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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
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Opt-out Provision 

Several commenters supported removing the opt-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 undergoes renovations under the opt-out provision. This 

commenter is also concerned about how the impacts of lead contamination will affect future 

occupants including children. 

Several commenters opposed removing the opt-out. 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 the 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 data showing that lead dust from renovations 

persists in homes before it decides whether to eliminate the opt-out provision. 

After considering these comments, the Agency has decided to eliminate the Opt-out 

provision. One concern with the opt-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 measured 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 effective 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, and therefore the 

opt-out would not protect older children, women of childbearing age, 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 that 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 comply with the RRP requirements and therefore 

believes removal of the opt-out provision is likely to enhance compliance. 

One commenter believes that removing the opt-out provision will result in impediments 

to the implementation of other federal programs such at the Department of Energy’s 
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Weatherization Assistance Program because of the additional costs associated of complying with 

the rule. 

The Agency disagrees with this comment. EPA 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 renovators using lead-safe work practices reduce 

the dust lead loading levels significantly 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 additional health hazards. This commenter believes 

that a “no visible dust” standard should be required 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. Nonetheless, EPA disagrees that a “no visible dust” standard is 

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

dust below the hazard standard. EPA’s Dust Study indicated that renovation, repair, and paint 

preparation activities produce large quantities of lead dust that create dust-lead hazards. The Dust 

Study showed that the largest decreases in dust levels were observed in the experiments where 

the rule’s practices of containment, specialized cleaning, and cleaning verification were all used 

instead of typical work practices commonly used by professional renovators. The Dust Study 

indicated that if the prohibited and restricted practices are avoided, the suite of work practices as 

a whole are effective at addressing the lead-paint dust that is generated during renovation 

activities. 

One commenter stated that do-it-yourself (DIY) renovations contribute to health hazards 

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

EPA understands that the rule will not prevent dust hazards created by DIY renovation. 

However, EPA interprets the statutory directive to regulate remodeling and renovation activities 

found in TSCA § 402(c)(3) as applying to contractors, rather than homeowners. 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 therefore it is highly unlikely that children under 

age 6 or pregnant women are present in these households. Thus, removing the opt-out would 

have little benefit to children under age 6. Considering these factors, 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 for adults and children 6 and 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 new evidence or sufficient reasons to support a 
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decision to change course and remove the opt-out provision. In so doing, 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 analysis 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 previously 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, therefore, 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 Aviation Administration (FAA) had shown good cause for its delay in 

sanctioning a pilot for offenses that had occurred more than 6 months prior. According to the 

court, for more than 20 years the NTSB had explained that a party seeking 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 decision, 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. Finally, the court held that although the NTSB 

said it was troubled by the length of time between the FAA’s receipt of the evidence and the 

investigation, the NTSB nonetheless departed from its own precedent involving the 

“longstanding” requirement of prosecutorial diligence 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 facts. There is a fundamental difference in the 

importance of precedent to a quasi-judicial proceeding versus notice and comment rulemaking. 

In the adjudication context, precedent plays a critical role because it provides the basis for future 

decisions and the orderly administration of justice. Reliance on precedent not only creates 

stability but also provides the framework that affected persons expect will be applied in future 

cases. One reason for this is that rules governing the regulated community are established 

through precedent and create a reasonable basis for reliance. A departure from precedent has a 

retroactive effect on past acts and 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 deliberately 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 reconsideration, EPA announced and took comment on a 

deliberate and prospective change to the underlying rule. Indeed, EPA proposed to make a 

change before the regulatory provision at issue 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 both the proposed and final rules, 
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provided extensive discussion of its concerns with the opt-out provision and the reasons why it 

believes removing the opt-out is in the best interest of the public. 

Second, contrary to the suggestion of the commenter, 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 policies or rules that requires 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 explained that the APA makes no distinction between initial 

agency action and subsequent agency action undoing or reversing that action. 

To be sure, the requirement that an agency provide reasoned 

explanation for its action would ordinarily 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 suffices 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. This means that the agency need 

not always provide a more detailed justification than what would 

suffice for a new policy created on a blank slate. Sometimes it 

must-when, for example, its new policy 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 such matters. In such cases it is 

not that further justification is demanded by the mere fact of policy 

change; but that a reasoned explanation is needed for disregarding 

facts and circumstances that underlay 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 required no additional or special explanation.”). 

Here, EPA has consciously proposed to remove the opt-out provision and concluded that doing 

so is in the best interest of the public. Clearly, applying the work practice standards to all target 

housing is permissible under the statute and supported by the record. Indeed, one of the better 

reasons for this change is that it clearly promotes the congressional directive to regulate 

renovation activities in target housing that create lead-based paint hazards. Other good reasons 

include that it is more protective for children under six and, in contrast to the retaining the optout, it is protective for children six and older as well as adults. In addition, EPA’s decision is 

based upon environmental justice considerations and practical implementation issues. Moreover, 
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rather than ignoring contradictory factual findings, EPA believes 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 activities. 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 change 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 environmental, 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 commenter further “believes that the proposed rule 

imposes substantial burdens on small businesses, home owners and building owners, without any 

significant expectation of addressing real lead hazards,” and therefore the proposal violates 

section 2(c) of TSCA. 

EPA disagrees that this rulemaking is inconsistent with TSCA section 2(c). To the 

contrary, EPA has explicitly taken the environmental, economic, and social impacts of this action 

into account. The environmental and human health impacts of lead are well documented and the 

Agency has taken particular care to consider the social impacts 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 analysis pursuant to the Regulatory Flexibility Act. 

Thus, there can be no serious contention that EPA failed to consider the economic impact of 

today’s rule. 

To the extent that the commenter is suggesting that Section 2(c) requires EPA to 

undertake some particular economic analysis (e.g., to determine that the 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 opt-out provision violated federal law by 

impermissibly creating an exception to the statutory definition of “target housing” and excluding 

some target housing from the rule based upon claims about its occupancy at the time of the 

regulated RRP work. These commenters further contend that unlike other places 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 hazards 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 context 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 with the factual findings made by the Agency in 

connection with the RRP rule. EPA also agrees that the statute directs EPA to regulate 

renovation activities in target housing 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 
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children can be sound public policy in certain circumstances, EPA agrees 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 directive to promulgate regulations covering renovation activities in 

target housing. To the contrary, the commenter asserts that EPA is only authorized to regulate 

renovation activities in target housing 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 adults,” EPA is therefore, “not statutorily 

authorized to regulate renovation activities 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 determined that renovation activities that disturb 

lead-based paint create lead-based paint hazards in target housing and child-occupied facilities. 

Specifically, EPA has set hazard standards for paint-lead hazards, dust-lead hazards, and soillead hazards. In target housing and child-occupied facilities, dust that equals or exceeds the 

mass-per-area concentration of lead of 40 μg/ft2

 on floors or 250 μg/ft2 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 reside. While EPA continues to believe that 

Congress was concerned with low level lead poisoning 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 stated purpose of the Residential Lead-Based Paint Hazard Act of 

1992 (which added subchapter IV to TSCA) is to “develop a national strategy to build the 

infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as 

possible.” See P.L. 102-550, § 1003(1), (October 28, 1992) (emphasis added). 

Similarly, EPA disagrees that it must make a “hazard determination associated with the 

risk of renovation activities among older children” before the Agency can regulate renovation 

activities in target housing where children don’t currently reside. Again, EPA has defined leadbased paint hazards in target housing. The promulgated standard is applicable to target housing 

and child-occupied facilities generally, not just those frequented by young children. The 

standard was designed to be protective of the most vulnerable and sensitive population—children 

under six. That does not, however, limit the applicability of the standards to housing where 

children under six currently reside. It simply means that the standard is presumptively protective 

of all populations. When considering human health, the Agency regularly sets regulatory 

standards of general applicability at levels that are protective of the most sensitive or most 

exposed population. Accordingly, renovation activities in target housing that create dust on 

floors with lead equal to or in excess of 40 μg/ft2

, 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 more protective of children under 

six who spend time in houses where they don’t reside and that are not COFs. 
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One commenter is concerned that less sophisticated property owners with limited English 

proficiency may not fully understand the implications of the opt-out. Another commenter 

believes that the opt-out will cause confusion among contractors who must understand various 

requirements. 

The Agency agrees that the opt-out provision would make the RRP program more 

complex to implement and might lead to confusion 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 Document 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 lead. The commenter is incorrect in his/her 

characterization of the Air Quality Criteria Document. While the document is used to support 

assessments under the Clean Air Act, it is not specific to air exposures. Rather it provides a 

comprehensive assessment of the toxicity of lead. Lead toxicity is not exposure pathway 

specific. In fact, the Criteria Document discusses adverse effects resulting 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 the health effects which are applicable to various types of lead 

exposure including exposure to lead-based paint. 

One commenter stated that EPA should calculate all benefits of the rule instead of 

focusing on benefits to children under 6. 

EPA conducted a limited analysis of some of the benefits of the rule as explained in the 

preamble to the proposed rule. Benefits ranged from $870 million to $3.2 billion. However, 

these estimates did not account for every situation where someone would be impacted by lead 

contamination due to renovations and thus, 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 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 commenter. While EPA did not conduct a thorough 

analysis of all the benefits of the rule, the Agency estimated a portion of the benefits and found 

that they outweigh the costs associated with the rule. 

Many commenters believe that the rule’s costs 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 will be performed without following the RRP work 

practices. One commenter claims that small businesses do not have the staff to comply with the 
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regulations and will be forced out of business. One commenter claimed that the increased costs 

will hurt retired people on fixed incomes. Another commenter conducted a survey which found 

that 80% of homeowners would not pay extra 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 rulemaking. In summary, EPA disagrees with premise 

behind these comments. The Agency 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 exception of those 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 consider three of its upcoming rulemakings 

together so the public can better assess the cumulative 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. There are many different factors that impact 

the timing of the rulemaking process. For example, 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 all 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 already struggling remodeling industry. 

EPA disagrees with this comment. The Agency 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 renovation project (with the exception 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. Benefits ranged from $870 million to $3.2 billion. 

However, these estimates did not account for every situation where someone would be impacted 

by lead contamination due to renovations and thus, 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 interpreted as strict upper or lower bound estimates of total benefits. 

Small Business Advocacy Review Panel 

Several commenters assert that EPA has failed to comply with the Regulatory Flexibility 

Act (RFA). They assert that EPA did not conduct a Small Business Advocacy Review (SBAR) 

panel prior to issuing this proposed rulemaking. 
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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 closely 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. Indeed, this rule addresses 

some of the very provisions in the Code of Federal Regulations finalized in the 2008 RRP rule. 

Accordingly, EPA was not required to complete an IRFA or FRFA for this rule. Nonetheless, 

EPA exercised its discretion to complete an Initial Regulatory Flexibility Analysis (IRFA) on 

this proposal, as well as a Final 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 remodeling activities in target housing. EPA relied upon 

the RRP Panel to inform its decisions on the 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 regulate renovation and remodeling activities, 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 Representatives (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 Training; Renovation and Remodeling Requirements 

(March 3, 2000). The RRP Panel report expressly addressed applicability of the rule. Thus, the 

primary issue considered in this rulemaking is wholly within the scope of the issues EPA 

considered as part of the 2008 RRP rule and were within the scope of the issues considered by 

the RRP Panel. EPA believes that reconvening the RRP Panel would be procedurally duplicative 

and is unnecessary given that the issues here were within the scope of those considered by the 

RRP Panel. 

Exposure 

One commenter claims that worker exposure 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 any effects of lead poisoning in the homes he 

worked in. The commenter states that single family homes do not seem to be where the problem 

exits. 

EPA would like to point out that renovators would not recognize the effects of lead 

exposure on the people living in the homes they work on. These health effects include those that 

may manifest externally such as neurobehavioral effects that the renovator may not realize are 

associated with lead exposure, and those effects such as cardiovascular, immune system and 

renal effects and would not likely be “seen” by the renovator. 
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Alternatives to the Opt-out Provision

One commenter suggested an alternative approach 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 built 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 and would lead to ongoing exposure. 

The Agency agrees that a staged implementation is not appropriate. This option would 

make the RRP program more complex to implement and might lead to confusion by renovators 

and homeowners. These options would also lead to increased exposures during the delay period. 

In addition, based upon the record before it, EPA cannot now find that an opt-out in a segment of 

target housing would be effective, reliable, or safe. 

EPA received several comments on the alternative to the opt-out provision discussed in 

the preamble that would require the RRP work practices on exterior renovations 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 renovation. This commenter believes that EPA should 

develop a proximity threshold for work done on exteriors. Another commenter states that 

exterior renovations in rural areas or homes on large lots do not have the potential to contaminate 

neighboring properties, although they believe this alternative is of limited value because most 

renovations involve both interiors and exteriors. One commenter who opposed the alternative 

stated that this option could expose visiting children 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 chips behind. Another commenter believes that 

preserving the opt-out for interiors is of limited value because most renovations involve both 

interior and exterior work. 

Several commenters stated that they do not support the alternative of requiring dust 

sampling for renovations where the owner-occupant opts out of the work practice requirements. 

One commenter disagrees with this alternative approach because the renovation firm would be 

responsible for preexisting conditions. One commenter stated that contractors should have to 

pass clearance testing if this alternative were allowed, not simply provide the results to the next 

owner under the 1018 Disclosure Rule. One commenter asserts that this 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 the owner and renovation firm; that 

dust hazards found as a result of the testing be eliminated, and that the test results are given to 

the owner of the property. Other commenters agreed that, if this alternative were implemented, 

testing must be done by an independent party. One commenter stated that if dust testing is 

required, then the results must be given to the home owner and occupant. 

Several commenters support the alternative that would restrict the work practice 

prohibited under RRP in homes that take advantage of the opt-out provision. One commenter 
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does not condone the use of the prohibited practices as a matter of policy. One commenter states 

that this alternative approach that is not consistent with the law and that all the RRP work 

practices must be followed. The commenter asserts that this alternative would not protect 

occupants of neighboring properties, visitors or future occupants. 

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

alternatives. One concern with the alternatives described in the proposed and those suggested by 

comments is that they do not adequately address the risks of lead-based paint hazards to children 

older than five years old or adults. Each of these alternatives can also result in exposures to 

children under the age of 6 and pregnant women to lead-based paint hazards. For example, an 

alternative that allows the opt-out provision on exteriors of houses that are not in close proximity 

to neighboring homes will still result in lead paint hazards which could harm the occupants or 

visitors. EPA also has concerns that populations that are already at a higher risk for elevated 

blood lead levels may be disproportionately and adversely affected by the alternatives. 

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

contractors and consumers. Several commenters stated that the alternatives could cause 

confusion that could potentially result in non-compliance 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 approaches 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 the lead hazards created by the 

renovation, and therefore these approaches would not protect older children, women of 

childbearing age, 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. Although EPA 

specifically requested information or data that would shed any light on the reliability, 

effectiveness, or safety of these options in relation to EPA’s lead hazard standards, the Agency 

did not receive any. The Agency took these factors into consideration in deciding not to adopt 

these alternatives. 

Post-Renovation Recordkeeping and Notification 

One commenter states that the post-renovation information 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 information is not a record or report subject to the 

Disclosure Rule. 

The Agency agrees with this comment and would like to point out that 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 facility. The commenter 

believes that this should be the responsibility of the property manager or owner. 
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EPA disagrees with this comment. Similar to the pre-renovation information distribution, 

EPA believes it is appropriate to require firms to distribute the post-renovation 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. Accordingly, EPA will require firms to allow interested 

parents or guardians of children frequenting the child-occupied facility 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 informational signs required as part of the postrenovation recordkeeping should be findable, informative and no less specific than other 

common area notification. 

The rule requires signs to be posted where tenants are likely to see them. The 

information provided must contain the same information that firms are required to keep in their 

records which the Agency believes will be informative to residents and parents of children at 

child-occupied facilities. 

One commenter states that the information signs containing post-renovation information 

should specify the general nature and locations of the renovation and the completion date. 

EPA would like to point out that pre-renovation education requirements already require 

the firm to post information in common area explaining the general nature and locations of the 

planned renovation activities. Accordingly, the 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 realistic threat of surprise 

inspections of renovations, the post-renovation notification requirements are essential to comply 

with section 407. The commenter further states that current requirements 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 inspections 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 requirement 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, information about how the work area 

was contained, information on waste removal, and results of cleaning verification or dust 

clearance testing.

Burden 

One commenter stated that the post renovation 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 firms to distribute the post-renovation records. This commenter 
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claims that firms must post signs, make copies, enter names and addresses in databases of 

affected parties, and deliver the records. 

Under the requirements of the RRP rule, renovation firms must complete and retain a 

copy 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 distributing 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 checklist would take an average of three 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 effective 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 until new test kits are 

developed. This would allow renovation firms to avoid 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. Further, although improved test kits would 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 assertion that there is enough training capacity to 

train all of the renovators that EPA has estimated 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. Based 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 instructors (See 40 CFR 745.225) which don’t need to 

meet the same prerequisites as the principal instructors thus allowing more people to be eligible 

to become guest instructors. 

Renovator Certifications 

One commenter asserts that renovation firm certifications should be extended similarly to 

the renovator certification. This commenter believes that encouraging firms to become certified 
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earlier will help prevent a large number of applicants 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 application takes much less time than 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, effective date. Thus, the Agency has not extended 

the certification date for firm certifications. 

Principal Instructor Requirement 

One commenter claims that EPA should require 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 Principal Instructors should be required to pass a test 

before being able to teach lead paint trainings to ensure that the person is qualified. 

EPA disagrees with these commenters. Principal Instructors must meet multiple 

education and work experience requirements in order to teach lead-based paint training courses. 

EPA believes these requirements are sufficient and is not requiring instructors to take an 

additional train the trainer course or pass a test. 

One commenter states that the 16-hour lead-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 knowledge 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-hour 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 part 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 provide financial support to renovators and 

firms seeking certification due to the large size of the regulated community and the current 

economic climate. One commenter stated that a large portion of the cost for renovators is from 

lost income and travel expenses while taking the training. 

EPA appreciates the commenter’s concerns about ensuring that renovators firms get 

certified. However, EPA can not provide financial assistance to firms or individuals. EPA is 
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required by TSCA to collect fees to recover the costs of implementing the renovation program. 

Further, EPA does not currently have funding to subsidize renovator training courses.

One commenter believes that EPA should make small fixes to the RRP regulations to 

make them less confusing and ambiguous. The comment attached examples of changes to the 

regulations that would achieve 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 regulations 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 the 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 exception of those using vertical containment). 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 will result in decreased home prices. 

 

One commenter states that professional remodeling 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 beyond the changes proposed. The issue of 

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

consideration in this rulemaking. 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 increase its efforts to make contractors and 

property owners aware of the rule. Another commenter 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 because of the limited broadcast opportunities. 

Anther commenter states that EPA should increase its outreach through multi-media advertising 

in order to spur demand for certified renovators. 

EPA has a wide-ranging educational campaign 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 contractors can get certified, where to find accredited 

training courses, and other useful information 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, encouraging them to get trained and certified. 

EPA has presented and/or exhibited information on the rule’s requirements at numerous major 
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trade conferences, reaching tens of thousands of attendees. EPA is working closely with major 

industry stakeholders to help them inform their members and clients about the RRP rule. These 

organizations have in turn contracted with accredited trainers to present training during major 

conferences, allowing for on-the-spot certification of large numbers of renovators. 

In addition, the Agency has begun an even larger campaign to ensure that contractors 

know about the regulation and are equipped to comply, 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 requirements are not needed when replacing 

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

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

EPA is not reopening the RRP rule beyond the changes proposed. Nevertheless, the 

Agency disagrees with these comments. EPA has determined that renovation activities that 

disturb lead-based paint create lead-based paint 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 not 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-based paint hazards.