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Initial Regulatory Flexibility Analysis for Lead; Clearance and Clearance Testing Requirements 

for the Renovation, Repair, and Painting Program; Proposed Rule

[Docket ID No.: EPA–HQ–OPPT–2005-0049]

U.S. Environmental Protection Agency, Office of Pollution Prevention and Toxics 

April 2010 

 Pursuant to section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. § 601 et seq.), EPA has 

prepared this initial regulatory flexibility analysis for the “Lead; Clearance and Clearance Testing 

Requirements for the Renovation, Repair, and Painting Program” proposed rule. 

This rule addresses lead-based paint hazards created by renovation, repair, and painting activities 

that disturb lead-based paint in target housing and child-occupied facilities. “Target housing” is defined 

in TSCA § 401 as any housing constructed before 1978, except housing for the elderly or persons with 

disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-

bedroom dwelling. Under this rule, a child-occupied facility is a building, or a portion of a building, 

constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two 

different days within any week (Sunday through Saturday period), provided that each day’s visit lasts at 

least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at 

least 60 hours. Child-occupied facilities may be located in public or commercial buildings or in target 

housing. 

1. Need For the Rule

In the Federal Register issue of April 22, 2008, under the authority of sections 402(c)(3), 404, 

406, and 407 of the Toxic Substances Control Act (TSCA), EPA issued its final renovation, repair, and 

painting (RRP) program rule. The final RRP rule, codified in 40 CFR part 745, subparts E, L, and Q, 

addresses lead-based paint hazards created by renovation, repair, and painting activities that disturb 

painted surfaces in target housing and child-occupied facilities. The final RRP rule establishes 

requirements for training renovators, other renovation workers, and dust sampling technicians; for 

certifying renovators, dust sampling technicians, and renovation firms; for accrediting providers of 

renovation and dust sampling technician training; for renovation work practices; and for recordkeeping. 

In this rulemaking, EPA is further revising the TSCA § 402(c)(3) regulatory scheme to require 

dust wipe testing after many renovations covered by the RRP rule, and for a subset of these jobs to require 

the renovation firm to demonstrate, through dust wipe testing, that dust-lead levels remaining in the work 

area are below regulatory levels. The Agency believes it is in the best interest of the public to require 

dust wipe testing for many types of renovations (and to require renovation firms to achieve clearance for 

certain types of renovations). EPA expects two kinds of benefits to flow from the proposed dust wipe 

testing requirements. The first are the direct benefits of the information to the owners and occupants, the 

pure value of the information on dust lead levels remaining in the renovation work area. For building 

owners and occupants, this information is likely to improve their understanding and awareness of dustlead hazards. It will also greatly improve their ability to make further risk management decisions. This 

information is particularly critical where dust lead levels approach or exceed the regulatory hazard 

standards. The second benefit expected to be realized from the proposed dust wipe testing requirements 

stems from changed behavior on the part of renovation firms. EPA believes that dust wipe testing results 

will also provide valuable feedback to renovation firms on how well they are cleaning up after 

renovations. It is likely that the specific dust lead levels contained in dust wipe testing results will 

increase renovation firm cleaning efficiency. Renovation firms will be incentivized to lower the dust lead 

levels remaining after renovation jobs, even if the levels are at or near the regulatory standards. Because 

proper cleanup plays such a vital role in the minimization of dust lead hazards created by renovations, 

providing information on dust lead levels remaining after renovations to building owners and occupants 
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will serve as an incentive for firms to perform post-renovation cleaning efficiently and thoroughly, 

reducing the amount of dust lead left behind after RRP. 

The Agency concludes that the requirements of the proposed rule achieve the goal of minimizing 

exposure to lead-based paint hazards created during renovation, remodeling and painting activities, taking 

into account reliability, effectiveness, and safety. 

2. Legal basis and objectives for the rule. 

TSCA § 402(c)(2) directs EPA to study the extent to which persons engaged in renovation, repair, 

and painting activities are exposed to lead or create lead-based paint hazards regularly or occasionally. 

After concluding this study, TSCA § 402(c)(3) further directs EPA to revise its lead-based paint activities 

regulations under TSCA § 402(a) to apply to renovation or remodeling activities that create lead-based 

paint hazards. Because EPA’s study found that activities commonly performed during renovation and 

remodeling create lead-based paint hazards, EPA issued the final RRP rule in 2008. In issuing the final 

RRP rule, EPA revised the TSCA § 402(a) regulatory scheme to apply to individuals and firms engaged 

in renovation, repair, and painting activities. In this proposed rulemaking, EPA is revising the TSCA § 

402(c)(3) rule to require dust wipe testing after many renovations covered by the RRP rule, and for a 

subset of these jobs to require the renovation firm to demonstrate, through dust wipe testing, that dustlead levels remaining in the work area are below regulatory levels. 

A central objective of this proposed rule is to provide greater assurance that dust-lead hazards 

created by renovations are adequately cleaned up, primarily by requiring renovation firms to provide 

building owners and occupants with information on dust lead levels remaining in the work area after 

many renovation projects, but also by requiring renovation firms to demonstrate that they have achieved 

regulatory clearance levels after some of the dustiest renovations. 

3. Description and Number of Small Entities to Which the Rule Will Apply

 Small entities potentially affected by the rule may include, but are not limited to, entities in the 

following industries: 

 • Building construction (NAICS 236), e.g., single family housing construction, multi-family 

housing construction, residential remodelers. 

 • Specialty trade contractors (NAICS 238), e.g., plumbing, heating, and air-conditioning 

contractors, painting and wall covering contractors, electrical contractors, finish carpentry 

contractors, drywall and insulation contractors, siding contractors, tile and terrazzo contractors, 

glass and glazing contractors. 

 • Real estate (NAICS 531), e.g., lessors of residential buildings and dwellings, residential property 

managers. 

 • Child day care services (NAICS 624410). 

 • Elementary and secondary schools (NAICS 611110), e.g., elementary schools with kindergarten 

classrooms. 

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities 

likely to be affected by this action. Other types of entities could also be affected. 

 In determining the number of small businesses affected by the rule, the Agency applied U.S. 

Economic Census data to the SBA’s definition of small business. However, applying the U.S. Economic 
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Census data requires either under or overestimating the number of small businesses affected by the rule. 

For example, for many construction establishments, the SBA defines small businesses as having revenues 

of less than $14 million. With respect to those establishments, the U.S. Economic Census data groups all 

establishments with revenues of $10 million or more into one revenue bracket. On the one hand, using 

data for the entire industry would overestimate the number of small businesses affected by the rule and 

would defeat the purpose of estimating impacts on small business. It would also underestimate the rule’s 

impact on small businesses because the impacts would be calculated using the revenues of large 

businesses in addition to small businesses. On the other hand, applying the closest, albeit lower, revenue 

bracket would underestimate the number of small businesses affected by the rule while at the same time 

overestimating the impacts. Similar issues arose in estimating the fraction of property owners and 

managers that are small businesses. EPA has concluded that a substantial number of small businesses 

will be affected by the rule. Consequently, EPA has chosen to be more conservative in estimating the 

cost impacts of the rule by using the closest, albeit lower, revenue bracket for which Census data is 

available. For other sectors (nonprofits operating daycare centers or private schools), EPA assumed that 

all affected firms are small, which may overestimate the number of small entities affected by the rule. 

 The vast majority of entities in the industries affected by this rule are small. EPA estimates that 

the proposed rule will affect an average of over 203,000 small entities per year. 

4. Potential economic impacts on small entities. 

EPA evaluated two factors in its analysis of the rule’s requirements on small entities, the number 

of firms that would experience the impact, and the size of the impact. Average annual compliance costs as 

a percentage of average annual revenues were used to assess the potential average impacts of the rule on 

small businesses and small governments. This ratio is a good measure of entities’ ability to afford the 

costs attributable to a regulatory requirement, because comparing compliance costs to revenues provides a 

reasonable indication of the magnitude of the regulatory burden relative to a commonly available measure 

of economic activity. Where regulatory costs represent a small fraction of a typical entity’s revenues, the 

financial impacts of the regulation on such entities may be considered as not significant. For non-profit 

organizations, impacts were measured by comparing rule costs to annual expenditures. When expenditure 

data were not available, however, revenue information was used as a proxy for expenditures. It is 

appropriate to calculate the impact ratios using annualized costs, because these costs are more 

representative of the continuing costs entities face to comply with the rule. Impacts are calculated 

assuming that all of the costs are absorbed by the firm and none of them are passed on to customers. 

The cost of the clearance and clearance testing requirements to a typical small entity could be 

$500 to $1,900 a year, depending on the industry sector, with an average of $1,200. This represents 0.4 

percent to 1.1 percent of revenues depending on the industry sector. Overall, as many as 203,000 small 

businesses could be affected by the proposed rule, with average impacts of up to 0.5 percent of revenues. 

In addition, approximately 100 small governments would incur costs of about 0.004 percent of revenues, 

and about 200 small non-profits are affected a year, with costs of 0.1 percent of revenues. Details of these 

estimates are provided in the economic analysis for the rulemaking (“Economic Analysis of the Proposed 

Dust Testing and Clearance Amendments to the TSCA Lead Renovation, Repair, and Painting Program 

for Target Housing and Child-Occupied Facilities”), which is available in the docket for this rule. 

Some of the small entities subject to the rule have employees while others are non-employers. 

The non-employers typically perform fewer jobs than firms with employees, and thus have lower work 

practice compliance costs. However, they also have lower average revenues than entities with employees, 

so their impacts (measured as costs divided by revenues) can be higher. Impact estimates for nonemployers should be interpreted with caution, as some non-employers may have issues related to 

understatement of income, which would tend to exaggerate the average impact ratio for this class of small 

entities. There are 151,000 non-employer renovation contractors estimated to be affected by the proposed 
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rule. The average cost to these contractors is estimated to be about $700 apiece. This represents 0.7 

percent to 2.6 percent of reported revenues, depending on the industry sector. 

5. Relevant Federal rules. 

The requirements in this rulemaking will fit within an existing framework of other Federal 

regulations that address lead-based paint. The Lead Disclosure Rule (40 CFR part 745, subpart F), which 

implements Section 1018 of the Residential Lead-based Paint Hazard Reduction Act of 1992, requires the 

disclosure of known lead-based paint and lead-based paint hazards as well as general information on the 

subject to purchasers and tenants of target housing. Similarly, the Pre-Renovation Education Rule (40 

CFR 745.85), which implements Section 406 of TSCA, requires renovators to distribute a lead hazard 

information pamphlet to owners and occupants before conducting a renovation in target housing and 

child-occupied facilities. The proposed rule’s requirement that renovators provide owners and occupants 

with a dust wipe testing report complements these existing information transfer and education 

requirements. 

6. Projected Compliance Requirements, Classes of Small Entities Subject to the Compliance 

Requirements, and Professional Skills Needed to Comply

A. Projected Compliance Requirements

The proposed rule would require dust wipe testing after many renovations covered by the RRP 

rule. For a subset of jobs involving demolition or removal of plaster through destructive means or the 

disturbance of paint using machines designed to remove paint through high-speed operation, such as 

power sanders or abrasive blasters, this proposal would also require the renovation firm to demonstrate, 

through dust wipe testing, that dust-lead levels remaining in the work area are below regulatory levels. 

B. Classes of Small Entities Subject to the Compliance Requirements

 Small entities include small businesses, small organizations, and small governmental 

jurisdictions. The small entities that are potentially directly regulated by this rule include: small 

businesses (including contractors and property owners and managers); small nonprofits (certain daycare 

centers and private schools); and small governments (school districts). 

C. Professional Skills Needed to Comply

Under the lead renovation, repair, and painting program requirements, renovators and dust 

sampling technicians working in target housing and child-occupied facilities have to take courses to learn 

the proper techniques for accomplishing the tasks (including dust sampling, preparing a report with the 

results, and performing specialized cleaning) they will perform during renovations. These courses are 

intended to provide them with the information they would need to comply with the rule based on the 

skills they already have. 
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7. Minimization of Economic Impacts on Small Entities Consistent with Statutory Objectives, 

and Consideration of Alternatives

A. Small Business Advocacy Review Panel 

EPA has been concerned with potential small entity impacts since the earliest stages of planning 

for the RRP program under § 402(c)(3) of TSCA. EPA conducted outreach to small entities and, pursuant 

to § 609 of the RFA, convened a Small Business Advocacy Review Panel in 1999 to obtain advice and 

recommendations of representatives of the regulated small entities. EPA identified eight key elements of a 

potential renovation and remodeling regulation for the Panel’s consideration, including interior clearance, 

or procedures designed to ensure that work areas have been properly cleaned after renovations. 

Four options for interior clearance requirements were presented to the Panel: (1) Clearance 

through dust wipe testing after all renovations; (2) Clearance through dust wipe testing after specific jobs 

involving large-scale surface preparation, demolition, or any work practice prohibited by the abatement 

rules, with clearance through visual inspection of the work area for all other jobs; (3) Clearance through 

visual inspection for all jobs; and (4) no clearance requirements. After reviewing the available 

information, including studies, the Panel could not conclude that a thorough professional clean-up or a 

visual inspection would be an adequate substitute for dust wipe testing. The Panel recommended that 

EPA take comment on various options for interior clearance, including the options presented to the Panel. 

Of the eight small entity representatives (SERs) on the Panel, three SERs opposed and five SERs 

supported interior clearance through dust wipe testing. SERs that opposed dust wipe testing mentioned 

the cost and time commitments involved, contractor liability, and the potential difficulty in achieving 

clearance standards. SERs that supported dust wipe testing thought that it was a reasonable regulatory 

approach and noted that the industry needs an objective way to evaluate whether a specific job is likely to 

generate a lead-dust hazard and an objective method for qualitatively evaluating dust clean-up techniques. 

 Throughout the development of the RRP program, EPA has made a concerted effort to keep the 

associated costs and burdens as low as possible, while still providing adequate protection against leadbased paint hazards created by renovation activities. EPA believes that given the highly-variable nature 

of the regulated community, the lead-safe work practices required by this rule should be simple to 

understand and easy to use. EPA is very aware that this regulation will apply to a whole range of 

individuals from day laborers to property maintenance staff to master craftsmen performing a whole range 

of activities from simple drywall repair to window replacement to complete kitchen and bath renovations 

to building additions and everything in between. Lead-safe work practices that are easy and practical to 

use are more likely to be followed by all of the persons who perform renovations, and, therefore, more 

likely to be reliable and effective in minimizing exposure to lead-based paint hazards created by 

renovation activities. In addition to the statutory factors of reliability, safety, and effectiveness, these 

considerations included the compliance costs to be imposed by the rule, both in general and particularly 

on small entities, and the benefits to be obtained. 

 With respect to clearance issues in the final RRP rule, EPA gave significant weight to the cost, 

timing, and liability concerns expressed by commenters. In balancing the various considerations in the 

proposed rule, EPA has preliminarily concluded that, for certain jobs, the additional benefits of dust wipe 

testing, and in some cases clearance, warrant imposing these additional requirements. EPA acknowledges 

that the benefits of dust wipe testing identified in Section 1 above would apply for most renovation jobs, 

but EPA is not proposing to require dust wipe testing after all renovation jobs covered by the RRP rule. 

In order to establish a program that is practical for all renovation activities and considerate of the burden 

imposed on small businesses, EPA has tried in the proposed rule to maintain some proportionality 

between the complexity and cost of the proposed requirements on one hand, and the size and cost of the 

renovation job on the other. Likewise, EPA is only proposing to require clearance after jobs that EPA has 

preliminarily determined to be among the dustiest of renovations. 
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Details on the Panel and its recommendations are provided in the Panel Report, which is included 

in the docket for this rulemaking. Additional information on how EPA implemented the Panel’s 

recommendations in the development of the RRP program is available in Unit VIII.C. of the preamble to 

the 2006 Proposal (71 FR 1588, January 10, 2006) and in Unit V.C. of the preamble to the 2008 Final 

Rule (73 FR 21692, April 22, 2008), which are also included in the docket for the rulemaking. 

B. Alternatives considered 

EPA considered alternatives to today’s proposed rule that could affect the economic impacts of 

the rule on small entities. These alternatives would have applied to both small and large entities, but given 

the number of small entities in the affected industries, these alternatives would primarily affect small 

entities. Following is a brief description of significant alternatives that would have minimized the 

impacts of the rule on small entities, including EPA’s reasons for rejecting them. 

 i. Higher thresholds. EPA considered an option under which the size thresholds for determining 

whether renovation jobs would need to perform dust wipe testing or achieve clearance would be higher 

than those in the proposed rule. By reducing the number of renovations where dust wipe testing or 

clearance are required, this option would reduce the costs of the rule and thus the estimated small entity 

impacts. However, higher thresholds would result in more jobs where occupants do not have information 

on the dust lead levels they are exposed to, or where they are exposed to dust lead levels above the hazard 

standard. EPA believes that the proposed rule provides the best balance between the benefits of the rule 

(the value of information from dust wipe testing and the benefits of reduced exposure to lead dust from 

achieving clearance) compared to the costs (and resulting small business impacts) of dust wipe testing, recleaning, and the other requirements of the proposed rule. Therefore, EPA believes that an option with 

higher thresholds is not consistent with the stated objectives of the proposed rule. 

ii. Dust Testing Only. EPA considered an option that would require dust wipe testing but not 

clearance for any of these renovation events. EPA remains concerned that renovations that disturb paint 

using machines designed to remove lead-based paint through high speed operation (such as power sanders 

or abrasive blasting) can create large amounts of difficult-to-clean dust, creating the possibility that dust 

lead levels may substantially exceed the clearance standards even after cleaning verification. The same is 

true for the demolition or removal through destructive means of plaster and lath walls, ceilings or other 

building components with lead-based paint. Therefore, EPA believes that this option is not consistent 

with the stated objectives of the proposed rule. 

8. Small Entity Compliance Guide 

 As required by § 212 of SBREFA, EPA issued a Small Entity Compliance Guide in December 

2008 to help small entities comply with the 2008 RRP rule. The Guide is available at: 

http://www.epa.gov/lead/pubs/sbcomplianceguide.pdf or from the National Lead Information Center by 

calling 1(800) 424-LEAD [5323]. EPA will revise the Guide, as necessary, to reflect this rulemaking 

activity.