40 CFR 
261.4(b). The temporary suspension would amend the definition of 
hazardous waste to exclude LBP debris resulting from: (1) Lead-based 
paint abatements conducted at target housing; (2) deleading projects 
conducted at public buildings or commercial buildings; and (3) 
renovation or remodeling activities conducted at target housing, public 
buildings, or commercial buildings. The temporary suspension would also 
amend the definition of hazardous waste to exclude LBP debris resulting 
from demolitions of target housing, public, or commercial buildings. 
If, however, such LBP debris, is hazardous for reasons other than 
failing the TCLP for lead, (e.g., the debris contains a listed 
hazardous waste or any other TC or other hazardous waste characteristic 
constituent), the exclusion from the definition of hazardous waste 
would not apply.
    The Agency is proposing this suspension in 40 CFR 261.4, rather 
than as part of the TC rule in 40 CFR 261.24, because it has been a 
consistent practice for EPA to list all of the exclusions from both the 
solid waste and hazardous waste regulatory schemes in 40 CFR 261.4, and 
the regulated community is more likely to be familiar with this 
approach. This exclusion from the definition of hazardous waste, and 
thus from any TC rule requirements, would be temporary pending EPA's 
conduct of studies and analyses of the issues as described in Unit 
IV.B.3. of this preamble.

B. Statutory Basis for the Temporary Suspension

    EPA is proposing this temporary suspension of the TC rule for LBP 
architectural components under the authority of RCRA sections 
1006(b)(2) and 2002(a). RCRA section 1006(b)(1) states that EPA:

    shall integrate all provisions of [RCRA] for purposes of 
administration and enforcement and shall avoid duplication, to the 
maximum extent practicable, with the appropriate provisions of . . . 
such other Acts of Congress as grant regulatory authority to the 
Administrator. Such integration shall be effected only to the extent 
that it can be done in a manner consistent with the goals and 
policies expressed in [RCRA] and in the other acts referred to in 
this subsection. 42 USC section 6905(b)(1).

    As discussed in the proposed TSCA rule, EPA has authority under 
TSCA Title IV to promulgate regulations governing LBP activities, 
including the establishment of standards governing the management and 
disposal of waste resulting from abatements, deleading, renovation and 
remodeling, and demolition activities (15 U.S.C. 2681(1) and 2682(a)(1) 
and (b)). Pursuant to this authority, EPA is simultaneously proposing 
elsewhere in today's Federal Register specific regulations which govern 
the management and disposal of LBP debris resulting from these 
activities. EPA believes that the TSCA rules being proposed today for 
LBP debris are consistent with the central objective and policy of 
RCRA: Protecting human health and the environment.
    The legislative history shows clearly that by enacting TSCA Title 
IV, Congress wanted to ``remove all major obstacles to progress, making 
important changes in approach and laying the foundation for more cost-
effective and widespread activities for reducing lead-based paint 
hazards'' (S. Rep. No. 102-332, 102nd Cong., 2nd Sess. 111 (1992)). As 
the Senate Committee on Banking, Housing and Urban Affairs stated, `` . 
. . by establishing realistic, cost-effective procedures for achieving 
hazard reduction, [The LBP Act of 1992] will speed the clean-up of lead 
paint hazards in housing and greatly decrease the incidence of 
childhood lead poisoning.'' (Id. at 112.)
    Thus, in enacting TSCA Title IV, Congress wanted to ensure that 
obstacles to lead abatements and deleading activities, including high 
costs, would be minimized and that LBP hazards would be reduced. In 
authorizing EPA under TSCA Title IV to promulgate management and 
disposal standards for LBP waste, however, Congress did not address the 
conflict that would arise concerning the overlapping jurisdiction of 
the RCRA TC rule and the TSCA disposal standards. Nor did Congress 
clearly address the obstacles to the conduct of lead abatements and 
deleading activities that can result if LBP debris is determined to be 
hazardous and subject to the resultant costs of RCRA Subtitle C. To 
resolve the duplication inherent in the statutory schemes and the 
potential adverse impacts if both RCRA and TSCA regulatory schemes were 
to apply

[[Page 70239]]

to LBP debris, EPA believes it is appropriate to resolve this conflict 
of overlapping jurisdiction by proposing to suspend temporarily the 
applicability of the TC rule to such LBP debris as authorized under 
RCRA section 1006(b)(1). See Edison Electric Institute v. EPA, 2 F.3d 
438, 452 (D.C. Cir. 1993) (because Congress did not clearly address the 
interaction between RCRA Subtitles C and I, EPA's temporary deferral of 
the TC rule for underground storage tank waste under RCRA section 
1006(b)(1) was permissible). The temporary suspension of the TC rule 
proposed today would also work to integrate the regulatory provisions 
promulgated under the Clean Air Act pertaining to municipal waste 
combustors and smelters with RCRA and TSCA Title IV regulatory 
requirements.
    EPA believes that the TSCA rule being proposed today for LBP debris 
will protect the core value of RCRA of protecting human health and the 
environment. See 42 U.S.C. 6902. While EPA further studies various 
issues described in this proposal, e.g., the difficulty of conducting 
the TCLP test on LBP debris and whether the TC regulatory level for 
lead should be modified, the Agency believes that the management, 
notification, transportation, and disposal standards being proposed 
today under TSCA Title IV are consistent with the goals and policies of 
RCRA. Suspending the applicability of the TC rule to LBP debris on a 
temporary basis, while requiring that disposal of such LBP debris 
comply with regulations promulgated under TSCA Title IV and the Clean 
Air Act, would give EPA the necessary time to study the Title IV 
regulatory scheme and to assess whether any additional RCRA regulation 
is necessary.
    The Agency also believes that it has the authority to promulgate 
the TC temporary suspension for LBP debris as a conditional exemption 
under RCRA section 3001(a). See Military Toxics Project v. EPA, D.C. 
Cir. No. 97-1343 (June 30, 1998) (EPA has the authority under RCRA 
subtitle C to conditionally exempt a hazardous waste from Subtitle C 
regulation where an alternative regulatory scheme provides protection.) 
See 62 FR 6622, 6636-38; February 12, 1997.
    It is important to note that the proposed temporary TC suspension 
would not alter a person's potential CERCLA liability. The rule would 
only suspend the TC rule for LBP debris managed under the proposed TSCA 
Title IV requirements. Even if a lead regulatory level was changed or 
lead was entirely removed from regulations as a RCRA hazardous waste, 
lead would remain a CERCLA hazardous substance because it is listed 
under the Clean Air Act and the Clean Water Act. Therefore, persons who 
arrange for the disposal of, or are otherwise connected with, LBP 
debris would remain potentially subject to liability under CERCLA 
section 107(a) even after promulgation of the rule. Nevertheless, the 
rule is intended to facilitate lead abatement and deleading activities 
by eliminating the barriers posed by RCRA's hazardous waste rules when 
the LBP is properly managed in accordance with the TSCA Title IV rules.

C. Scope of the Temporary Suspension

    1. Types of waste covered. The temporary suspension of the TC rule 
would apply to LBP architectural component debris and LBP demolition 
debris which is subject to the disposal and management standards 
promulgated under TSCA section 402(a). EPA is proposing to define ``LBP 
architectural component debris'' in the RCRA regulation, in the same 
manner proposed in today's TSCA proposed rule (see Sec.  745.301 of the 
TSCA proposed rule regulatory text). The definition of LBP 
architectural component debris provides a generic definition of 
architectural components, i.e., ``elements or fixtures, or portions 
thereof, of commercial buildings, public buildings, or target housing 
that are coated wholly or in part with or adhered to by lead-based 
paint.'' The definition also includes a non-exclusive list of specific 
examples of structural elements or fixtures that would fall within the 
definition.
    Under this definition of ``lead-based paint architectural component 
debris,'' EPA has specified that other types of LBP wastes that may 
result from activities at any of the identified structures are not 
covered by the scope of the proposed temporary suspension of the TC 
rule. The other LBP wastes excluded from coverage under this proposed 
TC suspension include paint chips and dust, sludges and filtercake, 
wash water, and contaminated and decontaminated protective clothing and 
equipment.
    For a number of reasons, EPA is not proposing to include these 
other LBP wastes (except when they are part of LBP demolition debris) 
within the scope of the temporary suspension of the TC rule. First, 
these types of LBP waste are generally produced in much smaller 
quantities and their bulk is considerably less than that of LBP debris. 
Thus, the costs involved in treating and disposing of these wastes as 
hazardous are far less than the costs would be for the large volume of 
LBP debris which frequently result from abatement, deleading, 
demolition, and renovation and remodeling activities.
    Second, certain of these LBP wastes, e.g., paint chips and dust, 
sludge and filter cakes, are homogenous in physical characteristics, 
are easy to sample using the existing EPA sampling methods, are easily 
recognizable, can be easily segregated from LBP architectural component 
debris resulting from abatements or renovation or remodeling, and 
contain high levels of lead in a concentrated form. Unlike LBP 
architectural component debris, they are more likely to fail the 5 mg/L 
TCLP regulatory level for lead routinely, and the TCLP test results can 
reliably be reproduced. In some cases, the lead content is so high that 
the waste could possibly be sent to lead smelters for the metal 
recovery. Thus, these other lead-based paint wastes will remain subject 
to RCRA hazardous waste determination requirements, including the 
provisions of the TC rule.
    EPA is proposing to define ``LBP demolition debris'' to include any 
solid material which results from the demolition of target housing, 
public buildings, or commercial buildings which are coated wholly or in 
part with or adhered to by lead-based paint at the time of demolition. 
Thus, LBP demolition debris includes dust, paint chips, and other solid 
wastes from demolition activities which are not covered under today's 
proposal if they are generated during other LBP activities such as 
``abatement,'' ``deleading,'' ``renovation'' etc. EPA expects that such 
LBP waste would normally represent only a small percentage of the large 
volume of the total solid waste generated during demolitions. Moreover, 
separation of dust and paint chips from other demolition waste is 
virtually impossible. (Nevertheless, to the extent practicable, EPA 
encourages separation of LBP debris and LBP non-debris waste (paint 
chips and dust), and proper management.) Since some LBP non-debris 
waste is impractical to separate, EPA is proposing that all solid 
waste, including any LBP dust, paint chips, or other particulate 
matter, generated during demolitions are covered by today's proposal to 
suspend the TC.
    LBP demolition debris under the Agency's proposal, however, would 
not include any solid waste resulting from a demolition which fails the 
toxicity characteristics regulatory level for any hazardous constituent 
other than lead as contained in the TC rule (40 CFR 261.24). Thus, if a 
generator of LBP

[[Page 70240]]

demolition debris has not separated hazardous waste (other than LBP) 
from the building prior to the demolition, he or she remains subject to 
the RCRA hazardous waste determination requirement for TC hazardous 
constituents and must determine whether any of the regulatory levels 
for the TC hazardous constituents (other than lead) are met or 
exceeded.
    2. Activities and structures covered. Under this proposal and the 
TSCA proposal being published today, ``lead-based paint'' would be 
defined in the same manner it is defined in the TSCA rule applicable to 
worker certification and training requirements (see 61 FR 45815, August 
29, 1996). Under the TSCA definition, the term would mean paint or 
other surface coatings that contain lead equal to or in excess of 1.0 
mg/cm2 or 0.5% by weight measured using the appropriate lead 
detection instruments. (This is a TSCA LBP hazard determination 
requirement.) The discussion below describes activities and structures 
from which LBP debris is generated.
    EPA is proposing to apply the temporary suspension of the TC rule 
to exclude LBP architectural component debris resulting from: Lead-
based paint abatements conducted at target housing; deleading projects 
conducted at public buildings or commercial buildings; and renovation 
or remodeling activities conducted at target housing, public buildings, 
or commercial buildings. The temporary suspension would also apply to 
LBP debris resulting from demolitions of target housing, public 
buildings, or commercial buildings. What follows is a discussion of 
each of these categories of activities.
    i. Abatements at target housing. EPA is trying to ensure that 
abatements at target housing occur (when needed) in an expeditious and 
cost-effective manner through publication of the proposed rules today. 
In both proposals, EPA is defining the term ``abatement'' as the term 
is defined in the worker certification and training rule that the 
Agency promulgated under TSCA section 402 and 404 (see 61 FR 45813, 
August 29, 1996). Both the statutory definition in TSCA section 401(1) 
and this regulatory definition tie the term ``abatement'' closely to a 
permanent elimination of LBP hazards.
    EPA proposes to define ``target housing'' in the same way Congress 
defined the term in TSCA section 401(17), i.e., all housing constructed 
prior to 1978 (with certain exceptions as specified in the definition). 
LBP was used frequently prior to 1978 in the construction and re-
painting of housing in the United States. As such, under TSCA Title IV 
and the Residential Lead-Based Paint Hazard Reduction Act of 1992 
(Title X), target housing was specifically intended to be the subject 
of LBP abatement activity (15 U.S.C. 2682(a)(1) and 42 U.S.C. 4851 - 
4852).
    ii. Deleading at public buildings and commercial buildings, 
renovation and remodeling, and demolition. EPA originally planned to 
limit the scope of the TSCA proposed rule and the proposed TC 
suspension to LBP architectural components debris resulting from 
abatements at target housing and child-occupied facilities. However, a 
number of stakeholders, including State governments, argued that the 
scope of the proposed rules should be broadened to include 
architectural component debris from deleading activities at public and 
commercial buildings and from renovation and remodeling activities. For 
example, EPA received a letter from the California Department of Health 
Services suggesting that EPA expand the scope of this temporary TC 
suspension proposal to include LBP waste from public buildings such as 
libraries and buildings owned by State and local municipalities. 
Stakeholders argue that LBP architectural component debris is 
essentially the same waste no matter what its origin; thus, its 
disposal should be controlled in the same manner. Moreover, States also 
raised questions about their ability to enforce two different sets of 
rules (the TSCA Title IV rule and the RCRA Subtitle C regulations) for 
the same type of waste that will ``look alike'' despite having 
different points of generation, e.g., target housing versus public 
buildings, or resulting from different activities, e.g., LBP abatement 
versus renovation projects that include removal of architectural 
components or demolition of target housing, public buildings, or 
commercial buildings.
    EPA agrees with these concerns and is including within the scope of 
the proposed rules being published today LBP architectural component 
debris resulting from deleading activities at public buildings and 
commercial buildings. EPA is also proposing to make the rules 
applicable to LBP architectural component debris from renovation and 
remodeling activities and LBP debris from demolitions of target 
housing, public buildings, and commercial buildings. EPA agrees with 
the stakeholders' comments and believes that broadening the scope of 
the proposed rules provides a common sense regulatory framework that 
would not have resulted if the same waste from different structures or 
activities remained subject to two different regulatory regimes. In 
addition, including LBP debris resulting from deleading, renovation, 
remodeling, and demolition of public and commercial buildings within 
the scope of the proposed TSCA rule and the proposed TC suspension 
would allow the establishment of management and transportation 
standards for LBP debris to protect human health which otherwise would 
not exist under RCRA Subtitle D if the debris does not fail the TCLP.
    EPA has proposed the definitions for the following terms at 40 CFR 
745.301, in the companion TSCA proposal published today. ``Deleading'' 
as the term is defined under TSCA section 402(b)(2)--``activities 
conducted by a person who offers to eliminate lead-based paint or lead-
based paint hazards or to plan such activities'' in public buildings or 
commercial buildings (15 U.S.C. 2682(b)(2)). EPA is proposing to define 
``public building'' to mean ``any building constructed prior to 1978, 
[except target housing], which is generally open to the public or 
occupied or visited by the public, including but not limited to 
schools, day care centers, museums, airport terminals, hospitals, 
stores, restaurants, office buildings, convention centers, and 
government buildings.'' The proposed definition of ``public building'' 
would also include any ``child-occupied facility'' as defined in the 
LBP worker certification and training rule. In addition, EPA proposes 
to define ``commercial building'' to mean any building used primarily 
for commercial or industrial activity including: manufacturing, 
service, repair, or storage.
    The Agency is proposing to define ``renovation'' to mean the 
modification of any existing structure, or portion thereof, that 
results in the disturbance of painted surfaces, unless that activity is 
performed as part of an abatement. The term renovation includes but is 
not limited to: the removal or modification of painted surfaces or 
painted components (e.g., modification of painted doors, surface 
preparation activity (such as sanding, scraping, or other such 
activities that may generate paint dust)); the removal of large 
structures (e.g., walls, ceiling, large surface replastering, major re-
plumbing); and window replacement. The term ``remodeling'' is defined 
to encompass any construction-related work on an existing property 
intended to either maintain or improve the property that results in the 
disturbance of painted surfaces.
    EPA is proposing to define the term ``demolition'' to include the 
act of wrecking, razing, or destroying any

[[Page 70241]]

building or significant element thereof using a method that generates 
undifferentiated solid waste.
    3. Lead-contaminated soil. Lead-contaminated soil is not included 
in the scope of the TSCA lead-based paint debris proposal nor in the 
proposed temporary suspension of the TC with respect to LBP debris (see 
the companion TSCA LBP debris proposal for further discussion). EPA 
requests comment on whether there is a sound technical basis for 
reducing the Subtitle C requirements that might apply to some soil 
removed from residences, the importance of addressing this issue, and 
possible options for doing so. EPA will consider whether there is a 
need and a basis for addressing that issue in a separate rulemaking in 
the future.

D. Other Exclusions from RCRA Subtitle C

    1. Household waste exclusion. One issue that has arisen during the 
course of preparing this proposed rule is whether the existing 
household waste exclusion would apply to LBP waste that results from a 
resident's actions to renovate, remodel, or abate a LBP-contaminated 
home. This household waste provision in the RCRA Subtitle C regulations 
excludes certain types of household hazardous waste from the 
requirements of RCRA Subtitle C (40 CFR 261.4(b)(1)). EPA promulgated 
this household waste exclusion as part of the Agency's initial phase of 
implementing RCRA section 3001, which required the Agency to establish 
criteria for identifying hazardous waste characteristics and listing 
specific hazardous wastes (42 U.S.C. 6921; 45 FR 33084, 33098-99, 
33120, May 19, 1980).
    In that 1980 regulation, EPA excluded ``household waste'' from 
being identified as hazardous waste. This exclusion implements 
Congressional intent as expressed in the legislative history of RCRA as 
enacted in 1976. See S. Rep. No. 94-988, 94th Cong., 2nd Sess., at 16 
(hazardous waste program is ``not to be used either to control the 
disposal of substances used in households or to extend control over 
general municipal wastes based on the presence of such substances.''). 
In promulgating the exclusion in 1980, EPA defined ``household waste'' 
to include ``any waste material (including garbage, trash, and sanitary 
wastes in septic tanks) derived from households (including single and 
multiple residences, hotels and motels)'' (see 45 FR 33120, May 19, 
1980). In 1984, the Agency expanded the scope of the household waste 
definition to include wastes from bunkhouses, ranger stations, crew 
quarters, campgrounds, picnic grounds, and day-use recreation areas (49 
FR 44978, November 13, 1984).
    Although the definition of household waste does not indicate 
whether a waste is household waste as a result of the place of 
generation (e.g., a residence), or as a result of who generated it 
(e.g., a resident of a household), EPA has limited the exclusion's 
application to those wastes which meet the following two criteria: (1) 
The waste must be generated by individuals on the premises of a 
household and (2) the waste must be composed primarily of materials 
found in the wastes generated by consumers in their homes (49 FR 
44978). If a waste satisfies both criteria, then it would fall within 
the household waste exclusion and not be subject to RCRA Subtitle C 
regulation. Id.
    EPA has previously taken the position that the household waste 
exclusion should not be extended to debris resulting from building 
construction, renovation, or demolition in houses, or other residences, 
because EPA did not consider the debris from such operations to be of a 
type similar to that routinely generated by a consumer in a home (49 FR 
44978). (Although this interpretation did not address waste resulting 
from remodeling or abatement conducted at residences, these activities 
can be similar in many ways to those addressed in the 1984 Federal 
Register notice, i.e., renovation, construction, and demolition). EPA 
has re-evaluated this position in the context of this proposed 
temporary suspension of the TC rule for contractor-generated LBP debris 
and the TSCA rulemaking also being proposed today.
    For the reasons discussed below, EPA has reconsidered the matter 
and now interprets the household waste exclusion in 40 CFR 261.4(b)(1) 
to apply to all LBP waste (i.e., LBP debris, LBP chips and dust, etc.) 
generated as a result of actions by residents of households to 
renovate, remodel, or abate their homes on their own. EPA invites 
comment on this interpretation.
    i. Residential renovation and remodeling. EPA has previously taken 
the position that lead-contaminated paint chips resulting from 
stripping and re-painting of residential walls would be part of the 
household waste stream and not subject to RCRA Subtitle C regulation 
(Ref. 8). The Agency believed then and continues to believe that such 
re-painting efforts within a residence are routine maintenance and that 
any LBP waste resulting from these activities should fall within the 
household exclusion. EPA now believes that LBP waste resulting from 
renovation or remodeling efforts by residents of households or ``do-it-
yourselfers,'' should also fall within the household waste exclusion.
    Although the Agency stated in 1984 that waste from renovation 
should not be covered by the household waste exclusion (because the 
waste was not composed primarily of materials routinely generated by 
consumers in a home), it has become evident that more and more 
residents are engaging in renovation or remodeling of their homes. This 
is strongly suggested by the greatly increased number of building 
permits that have been issued throughout the country for renovation of 
residences. EPA believes that, although many renovation and remodeling 
efforts are conducted by professional contractors, more and more are 
done by residents on their own. This may be shown, in part, by the 
widespread openings of home improvement stores throughout the United 
States which cater to do-it-yourselfers. It is also evident from: (a) 
The doubling of retail sales of lumber and other materials to consumers 
over the last 10 years from $45 to $89 billion; (b) steady increases of 
approximately 25% in hardware sales every 5 years; (c) the increase in 
consumers' purchase of home improvement products from $38 to $90 
billion between 1980 and 1995; and (d) the projected increase in sales 
of home improvement products to consumers to almost $115 billion by the 
year 2000 (Ref. 9). Thus, EPA now believes that LBP waste resulting 
from renovation or remodeling efforts conducted by residents of 
households does meet the two criteria for the household exclusion 
outlined above (i.e., the waste is generated by individuals in a 
household and it is of the type that consumers generate routinely in 
their homes).
    ii. Residential abatements. EPA has decided to include within the 
scope of the household waste exclusion LBP waste resulting from a do-
it-yourselfer abatement conducted in homes. (EPA recommends that 
homeowners/residents do not try to remove lead paint or painted 
architectural components from older, pre-1978 homes without adequate 
understanding of the lead risks, especially to children, and proper 
ways to minimize the risks of exposure to dust and paint when removing 
and storing painted doors, windows, and other architectural 
components.) Although such abatements are less routine than renovation 
or remodeling activities, the Agency believes such LBP abatement waste 
should be covered by the household waste exclusion to avoid the 
incongruities that would result from the fact that the TSCA disposal 
and management standards being proposed

[[Page 70242]]

today do not apply to homeowners. The TSCA proposal applies to persons 
(i.e., properly trained and certified LBP abatement contractors) who 
generate, store, transport, reuse, reclaim and/or dispose of LBP debris 
resulting from target housing abatements, deleading of public or 
commercial buildings, and renovation, remodeling and demolition of 
target housing, residential, public, and commercial buildings. However, 
the TSCA proposed rule does not apply to residents of households who 
conduct any of these activities within a target house that they own 
(unless people other than immediate family members are occupying the 
target house). See Sec. 745.300(a) and (b) of the regulatory text of 
the TSCA proposed rule.
    If EPA chose to interpret the household exclusion not to apply to 
LBP waste resulting from residential renovation and remodeling or 
abatements done by households, the result would be that contractors 
conducting residential abatements, remodeling or renovation of LBP-
contaminated residences would be subject to the TSCA standards (and not 
RCRA Subtitle C); however, residents conducting their own remodeling or 
renovation or LBP abatements would be subject to RCRA Subtitle C 
requirements (unless the Conditionally Exempt Small Quantity Generator 
exemption discussed below were to apply). Thus, residents/homeowners, 
but not contractors, would be required to determine whether the 
resulting LBP waste was hazardous. If the waste was hazardous, i.e., 
failed the TCLP regulatory level for lead, the resident would be 
required to comply with RCRA Subtitle C requirements. The Agency does 
not believe it is appropriate to apply RCRA Subtitle C requirements to 
LBP waste resulting from a resident's own renovation or remodeling or 
abatement actions, while allowing contractors generating the same type 
of LBP waste through the same activities at residences to comply with 
the less burdensome TSCA standards being proposed today.
    EPA does not intend that its interpretation to exclude LBP waste 
generated by do-it-yourselfer abatements at homes from Subtitle C to be 
taken as a sign that EPA is encouraging people to conduct their own LBP 
abatements. Rather, the Agency believes that in situations where LBP in 
a residence presents risks to human health, trained and certified 
abatement contractors should conduct the LBP abatement.
    iii. Management of LBP waste generated by ``do-it-yourselfer'' 
households. Identification of the waste as falling within the household 
waste exclusion, however, does not make exposure to LBP less hazardous, 
and the LBP waste should be managed properly. EPA, therefore, 
recommends that residents/households generating LBP waste take the 
following steps for proper handling and disposal of LBP waste:
     Collect paint chips and dust, and dirt and rubble in 
plastic trash bags for disposal.
     Store larger LBP architectural debris pieces in containers 
until ready for disposal.
     Consider renting a covered mobile dumpster for storage of 
LBP debris until the job is done.
     Contact local municipalities or county offices to 
determine where and how LBP debris can be disposed. These precautionary 
measures would minimize generation of lead dust, and limit access to 
stored debris.
    2. Conditionally exempt small quantity generator waste. LBP waste 
that does not fall within the scope of the TSCA LBP debris disposal 
standards and complimentary temporary TC deferral proposed today (i.e., 
paint chips and dust, sludges and filtercake, and contaminated clothing 
and equipment) may still be conditionally exempt from substantive RCRA 
hazardous waste management regulations, as explained below.
    If LBP waste is produced in small quantities (no more than 100 
kilograms per month (approximately 220 pounds)), the waste may fall 
within the conditionally exempt small quantity generator (CESQG) waste 
exemption from RCRA hazardous waste regulation (40 CFR 261.5). The 
CESQG rule generally exempts generators who produce hazardous waste in 
such small quantities from having to comply with the RCRA Subtitle C 
requirements. However, EPA has promulgated disposal requirements for 
CESQG waste (see 61 FR 34252, July 1, 1996). Generators of CESQG waste 
are required to dispose of such waste in solid waste disposal 
facilities which meet location, ground water monitoring, and corrective 
action standards promulgated in accordance with RCRA section 4010(c) 
(40 CFR part 257, subpart B), in permitted RCRA Subtitle C facilities, 
or in interim status RCRA Subtitle C facilities. Id.
    3. Scrap metal. RCRA Subtitle C regulations exempt scrap metal 
being reclaimed from hazardous waste management requirements (40 CFR 
261.6(a)(3)(ii). Additionally, non-consumer scrap metal (e.g., home, 
prompt and processed scrap metal) being recycled have been excluded 
from the definition of solid waste and therefore, not regulated under 
RCRA (40 CFR 261.4(a)(13)). Home scrap is scrap metal generated by 
steel mills, foundries, and refineries such as turnings, cuttings, 
punchings, and borings. Prompt scrap, also known as industrial or new 
scrap is scrap metal generated by the metal working/fabrication 
industries and includes such scrap metal as turnings, cuttings, 
punching, and borings. Processed scrap metal is scrap metal that has 
been manually or physically altered to either separate it into distinct 
materials to enhance economic value or to improve the handling of 
materials. Under both the exemption and exclusion, recyclable materials 
such as steel beams and other metal components being sent for 
reclamation are not subject to the RCRA C regulations (40 CFR parts 
262-266, 268, 270, and 124). Generators of these materials are not 
subject to the notification requirements of section 3010 of RCRA.

VI. State Authorization Considerations

A. Applicability of Rules in States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA Subtitle C program within the State. 
Following authorization, EPA retains enforcement authority under 
sections 3008, 3013, and 7003 of RCRA, although authorized States have 
primary enforcement responsibility. The standards and requirements for 
authorization are found in 40 CFR part 271.
    Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a 
State with final RCRA authorization administered its hazardous waste 
program in lieu of EPA administering the Federal program in that State. 
The Federal requirements no longer applied in the authorized State, and 
EPA could not issue permits for any facilities that the State was 
authorized to permit. When new, more stringent Federal requirements 
were promulgated or enacted, the State was obliged to enact equivalent 
authority within specified timeframes. New Federal requirements 
promulgated under RCRA Subtitle C did not take effect in an authorized 
State until the State adopted the requirements as State law.
    In contrast, under RCRA section 3006(g), 42 U.S.C. 6926(g), new 
requirements and prohibitions imposed by HSWA take effect in authorized 
States at the same time that they take effect in non-authorized States. 
EPA is directed to carry out these requirements and prohibitions in 
authorized States, including the issuance of permits, until the State 
is granted authorization to do

[[Page 70243]]

so. While States must still adopt HSWA-related provisions as State law 
to retain final authorization, HSWA applies in the authorized State in 
the interim.
    Today's proposed suspension of the TC is less stringent than the 
current RCRA program. Therefore, although the suspension is proposed 
under section 3001(g) of RCRA, a provision added by HSWA, States are 
not required to adopt it when promulgated. Nonetheless, EPA strongly 
encourages States to adopt the TC suspension for the reasons set out in 
this proposal. (It should be noted, however, that the TSCA management 
and disposal standards, once finalized, would apply to LBP debris even 
if it does not fail the TCLP test).

B. The TC Suspension in States Which Have Adequate TSCA Title IV 
Programs

    EPA is proposing to allow the temporary suspension of the RCRA TC 
rule to take effect in those States where there is an effective TSCA 
Title IV program addressing the management and disposal of LBP debris. 
Therefore, a prerequisite for the temporary TC suspension, in the first 
2 years, is a State TSCA Title IV program has been approved by EPA, or, 
after 2 years, EPA is implementing the Federal TSCA Title IV program 
for the management and disposal of LBP debris because the State has not 
been approved for the program under the requirements of TSCA section 
404. This limitation applies to all States, regardless of whether they 
have been authorized for the RCRA hazardous waste program.
    1. Approval of States for the TSCA Title IV Program concerning the 
management and disposal of LBP debris. Any State which seeks to 
administer and enforce the standards, regulations, or other 
requirements established under section 402 or 406 of TSCA may submit an 
application to EPA for approval of such TSCA program. TSCA section 
404(b) states that EPA may approve such an application only after 
finding that the State TSCA program is at least as protective of human 
health and the environment as the Federal program established under 
section 402 or 404 and that it provides adequate enforcement.
    There are two ways by which States may be approved for a TSCA Title 
IV program. Under the first method, when a State submits an application 
for LBP debris management and disposal program approval, the State may 
certify that it has such program, and that the program meets the 
requirements of TSCA sections 404(b)(1) and 404(b)(2). The TSCA 
certification must take the form of a letter from either the Governor 
or the State Attorney General to the Administrator. It must include a 
description demonstrating that the State's TSCA program is at least as 
protective as the Federal program and provides for adequate 
enforcement. If this certification, or certificate of compliance, is 
contained in a State's application, the State program shall be deemed 
to be approved by EPA under TSCA section 404, until such time as the 
Administrator withdraws the approval (see Sec. 745.312 of the 
regulatory text of today's TSCA proposed rule).
    Under the second approval method, if the application does not 
contain such a certification, the State LBP debris management and 
disposal program would be considered approved only after EPA reviews 
and approves the State application (see Sec. 745.315 of the regulatory 
text of today's TSCA proposal).
    During the development of today's proposed rule, EPA considered 
restricting the proposed temporary suspension of the TC rule to only 
those States which had submitted applications and obtained actual 
approval of their TSCA section 404 programs under the second method 
described above. However, limiting the temporary exemption in this way 
might unnecessarily delay implementation of the State program because 
of the time it takes to approve or disapprove a State program. See 15 
U.S.C. 2684(b). Because LBP abatements and deleading activities may be 
postponed until the TC suspension goes into effect, this delay may be 
detrimental to human health and the environment.
    Thus, although the Agency will review the State TSCA program 
applications to ensure that the statutory standards for State programs 
under TSCA section 404 are met, EPA believes that it is appropriate to 
allow the temporary TC suspension to be applicable in States which 
submit certification Statements in conformance with Sec.  745.312 of 
the regulatory text of today's TSCA proposed rule. Such a certification 
must assure EPA that the State TSCA program provides for adequate 
enforcement and is at least as protective of human health and the 
environment as the Federal program to be established for LBP debris 
under TSCA section 402. Therefore, the Agency believes that protection 
of human health and the environment will not be compromised by allowing 
LBP debris to be subject to the management and disposal requirements of 
the relevant State program.
    Procedures for State or Tribal applications for TSCA program 
authorization are discussed in Unit VII. of the TSCA proposed rule 
preamble published elsewhere in today's Federal Register. EPA has 
promulgated procedures for the submission and approval of State LBP 
worker training and certification programs developed under section 404, 
as well as a model State program (see 61 FR 45825-45827, August 29, 
1996). For the purposes of the disposal standards developed pursuant to 
TSCA section 402, the requirements found in that TSCA rule will serve 
as the model State program (see 61 FR 45825-30, August 29, 1996).
    2. Federal implementation of the TSCA Title IV Program concerning 
the management and disposal of LBP debris. EPA is required to enforce 
these TSCA Title IV regulations in any State which has not adopted a 
program to carry out the Federal requirements 2 years after 
promulgation of today's proposed TSCA Title IV regulations (see TSCA 
section 404(h)). Thus, today EPA is proposing to make the TC temporary 
suspension applicable once the Federal TSCA Title IV program for LBP 
disposal and management becomes federally enforceable in any State that 
has not adopted an approved TSCA program. EPA plans to issue a 
notice[s] in the Federal Register 2 years after the LBP TSCA 
regulations and TC temporary suspension are promulgated which provides 
a list of States that have not adopted a TSCA program. The notice will 
announce that the Agency intends to enforce the Federal TSCA program 
for LBP debris disposal and management in those States which have not 
been approved for the TSCA program.

C. Applicability of TC Suspension in States Without a TSCA Title IV 
Program

    Under TSCA section 404(h), the Administrator of EPA is authorized 
to enforce TSCA Title IV regulations 2 years after the regulations have 
been promulgated in any State which has not adopted a program to carry 
out the Federal requirements. Thus, in addition to authorizing States 
for the temporary suspension of the TC rule once they have obtained 
approval of their TSCA program or submitted the requisite 
certification, EPA is also proposing to make the TC temporary 
suspension effective once the Federal TSCA Title IV program for LBP 
debris management and disposal becomes federally enforceable in any 
State that has not adopted an approved TSCA program. [EPA plans to 
issue a notice as discussed in section B above.]

[[Page 70244]]

D. Effect of Today's Proposed Rule in States Where EPA Implements RCRA 
Hazardous Waste Regulations

    Under today's proposal, LBP debris would not be hazardous waste in 
those States without RCRA base program authorization, at the time those 
States have been approved for the TSCA Title IV program, or when EPA's 
implementation of such program becomes effective.

E. Effect of Today's Proposed Rule in States That Are Authorized for 
RCRA Subtitle C

    1. States that are not authorized for the toxicity characteristic. 
In States that are not authorized for the TC regulation, EPA implements 
the TC regulation and would implement this suspension of the TC 
regulation for LBP debris in States which have approved TSCA Title IV 
programs, or where EPA implements the Federal TSCA Title IV program.
    One important factor that States with base RCRA authorization 
should consider is the operation of their Extraction Procedure (EP) 
toxicity characteristic under State law. The EP procedure was part of 
the base State authorized program for those States authorized for RCRA 
before 1991. When the TCLP was promulgated by EPA, this more stringent 
procedure superseded the EP procedure. However, some States may still 
be implementing the EP under State law, even though the more stringent 
TCLP is in effect under RCRA. (At the time this proposal was written, 
35 of the 49 authorized States and Territories were authorized for the 
TC rule.) Because LBP debris could also be considered hazardous under 
the EP, States may have to suspend or waive the operation of the EP 
under State law to allow this waste to be regulated exclusively under 
the TSCA Title IV program. Therefore, States that submit and certify 
(or simply submit) their TSCA Title IV program applications to EPA 
should also determine whether the EP toxicity characteristic is still 
in effect and take appropriate action. States should note that any such 
action to suspend or waive the EP would not require approval from EPA 
since this solely is a matter of State law.
    2. States that are authorized for the toxicity characteristic. 
States that are authorized for both the RCRA-base program and the TC 
would need to revise their hazardous waste programs to adopt a 
suspension similar to the Federal TC suspension. If a State amends its 
RCRA and TC regulations, the new State RCRA regulations must be no less 
stringent than the Federal TC temporary suspension. If State TC 
regulations are changed in a manner that is less stringent than this 
temporary suspension (e.g., the State suspension is permanent rather 
than temporary or addresses other types of LBP debris, e.g., LBP dust, 
LBP chips or blast media), EPA will not authorize the change and will 
enforce the more stringent Federally-authorized State TC rule 
provisions pursuant to section 3008 of RCRA. Some States may choose to 
use a State waiver authority to lift the TC requirements for LBP debris 
instead of amending their regulations. Use of such waiver authority 
would also have to be in a manner no less stringent than the Federal TC 
suspension.
    On the other hand, States that have RCRA-base programs and are TC-
authorized, and which choose not to change their RCRA regulations or 
use a State waiver authority to lift TC requirements for LBP debris, or 
do not have an approved TSCA Title IV program, would still administer 
and enforce their existing TC authorized requirements for LBP debris. 
In this circumstance, non-hazardous LBP debris would be regulated 
exclusively under a State or Federal TSCA program. Hazardous LBP debris 
would technically be subject to both the State RCRA program and the 
State or Federal TSCA program; however, compliance with both sets of 
requirements could be satisfied only by treating the LBP debris as a 
hazardous waste.

F. Procedure for Authorizing States for the TC Temporary Suspension

    As discussed previously, in order for the TC temporary suspension 
to be effective in any State, the State must be approved for the TSCA 
Title IV program or be a State where EPA implements the Federal TSCA 
Title IV program. In States with the Federal TSCA Title IV program, EPA 
will take action to make the TC suspension effective.
    For States that are authorized for the TC rule, EPA is prepared to 
expedite the review and approval of TC rule revision applications. EPA 
further encourages States which are in the process of applying for TC 
authorization to suspend or waive the operation of the TC for LBP 
debris as part of their TC application.
    EPA requests comment regarding the use of the abbreviated 
authorization procedure proposed on August 22, 1995 (see 60 FR 43688) 
for the authorization of TC suspension. This proposed procedure, 
designated as Category 1, would abbreviate the contents of a State 
application regarding applicable rules, and shorten the length of time 
allocated for EPA review and determination. The abbreviated application 
required by the proposed Category 1 procedures should also cite and 
reference the State's approved TSCA Title IV program. EPA believes that 
today's proposed rule may be appropriate for the use of this procedure 
due to the minor effect of today's rule on an overall TC program, its 
environmental benefit, and the straight-forward nature of today's 
proposed amendments to the RCRA regulations. EPA believes that the 
proposed application procedure will encourage States to adopt the TC 
suspension and become authorized for it.
    Under TSCA Title IV, Indian Tribes may apply for approval of lead-
based paint programs (see 61 FR 45805-45808, August 29, 1996). Thus, 
EPA is proposing in the accompanying TSCA proposal for LBP management 
and disposal standards, that Indian Tribes may apply for approval of 
management and disposal of LBP debris management and disposal programs. 
However, in an opinion issued by the U.S. Court of Appeals for the 
District of Columbia, the Court held that EPA does not have authority 
under RCRA Subtitle D to approve tribal solid waste permit programs. 
Backcountry Against Dumps v. EPA, 100 F.3d. 147 (D.C. Cir. 1996). 
Partly, as a result of this decision, EPA expects that it will not be 
authorizing tribal hazardous waste programs under RCRA Subtitle C. 
Thus, after consulting with Tribes, EPA expects to implement and 
enforce this temporary suspension of the TC rule for LBP debris in 
Indian Country when a TSCA Title IV program (either Tribal or Federal 
is operable in the Tribe's jurisdiction.

VII. Public Docket and Electronic Submissions

    The complete record for this proposed rule is contained in the RCRA 
Docket office at the following address: Environmental Protection 
Agency, RCRA Docket, Crystal Gateway, North #1, 1235 Jefferson Davis 
Highway, First Floor, Arlington, VA and is available for viewing from 9 
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. To 
review docket materials, it is recommended that the public make an 
appointment by calling 703 603-9230. Copies may be made at a cost of $ 
0.15 per page. Charges under $25.00 are waived.
    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comment received electronically into 
paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the record maintained at the address in the beginning of this 
document. EPA

[[Page 70245]]

responses to comments, whether the comments are written or electronic, 
will be in a notice in the Federal Register or in a response to 
comments document placed in the official record for this proposal. EPA 
will not immediately reply to commenters electronically other than to 
seek clarification of electronic comments that may be garbled in 
transmission or during conversion to paper form, as discussed above.

VIII. References

    The following books, articles, reports and sources were used in 
preparing this notice and were cited in this proposal by the number 
indicated below:
    1. U.S. Department of Health and Human Services, Center for Disease 
Control. Update: Blood Lead Levels-United States, 1991-1994, Morbidity 
and Mortality Weekly Report. Vol. 46, No. 7. February 21, 1997.
    2. HUD. Department of Housing and Urban Development, ``National 
Housing Survey.'' Washington, DC. 1994.
    3. Task Force on Lead-Based Paint Hazard Reduction and Financing, 
Letter to Honorable Carol Browner, Administrator, USEPA, Washington, 
DC, April 13, 1994.
    4. HUD. Lead-Based Paint Hazard Reduction and Financing Task Force, 
Putting the Pieces Together: Controlling Lead Hazards in the Nation's 
Housing. HUD-1547-LBP. July 1995.
    5. Science Applications International Corporation (SAIC). 
Analytical Results of Lead in Construction Debris. May 1992.
    6. SAIC. Background Document on Lead Abatement Waste Study (Interim 
Draft). Prepared for USEPA, Office of Solid Waste. September 1994.
    7. USEPA. TSCA Title IV, Sections 402/404: Lead-Based Paint Debris 
Management and Disposal Standards Proposed Rule Economic Analysis. 
Office of Pollution Prevention and Toxics. September 24, 1998.
    8. USEPA. RCRA/Superfund Hotline Summary - RCRA Question No. 6 
(March 1990).
    9. USEPA. Table 1: Home Improvement Products Market 1980 to 2000 
and Table 2: Retail Sales for Lumber and Other Building Materials and 
Hardware - 1980 to 1995. June 1997.

IX. Regulatory Assessment Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and, therefore, subject to review by the Office of Management and 
Budget (OMB) and the requirements of the Executive Order. A significant 
regulatory action is defined as an action likely to result in a rule 
that may:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of 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.
    Pursuant to the terms of the Executive Order, EPA has determined 
that today's proposed rule is a ``significant regulatory action'' 
because it raises novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. Changes made in response to OMB suggestions or 
recommendations are documented in the public record.
    In addition, EPA has prepared an economic analysis of the impact of 
this action and the companion TSCA rule, which is contained in a 
document entitled, ``TSCA Title IV, Secs.  402/404: Lead-Based Paint 
Debris Management and Disposal Proposed Rule: Economic Analysis,'' 
which is available in the public record for this proposal.
    The proposed TSCA and RCRA rules will result in an estimated cost 
savings of $119 million annually after the first year. The cost savings 
results from reduced disposal costs minus new compliance costs. 
Compliance costs of these two rules, due primarily to recordkeeping and 
notification, are $30.86 million annually after the first year. States 
are expected to incur $0.95 million in the first year to apply for EPA 
approval and then 0.06 million in the second and third years and 
biennially thereafter to submit reports.
    The public housing sector will benefit from reduced costs of 
disposal of LBP debris. Decreased disposal costs should lead to a 
decrease in the costs of abatements, saving the public housing 
authorities $17.13 million per year. This money, earmarked specifically 
for abatement activity, will allow an increase in the number of 
abatements in public housing conducted per year, thus eliminating the 
stock of public housing containing LBP 1 year earlier than predicted in 
the absence of these proposed rules.
    Please refer to the companion TSCA proposal for a further 
discussion of the costs and benefits of this and the TSCA proposal.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-12, as 
amended by the Small Business Regulatory Enforcement and Fairness Act, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis which 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, under the Regulatory Flexibility Act, an agency is not 
required to prepare a regulatory flexibility analysis for a proposed 
rule if the agency head certifies that the proposal will not have a 
significant adverse economic impact on a substantial number of small 
entities.
    This proposed rule will generally provide regulatory relief to 
small and medium entities that are involved in lead abatement, 
renovation, remodeling, deleading, and demolition. For this reason, I 
certify that this proposed rule will not have a significant adverse 
impact on a substantial number of small entities. Therefore, a 
regulatory flexibility analysis is not required. The proposed rule will 
offer cost savings to homeowners and public/private property owners of 
target housing and public or commercial buildings faced with LBP 
abatements, deleadings, renovations, and demolitions. For further 
discussion of the cost savings associated with this proposed suspension 
of the TC rule, see the Economic Analysis prepared for the TSCA LBP 
debris management and disposal standards (Ref. 7).

C. Paperwork Reduction Act

    Today's proposed rule, which would temporarily suspend the TC rule 
for specified LBP debris, does not add any new burden as defined by the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The existing RCRA 
information collection requirements have been previously approved by 
the Office of Management and Budget (OMB) under OMB control number 
2050-0041 (EPA ICR No. 969). This proposed rule would temporarily 
suspend the RCRA TC requirements for specified LBP debris, which would 
be replaced by TSCA Title IV requirements which are proposed elsewhere 
in today's Federal Register. As indicated

[[Page 70246]]

in the TSCA Title IV proposed rule entitled ``Lead; Management and 
Disposal of Lead-Based Paint Debris,'' an Information Collection 
Request (ICR) document has been prepared by EPA (EPA ICR No. 1822.01) 
and submitted to OMB in accordance with the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. and the procedures at 5 CFR 1320.11. For 
information on the TSCA requirements and the accompanying ICR, please 
refer to the TSCA Title IV proposed rule. A copy of the ICR can be 
obtained from Sandy Farmer, OPPE Regulatory Information Division 
(2137), Environmental Protection Agency, 401 M St., SW., Washington, DC 
20460, by calling (202) 260-2740, or electronically by sending an e-
mail message to, ``[email protected].'' An electronic copy of the 
ICR has also been posted with the Federal Register notice on EPA's 
Homepage at ``http://www.epa.gov/icr.'' The RCRA temporary suspension 
and the new information requirements contained in the TSCA proposal are 
not effective until promulgation. An agency may not conduct or sponsor 
and a person is not required to respond to a collection of information 
subject to OMB approval under PRA unless it displays a currently valid 
OMB control number. The OMB control numbers for EPA's regulations after 
initial publication in the final rule, are maintained in a list at 40 
CFR part 9.

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), Public Law 104-4, which was signed into law on March 22, 1995, 
EPA generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and Tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any 1 year. When such a statement is required for EPA rules, 
under section 205 of the Act, EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. EPA 
must select that alternative, unless the Administrator explains in the 
final rule why it was not selected or it is inconsistent with law. 
Before EPA establishes regulatory requirements that may significantly 
or uniquely affect small governments, including Tribal governments, it 
must develop under section 203 of the Act a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, giving them meaningful and timely input in the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements.
    EPA has determined that adoption of the proposed temporary 
suspension of the TC rule for LBP debris is voluntary; therefore, there 
is no unfunded mandate. The proposed rule would relieve generators, 
including States, local or Tribal governments, and the private sector, 
of their obligation to comply with the TC rule, which may lead to 
significant cost savings from both not having to sample and conduct the 
TCLP on LBP debris but, more importantly, from not having to manage LBP 
debris as a RCRA hazardous waste if the waste is determined to be 
hazardous. EPA has estimated that the cost savings to the private 
sector from this temporary suspension of the TC rule would be 
approximately $120 million annually.
    Moreover, the Act generally excludes from the definition of a 
``Federal intergovernmental mandate'' (in sections 202, 203, and 205) 
duties that arise from participation in a voluntary Federal program. 
Adoption by States of this proposed temporary TC suspension is 
voluntary and imposes no Federal intergovernmental mandate within the 
meaning of the Act. Rather, States may continue to impose more strict 
standards for LBP debris by choosing to maintain the TC rule in their 
authorized State programs. The only costs to States which choose to 
adopt the temporary TC suspension would be that cost of certifying that 
it has a State TSCA Title IV LBP debris management and disposal program 
at least as protective as the Federal program. EPA estimates that it 
may cost States $0.40 million to provide a certification to EPA (Ref. 
7).
    In response to section 203 of the Act, EPA has determined that the 
proposed rule will not significantly or uniquely affect small 
governments, including Tribal governments. As indicated above, if small 
governments, such as small municipalities or Tribes, are generators of 
LBP debris, then they would save the costs of complying with the TC 
rule and any of the costs of complying with the RCRA Subtitle C 
hazardous waste standards if the debris failed the TCLP and a temporary 
suspension of the TC rule had not been promulgated. Under this proposed 
rule, small governments, including Tribal governments, are not being 
treated in an unique way.
    EPA has, however, worked closely with States and small governments 
in the development of the temporary suspension of the TC rule. EPA held 
a stakeholder meeting in the fall of 1994 and sent a stakeholder 
mailing in the summer of 1996 to discuss a temporary suspension of the 
TC for lead abatement waste and new TSCA management and disposal 
standards. Among the attendees/recipients were representatives from 
State governments, environmental groups, labor organizations, 
professional organizations representing the building and waste 
management trades, and private LBP abatement contractors. EPA has also 
transmitted a draft proposed rule to a number of State government 
regulatory agencies which act as co-regulators under RCRA and TSCA 
Title IV.
    In working with these various States and other organizations, EPA 
has provided notice to small governments of the potential regulatory 
relief provided by the temporary TC suspension; obtained meaningful and 
timely input from them; and informed, educated, and advised small 
governments on how to comply with the requirements of the proposed 
rule. Thus, any applicable requirements of the Act have been met.

E. Executive Order 12898

    Pursuant to Executive Order 12898 entitled ``Environmental Justice 
Considerations'' (59 FR 7629, February 16, 1994), the Agency has 
considered environmental justice related issues with regard to the 
potential impacts of this proposed action on the environmental and 
health conditions in low-income and minority communities. This 
examination shows that existing LBP hazards are a risk to all segments 
of the population living in pre-1978 housing. However, literature 
indicates that some segments of our society are at relatively greater 
risk than others.
    A recent study by the National Health and Nutrition Examination 
Survey (NHANES) indicates that children of urban, minority (e.g., 
African American, Asian Pacific American, Hispanic American, American 
Indian), or low-income families, or who live in older housing, continue 
to be most vulnerable to lead poisoning and elevated blood-lead levels. 
The February 21, 1997 Center for Disease Control's Morbidity and 
Mortality Weekly Report states that: ``Despite the recent and large 
declines in BLLs [blood lead levels], the risk for lead exposure 
remains disproportionately high for some groups, including children who 
are poor, non-Hispanic black, Mexican American, living in large 
metropolitan areas, or living in older housing'' (Ref. 1).
    Although the baseline risks from lead-based paint fall 
disproportionately on

[[Page 70247]]

poorer sub-populations, it may be more likely that abatements will take 
place in residential dwellings occupied by mid- to upper-level income 
households. Abatements are voluntary, and wealthier households are more 
likely to have the financial resources to abate an existing problem in 
their home, or to avoid LBP hazards by not moving into a residential 
dwelling with LBP. Even though a national strategy of eliminating LBP 
hazards targets a problem affecting a greater share of poor households 
and minorities, the impact of income on the ability to undertake 
voluntary abatements may result in an inequitable distribution of LBP 
risks.
    By making abatements more affordable, today's proposal helps to 
address this situation. To the extent that the proposal results in 
additional abatements, renovation and remodeling, and demolitions that 
reduce LBP hazards, there is a likelihood that poor and minority 
populations will benefit the most from risk reductions. This potential 
will likely be realized to the greatest extent in the case of public 
housing units with LBP hazards. The decrease in the cost of abatements 
in public housing will lead to an increase in abatement activity in 
public housing and a subsequent acceleration in the depletion of public 
housing with LBP hazards. The occupants of these public housing units 
are disproportionately lower income and minority populations. As the 
price of abatements is lowered as a result of cost savings associated 
with today's proposed rule, more low-income families will be able to 
afford to make the decision to remove LBP hazards from their homes.
    EPA also determined that the potential impact on minority-owned 
businesses in industries affected by the proposed rule would be 
minimal. Available information suggests that minority-owned business 
would not particularly benefit from this proposed rule, since minority 
ownership rates for firms that generate LBP debris are no higher than 
average.

F. Executive Order 13045

    This proposed rule is not subject to Executive Order 13045, 
entitled ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997), because this proposal is 
not an economically significant regulatory action as defined by E.O. 
12866. The environmental health or safety risks addressed by this 
action have a beneficial effect on children. This proposal will benefit 
children by allowing less costly management and disposal of lead-based 
paint therefore lessening the cost of abatements. Reducing the costs of 
abatements will also reduce the amount of time needed to complete 
abatements in public housing. Lower abatement costs will increase the 
amount of private homes undergoing abatements. By reducing costs 
associated with management and disposal of LBP debris, the Agency 
believes that the number of abatements will increase thus resulting in 
a reduction of children exposed to LBP. Children are the primary 
beneficiaries of this proposed rule.

G. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., material 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standard 
bodies. Where available and potentially applicable voluntary consensus 
standards are effective. The Act requires the Agency to provide 
Congress, through OMB, an explanation of the reasons for not using such 
standards.
    EPA is not proposing any new test methods or other technical 
standards as part of today's proposed temporary suspension of the TC 
rule for LBP debris. Thus, the Agency has no need to consider the use 
of voluntary consensus standards in developing this proposed rule. EPA 
invites comments on this analysis.

H. Executive Order 12875

    Under Executive Order 12875, entitled ``Enhancing Intergovernmental 
Partnerships'' (58 FR 58093, October 28, 1993), EPA may not issue a 
regulation that is not required by statute and that creates a mandate 
upon a State, local or tribal government, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by those governments. If the mandate is unfunded, EPA must 
provide to the Office of Management and Budget a description of the 
extent of EPA's prior consultation with representatives of affected 
State, local and tribal governments, the nature of their concerns, 
copies of any written communications from the governments, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 12875 requires EPA to develop an effective process 
permitting elected officials and other representatives of State, local 
and tribal governments ``to provide meaningful and timely input in the 
development of regulatory proposals containing significant unfunded 
mandates.''
    Today's proposed rule does not create a mandate on State, local or 
tribal governments. The proposed rule does not impose any enforceable 
duties on these entities. Accordingly, the requirements of section 1(a) 
of Executive Order 12875 do not apply to this proprosed rule.

I. Executive Order 13084

    Under Executive Order 13084, entitled ``Consultation and 
Coordination with Indian Tribal Governments'' (63 FR 27655, May 19, 
1998), EPA may not issue a regulation that is not required by statute, 
that significantly or uniquely affects the communities of Indian tribal 
governments, and that imposes substantial direct compliance costs on 
those communities, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by the tribal 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    Today's proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments. The proposed rule does not 
impose any enforceable duties on these entities. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this proposed rule.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practive and procedure, 
Confidential business information, Hazardous waste.

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.


[[Page 70248]]


    Dated: December 9, 1998.

Carol M. Browner,
Administrator.

    Therefore, it is proposed that chapter I of 40 CFR be amended as 
follows:

PART 260--[AMENDED]

    1. In part 260:
    a. The authority citation for part 260 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974.

    b. Section 260.10 is amended by alphabetically adding the following 
definitions to read as follows:


Sec.  260.10   Definitions.

    * * * * *
    Abatement means any measure or set of measures designed to 
permanently eliminate lead-based paint hazards. Abatement includes, but 
is not limited to:
    (1) The removal of lead-based paint and lead-contaminated dust, the 
permanent enclosure or encapsulation of lead-based paint, the 
replacement of lead-painted surfaces or fixtures, and the removal or 
covering of lead-contaminated soil.
    (2) All preparation, cleanup, disposal, and post-abatement 
clearance testing activities associated with such measures.
    (3) Specifically, abatement includes, but is not limited to:
    (i) Projects for which there is a written contract or other 
documentation, which provides that an individual or firm will be 
conducting activities in or to a residential dwelling or child-occupied 
facility [target housing] that:
    (A) Shall result in the permanent elimination of lead-based paint 
hazards; or
    (B) Are designed to permanently eliminate lead-based paint hazards 
and are described in paragraphs (1) and (2) of this definition.
    (ii) Projects resulting in the permanent elimination of lead-based 
paint hazards, conducted by firms or individuals certified in 
accordance with Sec. 745.226 of this chapter, unless such projects are 
covered by paragraph (4) of this definition.
    (iii) Projects resulting in the permanent elimination of lead-based 
paint hazards, conducted by firms or individuals who, through their 
company name or promotional literature, represent, advertise, or hold 
themselves out to be in the business of performing lead-based paint 
activities as identified and defined by this section, unless such 
projects are covered by paragraph (4) of this definition; or
    (iv) Projects resulting in the permanent elimination of lead-based 
paint hazards (at target housing), that are conducted in response to 
State or local abatement orders.
    (4) Abatement does not include renovation, remodeling, landscaping 
or other activities, when such activities are not designed to 
permanently eliminate lead-based paint hazards, but, instead, are 
designed to repair, restore, or remodel a given structure or dwelling, 
even though these activities may incidentally result in a reduction or 
elimination of lead-based paint hazards. Furthermore, abatement does 
not include interim controls, operations and maintenance activities, or 
other measures and activities designed to temporarily, but not 
permanently, reduce lead-based paint hazards.
* * * * *
    Commercial building means any building which is used primarily for 
commercial or industrial activity including but not limited to: 
manufacturing, service, repair, or storage.
* * * * *
    Deleading means activities conducted by a person who offers to 
eliminate lead-based paint or lead-based paint hazards or to plan such 
activities in public buildings or commercial buildings.
    Demolition means the wrecking, razing, or destroying any building 
or significant element thereof using a method that generates 
undifferentiated rubble.
* * * * *
    Lead-based paint (LBP) means paint or other surface coatings that 
contain lead equal to or in excess of 1.0 milligrams per centimeter 
squared or more than 0.5% by weight.
    Lead-based paint architectural component debris (LBPACD) means:
    (1) Elements or fixtures, or portions thereof, of commercial 
buildings, public buildings, or target housing that are coated wholly 
or in part with or adhered to by LBP. These include, but are not 
limited to interior components such as: ceilings, crown molding, walls, 
chair rails, doors, door trim, floors, fireplaces, radiators and other 
heating units, shelves, shelf supports, stair treads, stair risers, 
stair stringers, newel posts, railing caps, balustrades, windows and 
trim, including sashes, window heads, jambs, sills, stools and troughs, 
built-in cabinets, columns, beams, bathroom vanities, and counter tops; 
and exterior components such as: painted roofing, chimneys, flashing, 
gutters and downspouts, ceilings, soffits, fascias, rake boards, corner 
boards, bulkheads, doors and door trim, fences, floors, joists, lattice 
work, railings and railing caps, siding, handrails, stair risers and 
treads, stair stringers, columns, balustrades, window sills or stools 
and troughs, casings, sashes, and wells.
    (2) LBPACD is generated when an architectural component which is 
coated wholly or in part with or adhered to by LBP is displaced and 
separated from commercial buildings, public buildings, or target 
housing as a result of abatement, deleading, renovation or remodeling 
activities.
    (3) LBPACD does not include other types of LBP waste such as paint 
chips, paint dust, sludges, solvents, vacuum filter materials, wash 
water, contaminated and decontaminated protective clothing and 
equipment except that paint chips and dust which are created after LBP 
debris is placed in a container or vehicle for transport to a disposal 
or reclamation facility specified in 40 CFR 745.309 is considered 
LBPACD.
    (4) LBPACD which is reused in compliance with 40 CFR 745.311 is no 
longer LBPACD.
    Lead-based paint debris (LBP debris) means lead-based paint 
architectural component debris (LBPACD) or lead-based paint demolition 
debris.
    Lead-based paint demolition debris means any solid material which 
results from the demolition of target housing, public buildings, or 
commercial buildings which are coated wholly or in part with or adhered 
to by LBP at the time of demolition.
* * * * *
    Public building means any building constructed prior to 1978, which 
is generally open to the public or occupied or visited by the public, 
including but not limited to schools, day care centers, museums, 
airport terminals, hospitals, stores, restaurants, office buildings, 
convention centers, and government buildings. Note: ``child-occupied 
facilities'' as defined in 40 CFR 745.223 of this chapter are included 
in the definition of public building.
* * * * *
    Remodeling means any construction-related work on an existing 
property intended to either maintain or improve the property.
    Renovation means the modification of any existing structure, or 
portion thereof, that results in the disturbance of painted surfaces, 
unless that activity is performed as part of an abatement as defined in 
this part. The term renovation includes but is not limited to: the 
removal or modification of painted surfaces or painted components 
(e.g., modification of painted doors, surface preparation activity 
(such as sanding, scraping, or other such

[[Page 70249]]

activities that may generate paint dust)); the removal of large 
structures (e.g., walls, ceiling, large surface replastering, major re-
plumbing); and window replacement.
* * * * *
    Reuse means to use again for any purpose other than reclamation or 
disposal. Examples of reuse include moving doors, windows, or other 
components from one structure to another to be put to similar use.
* * * * *
    Target housing means any housing constructed prior to 1978, except 
housing for the elderly or persons with disabilities (unless any child 
who is less than 6 years of age or under resides or is expected to 
reside in such housing for the elderly or person with disabilities) or 
any 0-bedroom dwelling.
* * * * *

PART 261--[AMENDED]

    2. In part 261:
    a. The authority section for part 261 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    b. Section 261.4 is amended by adding (b)(15) to read as follows:


Sec. 261.4   Exclusions.

* * * * *
    (b)  *  *  *  
    (15)(i) Lead-based paint architectural component debris subject to 
the management and disposal standards under part 745, subpart P of this 
chapter which results from abatements conducted at target housing; 
deleading activities conducted at public buildings or commercial 
buildings; or renovation or remodeling activities conducted at target 
housing, public buildings, or commercial buildings. This exclusion does 
not apply if the LBP architectural component debris is hazardous for 
any other reason than failure of the Toxicity Characteristic 
(Sec. 261.24) for lead (Hazardous Waste Code D008),
    (ii) Lead-based paint demolition debris resulting from 
demolition(s) conducted at target housing, public building(s), or 
commercial building(s) which is subject to the management and disposal 
standards under part 745, subpart P of this chapter. This exclusion 
does not apply if the LBP architectural component debris is hazardous 
for any other reason than failure of the Toxicity Characteristic 
(Sec. 261.24) for lead (Hazardous Waste Code D008).
    (iii) The exclusions set forth in paragraph (b)(15)(i) and (ii) of 
this section shall apply in any State which has an EPA authorized 
program for management and disposal of LBP debris under TSCA Title IV; 
or in any State in which the Federal TSCA Title IV program has become 
effective.
    (iv) If the Administrator determines that the State satisfies the 
standards in paragraph (b)(15)(iii) of this section, the Administrator 
shall publish a notice in the Federal Register to suspend the TC in 
that State. The suspension shall be effective immediately upon 
publication of the Federal Register notice.
* * * * *

[FR Doc. 98-33327 Filed 12-17-98; 8:45 am]
BILLING CODE 6560-50-F