*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 1 of 17 EO 12866 Review Draft of 02/19/2010



# U.S. Environmental Protection Agency

Lead; Amendment to the Opt-out and Recordkeeping Provisions in the Renovation, Repair, and Painting Program

Response to Public Comments

February 2010*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 2 of 17 Opt-out Provision

Several commenters supported removing the op t-out provision. One commenter believes it is important to protect workers and adjacent properties. One commenter believes it is important to eliminate the opt-out provision in order the protect children six and older. The commenter explains that blood lead levels in 6 year olds is more strongly associated with cognitive and behavioral development than is blood lead measured in early childhood. One commenter stated that they are concerned about the risk of exposure to neighbors, visitors, and children being cared for in housing that undergoe s renovations under the opt-out provision. This commenter is also concerned about how the impa cts of lead contamina tion will affect future occupants including children.

Several commenters opposed removing the opt-o ut. One believes the increased cost of renovations is not necessary in areas not included in high risk populations. Other commenters claim that professional remodelers improve the condition of a home therefore the RRP requirements are not necessary. One commenter wants EPA to bolster the current opt-out by requiring the homeowner to make a certification that the sale of th e home is not imminent. This commenter also suggested that homeowners disclose renovations to the next owner of the home. One commenter requested that EPA provide da ta showing that lead dust from renovations persists in homes before it decides whet her to eliminate the opt-out provision.

After considering these comments, the Agen cy has decided to eliminate the Opt-out provision. One concern with the op t-out provision is that it does not adequately address the risks of lead-based paint hazards to children older than five years old or adults. One commenter pointed out that blood lead levels in 6 year olds is more strongly associated with cognitive and behavioral development than is blood lead m easured in early childhood. The opt-out can also result in exposures to children under the age of 6 and pregnant women to lead-based paint

hazards.

Based on the data available to EPA (e.g., the Dust Study), the Agency cannot now conclude that opt-out is safe, reliable or e ffective because it would not sufficiently minimize exposure to lead-based paint hazards. In sum, when the RRP work practices are not used, residents and visitors are exposed to the lead hazards created by the renovation, a nd therefore the opt-out would not protect older ch ildren, women of childbearing ag e, or other adults currently residing in the home and can result in exposure to children under the age of 6 and pregnant women of lead-based paint hazards.

One commenter opposed to removing the opt-out provision stated th at removing the optout provision would create more opportunity for non-compliance.

EPA disagrees that removing the opt-out will create more opportunity for noncompliance. To the contrary, having a simpler more generally applicable rule should make compliance easier. Indeed, EPA believes that a provision such as the opt-out can cause

renovation firms to be confused about how to co mply with the RRP requirements and therefore believes removal of the opt-out provi sion is likely to enhance compliance

.

One commenter believes that removing the opt -out provision will result in impediments to the implementation of other federal progr ams such at the Department of Energy’s*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 3 of 17 Weatherization Assistance Program because of the additional costs associated of complying with

the rule.

The Agency disagrees with this comment. EP A does not believe that the costs associated

with the rule such as certification, equipment and cleaning costs are overly burdensome. Thus,

EPA believes that this rule will not be an impediment to the implementation of federal programs.

One commenter stated that professional renovat ors using lead-safe work practices reduce the dust lead loading levels si gnificantly from a home’s pre- renovation loading level, making

homes safer. Another commenter stated that renovations performed by professional subject to reasonable clean up standards do not create additi onal health hazards. This commenter believes

that a “no visible dust” standard should be re quired instead of the RRP work practices.

These comments go to issues beyond the scope of this rulemaking. EPA explicitly did not reopen issues related to the work practices. EPA therefore considers this comment outside the scope of this rulemaking. N onetheless, EPA disagrees that a “no visible dust” standard is

sufficient nor does EPA believe that renovations done by professi onals will typical reduce lead

dust below the hazard standard. EPA’s Dust St udy indicated that renovation, repair, and paint preparation activities produ ce large quantities of lead dust that create dust-lead hazards. The Dust Study showed that the largest d ecreases in dust levels were obs erved in the experiments where the rule’s practices of containm ent, specialized cleaning, and clean ing verification were all used instead of typical work practi ces commonly used by profession al renovators. The Dust Study indicated that if the prohibited and restricted pr actices are avoided, the suite of work practices as a whole are effective at addressing the lead-p aint dust that is gene rated during renovation

activities.

One commenter stated that do-it-yourself (D IY) renovations contribut e to health hazards

and that the RRP rule does not cover that type of work.

EPA understands that the rule will not prev ent dust hazards cr eated by DIY renovation. However, EPA interprets the statutory directiv e to regulate remodeling and renovation activities found in TSCA § 402(c)(3) as applying to contract ors, rather than homeo wners. Therefore, the RRP rule does not regulate renovations performed by homeowners in their own homes.

One commenter contends that a survey of its members found over 91% of their clients range in age between 41 and 64 years old and th erefore it is highly unlik ely that children under age 6 or pregnant women are present in thes e households. Thus, removing the opt-out would

have little benefit to children under age 6. Considering these f actors, the commenter believes it is more cost effective to keep the opt-out in place.

The Agency disagrees with this comment. The commenter implies that the rule should limited to only protecting children under age 6. As stated in the preamble to the proposed and final rules, lead has adverse health effects fo r adults and children 6 a nd older, and that the purpose of today’s rule is to protect these age groups as well as people who do not live in the home being renovated such as visitors and neighbors.

Several commenters suggested that removing the opt-out provision would be arbitrary and capricious because EPA did not provide ne w evidence or sufficient reasons to support a*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 4 of 17 decision to change course and remove the opt- out provision. In so doi ng, one commenter relied upon a 2003 decision from the U.S. Court of Appeals for the D.C. Circuit for the proposition that

absent new information that was not available to the Agency at the time it made its initial determination, EPA cannot provide a reasoned anal ysis to justify its “change in policy.” See Ramaprakash v. Federal Aviation Admin. , 346 F.3d 1121, 1124 (D.C. Cir. 2003).

As an initial matter, EPA disagrees that the Ramaprakash decision stands for the proposition that only information pr eviously not available to the Agency can justify a regulatory change or, for that matter, a change in policy. Furthermore, the Ramaprakash case is readily distinguishable and, th erefore, inapposite. In Ramaprakash , the DC Court of Appeals held that the National Transportation Safety Board (NTSB) impermissibly deviated from its precedent without acknowledging or providing reasons for departing from its precedent. Specifically, the court found that the NTSB did not even attempt to explain its departure from precedent when it

ruled that the Federal Aviati on Administration (FAA) had shown good cause for its delay in sanctioning a pilot for offenses that had occurred more than 6 months prio r. According to the court, for more than 20 years the NTSB had expl ained that a party seeki ng dismissal of a stale complaint (over six months old) was not required to show prejudice from the delay. Yet, in the challenged order, the NTSB simply noted, as a basis for its decisi on, that no showing of prejudice had been made. Similarly, the NTSB’s decision announced that it was more willing to excuse delay on the part of the FAA if the alleged violation was serious. In so doing, the court

held that the NTSB reversed its long standing precedent (that it should not bend its procedural rules because the alleged violation was serious ) without even an “attempt to explain that departure from precedent.” 346 F.3d at 1125. Fina lly, the court held that although the NTSB said it was troubled by the length of time betw een the FAA’s receipt of the evidence and the investigation, the NTSB nonetheless depart ed from its own precedent involving the “longstanding” requirement of prosecutorial diligen ce in stale complaint cases. According to the court, NTSB failed to provide a reasoned explanation for changing the standard. Id. at 1128 (“The [NTSB] cannot undertake such a departure from its precedent without providing a reasoned explanation for its decision, and it provided none here.”).

First, this case is distinguishable on its fact s. There is a fundamental difference in the importance of precedent to a quasi-judicial proc eeding versus notice and comment rulemaking. In the adjudication context, preced ent plays a critical role because it provides the basis for future decisions and the orderly administration of ju stice. Reliance on precedent not only creates stability but also provides the fr amework that affected persons expect will be applied in future cases. One reason for this is that rules gove rning the regulated comm unity are established through precedent and create a reas onable basis for reliance. A departure from precedent has a retroactive effect on past acts a nd is akin to changing the rules to determine the winner after the game has been played (according to the previous rules). Thus, the court held that, at the very least, the NTSB must acknowledge that it is delib erately departing from it prior decisions and provide a reasoned analysis to indicate that its precedent it not being casually ignored.

In contrast, EPA has engaged in notice and comment rulemaking to deliberately change a regulatory provision. Here, after reconsidera tion, EPA announced and took comment on a deliberate and prospective change to the underl ying rule. Indeed, EPA proposed to make a change before the regulatory provision at issu e even when into effect. Thus, the reliance

interests at issue in the case are not implicated here. Moreover, whereas the NTSB decision “did not even attempt” to provide a reasoned explanation, EPA, in bot h the proposed and final rules,*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 5 of 17 provided extensive discussion of its concerns wi th the opt-out provision and the reasons why it believes removing the opt-out is in th e best interest of the public.

Second, contrary to the suggestion of the comm enter, in a recent Supreme Court decision, the Court explained that there is no heightened standard of review under the Administrative Procedures Act for changes in agency policie s or rules that require s a more substantial explanation when an agency “reverses course.” See FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1810 -1812 (2009). “We find no basis in the Administrative Procedures Act or in our opinions for a requirement that all agency change be subjected to more searching review.”

Id. at 1810. The Court further expl ained that the APA makes no distinction be tween initial agency action and subsequent agency ac tion undoing or reversing that action.

To be sure, the requirement that an agency provide reasoned explanation for its action would or dinarily demand that it display

awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. See United States v.
Nixon, 418 U.S. 683, 696, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)

. And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it su ffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. Th is means that the agency need not always provide a more detaile d justification th an what would suffice for a new policy created on a blank slate. Sometimes it must-when, for example, its new po licy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be

taken into account. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) . It would be arbitrary or capricious to ignore su ch matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explan ation is needed for disregarding

facts and circumstances that underl ay or were engendered by the prior policy.

Id. at 1811; see also Westar Energy v. F.E.R.C. , 568 F.3d 985, 989 (C.A.D.C. June 12, 2009) (“The fact that FERC changed its approach requi red no additional or special explanation.”). Here, EPA has consciously proposed to remove the opt-out provision a nd concluded that doing so is in the best interest of the public. Clearl y, applying the work practice standards to all target housing is permissible under the statute and suppor ted by the record. Inde ed, one of the better reasons for this change is that it clearly pr omotes the congressional directive to regulate renovation activities in target hous ing that create lead -based paint hazards. Other good reasons include that it is more protectiv e for children under six and, in c ontrast to the re taining the optout, it is protective for children si x and older as well as adults. In addition, EPA’s decision is based upon environmental justice co nsiderations and practical impl ementation issues. Moreover,*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 6 of 17 rather than ignoring contradict ory factual findings, EPA belie ves removing the opt-out better takes into account EPA’s finding (and the data supporting that finding) that all renovation activities that disturb lead-based paint in target housing create lead-based paint hazards, which is the trigger Congress established for requiring EPA to regulate renovation activ ities. Finally, this change was proposed before the opt-out provision even became effective. Accordingly, there

can be no serious contention that reliance interests are implicated. In sum, EPA has more than adequately explained the basis for the ch ange being made in this rulemaking.

One commenter asserted that the proposal was inconsistent with TSCA section 2(c), which directs the Agency to consider the enviro nmental, economic, and social impacts of any action EPA takes or proposes under TSCA. The commenter does not believe that EPA adequately explained how it did so. The comment er further “believes that the proposed rule imposes substantial burdens on small businesses, home owners and building owners, without any significant expectation of addre ssing real lead hazards,” and th erefore the proposal violates section 2(c) of TSCA.

EPA disagrees that this rulemaking is incons istent with TSCA section 2(c). To the contrary, EPA has explicitly taken the environmenta l, economic, and social impacts of this action

into account. The environmental and human heal th impacts of lead are well documented and the Agency has taken particular care to consider the social impact s of today’s action on low-income and other high risk populations. In addition, in connection with this rulemaking, EPA prepared both an initial and a final economic impact analys is pursuant to the Regulat ory Flexibility Act. Thus, there can be no serious co ntention that EPA failed to cons ider the economic impact of today’s rule.

To the extent that the commenter is sugge sting that Section 2( c) requires EPA to undertake some particular economic analysis (e.g ., to determine that th e quantified benefits outweigh the calculated costs) EPA disagrees. In any event, EPA has concluded that the benefits of today’s rulemaking outweigh the economic costs.

Some commenters asserted that the op t-out provision violated federal law by impermissibly creating an excepti on to the statutory definition of “target housing” and excluding some target housing from the rule based upon cl aims about its occupancy at the time of the regulated RRP work. These commenters further cont end that unlike other plac es in the law, such

as the definition of lead-based paint, Congress did not authorize EPA to change its definition of target housing. In addition, these commenters assert that the statute is clear on its face that renovations that create lead-based paint hazard s in target housing should be covered and that nothing in the statute limits the mandate to childhood exposures.

These commenters raised this issue as part of a lawsuit challenging the underlying rule. EPA agreed to settled the case and, as part of the settlement, issue a proposal to eliminate the opt-out. While it is not necessary in this cont ext to address the commenters’ specific legal positions, EPA believes that amending the RRP rule to remove the opt-out provision is better supported by the record and more consistent w ith the factual findings made by the Agency in connection with the RRP rule. EPA also agr ees that the statute di rects EPA to regulate renovation activities in target hous ing that create lead -based paint hazards. EPA has found that

renovation activities that disturb lead-based paint in target housing create lead-based paint hazards. Thus, while EPA believes that focusing resources on preventing lead poisoning in*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 7 of 17 children can be sound public policy in certain circumstances, EPA ag rees that the statute is not limited to protecting children under six or housing where children under six currently reside.

One commenter suggests that EPA is mistaken that removing the opt-out promotes, to a greater extent, the statutory dire ctive to promulgate regulation s covering renovation activities in target housing. To the contrary, the commenter a sserts that EPA is only authorized to regulate renovation activities in target hous ing that create lead-based paint hazards. The commenter argues that because EPA has not made a “hazard determination associated with the risk of renovation activities among older children and adu lts,” EPA is therefore, “not statutorily authorized to regulate renovation ac tivities in buildings—such as public or commercial buildings

or even residential homes—that are not frequented by young children.”

The commenter is mistaken. EPA has determin ed that renovation ac tivities that disturb lead-based paint create lead-based paint hazards in target housing and child -occupied facilities. Specifically, EPA has set hazard standards for pain t-lead hazards, dust-lead hazards, and soillead hazards. In target housing and child-occupi ed facilities, dust that equals or exceeds the mass-per-area concentrati on of lead of 40 μg/ft 2 on floors or 250 μg/ft 2 on window sills is a leadbased paint hazard. Therefore, EPA is clearly authorized to regulate renovation activities in target housing under section 402(c)(3) of TSCA.

Furthermore, EPA disagrees with the commenter that the statute limits EPA’s authority to housing where children under six currently resi de. While EPA continues to believe that Congress was concerned with low level lead poi soning among children, it did not limit its scope

to children or where children under six reside. In fact, the legislative history suggests an overall goal of addressing lead in the housing stock of the United States, not just where children currently live. Indeed, the stat ed purpose of the Residential L ead-Based Paint Hazard Act of 1992 (which added subchapter IV to TSCA) is to “develop a national strategy to build the infrastructure necessary to elimin ate lead-based paint hazards in all housing as expeditiously as possible.” See P.L. 102-550, § 1003(1), (O ctober 28, 1992) (emphasis added).

Similarly, EPA disagrees that it must make a “hazard determination associated with the risk of renovation activities among older childr en” before the Agency can regulate renovation activities in target housing wher e children don’t currently reside. Again, EPA has defined leadbased paint hazards in target hous ing. The promulgated standard is applicable to target housing and child-occupied facilities generally, not just those fr equented by young children. The standard was designed to be protective of th e most vulnerable and se nsitive population—children under six. That does not, however, limit the a pplicability of the standards to housing where

children under six curr ently reside. It simply means that th e standard is presumptively protective of all populations. When considering human h ealth, the Agency regularly sets regulatory standards of general applicabilit y at levels that are protective of the most sensitive or most exposed population. Accordingly, renovation activi ties in target housing that create dust on floors with lead equal to or in excess of 40 μg/ft 2 , by definition, create lead-based paint hazards, regardless of whether a child under six currently resides there.

Finally, removal of the opt-out results in a rule that is mo re protective of children under six who spend time in houses where they don’t reside and that are not COFs.*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 8 of 17 One commenter is concerned that less sophist icated property owners with limited English proficiency may not fully understand the implic ations of the opt-out. Another commenter believes that the opt-out will cause confusion among contractor s who must understand various requirements.

The Agency agrees that the opt-out pr ovision would make the RRP program more complex to implement and might lead to confus ion by renovators and homeowners. This is one of the reasons why the Agency has decided to eliminate the provision. In addition, EPA agrees that limited English proficiency or literacy is cause for concern. This is one more reason why relying on the disclosure rule is insufficient.

Benefit and Costs

One commenter claims that the Criteria Docume nt that EPA cited in the preamble to the proposed rule is not applicable to lead-based paint exposures. According to the commenter, the

Criteria Document looks at lead exposure through contamination in the ambient air, not from lead-based paint.

EPA referenced the Criteria Document in the proposed rule to assist commenters in formulating comments the health effects of l ead. The commenter is incorrect in his/her characterization of the Air Quality Criteria Do cument. While the document is used to support assessments under the Clean Air Act, it is not spec ific to air exposures. Rather it provides a comprehensive assessment of the toxicity of l ead. Lead toxicity is not exposure pathway specific. In fact, the Criteria Do cument discusses adverse effects re sulting from exposure to lead in dust and soil. The information in the preamble to the proposed rule that was cited the Criteria Document provides a summary of th e health effects which are appli cable to various types of lead exposure including exposure to lead-based paint.

One commenter stated that EPA should calcula te all benefits of the rule instead of focusing on benefits to children under 6.

EPA conducted a limited analysis of some of th e benefits of the rule as explained in the preamble to the proposed rule. Benefits range d from $870 million to $3.2 billion. However, these estimates did not account for every situat ion where someone would be impacted by lead contamination due to renovations and thus, these fi gures only partially account for the benefits of the rule. These calculations pr ovide a sense of the magnitude of benefits from this rule but should not be interpreted as strict upper or lower bound estimates of total benefits.

One commenter states that EPA estimate of the benefits of the rule are speculative at best.

The Agency disagrees with the commente r. While EPA did not conduct a thorough analysis of all the benefits of the rule, the Ag ency estimated a portion of the benefits and found that they outweigh the costs associated with the rule.

Many commenters believe that the rule’s cost s are too high. Several commenters believe

the increased cost of renovations due to the RRP rule will lead to many homeowners doing the work themselves. Hence, more renovations wi ll be performed without following the RRP work practices. One commenter claims that small busin esses do not have the staff to comply with the*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 9 of 17 regulations and will be forced out of business. One commenter claimed that the increased costs will hurt retired people on fixe d incomes. Another commenter conducted a survey which found that 80% of homeowners would not pay extr a to have lead-safe work practices used.

EPA is not generally reopening the RRP rule for consideration or comment. These same

comments were addressed in the RRP rulemaki ng. In summary, EPA disagrees with premise behind these comments. The Agency does not beli eve the rule is overly costly. EPA estimated that the rule’s work practice re quirements will add $8 to $167 to the cost of a typical renovation project (with the exception of thos e using vertical containment). EPA does not believe that this cost increase will lead to many homeowners to do their own renovations or put undue financial burden of people who hire renovation firms.

One commenter believes that EPA should cons ider three of its upcoming rulemakings together so the public can better assess the cumu lative impacts of the rules. The commenter states that by separating the actions into three rules, EPA is avoiding the accumulation of economic impacts.

The Agency disagrees with this comment. Th ere are many different factors that impact the timing of the rulemaking process. For exampl e, EPA has agreed to undertake a number of related rulemakings over the next few years. Developing the record for some will take longer

than for others. That is not a reason, however, to delay action on this rule. Moreover, the public had or will have the opportunity to comment on a ll of EPA’s rules regarding renovations that the commenter mentions. The Agency is planning to develop an economic assessment of each rule that will help commenters understand the impacts of the rules. Therefore, EPA believes that commenters will be able to understand the cumulative impact of these rules.

One commenter believes removing the opt-out is very costly without equivalent benefit and will stifle recovery in the alr eady struggling remodeling industry.

EPA disagrees with this comment. The Agen cy does not believe removing the opt-out is overly costly for firms. EPA estimated that the rule’s work practice requirements will add $8 to $167 to the cost of a typical re novation project (with the excep tion of those using vertical containment). EPA does not believe that such a modest cost increase will stifle economic

recovery.

With regard to benefits, EPA has estimated some of the benefits of the rule as explained in the preamble to the proposed rule. Bene fits ranged from $870 million to $3.2 billion.
However, these estimates did not account for ev ery situation where someone would be impacted by lead contamination due to renovations and th us, these figures only partially account for the benefits of the rule. These calculations provide a sense of the magnitude of benefits from this rule but should not be interpre ted as strict upper or lower bou nd estimates of total benefits.

Small Business Advocacy Review Panel

Several commenters assert that EPA has faile d to comply with the Regulatory Flexibility Act (RFA). They assert that EPA did not c onduct a Small Business Advocacy Review (SBAR) panel prior to issuing this proposed rulemaking.*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 10 of 17 EPA disagrees with these comments. Contrary to the assertions of these commenters, the Agency has fully complied with the requirements of the RFA.

The RFA states that agencies “ may consider a series of closel y related rules as one rule for the purposes of [an IRFA]” in order to avoid “duplicative action.” 5 U.S.C. § 605(c) (emphasis added). This rule is closely related to the 2008 RRP rule. Inde ed, this rule addresses some of the very provisions in the Code of Fe deral Regulations finalized in the 2008 RRP rule. Accordingly, EPA was not required to complete an IRFA or FRFA for th is rule. Nonetheless, EPA exercised its discretion to complete an In itial Regulatory Flexibil ity Analysis (IRFA) on this proposal, as well as a Fina l Regulatory Flexibility Analysis (FRFA) on the final rule. These robust analyses contained in the IRFA and FRFA consider the potential impacts of the rule on

affected small entities.

Moreover, EPA did convene and conduct a SBAR panel (RRP Panel) in connection with the proposal to regulate renovation and remodeli ng activities in target housing. EPA relied upon

the RRP Panel to inform its decisions on th e 2008 RRP rule. The RRP Panel is equally applicable to this closely related amendment to the RRP rule, pursuant to which EPA has reconsidered some of same applicability and scope issues. The RRP Panel discussed all major aspects of the proposal to regul ate renovation and remodeling activit ies, including issues related to the applicability of the rule. As a part of the panel process, EPA “collect[ed] advice and recommendations” from several Small Entity Repr esentatives (SERs) on the proposal to regulate renovation and remodeling activities. 5 U.S.C. § 609(b). In response to the comments from the SERs, EPA issued a report. See Report of the Small Business Advocacy Review Panel on The Lead-base Painting; Certification and Trai ning; Renovation and Remodeling Requirements (March 3, 2000). The RRP Panel report expressly addressed applicability of the rule. Thus, the primary issue considered in th is rulemaking is wholly within the scope of the issues EPA considered as part of the 2008 RRP rule and were within the scope of th e issues considered by the RRP Panel. EPA believes that reconvening th e RRP Panel would be pr ocedurally duplicative and is unnecessary given that the issues here we re within the scope of those considered by the

RRP Panel.

Exposure

One commenter claims that worker exposur e and stormwater runoff of lead would increase if the work practices are not used.

The Agency agrees that worker exposure to lead and quantities of lead in stormwater runoff would increase when the RRP work practices are not followed.

One commenter stated that he hasn’t seen a ny effects of lead poisoning in the homes he worked in. The commenter states that single fa mily homes do not seem to be where the problem

exits.

EPA would like to point out th at renovators would not rec ognize the effects of lead exposure on the people living in the homes they work on. These health eff ects include those that may manifest externally such as neurobehavioral effects that th e renovator may not realize are associated with lead exposure, and those eff ects such as cardiovasc ular, immune system and

renal effects and would not likel y be “seen” by the renovator.*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 11 of 17 Alternatives to the Opt-out Provision

One commenter suggested an alternative appr oach to the opt-out provision that would allow an opt-out for homes built between 1940 and 1978 or 1960 and 1978. This commenter believes that the amount of lead in housing bui lt after 1940 is low and that focusing on pre-1940 homes would target the greatest source of lead. Other commenters stated that EPA should not implement a staged approach that would remove the opt-out in pre-1960 housing then remove the opt-out in pre-1978 housing one year later. These commenters believe that this approach would cause confusion among consumers a nd would lead to ongoing exposure.

The Agency agrees that a staged implementa tion is not appropriate. This option would make the RRP program more complex to implem ent and might lead to confusion by renovators and homeowners. These options wo uld also lead to increased e xposures during the delay period. In addition, based upon the record before it, EPA ca nnot now find that an opt -out in a segment of target housing would be effective, reliable, or safe.

EPA received several comments on the alternativ e to the opt-out provision discussed in the preamble that would require the RRP work pract ices on exterior renovati ons but not interior. One commenter supports and alternative where the opt-out applies to exteriors when neighboring homes are not in close proximity to the renova tion. This commenter believes that EPA should develop a proximity threshold for work done on exteriors. Another co mmenter states that

exterior renovations in rural areas or homes on large lots do not ha ve the potential to contaminate neighboring properties, although they believe this alternative is of limited value because most

renovations involve both interior s and exteriors. One commente r who opposed the alternative stated that this option could expose visiting ch ildren and the families of future purchasers and renters to dangerous levels of leaded dust. A second commenter opposed to this alternative states that exteriors are more likely to have been painted with lead-based paint. This commenter

also claims that contractors are not as careful during exterior renovations resulting in a greater chance of dust migration and leaving paint ch ips behind. Another commenter believes that preserving the opt-out for interiors is of lim ited value because most renovations involve both

interior and exterior work.

Several commenters stated that they do not support the alterna tive of requiring dust sampling for renovations where the owner-occupant opts out of the work pr actice requirements. One commenter disagrees with this alternative approach because the renovation firm would be responsible for preexisting condition s. One commenter stated that contractors should have to pass clearance testing if this alternative were al lowed, not simply provide the results to the next

owner under the 1018 Disclosure Rule. One comm enter asserts that th is alternative could

address a number of concerns if certain protections are required. The commenter states that the rule must require that testing is done by party independent of th e owner and renovation firm; that dust hazards found as a result of the testing be elim inated, and that the test results are given to the owner of the property. Other commenters agr eed that, if this alternative were implemented, testing must be done by an independent party. One commenter stated th at if dust testing is required, then the results must be give n to the home owner and occupant.

Several commenters support the alternative that would restrict the work practice prohibited under RRP in homes th at take advantage of the opt- out provision. One commenter*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 12 of 17 does not condone the use of the prohibited practices as a matter of policy. One commenter states that this alternative approach that is not cons istent with the law and that all the RRP work practices must be followed. The commenter asse rts that this alternat ive would not protect occupants of neighboring properties, visitors or future occupants.

After considering these altern atives, the Agency has decided not to adopt any of the

alternatives. One concern with the alternatives described in th e proposed and those suggested by comments is that they do not adequately address th e risks of lead-based pa int hazards to children older than five years old or adults. Each of th ese alternatives can also result in exposures to children under the age of 6 and pregnant women to lead-based paint hazar ds. For example, an

alternative that allows the opt-out provision on exteriors of hous es that are not in close proximity to neighboring homes will still re sult in lead paint hazards which could harm the occupants or

visitors. EPA also has concerns that populations that ar e already at a higher risk for elevated blood lead levels may be dispr oportionately and adversely aff ected by the alternatives.

Another concern with the alte rnatives is that they can create confusion among both

contractors and consumers. Se veral commenters stated that the alternatives could cause confusion that could potentially result in non-complia nce by renovation firms. EPA agrees and believes that simplifying the applicability of the work practices will greatly enhance the effectiveness and reliability of the rule.

Based on the data available to EPA (e.g., the Dust Study), the Agency cannot now

conclude that the alternative a pproaches are safe, reliable or effective because none of these would sufficiently minimize exposure to lead-based paint hazards. In sum, when the RRP work practices are not used, residents and visitors are exposed to th e lead hazards created by the renovation, and therefore these approaches w ould not protect olde r children, women of childbearing age, or other adults currently resi ding in the home and can result in exposure to children under the age of 6 and pregnant women of lead-based paint hazards. Although EPA specifically requested informa tion or data that would shed any light on the reliability, effectiveness, or safety of these options in rela tion to EPA’s lead hazard standards, the Agency did not receive any. The Agency took these factor s into consideration in deciding not to adopt

these alternatives.

Post-Renovation Recordkeeping and Notification

One commenter states that the post-renovation in formation should be given to residents at the same time they receive information on test kits used for that renovation. The commenter further states that the post-renovation informa tion is not a record or report subject to the

Disclosure Rule.

The Agency agrees with this comment and w ould like to point out th at the rule requires information pertaining to test kits used for the renovation be part of the post-renovation

notification.

One commenter states that firms should not be responsible for distributing the postrenovation information to parents of children at a child-occupied faci lity. The commenter believes that this should be the responsibil ity of the property manager or owner.*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 13 of 17 EPA disagrees with this comment. Similar to the pre-renovation information distribution, EPA believes it is appropriate to require firms to distribute the post-re novation information to parents of children at child-occupied facilities. Firms will create the records and give a copy of them to the owners of the building. Accordingl y, EPA will require firms to allow interested parents or guardians of children frequenting the child-occupied faci lity to review a copy of the records obtain a copy from the renovation firm at no cost to the parents or guardians.

One commenter asserts that the informati onal signs required as part of the postrenovation recordkeeping should be findable, in formative and no less specific than other

common area notification.

The rule requires signs to be posted wh ere tenants are likely to see them. The information provided must contain the same informa tion that firms are required to keep in their records which the Agency believes will be inform ative to residents and parents of children at child-occupied facilities.

One commenter states that the informati on signs containing post-renovation information should specify the general natu re and locations of the renovation and the completion date.

EPA would like to point out th at pre-renovation education re quirements already require the firm to post information in common area expl aining the general nature and locations of the planned renovation activities. Accordingly, th e Agency does not believe it is necessary to require this information in the post-renovation information distribution because it would be duplicative.

One commenter states that a lack of post- renovation notice violates section 407 of TSCA that requires certain recordkeeping and reporting. Because there is no realis tic threat of surprise inspections of renovations, the post-renovation notif ication requirements are essential to comply

with section 407. The commenter further states that current requirement s are insufficient to verify that the work practices were followed.

EPA disagrees with this comment. While it is not feasible for EPA to inspect every renovation, the Agency may conduct on-site inspec tions of a portion of them or it may conduct

audits of firm records. EPA believes this can be an effective way to enforce the requirements. EPA also believes that the current recordkeeping re quirement is sufficient to verify that the work practices were followed. Renovation firms are required to keep records of the renovation including spot test kit use, a description of the work area, in formation about how the work area was contained, information on waste removal, and results of cleani ng verification or dust clearance testing.

Burden

One commenter stated that the post renova tion notification will not be a significant

burden to renovation firms because it is similar to the documents the contractor will have to complete to comply with the recordkeeping requirements. Another commenter believes EPA

underestimated the burden for firm s to distribute the post-renovation records. This commenter*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 14 of 17 claims that firms must post signs, make copies , enter names and addresses in databases of affected parties, and de liver the records.

Under the requirements of the RRP rule, renov ation firms must complete and retain acopy of the information described above for enforcement purposes. Therefore, the postrenovation information requirement would only result in renovation firms incurring the incremental labor costs of photocopying and distri buting the checklist to the owners and/or occupants. The burden will be minimal, since the renovator will typically be delivering the checklist along with an invoice or other job- relate paperwork. EPA assumed that photocopying and distributing the check list would take an average of thr ee minutes of a renovator’s time at a loaded wage rate of $31.64 per hour, for an average cost of $1.58.

Delayed Effective Date

One commenter claims that a delay in the eff ective date will add complexity to the rule and the more complex the rule the lower the chance that it will properly implemented. Several commenters believe EPA should delay the effective date of the rule unti l new test kits are developed. This would allow renovation firms to a void the high costs of the rule in the first year

after the effective date.

The Agency decided not to delay the effective date of this final rule. EPA agrees that delaying the effective date will add complexity to the rule and that adding complexities increases the chance that it will not be properly implemented. As such, the rule will become effective 60 days after publication in the Federal Register. EPA believes that it is important to eliminate the opt-out exemption without delay in order to avoid further lead exposures in housing previously eligible for the opt-out. Furthe r, although improved test kits w ould reduce costs of the rule, the Agency believes that the benefits of the rule outweigh the costs which take into account the currently available test kits.

Training Capacity

One commenter disagrees with EPA’s asserti on that there is enough training capacity to

train all of the renovators that EPA has estimate d must take the training. The commenter claims

that the 6:1 student to teacher ration for the hands-on portion of the training results in a lower training capacity than EPA estimates.

EPA disagrees with this commenter. Ba sed on the number of training providers accredited to date, the Agency believes that there is sufficient training capacity available to train any addition renovators that would need to get certification because of this rule. While EPA understands that training providers should use a 6:1 ratio for the hands-on portion of the training, these additional instructor can be guest in structors (See 40 CFR 745.225) which don’t need to meet the same prerequisites as the principal inst ructors thus allowing more people to be eligible to become guest instructors.

Renovator Certifications

One commenter asserts that renovation firm certif ications should be extended similarly to the renovator certification. This commenter believes that encouraging firms to become certified*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 15 of 17 earlier will help prevent a large number of app licants at the last minute, overwhelming the Agency.

This issue is outside the scope of the proposal. Nevertheless , the Agency disagrees with the commenter. Processing a firm applicati on takes much less time th an taking the renovator training course. EPA believes it will be able to process a large number of firm applications that may be submitted close to the April 22, 2010, effectiv e date. Thus, the Agency has not extended

the certification date for firm certifications.

Principal Instructor Requirement

One commenter claims that EPA should requir e Principal Instructors take a train the trainer course. This would help ensure that instructors are competent in teaching the required

course work. One commenter stated that Princi pal Instructors should be required to pass a test before being able to teach lead paint trai nings to ensure that the person is qualified.

EPA disagrees with these commenters. Pr incipal Instructors must meet multiple education and work experience requirements in or der to teach lead-based paint training courses. EPA believes these requirements are sufficient an d is not requiring inst ructors to take an

additional train the traine r course or pass a test.

One commenter states that the 16-hour l ead-based paint training requirement for Principal Instructors should not be reduced to 8 hours because someone who takes an 8-hour course will not gain the know ledge of local laws and requirements regarding renovations.

EPA encourages training providers to include local requirements in the 8-hour renovator training as well as the 16-hour . The Agency expects 8-hou r courses to include these requirements similar to the 16-hour courses.

Enforcement

Once commenter believes EPA should conduct targeted enforcement after the rule

become effective. Several commenters stated that the rule will be detrimental to business because many competitors will not follow the rule requirements and therefore undercut the costs of firms that comply with the rule.

EPA believes enforcement is an important pa rt of implementing the RRP rule and plans to conduct and enforcement program for those who do not comply.

Miscellaneous

Two commenters stated that EPA should pr ovide financial support to renovators and firms seeking certification due to the large si ze of the regulated community and the current

economic climate. One commenter stated that a la rge portion of the cost for renovators is from lost income and travel expe nses while taking the training.

EPA appreciates the commenter’s concerns about ensuring that renovators firms get certified. However, EPA can not provide financia l assistance to firms or individuals. EPA is*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 16 of 17 required by TSCA to collect fees to recover the costs of impl ementing the renovation program. Further, EPA does not currently have fundi ng to subsidize renova tor training courses.

One commenter believes that EPA should make small fixes to the RRP regulations to make them less confusing and ambiguous. The co mment attached examples of changes to the regulations that would ac hieve this result.

The Agency would like to thank the commenter for the suggestions. While EPA did not ask for comment on how it could make the regu lations less confusion, the Agency will may consider these suggestions in future rulemakings.

One commenter stated that the RRP rule will cause a decrease in home prices. The commenter predicts that as people become aware of the RRP rule, lead paint will become part of the negotiations of a home sale.

EPA is not reopening the RRP rule beyond th e changes proposed. Nevertheless, the Agency disagrees with this comment. EPA does not believe the rule is overly costly. EPA

estimated that the rule’s work practice requirements will add $8 to $167 to the cost of a typical renovation project (with the exceptio n of those using vertical cont ainment). Even if renovations of lead-based paint are part of negotiations of home prices, EPA does not believe that such a

modest cost for these renovations w ill result in decr eased home prices.

One commenter states that professional re modeling does not create lead-based paint hazards and that studies that Agency used to prove this link are flawed.

Again, EPA is not reopening the RRP rule be yond the changes proposed. The issue of

whether renovation activities create lead-bas ed paint hazards is therefore not open for

consideration in this rulemaki ng. Nevertheless, the agency disagrees with this comment. EPA’s Dust Study indicated that renovation, repair, and paint preparation activities produce large quantities of lead dust that create dust-lead hazards.

One commenter stated that EPA should incr ease its efforts to make contractors and property owners aware of the rule. Another comme nter asserts that EPA’s efforts to raise public awareness have been inadequate and that the success of the RRP rule depends on consumer

demand for certified renovators. The commenter claims that EPA’s partnership with the Ad

Council will be limited in its effectiveness be cause of the limited broadcast opportunities.

Anther commenter states that EPA should increa se its outreach through multi-media advertising in order to spur demand fo r certified renovators.

EPA has a wide-ranging educational campai gn to ensure that both the regulated community and the general public know about this regulatory program. The Agency has a very accessible Web site at http://www.epa.gov/lead/ pubs/renovation.htm with much information about lead in general, instructions on how cont ractors can get certified, where to find accredited training courses, and other useful informati on about the RRP rule. Furthermore, EPA is conducting extensive outreach to the renovation community and will continue to do so. The Agency has completed mass mailings to over 1,000 trade organizations, trade magazines, unions, property management associations, and others, en couraging them to get trained and certified. EPA has presented and/or exhibited informati on on the rule’s requirements at numerous major*** EO 12866 Review DRAFT – Do Not Cite, Quote or Release During the Review ***

Page 17 of 17 trade conferences, reaching tens of thousands of attendees. EPA is working closely with major industry stakeholders to help them inform thei r members and clients about the RRP rule. These organizations have in turn cont racted with accredited trainers to present training during major conferences, allowing for on-the-spot certific ation of large numb ers of renovators.

In addition, the Agency has begun an even la rger campaign to ensure that contractors know about the regulation and are equipped to comp ly, this includes multi-media advertising. At the same time, the Agency is working on additional marketing efforts, including with the Ad Council, to build demand for certified contractors among the general public.

One commenter believes that the RRP requi rements are not needed when replacing

windows. Another commenter claims that installe rs of hearth appliances should be exempted

because do not create a reasonable risk that woul d justify the RRP work practice requirements.

EPA is not reopening the RRP rule beyond th e changes proposed. Nevertheless, the Agency disagrees with these comments. EPA ha s determined that renovation activities that disturb lead-based paint create lead-based pa int hazards in target housing and child-occupied facilities. The Dust Study showed that window replacement resulted in lead-dust levels above the hazard standard. While the Dust Study did no t include installing hearth appliances, EPA has

determined that activities that disturb surfaces with lead-based paint—regardless of the purpose, create lead-based paint hazards. The commenter did not supply information showing that this activity does not disturb painted surfaces or would not result lead-b ased paint hazards.