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# Revision Submitted under EO 12866 – 04/14/2010

U.S. Environmental Protection Agency

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

Docket ID #: EPA-HQ-OPPT-2005-0049

Response to Public Comments

February on the Proposed Rule of October 28, 2009

April 20102 Opt-out Provision

Comment: Several commenters supported removing th e opt-out provision. One commenter believes it is important to protect workers and ad jacent 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.

Response : 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.

Comment: One commenter opposed to removing the opt- out provision stated that removing the opt-out provision would create more opportunity for non-compliance.

Response : 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 provision is likely to enhance compliance.3 Comment: One commenter believes that removing the opt-out provision will result in impediments to the implementation of other fe deral programs such at the Department of Energy’s Weatherization Assistance Program becau se of the additional costs associated of complying with the rule.

Response : The Agency disagrees with this comment . EPA does not believe that the costs

associated with the rule such as certifi cation, equipment and cl eaning costs are overly burdensome. Thus, EPA believes that this rule will not be an impediment to the implementation of federal programs.

Comment: One commenter stated that professional re novators using lead-safe work practices reduce the dust lead loading le vels 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 creat e additional health ha zards. This commenter

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

Response : These comments go to issues beyond the sc ope of this rulemaking. EPA explicitly did not reopen issues related to the work practices. EPA th erefore considers this comment outside the scope of this rulemaking. Nonethel ess, 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 th at renovation, repair, and paint preparation activities produce large quanti ties of lead dust that cr eate dust-lead hazards. The Dust Study showed that the largest decr eases in dust levels were observed in the experiments where the rule’s practices of c ontainment, specialized cleaning, and cleaning verification were all used instead of typica l work practices commonl y used by professional renovators. The Dust Study indicate d that if the prohibited and re stricted practices are avoided, the suite of work practices as a whole are eff ective at addressing the lead-paint dust that is generated during renov ation activities.

Comment: 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.

Response : EPA understands that the rule will not prevent dust hazards created by DIY renovation. However, EPA interprets the stat utory directive to re gulate 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 pe rformed by homeowners

in their own homes.

Comment: 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 ch ildren under age 6. Considering these factors, the commenter

believes it is more cost effective to keep the opt-out in place.4 Response : 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.

Comment: Several commenters suggested that re moving the opt-out provision would be arbitrary and capricious because EPA did not pr ovide new evidence or sufficient reasons to support a decision to change c ourse 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 th e 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).

Response : 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 established5 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, 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 policy6 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, 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.

Comment: 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.

Response : 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.7 Comment: 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.

Response : These commenters raised this issue as pa rt 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 c ontext 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 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.

Comment: One commenter suggests that EPA is mistak en that removing the opt-out promotes, to a greater extent, the statutory directive to promulgate regula tions covering renovation activities in target housing. To the contrary, the commenter assert s that EPA is only authorized to regulate renovation activ ities 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 ac tivities in buildings—such as public or commercial buildings

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

Response : The commenter is mistaken. EPA has dete rmined that renovation activities that disturb lead-based paint create lead-based pa int hazards in target housing and child-occupied facilities. Specifically, EPA has set hazard standa rds for paint-lead hazards, dust-lead hazards, and soil-lead hazards. In target housing and child- occupied facilities, dust that equals or exceeds the mass-per-area concentration of lead of 40 μg/ft 2 on floors or 250 μg/ft 2 on window sills is a lead-based paint hazard. Therefor e, EPA is clearly authorized to regulate renovati on 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 the8 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.

Comment: One commenter is concerned that less s ophisticated property owners with limited English proficiency may not fully understand the implications of the opt-out. Another commenter believes that the opt-out will cau se confusion among contractors who must understand various requirements.

Response : 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

Comment: One commenter claims that the Criteria Do cument that EPA cited in the preamble to the proposed rule is not applicable to le ad-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.

Response : 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 lead9 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.

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

Response : EPA conducted a limited analysis of some of the benefits of the ru le 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 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.

Comment: One commenter states that EPA estimate of the benefits of the rule are speculative

at best.

Response : 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.

Comment: 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 and property managers not doing need renovations or doing the work themselves. Hence As a result

, more renovations will be performed without foll owing the RRP work practices. One commenter

claims that small businesses do not have the sta ff to comply with the regulations and will be

forced out of business. One commenter claimed that the increased cost s 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.

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

same comments were addresse d 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 excep tion of those using vertical containment). EPA does not

believe that this cost incr ease will lead to many homeowners to do their own renovations , not do them at all, or put undue financial burden of people who hire renovation firms.

Comment: One commenter believes that EPA shoul d consider three of its upcoming rulemakings together so the public can better as sess the cumulative impact s of the rules. The commenter states that by separating the acti ons into three rules, EPA is avoiding the accumulation of economic impacts.10 Response : 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 fe w years. Developing the record for some will take longer than for others. That is not a reason, however, to dela y action on this rule. Moreover, the public had or will have the oppor tunity to comment on all of EPA’s rules regarding renovations that the co mmenter mentions. The Agency is planning to develop an economic assessment of each rule that will help co mmenters understand the impacts of the rules. Therefore, EPA believes that commenters will be able to understand the cumulative impact of

these rules.

Comment: One commenter believes removing the opt-out is very costly without equivalent

benefit and will stifle recovery in the already str uggling remodeling industry.

Response : EPA disagrees with this comment. The Agency does not believe removing the optout is overly costly for firms. EPA estimated th at the rule’s work pract ice 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. 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.

Comment: One commenter stated that costs of renova tions will significantly increase because some states are requiring that houses must have an inspectio n performed before renovations begin.

Response : While authorized states may have differe nt requirements than EPA, the RRP rule does not require testing by a certifie d inspector or risk assessor. Lead-based paint is assumed to be present unless a report by a cer tified inspector or risk assess or says that the components undergoing renovation are free of lead-based paint. If it chooses, the firm may have a certified renovator test the components usi ng an EPA recognized text kit. However, renovation firms are not required to test painted surfaces before work be gins or hire an inspector or risk assessor to do

so.

Comment: One commenter is opposed to the rule becau se it will require costly testing before

and after each renovation which will lead to expensive remediation and cleanup.11 Response : The RRP rule does not require firms to test for lead contamination before or after renovations. Instead, firms are required to perfor m cleaning verification af ter renovations. The cleaning verification procedure do not include dust sampling.

Comment: Some commenters stated that the rule will be overly expensive for small jobs such as installing a switch for a ceiling fan.

Response : EPA would like to clarify that some sm all jobs are not considered renovations under the RRP rule. Specifically, minor maintenance activities as defined in 40 CFR 745.83 are not regulated by the rule. Minor repair and maintenance activities are activities, including minor heating, ventilation or air conditioning work, electr ical work, and plumbing, that disrupt 6 square feet or less of painted surface per room for interior activities or 20 square feet or less of painted

surface for exterior activities where none of th e work practices prohibited or restricted by §745.85(a)(3) are used and where the work does not involve window replacement or demolition of painted surface areas. When removing pa inted components, or portions of painted components, the entire surface area removed is the amount of painted surface disturbed. Jobs, other than emergency renovations, performed in the same room within the same 30 days must be considered the same job for the purpose of dete rmining whether the job is a minor repair and maintenance activity.

Small Business Advocacy Review Panel

Comment: Several commenters assert that EPA ha s 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 issui ng this proposed rulemaking.

Response : EPA disagrees with these comments. C ontrary to the asse rtions 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 has12 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

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

Response : The Agency agrees that worker exposure to lead and quantities of lead in

stormwater runoff would increase when th e RRP work practices are not followed.

Comment: One commenter stated that he hasn’t s een 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.

Response : 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.

Alternatives to the Opt-out Provision

Comment: One commenter suggested an alternative ap proach 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 w ould remove the opt-out in pre-1960 housing then remove the opt-out in pre-1978 housing one year la ter. These commenters believe that this approach would cause confusion among consumer s and would lead to ongoing exposure.13 Response : The Agency agrees that a staged implemen tation 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 increase d 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.

Comment: EPA received several comments on the al ternative to the opt-out provision discussed in the preamble that would require the RRP work practi ces on exterior renovations but not interior. One commenter supports and altern ative 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 fo r work done on exteriors. Another commenter

states that exterior renovations in rural areas or homes on large lo ts do not have the potential to contaminate neighboring properties, although they believe this al ternative is of limited value

because most renovations involve both interiors and exteriors. One commenter who opposed the alternative stated that this option could expos e visiting children and the families of future purchasers and renters to dangerous levels of l eaded dust. A second commenter opposed to this

alternative states that exteriors ar e 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 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 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.

Response : 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 children14 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

Comment: One commenter states that the post-re novation information should be given to residents at the same time they receive informa tion on test kits used for that renovation. The

commenter further states that th e post-renovation information is not a record or repo rt subject to

the Disclosure Rule. Another commenter claims that th e post-renovation information should be subject to the Disclosure Rule.

Response : The Agency agrees with this comment and that post-renovation information must

include the test kit information. EPA 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. The

results of the test kits would al so be subject to disclosure under the Disclosure Rule. However, the Agency also agrees that, as a general matter, other information provide d on the checklist will not necessarily be subject to the Disclosure Rule.

Comment: 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.15 Response : EPA disagrees with this comment. Si milar to the pre-renovation information distribution, EPA believes it is a ppropriate to require firms to distribute the post-renovation information to parents of children at child-occupi ed facilities. Firms will create the records and give a copy of them to the owners of the build ing. Accordingly, EPA will require firms to allow interested parents or guardians of children fre quenting the child-occupied facility to review a copy of the records obtain a copy fr om the renovation firm at no cost to the parents or guardians.

Comment: 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.

Response : 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.

Comment: One commenter states that the info rmation signs cont aining post-renovation information should specify the general nature an d locations of the renovation and the completion

date.

Response : EPA would like to point out that pre-renovation education requirements already require the firm to post information in common area explaining the genera l nature and locations of the planned renovation ac tivities. Accordingly, the Agency does not believe it is necessary to require this information in the post-renovation information distribution because it would be duplicative.

Comment: One commenter states that a lack of pos t-renovation notice violates section 407 of TSCA that requires certain recordkeeping and reporting. Becaus e there is no realistic threat of surprise inspections of renovati ons, the post-renovation notificati on requirements are essential to comply with section 407. The commenter further st ates that current requirements are insufficient to verify that the work practices were followed.

Response : 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.16 Comment: One commenter stated that EPA should cl arify what it means by “reports” and “records” under 40 CFR 745.86(b)(1).

Response : The reports or records that EPA refe rred to in 40 CFR 745.86(b)(1) are reports prepared by a certified inspector or certified risk assessor (certified pursuant to either Federal regulations at § 745.226 or an EPA-authorized State or Tr ibal certification pr ogram) and records prepared by a certified re novator after using EPA-r ecognized test kits.

Comment: One commenter states that EPA should clar ify that a dust testing report must be

written and what information should be in the report.

Response : EPA developed model training materials fo r the dust sampling technician course.

The course includes instru ction on report preparation.

Comment: One commenter states that there is no re quirement for the dust sampling technician, inspector or risk assessor to provide a dust sa mpling report to the renovation firm within a specified time frame. The commenter asks how the renovation firm can comply with the requirement to deliver the dust sampling report to the owner or occupant within 30 days of the renovation when the dust sampling firm does not know when the project is considered complete.

Response : EPA believes that renovation firm will be ab le to deliver the dust sampling report in a timely manner by either havi ng its own employee conduct the dust sampling or making the timeframe clear in its agreement with th e firm that performs the dust sampling.

Comment: One commenter suggests that the post-renova tion information be distributed when

the firm delivers the final invoice and receives final payment for the renovation. The commenter states that without this change the firm would have to genera te a lot of documentation without being properly compensated.

Response : EPA disagrees with this comment. The regulations require th at the post-renovation information be delivered to the owner or occupa nt when the final invoice for the renovation is delivered or within 30 days of the completion of the renovation, whiche ver is earlier. The purpose of this requirement is to ensure that the information is delivered in a timely fashion. The burden on firms will be minimal, since the renovat or will typically be delivering the checklist along with an invoice or othe r job-relate paperwork. Th e post-renovation information requirement would only result in renovation firm s incurring the incremental labor costs of photocopying and distributing the checklist to the owners and/or occupants. EPA assumed that photocopying and distributing the checklist woul d 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 $1.58.17 Burden

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

Response : Under the requirements of the RRP rule, re novation 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 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

Comment: 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 e ffective date of the ru le 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.

Response : The Agency decided not to delay the effectiv e date of this final rule. EPA agrees that delaying the effective date will add comple xity 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 p ublication in the Federal Register. EP A believes that it is important to eliminate the opt-out exemption without delay in order to avoid further l ead exposures in housing previously eligible for the opt-out. Further, although improve d 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 av ailable test kits.

Training Capacity

Comment: One commenter disagrees with EPA’s a ssertion that there is enough training capacity to train all of the renovators that EPA has estimat ed 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.

Response : 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,18 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

Comment: One commenter asserts that renovation fi rm certifications should be extended similarly to the renovator certification. This commenter believes that encouraging firms to become certified earlier will help prevent a large number of applicants at the last minute, overwhelming the Agency.

Response : This issue is outside the scope of the pr oposal. Nevertheless, the Agency disagrees with the commenter. Processing a firm app lication 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 ce rtification date for firm certifications.

Principal Instructor Requirement

Comment: 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.

Response : 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.

Comment: 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.

Response : EPA encourages training providers to include local require ments in the 8-hour renovator training as well as the 16-hour. The Ag ency expects 8-hour courses to include these requirements similar to the 16-hour courses.

Enforcement

Comment: 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.19 Response : 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.

State Authorization

Comment: Under the proposal, the Agency proposed to gi ve States and Indian Tribes one year to demonstrate that their programs include any new requirements the EPA may promulgate, such as the requirements in this final rule. One comm enter stated that EPA should have required State and Tribal programs to demonstrate that “actions have been taken” to meet new requirements of the RRP rule instead of requiring them to demonstrate that the program meets the new requirements.

Response : EPA disagrees with this comment. The Agency believes that States and Indian Tribes must demonstrate that they meet the new requirements instead of indicating that they have only begun the process of updating their program. The purpose of this requirement is so EPA

can ensure that States and Indian Tribes meet new RRP program requirements within a specified time frame which, under this final rule, is two y ears. The commenter’s suggestion implies that States and Indian Tribes only ha ve to begin the process of cha nging their programs by a specified

date. This would allow states to take much l onger than the time specified in the regulations.

Cost Estimates

Comment: Commenters claim that EPA underestimated the cost of the rule. Commenters state that EPA’s estimated that the rule will cost $35 per job and that this gr ossly underestimates the

cost. Commenters made various claims about th e cost of the rule per job, ranging from $296 to $10,815.

Response:

EPA disagrees that it has underestimated the co st of the rule. EPA’s economic analysis estimated the costs for activities and equipment that are required to comply with the rule, including:

 Firm certification;

 Certified renovator training, include the cost of tuition, the value of time spent in the training class (i.e., lost wages), mileage cost for travel to and from the training, and the purchase of meals while attending training;

 Renovator and worker time sp ent in on-the-job training;

 Purchasing HEPA vacuums, HEPA shr ouded power tools, and HEPA filters;20  Additional labor required to use low temperat ure heat guns instead of high temperature heat guns or torching of paint;

 Time and materials costs for:

o Installing signs;

o Covering floors and walls with plastic sheeting for interior jobs;

o Covering the ground with plastic for exteri or jobs (including erecting scaffolding for some jobs);

o Covering doors with plastic;

o Installing tack pads and wear ing disposable shoe covers;

o Removing and bagging plasti c sheeting after the job;

o HEPA vacuuming the work area and workers’ clothes;

o Mopping floors and wiping other areas with a wet cloth;

o Performing cleaning verification; and

o Recleaning areas that fail cleaning verification, and re peating cleaning verification;

 Time spent becoming familiar with the requirements of the rule;

 Time spent filling out the firm certification form;

 Time spent for paperwork and keeping record s related to compliance with the rule; and

 Time and materials providing the lead pam phlet for work in public or commercial building COFs

EPA used a commercial data source (the Mean s CostWorks Repair & Remodeling Cost Data by R.S. Means) to estimate the labor requirement s for the rule’s work practice requirements. Means CostWorks is designed to help contractor s estimate the cost of projects by providing the

unit labor and material costs of different re novation activities. EPA estimated the labor requirements by adjusting R.S. Means data for an asbestos abatement project. The containment and cleaning requirements for asbestos abatement are more stringent than those in the LRRP rule. For example, the containment in an asbest os abatement project must maintain negative air pressure in the work area and contain water used to mist or wet the asbestos material. As a result, EPA assumed that installing containment fo r an LRRP project woul d take 75% of the time

than R.S. Means indicated is needed to instal l containment for an asbestos abatement project (which is probably an overestimate of the time needed for RRP compliance).

EPA’s estimates do not include costs for activiti es and equipment that are not required to comply with the rule. For example, EPA’s estim ates do not include the cost of HEPA shrouded equipment for all power tools that renovators use, because the rule does not require this. The rule (at 40 CFR 745.85(a)(3)) requires the use of HEPA exhaust controls for machines that remove lead-based paint through high speed ope ration such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting. The rule does not require HEPA exhaust controls for power tools such as reciprocating saws, circul ar saws, drills, and other similar tools if they are not being used for the purpose of removing lead-based paint. While EPA recommends the21 use of HEPA attachments whenever power tools ar e used on lead-based paint, this is only a general recommendation and is not part of the rule . EPA’s cost estimates include the cost of HEPA compatible equipment required by the rule , but does not include the cost of equipment such as reciprocating saws and circ ular saws not required by the rule.

Similarly, EPA’s estimates do not include the cost for personal protective equipment such as disposable coveralls, Tyvek suits , respirators and masks (or the co st of getting workers medically fitted for a respirator or mask), eye wear, painte rs’ hats, and gloves because they are not required by the rule. While EPA recommends the use of personal protective equipment when working with lead-based paint, it is not required by EPA under the lead RRP rule. Thus, personnel protective equipment is not a cost of the rule.

EPA’s estimates do not include the cost of pr oviding EPA’s lead pamphlet to homeowners. The pre-renovation lead informa tion rule (published on June 1, 1998) required renovators to distribute a lead hazard information pamphl et to housing owners and occupants before conducting renovations in pre-1978 housing. Theref ore, providing a pamphlet to owners and occupants in target housing is not a cost of this rule. (The 200 8 rule does require renovators to provide the pamphlet to child-o ccupied facilities, so that co st was accounted for in EPA’s estimates.)

Nor do EPA’s estimates include the cost of certi fied renovator training fo r all workers, or of having a certified renovator on the job site at all times, because the rule does not require either of these. A certified renovator must be physically pr esent at the work certain times (including when the signs are posted, while the work area containm ent is being established, and while the work area cleaning is performed); must perform the po st-renovation cleaning ve rification; and must regularly direct the work being performed by uncer tified persons. But the certified renovator is not required to be physically pres ent at the work site at all tim es. (When a certified renovator is not physically present at the work site, the uncer tified workers must be able to contact the renovator immediately by telephone or other mechanism.) Because the rule does not require a certified renovator to perform all renovation acti vities, EPA assumes that in firms with multiple workers, only some of them will become certif ied renovators. EPA does not assume that all

workers will become certified renovators.

EPA’s estimates for on-the-job training (OJT) do not assume extensive training for every worker for every job. OJT is only required for workers who are not certif ied renovators. The OJT must cover the work practices required by the rule that the worker will be responsible for performing. These practices are easily taught , and workers who have received OJT on an element of the rule’s requirements do not need to be retrained on those same requirements for every job. Extensive training for every employee (including certified reno vators) at every job

site is not a cost of the rule.

Contrary to what the commenter’s seem to a ssume, EPA did not estimate the cost of the rule by multiplying the number of jobs covered by the rule by $35 per job. Instead, EPA created a methodology to account for a wide variety of re novation types, sizes, and circumstances. For example, to analyze work practice costs in ta rget housing, EPA collapsed dozens of different types of renovations into 17 categories of renov ation events; estimated the number of renovation22 events falling into one or more combinations of the 17 renovation categorie s; estimated the size (in terms of square footage) for up to 3 sizes (small, medium, and large) for each of these renovation events in up to 3 different dwelling type s (single family owner, single family rental, and multi-family rental); combined these with the different combinations of events types, resulting in thousands of combinations of renovation event categories, job sizes, and dwelling types; estimated the number of annual renovati on events for each type and size; estimated the probability of lead-based paint for 4 different bu ilding vintages for each of these 17 categories of renovation events; estimated the cost of complyi ng with the different components of the rule’s requirements, typically in terms of the cost per squa re foot or the cost per event; used survey data on renovators’ baseline practices to determine the in cremental cost of the rule’s work practices required by the rule, and combined them into a to tal cost estimate for the work practices in residences. EPA separately estimated to costs for training and certification, and the costs for the information provision requirements in the rule. EPA then repeated this exercise for childoccupied facilities in public or commercial buildings.

On the basis of this analysis, EPA estimat ed that the 2008 LRRP rule would affect 11.4 million jobs per year. This represents the numbe r of renovation jobs in target housing and childoccupied facilities that disturb a painted surf ace but do not qualify for the minor maintenance exception, whether or not the paint is lead-based pain t. EPA also estimated that the social cost of the rule will be $758 million in the first year , $407 million in the second year, and $404 million per year on an annualized basis.

The cost of $35 per job does not appear anyw here in EPA’s 512 page economic analysis of the 2008 lead rule. The $35 figure was genera ted after the economic analysis was completed, in order to communicate a simplified version of the results. To derive th e total average cost per job, EPA divided the total cost of the rule (including the cost to test for lead-based paint) by the number of renovation jobs (includi ng jobs that test negative for lead-based paint). Dividing the $404 million cost per year by the 11.4 million jobs per year yields an average of $35 per job.

The average of $35 per job does not represent the entire cost of the rule’s work practices. Instead, it is the additional cost of the rule, beyond what ren ovators are already doing. Most renovators were doing some cont ainment and cleaning before the rule, and EPA’s estimates reflect only the extra labor and materials needed to comply with the rule.

The $35 does not represent the in itial start-up costs of the rule. EPA estimated that the social cost of the rule will be $758 million in the first year (when the largest number of

renovators become trained and certif ied), nearly twice as much as the long run social cost of $404 million per year. Thus, even as an aver age incremental social cost, the $35 figure represents the long run cost and not the start-up cost.

Nor does the $35 does not represent the cost of working only on those jobs that test positive for lead-based paint (sometimes referred to in industry terms as being “hot”). The $35 represents the average cost for all regulated jobs in target housing and child-occupied facilities – whether or not lead-based paint is disturbed – b ecause all of these jobs incur costs to test for lead-based paint. Of the 11.4 million jobs per year covered by the 2008 LRRP rule, 7 million are estimated to test negative for lead-based paint (and thus only incur the cost for testing the paint).23 The average cost per job for the “hot” jobs that disturb lead-based paint would be higher than $35, because the $35 figure includes jobs where the only cost is testing for lead-based paint.

EPA’s economic analysis (and thus the $35 figur e that was derived from it) estimates the

average incremental social cost per job of compliance with the rule (work practi ces, training, and certification) for all jobs above the minor maintena nce size threshold. It includes jobs with leadbased paint (LBP) and those without LBP (where the paint is tested for the presence of lead, but other work practice costs are not incurred). EPA’ s estimate of the incremental cost of complying with the rule containment, cleaning and cleani ng verification requirements (i.e., the additional cost compared to typical baseline cleaning a nd containment practices) ranges from $8 to $167 per job, not including the additional costs for trai ning and certification, te st kits, and vertical containment (where necessary). EPA estimates that a renovator who didn’t do any cleaning or containment in the baseline might have costs of $35 to $400 for containment, cleaning, and verification, plus the costs for tr aining, certification, and test kits (and vertical containment, if necessary).

The incremental cost is the increase in costs attributable to compliance with the rule, above and beyond anything that reno vators were already doing befo re the rule took effect. In developing the cost estimate, EPA used informa tion from a telephone survey of renovators to estimate the extent to which each of the work pr actices required by the rule was used in the baseline (i.e., without the rule in place). The in cremental cost of the rule is the additional cost borne by renovators, above and beyond what they were already doing. For example, based on the survey EPA calculated that without the rule , contractors kept all windows and doors in the work area closed or covered with plastic sheeting in 76% of jobs, and covered the floor within the work area with taped down plastic sheeting in 77% of jobs (although 63% of them reused the plastic from job to job). Sim ilarly, EPA calculated that contract ors vacuumed floors in the work area and wiped all smooth surfaces with a damp cl oth in 81% of jobs (although only 38% used a HEPA vacuum).

Therefore, EPA estimated that the rule only creates incremental costs for both labor and materials for using plastic sheeting on floors fo r the 23% of jobs (100% - 77%) where renovators reported they were not using plastic before th e rule. EPA estimated that the rule creates incremental materials costs for plastic sheeting on floors in 49% of jobs (77% x 63%) where renovators reported they were usi ng plastic before the rule but were not reusing it. And EPA

estimated that the rule does not create costs for using plastic on floors for the 28% of jobs (77% x (100% - 63%)) where renovators reported they were already using disposable plastic before the

rule.

Similarly, EPA estimated that the rule creates incremental labor, equipment, and materials costs for HEPA vacuuming floors only for the 19% of jobs where renovators reported they did not vacuum without the rule in place. EPA estimated that the rule creates equipment and materials costs (for HEPA vacuums and filters) for the 50% of jobs (81% x (100% - 38%) where renovators reported they vacuumed floors w ithout a HEPA vacuum in the baseline. And

EPA estimated that the rule does not create costs for the 31% of jobs (81% x 38%) where renovators reported that they used a HEPA vacuum on floors in the baseline.24 A renovator who didn’t do any containment or cleaning in the baseline might incur work practice costs of up to seve ral hundred dollars for contai nment, cleaning, and cleaning verification for a large job (with lower costs fo r a small job), plus the costs for training, certification, and test kits. However, EPA belie ves that many contractors did some containment and cleaning before the rule was in place. Indeed, EPA received comments from the renovation industry on the original LRRP pr oposed rule claiming that customers demanded containment and cleaning, and that in some cases renovators left a job site cleane r than they found it. The only way they could do so was by using some cont ainment and cleaning, although this baseline activity may have been insufficient to remove all lead hazards.

It is inappropriate to claim that all of th e containment and cleaning costs that a renovator incurs on a job are due to the rule ’s requirements. It is only a ppropriate to assign the incremental costs beyond the baseline. Based on the data an d analysis in the economic analysis for the 2008 LRRP rule, EPA believes that its cost estimate s appropriately reflects the average incremental costs of the rule, when considering all jobs subject to the rule.

Given the variation in costs across the hundreds of thousands of firms and millions of jobs affected by the LRRP program, the firms likely to submit public comments are those who feel that their costs will exceed what they think are EPA’s estimates. Firms who feel that EPA’s estimates are reasonable are unlikely to write in to state this. Thus, the public comments are unlikely to represent an unbiased selection of firms.

Many of the commenters used a template that was circulated in the remodeling industry to develop the cost claims in their comments. Th is template was accompanied by what purports to be a summary of EPA’s rule on remodeling and renovation. However, as described below, many of the statements in the document are inaccurate, or fail to differentiate between work practices that are required under EPA’s RRP program, and work practices that EPA recommends but does not require. EPA recommends th at renovators voluntarily adopt so me of these work practices in order to further limit exposure to lead dust generated during renovati on activities, but EPA

leaves this decision to the discre tion of the certified renovator. While the work practices outlined in the industry summary document would cost more than EPA has estimated, these costs are not

attributable to EPA’s RRP rule, since renovators are not required to adopt them.

The differences between the rule overview that was circulated in the industry and the actual requirements of EPA’s rule are summarized below. Many of them are also discussed in more

detail elsewhere in this re sponse to comments document.

(a) The rule overview accompanying the template incorrectly states that firm certification costs $300 and is valid for 3 years. However, the $300 firm certification is valid for 5 years, not 3 years. Assuming that firms must become certif ied every 3 years overstates the cost of the

rule.

(b) The rule overview accompanying the templa te advises that all workers should become certified renovators, which is not required by the rule. In real ity, the rule requires that every project must have a certified renovator, and th at certain activities mu st be performed by the

certified renovator. The rule does not require all em ployees to become trained as certified25 renovators. Assuming that all wo rkers must become certified renovators overstates the cost of the rule’s requirements.

(c) The rule overview accompanying the template st ates that the rule proh ibits the use of tools, vacuums, sanders, grinders, etc., without HEPA f ilters. This is an inaccurate description of the rule. EPA recommends the use of HEPA filters when power tools are used to disturb lead-based paint, but the rule only requires the use of HEPA filters in certain situations. The rule requires the use of HEPA exhaust controls for machines that remove lead-based paint from a substrate through high speed operation. The rule does not require the use of HEPA

filters for tools such as saws and drills that are used to cut or shape a substrate. Assuming

that all power tools must have HEPA filters overstates the cost of the rule’s requirements.

(d) The rule overview accompanying the template states that renovators s hould score paint with a utility knife before separating components, and pry and pull apart components instead of pounding and hammering. EPA recommends using these work practices to minimize the generation of lead dust, but they are not required by the rule. Therefore, to the extent that following these work practices increases the cost of renovations, this is not a cost that is

attributable to the rule.

(e) The rule overview accompanying the template states that firms s hould educate and train workers and then repeat in order to prepare workers for the renovation. Commenters seem to have interpreted this to mean that the rule re quires workers to be trai ned in the full scope of lead-safe work practices, and that this educat ion and training must be repeated for every renovation job. This is an inaccurate descriptio n of the rule’s requirements for on-the-job training. The rule requires firms to train workers to perform their jobs in a lead-safe manner. Furthermore, a worker who has been trained doe s not need to have th e training repeated at every job. Assuming that all workers must recei ve extensive training fo r every job overstates the cost of the rule’s requirements.

(f) The rule overview accompanying the template states that workers should wear disposable respirators (N100), disposable gloves, and di sposable coveralls. EPA recommends having workers wear this protective clothing to minimi ze their exposure to lead dust, but the rule does not require this. Assuming that workers mu st wear disposable respirators, gloves, and

coveralls overstates the cost of the rule’s requirements.

(g) The rule overview accompanying the template states that renovators should use wet sanders and misters to keep down the dust create d during sanding, drilli ng, and cutting. EPA recommends using wet methods to minimize the generation of lead dust, but these work practices are not required by the rule. Theref ore, to the extent that following these work practices increases the cost of a renovation, assuming that renovators must use wet methods overstates the cost of the rule’s requirements.

(h) The rule overview accompanying the template states that renovators must enclose the work area with a dual layer of heavy plastic sheeting, and then repla ce the dusty and/or dirty layer of plastic sheeting on a daily basi s. This is an inaccurate desc ription of the rule. The rule requires the work area to be c ontained, but it does not requir e renovators to use of a dual26 layer of containment, or to replace the outer containment layer on a daily basis. Assuming that renovators must replace the containment on a daily basis overstates the cost of the rule’s requirements.

(i) The rule overview accompanying the template states that renovators should vacuum the work area with a HEPA vacuum cleaner frequently during the day, and at the end of the day. While EPA recommends frequent cleaning, the rule only require s cleaning after the renovation has been completed. Assuming that renovators must clean on a daily basis, or multiple times a day, overstates the cost of the rule’s requirements.

(j) The rule overview accompanying the template states that workers should wash up each time they take a break, especially before eating and before going home, and that their clothing should be washed separately from the rest of the family’s laundry. While EPA recommends the use of these hygiene practices to protect workers and their families, these practices are not required by the rule. To the extent that following these work practices increases the cost of renovations, this is not a cost th at is attributable to the rule.

(k) The rule overview accompanying the template states that when the job is complete, the

renovator should vacuum all surf aces, including walls, with a HEPA vacuum cleaner; clean the work area with a wet rag or mop; vacuum all surfaces again once they are dry; and reclean as previously described if there is rema ining dust or debris. For interior renovations, the RRP rule requires cleaning with a HEPA va cuum and a damp cloth and mop. However, the RRP rule does not require the work area to be vacuumed a second time prior to cleaning verification. Assuming that renovators must vacuum twice prior to conducting cleaning verification overstates the cost of the rule’s requirements.

(l) The rule overview accompanying the templa te states that renova tors must keep all information on file for 3 years, including the white cloths from the cleaning verification and pictures of the work area. The rule does not require renovators to keep the cleaning verification cloths or pictures of the work area on file. To the extent that keeping these

materials on file increases the cost of a renova tion, assuming that the rule requires renovators to keep this material on file overstates the costs of the rule’s requirements.

Some of the commenters appear to have collaborated in developing the cost claims in their comments. For example, the template includes spaces to report 16 different cost factors (e.g., employee training costs per person, firm certification costs, specialized tool costs, the number of labor hours for each compliance activity, labor co sts per hour, plastic sheeting costs, HEPA vacuum filter costs, and other ma terials costs). Three of the commenters (Menold Construction, Thompson Building, and RebuildEx) us ed identical values for 15 of these cost factors. Their cost claims differed only in the number of employ ees assumed to be trained. It seems unlikely that these commenters reported the same values for so many cost factors purely by chance. Instead it appears that they circulated some or a ll of the information in their comments internally before submitting them to EPA. Therefore, it is possible that some of the commenters shared erroneous assumptions about what equipment is n eeded to comply with th e rule even if they didn’t rely on the erroneous descriptions of the rule in the overview accompanying the comment template.27 The specific cost claims made by the comme nters are discussed in more detail below.

Comment: Commenters made various claims about th e cost per person for 8 hour training to

become a certified renovator. Ma ny commenters stated that the av erage tuition cost per person is $150 to $300 per person, and then used $300 as the basis for their total cost claims. Some

commenters used a lower tuition cost. For ex ample, McKean Building & Remodeling claimed a cost of $150, Great River Construction claimed a cost of $190, and Jud Construction claimed a cost of $225 per person. Some commenters used higher training costs that included more than tuition costs. For example, several comme nters (such as RebuildEx, Thompson Building, Menold Construction, and Alan Hanbury) included lost revenues for a day of training, resulting in cost claims ranging from $525 per employee to $890 per employee. One commenter (Degnan Design Builders) claimed a cost of $600 per empl oyee for tuition, wages, and travel expenses, and another commenter (J.J. Swar tz Co.) claimed a cost of $600 to account for both training and travel. Another commenter (Robert Hanbury) claimed a cost of $1,095 per person, including tuition, lost wages (including tr avel time), and $95 in employee reimbursement for lunch, a beverage break, and personal mileage.

Response : EPA believes that the commenters may be overestimating the aver age tuition cost per person, and that some of the commenters are ove restimating the total training cost per person. While many of the commenters stated that the average tuition cost per person is $150 to $300 per person, the commenters reporting th is range generally appear to have used the top end of the range ($300) in making their total cost claims. By contrast, EPA’s economic analysis estimated that the average tuition cost for certified renovat or training would be $186 per person for initial training, which is at the lower end of the tu ition cost range claimed by the commenters. However, EPA used a total training cost for in itial training averaging $562 per person (in 2005 dollars) which represents tuition ($186), the value of time for both the 8 hours the renovator is in class ($253) and 1 hour of travel each way to and from class ($63) , mileage costs to and from the training ($49), and meals while at the traini ng ($9). (Since EPA’s cost estimate was in 2005 dollars, the equivalent cost would be slightly higher in 2010 dollars to account for inflation.)

EPA believes that the hourly labor rates used by commenters who incl uded lost revenues

in their cost claims overstate ec onomic costs because they do not re flect the value of time for the staff being trained. (This issue is described in detail elsewher e in this response to comments document.) EPA notes that many of the cost claims range from $300 to $600 per person, which are in line with EPA’s estimate of $562 per perso n. EPA believes that the highest cost claims made by the commenters (such as $1,095) are not representative of the av erage cost per person
that most firms will incur.

Comment: Commenters made various clai ms about the total cost to the firm for 8 hour certified renovator training, ranging from $150 to $20,400. Fo r example, Gandolfi & Associates claimed a total cost of $300; Rollins Contracting claimed a total cost of $500; Bell’s Remodeling claimed a total cost of $900; Living Improvements clai med a total cost of $1,000; Sutton Siding and Remodeling claimed a cost of $2,625; NCP Design/ Build and Martineau & Morris both claimed28 a cost of $3,000; J.J. Swartz Co, claimed a tota l cost of $9,000; Menold Construction, Thompson Building, and ReBuildEx all claimed a total cost of $19,950; and Southwestern Remodeling claimed a total cost of $20,400 in lost revenues alone. Some co mmenters stated that this employee training would not be a one-time cost, as they would have to get additional employees

trained due to staff turnover.

Response : EPA believes that the total cost per fi rm for certified renovator training claimed by many of the commenters overstates the actual costs, and that these claims are not representative of the costs that typical firms will incur to comply with the rule. The total cost per firm depends on both the training cost per person and the numbe r of employees assumed to be trained. EPA believes that the costs claimed by some of the co mmenters overstate the average cost per person;

that issue is addressed elsewhere in this re sponse to comments document. Many of the commenters calculated training costs assuming that all of their worker s will be trained as certified renovators; that issue is addressed below. Note that some of the comments appear to reflect a misunderstanding of the requirements and purpose of formal 8 hour certified renovator training in relation to on -the-job training; that issue is also addressed elsewhere in this response

to comments document.

Under the rule, a certif ied renovator is responsible for pe rforming and dire cting lead-safe work practices; providing on-the- job training to non-certified work ers; keeping a copy of the initial and/or refresher training certificates onsite; using EPA-r ecognized test kits to identify lead-based paint (if the remodeler does not assu me that lead-based pa int is present without testing); being physically present while posting si gns, containing work areas, and cleaning work areas; being available by telephone when off-site; maintaining the containment to keep dust and debris within the work area; implementing the cl eaning verification proce dure; and preparing and maintaining required records.

EPA’s economic analysis assumed that on aver age, there would be at least one certified renovator for every three workers receiving on -the-job training. (Because many firms have fewer than three employees, the overall ratio of workers with on-the-job training to certified renovators was estimated as approximately 1.4 to 1).

The rule overview accompanying the template for commenting on the proposed rule that

was circulated to some remodelers advises that all workers should beco me certified renovators, and many of the commenters did calculate total training costs by assuming that all of their employees receive formal 8 hour certified renovato r training. This is not required by the rule. The rule requires that every project must have a certified renovator, and that certain activities must be performed by the certified renovator, bu t it does not require all employees to become

trained as certified renovators. Assuming that all workers must become certified renovators

overstates the cost of the rule. EPA does not know whether these commenters have misunderstood the requirements of the rule re garding certified renovato r training, or whether they are voluntarily choosing to have all of thei r employees trained. But EPA does not think that it is appropriate for its economic an alysis to assume that all employ ees of a firm receive certified renovator training. Furthermore, some of the commenters have many more employees than the average firm affected by the rule, so it is not su rprising that such firms might have higher total costs than a typical firm in the industry.29 The number of employees assumed to receiv e certified renovator training differs from commenter to commenter. For example, Bell’s Re modeling stated that th is training would cost an average of $150 to $300 per employee, for a to tal cost of $900. This means the commenter assumed that at least three people will receive ce rtified renovator training. According to an article in Remodeling Magazine 1 , Bells’ Remodeling has two employees:

Bob Bell, of Bell's Remodeling, in Dulut h, Minn., has just two employees. “We do everything except electrical and plumbing,” he says. And Bell's does one job at a time, so the crew is always busy. He hasn't laid off anyone in 11 years. For Bell, scheduling jobs is part of a conscious effort to maintain a small company that's tight with its clients. “Once I start a job, clients know I'll be there every day until we're done,” says Bell, who runs about 50 jobs a year ranging from installing a storm door to building a $200,000 addition. “Some of our jobs are small, and you couldn't get a sub to do that. I have fewer scheduling problems and more control.”

The rule only requires a certified renovator to be on site to perform certain activities. Some firms may choose to have more than one staff member trained in order to increase scheduling flexibility and reduce travel costs. (Indeed, EPA’s economic analysis assumes that some larger firms have multiple employees trai ned as certified renovators.) However, EPA would not assume that a typical firm the size of Bell’s Remodeling w ould have all 3 people

trained as certified renovators. And given that the Remodeling Mag azine article says that Bell’s Remodeling only does one job at a time and the firm is oat the site every day until the job is done, it is unclear whether this firm would benefit from having the owner and both staff

members all trained as certified renovators. It may be that Bell’s Remodeling was confused about the requirements of the rule when it submitte d its comments. In any event, the rule does not require that all employees become certified renovators, so EPA does not believe it is appropriate to estimate costs on this basis.

Like Bell’s Remodeling, various other commen ters also appear to have based their training cost claims on the assumption that all of their employees are trained as certified renovators. For example, the $3,000 employee trai ning cost for NCP Design/Build was based on 10 employees receiving the formal 8 hour cer tified renovator training. According to the company’s web site, it has 11 full-time workers. 2 Assuming the company has an office staff of at least one person, it appears that the $3,000 cost claimed for em ployee training is based on the cost of having all field employees trained.

Similarly, the $9,000 employee training cost clai med by J.J. Swartz Co. of BloomingtonNormal was based on 15 employees receiving th e formal 8 hour certified renovator training. According to a magazine profile from 2002, J.J. Swartz Co. in Bloomington had 12 employees, including two salespeople. 3 While the firm may have hired additional staff since then, it appears

1 “Subs or Employees? Both business models offer rout es to success,”, by Stacey Freed, Remodeling Magazine, March 2007. http://www.remodeling.hw.net/business/subs-or-employees.aspx

2 http://www.ncpalaska.com/

3 “Second Look: Evelyn Yowell”, Remodeling magazine, September 2002, http://www.remodeling.hw.n et/remodeling/second-look-evelyn-yowell.aspx30 that the $9,000 cost claimed for employee training is based on the cost of having all field employees receive 8 hour cer tified renovator training.

Likewise, Southwestern Remodeling derived its $20,400 cost claim on the revenue it says

would be lost in order for all of the 34 field carpenters it employs to receive a day of training. And Thompson Building and Menold Constructi on both claimed a total cost of $19,950 for employee training, based on a cost of $525 per em ployee (including wages), which means each company assumed it would train 38 employees. The web site for Thompson Building 4 states that

it has a field crew of over 30 sk illed carpenters and an office s upport staff of nearly 20. An article in Remodeling magazine states that Menold Construction has 45 employees (some of whom are presumably office support staff). 5 Both companies appear to have derived their cost claims assuming that all of their field staff w ill receive certified renovator training. Not only is this not required by the rule, it seems unlikely that it would be beneficial to the firms in terms of increased staffing flexibility.

Thompson Building and Menold Construction both claimed that on-the-job training would require 16 labor hour s per job. On-the-job training is only required for workers who are

not certified renovators. Ce rtified renovator training takes 8 h ours and is valid for 5 years. A firm would have to spend less money for on-the- job training than for certified renovator training or it would be less expensive to have all staff tr ained as certified renovators. Accepting that onthe-job training takes some fr action of the 8 hours for certifie d renovator training, the 16 hours per job of on-the-job training claimed by the comme nters obviously represents the time to train a crew of workers on a job site. Bu t if there is a crew of workers at every job site, and the rule only requires one certified renovato r for a job, it is unclear why th e firm would think it benefits from having every crew member trained as a certif ied renovator. It is more sensible to assume

that the firm would choose to tr ain certain staff (such as owne rs, managers, supervisors, or foremen) trained as certified renovators, and thatthe rest of the workers would receive on-thejob training.

The rule does not require all staff to become certified renovators, and EPA believes that many firms will avail themselves of the option to use on-the-job training in lieu of formal certified renovator training. EPA convened a Small Business Advocacy Review (SBAR) panel (the R&R Panel) in connection with the proposal to regulate re novation and remodeling activities. As a part of th e panel process, EPA collected advice and recommendations from several Small Entity Representatives (SERs). Several of the SERs supported training for supervisors only, in order to limit the cost of the training requirements. One SER stated that since risk management decisions are usually centr alized, only the supervisor needs to be trained and certified, and that training several workers in addition to the owne r or manager would be cost-prohibitive for small painting firms. Another SER stated that supervisors are responsible for directing workers and, because they are presen t throughout the project anyway, there would be no additional cost in requiring a trained supervisor to be presen t on the job site. And another

4 www.thompsonbuilding.com

5 “Stop Wasting Time” by Jim Cory. Remodeling magazine, December 2003. http://www.remodeling.hw.net/associ ations/stop-wasting-time.aspx31 SER thought that a trained supervis or can instruct his or her em ployees on lead-safe practices. 6
EPA relied upon the R&R Panel to inform its deci sions on the 2008 RRP rule, and thus the rule does not require all workers to receive 8 hour certif ied renovator training. EPA believes that many firms will take advantage of this provision of the rule, and will provide OJT for workers (while supervisors will receive formal 8 hour training to become a certified renovator).

While some commenters on this proposed rule based their cost claims on the assumption that all of their employees will be trained as certified renovators, others clearly intend to have only a fraction of their employees trained as cer tified renovators. For example, Sutton Siding and Remodeling’s comments claim that total employee training costs will be $2,625. The comments do not indicate how many employees they assumed would be trained or the cost per person they assumed. But assuming they used a cost of $525 per employee (which is a cost per employee that several other commenters claime d, and is close to EPA’s estimate of $562 per employee) and back-calculating means that they would have assumed that 5 employees will be

trained as certified renovators. According to a profile in Pr ofessional Remodeler magazine, Sutton Siding and Remodeling has 70 employees. 7 This yields a much higher ration of workers

with OJT to certified renovators than EPA’s esti mate that the maximum ratio is 3 workers with OJT to 1 certified renovator per firm.

Even assuming that only some of a firm ’s employees become trained as certified renovators, total training costs de pend on the number of employees at the firm. Sutton Siding and Remodeling, which has 70 employees and perf orms 3,500 jobs a year, is not the only commenter that is larger than the typical renovation firm subject to the rule. For example, Southwestern Remodeling employs 34 field carpe nters (and describes itself as the largest remodeling firm in its immediate area), Meno ld Construction has 45 employees, Thompson Building has 50 employees, and J.J. Swartz Co. has at least 15 employees. By contrast, the majority of the renovation firms subject to the RRP rule are non-employers, where by definition only one person will become a certified renovator. Even among employer establishments, the average firm in the construction industry has 6.5 employees and the average residential remodeler has 2.5 employees. Given how many empl oyees some of the commenters have, it is not surprising that they might ha ve higher total training costs than the typical firm subject to the

rule.

EPA agrees with the commenters who stated th at there are additional costs due to staff turnover. Due to staff turnover, firms can incu r costs for certified renovator training more often than every 5 years (the period the certification is valid for). EPA accounted for turnover in making its cost estimates. Using data from the lead abatement program, EPA estimated that after the first year, 17 percent of the renovators tr ained each year will be seeking their initial certification. This is equivale nt to a staff turnover of 17 pe rcent a year. (Similarly, EPA estimated that 18 percent of firms will be seekin g their initial certificati on.) EPA continues to

believe that these are valid estimates.

6 See Report of the Small Business Advocacy Review Panel on The Lead-base Painting; Certification and Training; Renovation and Remodeling Requirements, March 3, 2000.

7 Professional Remodeler: “Blueprint for Success, Chapter 5: Job Costing”, 6/1/2001, http://www.housingzone.com/topics/pr/management/pr01ga019.asp32 In summary, many of the commenters have based their training cost claims on the assumption that every employee will receive formal 8-hour training from an accredited

institution to become a certified renovator. Th e rule does not require th is. Instead, workers can receive on-the-job (OTJ) training from the certified renovator. Based on statements by the SERs on the SBAR Panel, EPA believes that many firm s will avail themselves to provide on-the-job training for workers, as a lesser cost alternative to providing form al certified renovator training for all employees. Thus, EPA does not believe it is appropriate to base cost estimates on the assumption that every employee will receive form al 8 hour certified reno vator training. Also, some of the commenters are much larger than the typical firm covered by th e LRRP rule, so their training costs are obviously not reflective of the average firm. Therefore, EPA believes that many of the commenters’ claims overstate the total cost for a typical firm to comply with the rule’s requirements for certified renovator training. EPA believe s that the estimates for training costs it used in its economic analysis are reasonable.

Comment : Commenters made various claims about the number of labor hours required per job for on-the-job training. The number of hours clai med per job varied from 1 hour per job to 40 hours per job. For example, Bell’s Remodeli ng claimed it would require 12 hours per job; Menold Construction, Thompson Building, and ReBu ildEx all claimed it would require 16 hours per job, and AWS Remodeling & Design cl aimed it would require 40 hours per job.

Response: EPA disagrees with the commenters’ cl aims about the amount of time required per job for on-the-job training (OJT). In addition, EPA believes that the commenters’ claims appear to reflect a lack of understanding about the rule’s requirements fo r on-the-job training. OJT is only required for workers who have not rece ived formal 8-hour training from an accredited training provider to become a certified renovator. And workers who have received OJT on an element of the rule’s requirements do not need to be retrained on those requirements for every job. Yet many of the commenters appear to be assuming that all of their employees both (a) become certified renovators and (b) receive a significant amount of OJT on every job.

EPA believes that many of the commenters mi sunderstand the rule’s on-the-job training requirements. For example, as described elsewh ere in this response to comments document, the rule overview accompanying the template for commenting on the proposed rule that was

circulated to some remodelers advises that all workers should become certified renovators, and

that firms should educate and trai n workers and then repeat in order to prepare workers for the renovation. Commenters seem to have interpreted th is to mean that they must have all of their

field staff trained as cer tified renovators, that they must pr ovide extensive OJT (covering the full scope of lead-safe work practices), and that they must repeat th is extensive OJT for every job. This is an inaccurate description of the ru le’s requirements for on-the-job training.

Workers who become certified renovators by completing the formal 8 hour training do not need to receive OJT. OJT is only require d for workers who are not certified renovators. While the rule does not require a ll workers to be trained as certif ied renovators, if firms choose to do this, they would not need to provide OJT for these workers. The commenters’ apparent assumption that all staff must receive both cer tified renovator training and OJT results in a33 significant overestimate of costs.

As described below, EPA disagrees with th e claims made by the commenters about the time required to provide OJT. But if the commenters believe that OJT takes this much time, it

would be cost-effective for them to have all thei r workers trained as certified renovators instead of providing them with OJT, especially given that certified renovator training is valid for 5 years. For example, Bells’ Remodeling has 2 employees in addition to the owner, and claims that OJT will require 12 hours per job. The comments from Bell’s Remodeling appear to assume that all employees are formally trained at a total cost to the firm of $900. But the comments also assumed that on-the-job traini ng will cost $600 per job. Not onl y does EPA disagrees that OJT will be this expensive or need to be repeated at every job, but the commenter is double-counting training costs. If a firm voluntarily chooses to have all of the wo rkers become certified renovators, they would not need to receive OJT. And if the workers rece ive OJT they do not all

need to become certified renovato rs (since the firm only needs a certified renovato r to perform certain activities, as desc ribed at 40 CFR 745.90(b)).

EPA disagrees with Bell’s Remodeling’s cl aim that OJT will require 12 labor hours per job. But assuming for the sake of an example that Bell Remodeling’s cost claims are accurate, it would be less expensive to choose certified renovator training for a ll staff than to provide OJT in this case. Because according to Bell’s Rem odeling, certified renovator training (which takes 8 hours and is valid for 5 years) costs $150 to $300 per person, and OJT costs $600 per job. Thus, it would not make sense to engage in OJT. Presented another way, the 12 hours of OJT claimed by Bell’s Remodeling is equivalent to 4 hours pe r person OJT per job (4 hours for the owner to provide the training and 4 hours for each of the two employees to receive the training). EPA believes that the claim of 4 hour OJT per person is a significant overestimate. But if Bell’s Remodeling believed that was an accurate figure, it would be less expensive in the long run to provide certified renovator training for the employ ees than OJT, since th e certified renovator training is valid for 5 years. Even assumi ng complete annual employee turnover (i.e., all employees left the firm every year), then the firm would only need to perform two regulated renovations a year (out of the 50 total renovations it performs each year) in order to break even between having the two employees trained as ce rtified renovators and th e 4 hours per person per job OJT implied by its comment. 8 (In both scenarios, each employee would receive 8 hours of training, although in one case it would be formal tr aining and in the other it would be informal training.) Even if there was 100% annual sta ff turnover, if the firm did three regulated renovations a year, it appears to be cheaper to have both employees trained as certified renovators rather than incurring the OJT costs that Bell’s Re modeling has claimed. If the workers stayed with the firm for more than one year, then the cost of certified renovator training is less than the OJT cost claimed by Bell’s Re modeling if the firm does only one regulated renovation per year. But in that case, Bell’s Re modeling should not be claiming any costs for OJT (especially since it is claiming costs unde r the assumption that all employees become certified renovators).

As another example, Menold Construction and Thompson Building both appear to

assume that each of their field staff will receiv e 8 hour certified renovator training. But they also

8 EPA does not believe there will be complete employee tu rnover each year at a typical firm. This scenario is presented as an extreme example, to demonstr ate the situation under a worst-case scenario.34 assume 16 hours per job of OJT. Again, while the rule does not require firms to train all their staff as certified renovators, if firms do so, the fi eld staff will not need any OJT. And while EPA does not believe that OJT will take 16 hours a job, if the firms thought that it did, it would make sense to provide certified renovator training for a ll employees rather than OJT. Yet these firms appear to have based their cost claims on the assumption that all field staff become certified renovators and receive OJT at every job.

In addition to the double-counting of time fo r certified renovator training and OJT, EPA disagrees with many of the commenters’ claims about the number of hours per job required for OJT, as well as the assumption that OJT must be provided repeatedly for every job. The OJT must cover the work practices required by the ru le that the worker will be responsible for performing. The work practices in the rule are simple to under stand and easy to use. They include the posting signs, erecting barriers, installing plastic sheet ing, refraining from the use of certain practices, and thoroughly cl eaning up the jobsite. These pr actices are easily taught, and to ensure they are properly implemented, certified renovators are required to be on-site when the signs are posted, the plastic inst alled, and when cleaning occurs. (At all other times the certified renovator regularly directs the work on-site and if off-site must be available by phone or other mechanism.)

When a certified renovator is providing OJT to a worker, the rule only requires the

renovator to discuss elements di rectly related to th e work preformed by that worker. For example, if the worker will not be establishing containment, there is no need to train the worker in how to establish containment, although the certified renovator will need to provide instruction on maintaining the in tegrity of the containment. If the wo rker in question is installing a window as part of a larger job, then th ere may be no need to provide any training to this worker other than making sure he knows not to disturb the plas tic on the floor and that he, his tools, and other equipment must be free of dust and debris before they leave the work area.

EPA stated in the preamble to the 2008 RRP rule (73 FR 21701, April 22, 2008) that “... EPA is not interested in teaching persons how to be painters, plumbers, or carpenters. Rather, EPA’s objective is to ensure th at persons who already know how to perform renovations perform their typical work in a lead-saf e manner.” EPA believes that the commenters’ claims about OJT overstate the time needed to ensure that pers ons who already know how to perform renovations perform their work in a lead-safe manner.

Furthermore, a worker does not need to re ceive the same OJT over and over again at every job. Some workers might need additional OJ T on a job if their previous OJT did not cover all work practices, and their job responsibilities changed. (For example, if a worker was not trained on establishing containment on one job, and then had to establish containment on a second job, he would have to be trained in that task for the second job. But if the same worker was establishing containment on every job, he woul d not have to be retrained on that task for every job.) But the large numbe r of hours per job claimed by the commenters suggests that they are assuming that workers will receive extensive OJT, not limited to compliance tasks. EPA believes that workers will be able to remember the information from job to job, and will not need to be retrained at every job site. Therefore, EP A disagrees with the assumption that OJT must be repeated at every job for the sa me workers. As a result, EPA believes that the commenters’35 claims about the time required for OJT significantl y overstate the time needed to comply with the rule’s requirements.

As another example of a comment that overs tates the time needed to comply with the rule, AWS Remodeling and Design made its cost cl aims based on a job prof ile of a one man, one week job, and it claimed that 40 hours of labor pe r job would be required for OJT. Given the job profile, this is 40 hours of OJT per person pe r job. For the reasons described above, EPA disagrees that OJT will require 40 hours per worker per job. But if the commenter believes OJT will take 40 hours a job, they should have conclu ded that it would be less expensive to have

workers receive 8 hour certified re novator training rather then r eceiving OJT. Since certified renovator training is valid for 5 years, if a wo rker performed one covered job per year, over 5 years time the commenter’s OJT claim would be e quivalent to a total of 200 hours, compared to

8 hours for certified renovator trai ning. If the worker performe d 10 covered jobs per year, the comparison would be a total of 2,000 hours clai med for OJT over 5 years versus 8 hours for certified renovator training. If the worker performed 20 covered renovations per year, the comparison would be a total of 4,000 hours for the claimed OJT, compared to 8 hours for certified renovator training. A nd worker turnover does not seem to be an issue for this commenter, since its web site stat es that its newest employee has been with the company for 10 years, and that some employees have been with the company for 20 years. 9 EPA believes this commenter has clearly over stated the cost of OJT.

EPA believes that commenters have oversta ted the time required to provide OJT to a worker, have incorrectly assumed that the same OJT must be repeated for every job, and have double-counted training costs by a ssuming that all workers receive both certified renovator training and OJT. Therefore, EPA disagrees with the commente rs’ claims about the time and cost required to comply with the rule’s training requirements.

Comment: Commenters made various claims about the cost of firm certification. Most

commenters stated that there will be an initial comp liance cost of $300 for firm certification. One commenter (Kessler Construction) clai med a cost of $360, with the additional $60 representing wages to research requirements, prepare and mail ap plication, make copies, etc. Several commenters (Menold Construction, Th ompson Building, and RebuildEx) claimed an initial compliance cost of $500 fo r firm certification and Clifton View Homes claimed a cost of $600, but these commenters provided no explanati on of how they derived these figures. One commenter (Cornerstone Home Improvements) claimed a cost of $1,050 for firm certification

and head installer certification.

Response: EPA agrees that the fee fo r certifying a non-tribal renovation firm for 5 years is $300. (The cost for certifying a tribal firm is $20.) EPA believes its cost estimates are in line with those of the commenter (Kessler Constr uction) who claimed an additional cost of $60 associated with firm certification. EPA agrees th at there would be additional costs associated with firm certification beyond the $300 fee. EPA estimated that a typical firm would spend 3 hours becoming familiar with the LRRP rule’s re quirements and half an hour filling out and mailing the one-page application for certification, and would also incur minor costs to make a

9 http://www.allweathersystems.com/36 photocopy and for an envelope and postage. EPA estimated that these ac tivities would cost a typical firm a total of $111.30 in 2005 dollars. Combined with the $300 certification fee, this would bring the total to $411.30. (The cost would be sligh tly higher in 2010 dollars due to inflation). Menold Construction, Thompson Bu ilding, and RebuildEx provided no explanation of how they derived the $500 cost they claimed, so EPA is not able to respond in detail to these claims. However, the $500 cost claimed by th ese commenters is relatively close to EPA’s estimate, especially af ter the $411 estimate is updated to 201 0 dollars. Because the cost claim from Cornerstone Home Improvements appears to be lieve there is an additional cost for the head installer to become a certified renovator (aside fr om the costs associated with the 8 hour training course), it is not possible to determine from th e comment how much the commenter believes that

firm certification costs.

Comment: The commenters listed additional insurance as a line item under initial compliance costs. Some commenters left the field blank (i.e., did not enter a dollar va lue) and others entered a question mark (i.e., did not attempt to make a co st claim). Of those who made a numerical cost claim, the dollar values ranged from $100 per year (Ramtra Management Services) to $60,000 per year (Wadlington Remodeling). Some commenters claimed that additional insurance may be difficult or impossible to purchas e. Wadlington Remodeling stated that its claim of $60,000 (in 1994 dollars) would be the cost if in surance is available at all, indi cating that “I have tried to get coverage from 4 agents to no avail. I have had to inform them there even was this law as they knew nothing about it. Excer pt from GAO report RCED-94-231 ‘In cases in which some coverage is provided, several insurance firms cited typical premiums ranging from $60,000 to $70,000 for the minimum insurance offered (typically $1million)+.’”

Response : EPA’s economic analysis does not incl ude insurance as a compliance cost.

Insurance is a method to transfer risk from the insured to the in surer, who is in a position to spread this risk over a large pool of insured pa rties. Insurance provides a method to restore the insured back to approxim ately the same position after a loss. The rule does not require firms to purchase additional insurance. The firms can deci de for themselves whether insurance premiums are higher or lower than their expected losses based on the probability an d magnitude of adverse judgment. Based on this assessment, they may decide to remain self-insured (i.e., assume all risk of loss themselves) or to purchase insurance.

EPA’s economic analysis estimates the increm ental social cost of complying with the rule, and the rule does not require firms to buy insurance. Furthermore, EPA does not believe

that insurance should be counted as a social cost of the rule. Insurance premiums are largely a transfer of money between diffe rent parties and not a social cost. Insurance shifts the distribution of resources needed to pay for th e damages caused by exposure to lead dust. It spreads a smaller share of the e xpense over a larger pool of people. Renovators disturbed leadbased paint without the RRP rule in place and thus already had a potential liability. By contrast,

renovators who adhere to the work practices required by the rule will decrease the lead exposures created by their work, creating real social benefits. To the extent that this regulation establishes

a “standard of care” for the indus try, contractors who follow the requirements of the regulation will have evidence that they have not been negl igent with respect to how they handled lead-37 based paint. As a result, EPA believes that this regulation may lessen the potential liability of

renovation contractors.

This conclusion is bolstered by a comment by the North Carolina Department of Health

and Human Services that “Some [affected entities] have indi cated they also see following established work practices as s upportive to their potential liability concerns of doing ‘lead work’ and that they may possibly turn down work if the owner insisted on the opt-out.”

Regarding the claim that insurance will be difficult or impossible to purchase, the comment from Wadlington Remodeling cite s GAO report RCED-94-231. This was a 1994 report by GAO titled “Lead-Based Paint Hazards: Abatement Standards Are Needed to Ensure Availability of Insurance.” The report addr esses lead abatement not renovation, repair, and painting, and it primarily addresse s public housing and owners of re ntal properties. The report was written in 1994, before EPA had published hazard standards for lead or abatement regulations, and it concludes that the lack of ab atement standards was one of the primary reasons that limited the availability of insurance. Bu t the report does also mention that abatement contractors had difficulty obtaining insurance, and again indicates that this was due to the lack of abatement standards. The GAO report states that “Without such standard s, the property owners

who hire the contractors have no assurance that hazards in their units are properly abated.” The report goes on to state that:

Liability coverage is generally not availabl e for small, inexperienced lead abatement contractors. However, the av ailability of coverage for l ead hazards could grow, as did asbestos abatement coverage, because the two ha zards are similar. Insurance for asbestos abatement contractors was scarce during th e mid-1980s, but standards for asbestos removal that were developed by EPA helped to increase the availability of insurance...

During the 1980s, insurance for asbestos c ontractors was generally unavailable, but it

became more obtainable after federal abat ement standards were developed. The regulations issued under the Asbestos Hazard Emergency Response Act of 1986 established requirements for training and accr editing contractors and for the monitoring methods they used. These regulations increa sed the availability of asbestos liability

insurance for abatement contra ctors. We believe that the recent increase in the availability of insurance for asbestos remova l contractors may be a harbinger of similar developments in the lead removal busin ess if similar standards are developed.

Just as GAO concluded that lead abatement insurance would be easier to obtain and less expensive once EPA published standards for lead abatement, it is reasonable to assume that insurance for renovations disturbing lead-based pa int will also become more readily available and less expensive once EPA’s RRP rule become s effective and the renovation and insurance industries gain experience with it.

Comment: The commenters claims for the initial comp liance cost for specialized tools (HEPA vacuum, shrouded tools, etc.) ranged from $150 (R oskelly Group) to $15,000 (J.J. Swartz Co.). For instance, Jonson Construction Services and Elite System Solutions both claimed a cost of38 $275; Home Check Plus claimed a cost of $400; Bell’s Remodeling claimed a cost of $2,500; Sutton Siding and Remodeling claimed a cost of $12,500; Robert Hanbury claimed a cost of $1,660, including $775 for a HEPA vacuum, $275 for a Sawzall that can be connected to a HEPA vacuum, $195 for a sander that can be connected to a HEPA vacuum, and $225 for a
Skillsaw [sic] that can be connected to a HEPA vacuum; and Menold Construction, Thompson Building, and RebuildEx all claimed a cost of $4,100.

Response: The commenters’ equipment cost claims depend on several factors, including the types of equipment assumed to be purchased, whether the claim assumes multiple pieces of the same equipment are purchased, and the cost assu med for each piece of equipment. Most of the commenters do not provide specifics on how they derived their cost claims. However, the available information suggests that at least so me of the commenters have overstated costs by including equipment that is not re quired to comply with the rule.

The rule overview accompanying the template for commenting on the proposed rule that

was circulated to some remodelers states that the rule prohibits the use of tools, vacuums, sanders, grinders, etc., without HEPA filters. This is an inaccurate description of the rule. The rule (at 40 CFR 745.85(a)(3)) requires the use of HEPA exhaust controls (i.e., shrouded tools) for machines that remove lead-based pain t through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblas ting. Contrary to what the commenters appear to assume, the rule does not require HEPA exhaust controls for power tools such as drills, saws, etc. that are not being used for the purpose of removing lead-based paint. (Such tools are commonly used to cut or shape a painted substrate, and not to remove paint from a substrate.) While EPA recommends the use of HEPA attachments wh enever power tools are used on lead-based paint, this is only a general recommendation a nd is not a requirement of the

rule.

EPA believes that the commenters misundersta nd the requirements for HEPA shrouded tools. For example, EPA believes it is more likely that Robert Hanbury has misunderstood the requirements of the rule than that he plans on us ing a reciprocating saw a nd a circular saw (i.e., a Sawzall and a Skil saw) to remove paint in a manner covered by 40 CFR 745.85(a)(3)(ii). EPA

believes that other commenters ha ve also based their cost esti mates on the assumption that all power tools are required to have a HEPA shroud, rather than ju st the equipment covered by 40 CFR 745.85(a)(3)(ii). Assuming that all tools must have HEPA filters overs tates the cost of the

rule.

In addition to the purchase price, Robert Ha nbury’s comments also st ated there would be additional costs for depreciation, maintenance, and repairs for HEPA vacuums and shrouded tools. However, EPA is not aware of any evidence that the equipment needed to comply with the rule needs maintenance, repairs, or replacement more frequently than equipment that does not comply with the rule. Therefore, these expens es for compliant equipment would presumably be offset by the savings for avoided maintenan ce, repairs, and repl acement of non-compliant equipment.

The rule requires a HEPA vacuum to be us ed for the additional cleaning for interior

renovations described at 40 CF R 745.85(a)(5)(ii). Based on an online search in 2005, EPA39 estimated that the average cost of a HEPA vacuum was $626 and the average cost of a power sander that is compatible with a HEPA vacuum was $209. (EPA’s cost estimates would be slightly higher in 2010 to reflect inflation.) EPA’s estimates of the cost of a HEPA vacuum and

a HEPA shrouded sander are similar to the costs claimed by Robert Hanbury for this equipment, particularly if EPA’s estimates are adjusted for inflation. EPA’ s cost estimates do not include

estimates for shrouded tools such as Sawzalls and Skil saws, because EPA does not believe that renovators will typically use su ch tools in a manner covered by 40 CFR 745.85(a)(3)(ii), and the Agency’s estimates are limited to the costs to comply with the rule’s requirements.

Most commenters did not break out their cost claims for each piece of equipment separately the way Robert Hanbury did, so EPA is not able to evaluate all the specific assumptions that they used in generating their claims about e quipment cost. But EPA believes that many other commenters also may have in cluded costs for equipment (such as shrouded Sawzalls and shrouded Skil saws) th at is not needed in order to comply with the rule. These

commenters would have thus overstated th e cost of compliance with the rule.

The total equipment cost per firm to comply with the rule will vary from firm to firm depending on factors such as the number of employ ees, the number of regulat ed jobs, the type of jobs, and how they are carried out (i.e., whethe r they use machines that remove paint through high speed operations subject to the work pract ice restrictions at 40 CFR 745.85(a)(3)(ii), or whether they use alternative methods such as ch emical paint stripping or low temperature heat guns). Obviously, a firm such as Sutton Siding and Remodeling (with 70 employees) may require more pieces of equipment than a firm su ch as Bells’ Remodeling (with an owner and two employees).

Because most of the comments do not provide details on how the cost claims were derived, EPA cannot respond to the individual clai ms. For example, Bell’s Remodeling claimed a cost of $2,500 for specialized tools, but does not spell out which tools or how many tools it thinks it would need to purchase, or the assu med cost per tool. Because Bell’s Remodeling does one job at a time (and has two employees in addition to the owner), it does not seem likely that it would need multiple pieces of equipment, such as multiple HEPA vacuums and multiple

shrouded sanders. EPA believes that Bell’s Re modeling (and other commenters) may have overstated the equipment costs needed to comply with the rule in the same way that Robert Hanbury did (by including the cost s for HEPA compatible equipment that is not required by the rule). And given the large number of firms in the industry with few or no employees, EPA does not believe that the typical firm will need to purchase multiple pieces of equipment to comply

with the rule.

EPA believes that its assump tions about the cost for a HEPA vacuum and HEPA shrouded equipment to comply with the rule ar e reasonable, and that many of the commenters

have overstated the cost of th e rule by making incorrect assumptions about the equipment required to comply with the rule.

Comment: The commenters made various claims about compliance costs for activities requiring labor. The range of labor costs claimed by the commenters varied from as little as $10/hour40 (AWS Remodeling and Design, and Singer Kitchens) to as much as $135/hour (Design Construction Concepts). For example, Roskelly Group and JL Exteriors both claimed labor costs of $20/hour, and OneCall Services and Interior Tr ends claimed labor costs of $25/hour. Ramtra Management Services claimed a labor cost of $35/hour, as did Nautilus Homes. Sutton Siding and Remodeling claimed labor costs of $45/hour, NCP Design/Build claimed a labor cost of $50/hour, Tourand Construction and Brown Constr uction both claimed labor costs of $60/hour, and Southwestern Remodeling based its cost claims on a rate equivalent to $75 per hour. Legal Eagles Contractors claimed labor costs of $120 per hour, and Fulton Construction claimed costs of $125/hour.

Response : The hourly labor costs claimed by the commenters at the high end significantly exceed the average wages and benefits for the industry according to the Bureau of Labor Statistics (BLS). Many of the commenters appear to have calculated labo r costs in a manner that overstates the hourly cost of labor. This aff ects the costs claimed by the commenters for many different cost categories, includ ing certified renovator training, on-the-job training, containment, cleaning, and cleaning verification.

EPA’s economic analysis estimated the cost of the 2008 RRP rule based wage data from the U.S. Bureau of Labor Statistics’ Occupati onal Employment Statisti cs Series. The wages were fully loaded to account for fringe benefits, with an average fringe rate for the construction industry of 23.5 percent. Cer tified renovators’ fully loaded wages ($31.64/hour) were estimated from the wages earned by First-Line Supervis ors/ Managers of Construction Trades and Extraction Workers (Occupation 47-1011) worki ng in the residential building construction industry. Workers’ loaded wages ($16.94/hour) were estimated from the wages of Construction Laborers working in the resident ial building construction industry (Occupation 47-2061). These wage rates were calculated using wage data fo r 2005, and wage rates have increased over time with inflation. According to more recent Bureau of Labor Statistics data, the comparable fully loaded wage rate for a renovator in 2008 was $34.92/hour.

The commenters appear to be claiming costs based on their estimated revenues per hour. For example, one commenter (Southwestern Rem odeling, #994) described the cost of certified renovator training as follows:

On average in a 40 hour week one of my carpenters produces $3,000.00 worth of revenue for my company. So if my comp any lost revenue produced by each one of my 34 field carpenters for 1 day out of the year I would lose roughly $20,400.00 worth of generated revenue to training alone. 10

The $3,000 in revenues for a 40 hour work week mentioned by the commenter (equivalent to $75/hour) represents more than the loaded hourly cost of the labor. In add ition to the lost value of employees’ time, a firm must use the revenues a worker brings in to pay for a variety of other

10 Note that the 8 hour certified renovator training is actually required for one day out of 5 years, not one day out of one year, and that the rule does not re quire all of the firm’s 34 field carpe nters to become trained as certified

renovators.41 expenses such as materials, supplies, and equi pment, which are signif icant in this industry. 11
While workers are not generating revenue while th ey are in training, the firm is not incurring job-related costs for materials, supplies, and equi pment either. The social cost of the rule is better represented by the loaded wage rates in th e industry (as represented by the BLS data) than by the firms’ hourly revenue.

The difference between the hourly labor costs claimed by the commenters, the labor costs they incur, and the wages paid to their work ers can be demonstrated using Sutton Siding and Remodeling as an example. The comment s on the proposed rule by Sutton Siding and Remodeling used a labor cost of $45 per hour, which significantly ex ceeds the average BLS value for loaded wage rates. Yet a pr ofile in Professional Remodeler magazine 12 described

Sutton’s labor costs as follows:

Labor burden is a key element to job co sting. Sutton Siding and Remodeling has a relatively high labor burden compared with that of a one- or two-person operation or specialty trade contractor. The compa ny includes a comprehensive list of costs in labor burden besides the actual wage s paid to employees: federal taxes, workers’ compensation insurance, health in surance, life and disability insurance, retirement, profit sharing, vacations and holidays, sick days, and paid days off.

Last year these combined expenses constituted more than half of the company’s labor costs. During annual reviews with employees, Sutton management explains labor burden to them. "An employee may be paid $15 an hour, but he’s really getting the equivalent of $26.50," Sutton sa ys. "You have to offer that kind of compensation to keep good people. We’re competing with the unions. Our wage rate is about the same, so we have to offer other benefits." Sutton does not count direct labor, materials, trade contractors, equipment and fees for permits as part of

the firm’s labor burden.

Although the article notes that Su tton has a relatively high labor bur den compared to the one- or two-person operation or specialty contractor that is typical of the industry, the $26.50/hour

mentioned in the article is in line w ith the BLS data on loaded wage rates.

EPA does not believe that it is appropriate to consider the labor costs claimed by the commenters as an opportunity cost of the rule. Gi ven that the labor costs claimed by some of the commenters are as much as double or triple the lo aded wage rates according to BLS, this would suggest a very high profit rate for these industries. There is no indication that such high profit rates exist in this industry. Given the low barriers to entry in this indust ry, such rates would lure additional firms to enter the industry until profit rates were driven down to levels comparable with other industries opp ortunities. Moreover, given that EPA continues to believe that the

11 For example, for residential remodelers (NAICS code 236118), the cost of materials, components, supplies and

fuels is 40% of the net value of c onstruction work ($12.5 billion out of $30.6 billion). 2002 Economic Census, Construction, Subject Series EC02-23SG-1, U.S. Census Bureau, October 2005, http://www.census.gov/prod/ec02/ec0223sg1.pdf

12 Professional Remodeler: “Blueprint for Success, Chapter 5: Job Costing”, 6/1/2001, http://www.housingzone.com/topics/pr/management/pr01ga019.asp42 incremental time requirements to comply with th e rule will be relatively small for the typical firm in the industry, the Agency does not believe that following the rule’s requirements will significantly change the number of jobs that a typical firm will perform.

Calculating costs based on hourly revenues (as the commenters have done) overstates the

social cost of the rule. Both EPA’s cost esti mates and the cost claims made by the commenters account for labor costs separately from costs for materials, equipment, supplies, and fees. EPA continues to believe that it is appropriate for the Agency to calculate the incremental social costs of the rule using BLS data on loaded wage rates. Therefore, the Agency has not revised its cost

estimates based on the commenters’ claims about their labor costs.

Comment: The commenters’ cost estimates for plas tic sheeting range from $10 per job (Home Check Plus) to $400 per job (NCP Design/Buil d). For example, Roskelly Group and Jeff Howard both claimed a cost of $20, Ramtra Ma nagement Services and OneCall Services claimed a cost of $25, J.J. Schwartz claimed a cost of $45, Bell’s Remodeling and Legal Eagle

Contractors both claimed a cost of $100, Brown Construction and JB Construction Services both claimed a cost of $200, and Sutton Siding and Remodeling claimed a cost of $175.

Response : EPA believes that many of the commenters have overstated the cost of complying with the rule’s requirements fo r containment for the typical RRP job. EPA believes that some of the commenters’ claims may be based on an incorrect assumption about the containment required under the rule, or may not account fo r baseline work practices in the industry.

The incremental cost of the plastic shee ting required to comply with the rule’s requirements depend on several factors: (1) the cost of the plastic pe r square foot; (2) the number of square feet of plastic used; (3) how th e plastic is used; and (4) the renovator’s baseline containment practices (i.e., the containment practi ces used without the rule in place). These

factors are addressed below.

(1) The cost of the plastic per square foot . None of the commenters provided any information on the cost they were assuming per square foot of plastic. EPA’s Economic Analysis for the 2008 rule used a price of $0.06 per square foot fo r 6 millimeter polyethylene sheeting, based on a 2005 web search. To determine whether prices have increased since then, EPA checked prices again

online in 2010. EPA found that one national home improvement chain sold a 2,000 square foot package of 6 mil. plastic for $94, equivalent to $0.047 per square foot, and another national home improvement chain sold the same size package for $79, equivalent to $0.0395 per square

foot. These are 22% to 34% less than EPA’s 2005 estimate of the cost per square foot, which indicates that the price of plas tic sheeting has not increased sin ce EPA made its original costs estimates. Therefore, EPA does not believe that it underestimated the cost per square foot of plastic.

(2) The number of square feet of plastic used . The commenters did not provide information on the square footage of plastic th ey assumed would be used, or the size of the work areas to be contained. However, EPA’s cost data described above can be used to estimate the size of the jobs some of the commenters may have used as the basis of their cost estimate. For example,43 given a plastic cost of $0.047 to $0.06 per square foot , a total plastic cost of $45 (claimed by J.J. Swartz Co.) is equivalent to 750 to 957 square feet of plastic. A total plastic cost of $100 (claimed by Bell’s Remodeling) is equivalent to 1,667 to 2,128 square feet of plastic, and a total cost of $175 (claimed by Sutton Siding and Rem odeling) is equivalent to 2,916 to 3,723 square feet of plastic.

The square footage inferred from the plasti c costs claimed by the commenters indicates that some of them may be referring to relatively large jobs renovating much or all of the interior or exterior of a house. Such large jobs repr esent a portion of the nation’s RRP jobs, and they may even be typical job sizes for these commenters. 13 However, many jobs will require less area to be contained than jobs this large. For exam ple, in small jobs the work area may be a small area within a room, requiring renovato rs to contain just a portion of the floor area within a room (covering the floor 6 feet beyond the perimeter of the surfaces undergoing renovation, and not using any vertical barriers be tween the work area and adjacent non-work areas). EPA does not believe that the large jobs that some of the co mmenters may have used for their cost estimates are representative of the millions of jobs covere d by the rule. Therefore, EPA believes that the high end claims by some of the commenters oversta te the cost of the rule’s requirements for plastic sheeting for a typical job covered by the rule. 14

(3) How the plastic is used . The rule overview accompanying the template for commenting on the proposed rule that was circulated to some rem odelers states that renovators must enclose the work area with a dual layer of heavy plastic shee ting, and then on a daily basis replace the dusty and/or dirty layer of plastic sheet ing. The rule requires the work ar ea to be contained, but it does not require renovators to use of a dual layer of containment, or to replace the outer containment layer on a daily basis. Assumi ng that renovators must use a doubl e layer of plastic and replace the top layer on a daily basis overstates the amount of plastic that must be used, and the cost of the plastic. Commenters that based their cost claims on these assumptions overstated the cost of

the rule.

(4) How often the renovator follows the rule’s requirements for containment in the baseline

. EPA’s economic analysis calculated the incremental in crease in the social cost due to the rule’s requirements. This represents the additional co st of the job due to the rule, above and beyond anything that renovators were al ready doing before the rule to ok effect. EPA estimated the extent to which different work practices requ ired under the rule were used in the baseline (without the rule in place) ba sed on a telephone survey of cont ractors. For example, EPA

estimated that without th e rule, contractors kept all windows a nd doors in the work area closed or covered with plastic sheeting in 76% of jobs; co vered the floor within the work area with taped down plastic sheeting in 77% of j obs; and disposed of the plastic after each job (instead of reusing it multiple times) in 37% of jobs.

13 As an example, Ventana Construction based its cost claim of $1,760 on what it terms a mid-size project costing $100 to $150k, with 5 days of demolition. Ventana’ s web site (http://www.ventanabuild.com) states that it specializes in major residential remodels, additions and custom home construction.

14 To the extent that commenters based their cost estimates on very large job sizes, this also led to an upward bias in their cost estimates for other materials (such as HEPA v acuum filters and tape), and for labor costs (containment, cleaning, and post-cleaning verification). This issue is addressed in more de tail in the responses to the comments on

those cost elements.44 Due to the baseline work practices, the rule’s incremental cost for containment is only a

fraction of the total material and labor cost fo r using plastic sheeting. For example, the rule generates incremental costs for both labor and ma terials for using plasti c sheeting on floors for only the 23% of jobs (100% - 77%) where renovators were not using any plastic before the rule. The rule generates incremental materials costs fo r using plastic sheeting on floors in the 49% of jobs (77% x 63%) where renovators were using plastic before the ru le but were not reusing it. And the rule does not create costs for using plas tic on floors for the 28% of jobs (77% x (100%- 63%)) where renovators were already using disposable plastic before the rule.

There are also indications that the increas e in labor required to use lead-safe work practices is largely offset by resulting reductions in the time required for cleaning up after the job. One commenter on the 2006 proposed rule for the RRP program (WDC-0017) disagreed

with claims that the rule woul d increase the cost of a job by 20 or 30 percent. The commenter stated that he had performed “hundreds and hundr eds of jobs and what I'm doing is exactly what I did before using different tool s and creating a situation where I have much less clean-up at the end because I'm cleaning up as I go and I'm maski ng areas that will absorb dust, so my clean-up costs go down, my safety goes up, and I wind up costing approximately the same thing but maybe four or five percent more, maybe four or five percent less, but I guarantee there's no 20 or 30 percent unless you compare maintenance w ith abatement and we're not doing that.”

Commenters on both the 2006 proposed rule for the RRP program and this proposed rule have claimed that professional remodelers impr ove the condition of homes and leave job sites

cleaner than before the work started. 15 EPA believes that renovators must spend significant amounts on time on containment and cleaning in the ba seline, and that relativ ely little additional time is typically required to follow the rule’s work practices. Yet none of the commenters mention their baseline containment or cleaning practices, or make any comparison between the rule’s requirements and their baseline practices. 16 Therefore, some of the cost claims made by the commenters (including the cont ainment costs) may represent the total costs of the rule’s work practices, and not the additional costs a bove what renovators were already doing. 17 To the

15 Even if remodelers using baseline work practices leave job sites cleaner than they were before the renovation, that

does not mean that the lead dust levels are below EPA’s haza rd standard, or that the base line work practices are safe, reliable, and effective, as required by the Toxic Substances Control Act.

16 Not only do the commenters not discuss their baseline pr actices, but they fail to mention any of the savings they would accrue by replacing their baseline work practices w ith those required by the rule. For example, Robert Hanbury’s comments claim costs not only for the purchase of a HEPA vacuum and shrouded tools, but also for depreciation, maintenance, and repairs for this equipment. But the cost claims ignore the savings in avoided depreciation, maintenance, and repair for the non-HEPA vacuum and un-shrouded tools – costs that would otherwise be incurred in the baseline. Similarly, his comments his comments claim costs for purcha sing buckets, sponges, and mops, and for replacing these items as they wear out or break. Yet he does not account for any savings due to avoided costs to replace brooms and dustpa ns, or whatever other cleaning equipm ent he was using in the baseline. His comments also claim costs for multiple rounds of cleaning, but he does not mention how much cleaning he did in the baseline. And none of the cost claims made by the commenters mentioned that removing the opt-out provision would save the paperwork and recordkeeping burden involved with having the opt-out form signed by the customer. Although these paperwork savings are small comp ared to the cost of comp lying with the LRRP work practice requirements, some commenters di d include other paperwork costs in thei r claims. This highlights that they are not considering the countervailing factors when making their cost claims.

17 If these particular contractors never used plastic before the rule, then they are not representative of baseline work practices, and the incremental changes to their work practices are not representative of the industry. If their45 extent that the cost claims made by the commen ters ignored baseline work practices, they overstated the incremental cost of complying with the rule’s requirements.

As described above, various commenters may have: assumed the use of a double layer of plastic and daily replacement of the top layer, which is not required by th e rule; assumed a large job size not representative of the typical job size regulated by the rule; and may not be accounting for the use of baseline work practices . EPA believes that the commenters’ claims

overstate the additional costs th at renovators will incur in order to follow the rule’s work practices. EPA further believes that its estimate s represent reasonable values for the incremental cost of plastic for typical jobs regulated under the rule.

Comment: Commenters stated the time and cost per j ob they claim is required for containment, cleaning, and cleaning verifica tion. The number of labor hours claimed for containment, cleaning, and cleaning verification varied from 5 to 202.5 hours per j ob, and the cost varied from $175 to $6,050.

Response: EPA believes that many of the commenters have overstated the incremental time and cost needed to comply with the rule’s containment, cleani ng, and cleaning verification work practice requirements. As described elsewhere in this response to comments document, some of the commenters appear to have based their cost claims on an overview of the rule circulated within the industry that did not accurately charac terize the rule’s requirements. For example, the rule does not require containment to be repl aced on a daily basis, nor does it require daily cleaning with a HEPA vacuum prio r to the completion of the job. 18 To the extent that commenters relied upon this or other inaccurate descriptions of the rule to prepare their comments, they will have overstated the cost of complying with the rule. In addition, EPA believes that the cost claims made by some of the commenters may represent the total time required for containment and cleaning, and not the additional time for compliance beyond baseline work practices. Furthermore, as disc ussed elsewhere in this response to comments document, some of the commenters’ claims appear to be based on relatively large jobs that are not representative of all jobs covered by the rule. Also, many of the commenters have used a labor cost per hour that is not representative of ac tual labor costs. Theref ore, the claims made by the commenters about the labor costs per job fo r containment, cleaning, and cleaning verification significantly overstate the additional cost for a typical job to comply with the rule.

EPA’s cost model is a simplified representati on of the universe of remodeling jobs. The model cannot capture all of the va riations in the millions of re novation, repair, and painting jobs that are conducted each year, which range from simple drywall repair to window replacement to complete kitchen and bath renovations to buildin g additions and everythi ng in between. EPA’s

estimates are meant to represent the in crement over typical baseline practices, then the effective square footage of the job sizes they are using for cost purposes is even larg er than calculated above and elsewhere in this response to comments document. This would mean that their jobs are that much larger than the typical renovation job, also yielding a significant overestimate of costs.

18 For example, Jud Construction claimed a labor and materials cost of $296.27 per day per job, yet the activities that went into its cost claim (such as cont ainment, cleaning, and cleaning verificati on) are not required by the rule on a daily basis. Similarly, Creative Construction Co. estimated a daily cleanup cost for 5 days, but the rule does not require daily cleanup.46 methodology was not meant to estimate the cost fo r a particular individual job or a particular renovator, so it is not ap propriate to overemphasize the model’s prediction for any individual job. Still, the labor hours predicted by EPA’s model can be compared to the claims made by a sample of the commenters using the industry template fo r their comments, in order to contrast the rough magnitude of the results.

These commenters did not provide details about the square footage size or other characteristics of the jobs they assumed when developing their cost claims. However, as described elsewhere in this response to comments , it is possible to infer a job size based on the cost they claim for plastic sheet ing and the actual cost per squa re foot of plastic sheeting ($0.047 to $0.06 per square foot for 6 mil. polyethylene). The inferred job size can be combined with EPA’s estimate of the labor hours per square foot for containment, cleaning, and cleaning verification for that size of job. The results are shown in the fo llowing table and are compared to

these commenters’ claims.

As can be seen from this table, EPA’s una djusted estimates of the time required for cleaning, containment, and clean ing verification are comparable to those provided by many of these commenters. In a number of cases, the labor hours claimed by the commenter falls within the range estimated by EPA for this size of j ob. The remaining comments are split between

cases where EPA’s estimates exceed the labor hou rs claimed by commenter, and cases where the labor hours claimed by these commenter exceed EP A’s estimate. With the exception of two outliers, the differences between EPA’s estimate and the commenter’s claim are not substantial.

The two outliers are in the comments from Rollin s Contracting, and from Alan Hanbury of the House of Hanbury.

Rollins Contracting claimed that containmen t would require 45 hours per job, cleaning would require 45 hours per job, a nd cleaning verification would require 2 hours per job, for a total of 92 hours, compared to EPA’s estimate of 23.3 to 29.5 hours for a job of this inferred size (1,583 to 2,021 square feet). While this inferred job size is fairly large, the labor hours Rollins Contracting claims are much larger than the cl aims made by the other commenters in the table with similar inferred job sizes, such as Bell’s Remodeling, Living Improvements, and DreamMaker Bath and Kitchen, and Sutton Siding and Remodeling (which vary from 10 to 31 hours). Given that the claims by Rollins Cont racting significantly exceed not only EPA’s estimate but the claims made by these other ap parently similar commenters, EPA does not find

the commenter’s claim to be a credible estimate of the total time needed to comply with the rule’s work practices for a typical job.

The other outlier is in the comments from Alan Hanbury, who claims that the time required for cleaning will vary from 3.5 to 200 hour s per job, resulting in a claim of 6 to 202.5 hours for containment, cleaning, and cleaning veri fication. By comparison, EPA’s estimate is that the rule’s containment, cleaning, and clean ing verification work pract ices will take 6.3 to 8 hours for a job of this inferred si ze (417 to 532 square feet). EP A believes that the high end of the commenter’s range (which is two order of magn itude greater than the low end) represents an unlikely scenario. The top end of the range is much higher than the claims made by the other

commenters in the table with similar inferre d job sizes, such as J.J. Swartz, Menold Construction, Thompson Building, RebuildEx, a nd Earl Williams (which vary from 8 to 1447 hours). Given that the top end of the range claimed by Alan Hanbury significantly exceed not only EPA’s estimate but the claims made by othe r apparently similar commenters, EPA does not

find the commenter’s claim to be a credible esti mate of the time needed for a typical job to comply with the rule’s work practice requirements.

There are several issues to consider when comparing the figures in the table (both the

commenters’ claims and EPA’s infe rred values) to EPA’s estimates of the costs of the rule in its Economic Analysis document:48 Labor Hours Commenters Claimed and EPA’ s Estimate, based on inferred job size

Commenter Square footage

inferred from

commenter’s plastic costs 1 Labor hours per job

commenters claimed for containment, cleaning, and cleaning

verification EPA’s estimate of labor hours (based on inferred square footage) prior to adjustment for baseline practices

Bell’s Remodeling 1,667 to 2,128 10 to 18 hours 24.5 to 31 hours

J.J. Swartz Co. 750 to 957 8 hours 11.3 to 14.3 hours Living Improvements 1,250 to 1,596 18 hours 18.5 to 23.5 hours

Sutton Siding & Remodeling 2,917 to 3,723 31 hours 42.2 to 53.5 hours

House of Hanbury - Alan Hanbury 417 to 532 6 to 202.5 hours 6.3 to 8 hours

Menold

Construction 633 to 809 14 hours 9.5 to 12.1 hours

Thompson Building 633 to 809 14 hours 9.5 to 12.1 hours

RebuildEx 633 to 809 14 hours 9.5 to 12.1 hours

Kessler

Construction 950 to 1,213 16 hours 14.2 to 18 hours

DreamMaker

Bath & Kitchen 1,250 to 1,596 12 hours 18.5 to 23.5 hours

Earl Williams 333 to 426 9 hours 5 to 6.4 hours

Rollins Contracting 1,583 to 2,021 92 hours 23.3 to 29.5 hours

Gandolfi &

Associates 833 to 1,064 29 hours 12.5 to 15.8 hours

Home Check

Plus 167 to 213 8 hours 2.5 to 3.3 hours

1 Square footage inferred by divi ding the total cost that commenter claimed for plastic sheeting by the cost of plastic sheeting ($0.047 to $0.06 per square foot).

(1) Some of the commenters claims may be based on an incorrect understanding of the rule’s work practice requirements. For example, some of the commenters appear to have based their cost claims for cleaning on the a ssumption that the rule requires th em to replace the containment on a daily basis and vacuum the work area with a HEPA vacuum frequently during the day and at the end of each day. The rule ’s requirements at 40 CFR 745.85(a) re quires the work area to be contained before beginning the renovation, and maintained until after the renovation has been completed. The rule does not require the containment to be replaced during the renovation. And while EPA encourages frequent cleaning of th e work area as a general good housekeeping measure, the rule’s requirements at 40 CF R 745.85(a)(5) only require the work area to be49 cleaned after the renovation has been completed. Similarly, some of the commenters may be assuming that the rule requires containment for an entire room (or an entire house). These commenters may not understand that in some cases the work area can be a portion of a room, and that this is the only area wher e they are required to use the ru le’s containment, cleaning, and cleaning verification work practices.

(2) Some of the commenters’ cost claims may repr esent the total time they think will be spent on the various activities, and not the incremental la bor requirements due to the rule. Based on its survey of renovators and various comments from industry, EPA believes that most renovators were doing some containment and cleaning in the baseline. For example, most renovators report that they did some cleaning in the baseline, such as using a vacuum without a HEPA filter. The rule requires the use of a HEPA vacuum, but EP A does not believe that using a vacuum with a

HEPA filter to clean the work area takes significantly longer than using a vacuum without a HEPA filter. Yet many commenters claimed cleani ng times of 8 hours or more per job. Some of the commenters’ claims may address the total tim e they believe will be associated with rule cleaning, and not the additional time to follow the rule’s work practices, such as substituting a HEPA vacuum for a regular shop vacuum. Si milarly, EPA’s survey indicated that most

renovators use containment in th e baseline. Even setting asid e the outlier who claimed that containment required 45 hours of time, commenters claimed that containment requires up to 12 hours. The labor hours claimed by some of the commenters may represent the total time associated with using the rule’s c ontainment work practices, and not the additional time required under the rule (such as taping or sealing all ed ges or seams of the containment plastic). Adjusting for baseline practices means that, ov erall, the incremental cost of the rule’s containment and cleaning work practice requirements is only a fraction of the total cost of these

activities.

(3) The labor rates used by many of the commenters are not representative of actual hourly wage costs. As described elsewhere in this response to comments document, typical wage rates in the industry are significantly lower th an the hourly costs reported by many commenters, who appear to have reported the revenues per hour genera ted by their employees, a nd not labor costs.

(4) Based on the inferred square footage, some of the commenters claiming high costs may be deriving their cost estimates on relatively large jobs. Many of the jobs covered by the rule can be much smaller than the job sizes these commenters may have used to develop their cost claims.

(5) The comments do not appear to reflect any of th e methods that can be used to reduce the time and cost need to comply with the rule’s wo rk practices. For example, pre-engineered containment systems (purchased or home-made) ar e very helpful in cutting time spent on the job erecting containment and are easier to install than hanging plastic with tape. One company making such a pre-engineered containment system claims that a three-side d plastic dust barrier can be installed by one person in less than five minutes. While there is an equipment cost for such products, the labor savings could make this a worthwhile investment for some renovators. But the commenters do not appear to have sought any ways to minimize the time and cost of following the rule’s work practices.50 (6) The commenters may not be appropriately accounting for the different work practice requirements in the rule for interior and exterior jobs. Some of the commenters make separate claims of the total cost of labor and materials pe r job for interior and exte rior jobs. For example Bells’ Remodeling states that the total cost of compliance per job for labor and materials will be $1485 to $1885 per job for interior work, and $1950 to $3000 for exterior work, depending on the size of the job. Thus, it is claiming that th e typical exterior job will cost $465 to $1,115 per job more than the typical interior job. Bell’s Remodeling claimed that the total labor costs per job will be $1200 to $1600, and the total materials costs per job will be $285, which adds up to the $1,485 to $1,885 claimed for interior jobs. Bu t it does not provide any explanation for why the typical exterior job woul d cost more than this.

Other commenters provided a total cost claim in their comments that did not differentiate

between interior and exte rior jobs, despite the fact that th ey appear to perform both types of work. For example, the web sites for Sutt on Siding & Remodeling and Kessler Construction indicates that they perform both interior and exterior renovations , but the cost claims in their

comments do not differentiate between the two t ypes of jobs, even though the rule’s work practices do differ.

The rule’s work practice standards for interior renovations contain a number of additional requirements that do not apply to exterior renovations. For exampl e, 40 CFR 745.85(a)(5)(ii) specifies additional cleaning for interior renova tions (including use of a HEPA vacuum, wiping with a damp cloth, and mopping with a 2-bucke t mopping method or wet mopping system) that do not apply to exterior renovations. And 40 CFR 745.85(b) requires clean ing verification for

interior renovations but not for exterior renovations.

Although some exterior jobs may involve vertic al containment that would not be needed on interior jobs, EPA believes that relatively few ex terior jobs will use such vertical containment. (Although EPA’s economic analysis did include costs for vertical containment for some exterior jobs.) The commenters using the template for co mments on the proposed rule that was circulated in the industry did not state that they were including ve rtical containment costs for exterior jobs, or provide other indications of w hy they think costs differ for interior and exterior jobs. So it is not clear what they assumed in thei r cost claims for exterior jobs.

The commenters using the industry template make cost claims for HEPA vacuums and cleaning verification that apply to interior jobs but not exteri or ones. And they have not provided any indication of what other factors would increase cost s for exterior renovations over interior ones. It is possible that these commenters have includ ed costs for HEPA vacuuming and cleaning verification in their exterior cost estimat es, where such practices are not required. This

issue affects the commenters’ claims about mate rial and equipment costs (HEPA filters, cleaning verification pads, etc), as well as labor costs.

It is difficult to determine how these comme nters generated their claims of the total compliance cost per job from the labor and material s costs per job they clai m, particularly since some of the claims do not add up. For example, J. J. Swartz Co. claims th at the total labor costs per job will be $430, and the total materials costs per job will be $345, which add to $775. But it

also stated that the total cost of compliance for labor and materials will be $1,205 per job, which51 is $430 more than $775. Living Improvements claimed that the total labor costs per job will be $1220, and the total materials costs per job will be $475, which add to $1,695. But it also stated that the total cost of compliance for labor and materials will be $2288.25 pre job, which is $593.25 more than $1,695. And Sutton Siding and Rem odeling claimed that the total labor costs per job will be $1,755, and the total materials costs per job will be $950, which add to $2,705. But it also stated that the total cost of comp liance for labor and materials will be $2,605 per job, which is $100 less than $2,705.

Given these disparities, it is difficult for EPA to assess the validity of all of the commenters’ cost claims. However, some of the commenters may have assumed that activities such as using a HEPA vacuum and performing cleaning verification are part of the work practices for exterior jobs, which is not the case.

For the above reasons, EPA believes that the commenters’ claims overstate the additional

costs that renovators will incur to follow the rule’s work practices. EPA believes that its estimates represent reasonable values for th e incremental time and cost required for the containment, cleaning, and cleaning verifica tion work practices required by the rule.

Comment: Commenters claimed that HEPA vacuum filters will cost between $6 and $3,000 per job.

Response : Most of the commenters did not provide information on the size and nature of their jobs, how many filters they assumed would be us ed per job (or if less than one per job, how many jobs they assume a filter would be used for), or what they think the cost per filter would be, so it is difficult for EPA to evaluate these cl aims. EPA estimated the cost of HEPA vacuum filters assuming that renovators would use re-useable HEPA filters. To the extent that renovators use disposable HEPA filters, their costs would be higher than EPA estimated. However, some renovators extend the life of a HEPA filter by usi ng two filters in tandem, first a non-HEPA filter to catch large particles, and a HEPA filter to catc h the smaller particles that pass through the first

filter. Because the non-HEPA filters are much less expensive, they can be changed frequently, while the HEPA filter can be changed less frequently, thus reducing overall costs for filters. Also, as described elsewhere in this response to comments document, some of the commenters appear to have based on their co st claims on very large jobs, wh ich are not representative of the size (and thus the cost) of a typical job covered by the rule.

Comment: Commenters claimed that other material s will cost between $19 and $950 per job. Many commenters mentioned tape, disposable covera lls or Tyvek suits, and respirators or masks as examples materials that would be needed. So me commenters also stated there would be costs for getting workers medically fitt ed for a respirator or mask, and for purchasing eye wear, painters’ hats, and gloves. Commenters also me ntioned other items such as garbage bags, tack pads, foot booties, baby wipes, and mist bottles.

Response : Firms do not need to incur all of these e xpenses in order to co mply with the rule.

The commenters’ cost claims combine items and activities required by the LRRP rule with those52 that EPA recommends but does not require under the rule. EPA recommends the use of personal protective equipment when workin g with lead-based paint. But EPA’s LRRP rule does not require the use of such equipment. EPA’s cost estimates reflect only those items and activities that are required to comply with the LRRP rule . Therefore, EPA’s cost estimates do not include the cost for personal protective equipment not re quired by the LRRP rule, such as disposable coveralls, Tyvek suits, respirators and masks (i ncluding getting workers medically fitted for a respirator or mask), eye wear , painters’ hats, and gloves.

EPA’s estimates do include costs for materi als required to comply with the rule, including tape for the plastic sh eeting; warning signs to warn occupants and other persons not

involved in the renovation to remain outside of the work area; a tack pad; disposable shoes covers; plastic bags for waste disposal; and disposable cleaning cloths for the cleaning verification process. The cost per job for these materials will di ffer from job to job, depending on factors including the size of the job, the characteristics of the job, and the type of work being

done. The evidence that EPA review ed indicates that the costs fo r such materials are modest. Therefore, EPA disagrees that the $19 to $950 costs claimed by the commenters for other

materials are reasonable estimates of the cost of compliance with the rule.

Comment: Some commenters stated that customers would be charge d for the firm’s mark-up and/or sales tax on top of compliance costs. One commenter (Robert Hanbury) mentioned a 50 percent mark-up, and another (Clifton View Homes) menti oned a 63 percent mark-up.

Response : The mark-up and any sales tax are not part of EPA’s cost analysis because EPA

estimated the cost of the rule to society, not the price that contractors charge their customers. In addition, in the context of a benefit-cost analysis, taxes represent a transfer and not a social cost.

Comment: A commenter (Robert Hanbury) claims that exterior work will require additional costs to set up staging to hold sh eeting in place. According to the commenter, staging rental/setup/take down for window replacement will cost $250 per project. The commenter claims that entire house repainting or re-siding over painte d exteriors would add at least $1000/project for staging and plastic set up and take down, and that exterior painters will need to cover additional $1000 job costs for each paint job necessitating a dditional costs to property owners of over $1500 due to industry standard minimu m 50% markup of direct job costs.

Response: The rule does not require firms to use the elaborate containment referred to by the

commenter for all exterior renovations. The work practice standards at 40 CFR 745.85(a)(2)(ii) require firms to use the following containment work practices for exterior renovations: (1) close

all doors and windows within 20 feet of the renovation; (2) ensure that doors within the work

area that will be used while th e job is being performed are c overed in a manner that allows workers to pass through while confining dust and debris to the work ar ea; (3) cover the ground with sheeting extending 10 feet beyond the perimeter of surfaces undergoing renovation or a sufficient distance to collect falling debris, whiche ver is greater, unless the property line prevents 10 feet of such covering; and (4) in certain si tuations, the renovation firm must take extra53 precautions in containing the work area to ensure that dust and debris from the renovation does not contaminate other buildings or other areas of the property or migrate to adjacent properties.

The commenter is assuming that firms will need to adopt the extra precautions mentioned in step 4 for all exterior renovatio ns, and that is not the case. In many situations, renovators will only need to follow steps 1 through 3. Step 3 invo lves simple practices su ch as stapling or taping the protective sheeting to the wa ll of the building, or using a 2 x4 wrapped in protective sheeting

to hold the material next to th e wall, and using heavy objects (e .g. rocks) to weight the other edges of the protective sheeting to the ground so that it won’t blow in the wind. These practices are simple and inexpensive.

Even in situations where vertical containmen t is needed to ensure that dust and debris

from the renovation does not contaminate other buildings or other areas of the property or migrate to adjacent properties (e.g., work areas in close proximity to other buildings, work areas that abut a property line, and windy conditions), such vertical containment could take a number of forms. This could range from attaching plas tic sheeting to a fence or other support at the property line, to attachi ng the plastic to a building or a fr ame attached to the building, to attaching the plastic to scaffold ing erected next to the building.

In contrast to the commenter (who is assuming that such vertical containment is used in 100% of exterior renovations), EPA’s economic anal ysis assumed that vert ical containment is used for 2% of exterior painting events. Furt hermore, EPA assumed that for those jobs using vertical containment, 50% of the events in re sidential units will not need scaffolding because they will use plastic at the fence line or attach ed to the building, and th at 50% of those events that do need scaffolding for vertical containmen t are already using it for other reasons, and only

incur incremental costs related to plastic sheeting. This means th at only 25% of the residential

units that undertake vertical containment we re predicted to incur incremental costs for scaffolding. To the extent that vertical containmen t is needed in a larger share of jobs than EPA estimated, then the costs of the rule would be higher than EPA estimated but so would the benefits (because there would be more incidents in the base line where lead dust is migrating to other buildings or adjacent properties).

EPA estimated that the cost of vertical c ontainment using scaffolding would vary from $760 for one wall in a single-family unit to just under $6,250 for all four walls in multi-family housing. (The cost for child-occupied facilities in public or commercial buildings was estimated to range from $330 to $1,470 because jobs requiri ng vertical containment on these buildings were assumed to use scaffolding in the baseline, so that there were only incremental costs for the plastic sheeting.) Thus, EPA’s cost estimates for jobs invo lving scaffolding exceed the commenter’s claim that such practices will co st $250 to $1,000 per job. The difference is that EPA’s estimate recognizes that the fourth step under 40 CFR 745.85(a)(2)(i i) only applies in certain situations, whereas the commenter is assu ming this applies to all exterior renovations. Therefore, EPA disagrees with the commenter’s cl aim that there will be an additional cost of $250 to $1,000 for a typical exterior renovation.54 Finally, the commenter’s claim that there is an industry standard markup of 50% over direct costs is not relevant to EPA’s cost analysis . EPA estimated the cost of the rule to society, not the price that contractors charge their customers.

Comment: A commenter (Robert Hanbury) claims that the rule will result in additional disposal costs of $150 per project. According to the comme nter, these disposal co sts include covered and lockable dumpsters, a 48 hour empty cycle whethe r the dumpster is full or contains one piece of debris, and a commitment from th e waste hauler to not allow any dust or debris to escape during transportation. According to the commenter, this is not the industry stan dard service today and will result in unknown higher fees. The commenter st ates that the rule will result in a minimum additional cost of $150 per dumpster if a remodele r can even find a hauler who will assure the remodeler that no dust will escape during transportation. The commenter claims that this is probably an impossible demand, and that waste haul ers won’t take on new liability without a big cost increase. According to the commenter, re modelers would need to pay for a few more disposal trips for larger jobs due to 48 hour time constraints, but that smaller projects have

shorter durations so the 48 hour rule won’t have an impact.

Response : The commenter does not understa nd the requirements of the rule. First, the rule does not require the use of a covered, locked dumpster. The rule requi res that at the conclusion of each work day and at the conclusion of the re novation, waste that has been collected from

renovation activities must be stored under containmen t, in an enclosure, or behind a barrier that prevents release of dust and debris out of the work area and prev ents access to dust and debris. Covering the dumpster is one way to prevent release of dust and debr is. It is not necessary to cover the dumpster if the waste inside the dumpster is contained in a way that prevents release of dust and debris, for example, in closed trash ba gs. Locking the dumpster and placing it behind a locked barrier are good examples of ways to prevent acc ess to the dust and debris, but these are not requirements of the rule.

The commenter’s statement that the rule requi res waste to be removed from the job site every 48 hours is also incorrect. The rule doe s not have any requirements about how often a

waste must be removed from the work site.

The commenter’s statement that the rule re quires renovators to receive a commitment from waste haulers not to allow any dust or debr is to escape during transp ortation is incorrect. The rule states at 40 CFR 745.85(a)(4)(iii) that wh en the firm transports waste from renovation activities, the firm must contain the waste to pr event release of dust and debris. However, the

firm referred to in the rule is the renovation firm , not a third party firm such as a waste hauler. For instance, the rule would pr ohibit a renovator from placing uncont ained dust and debris in the open bed of his own pick-up truck and transporting it to a landfill. However, the renovator can transport the waste to a landfill himself if it is co ntained, for example in a garbage bag. But the rule already requires the waste to be contained before it is rem oved from the work area, and EPA has already accounted for the materials and labor co st for placing the waste in plastic bags, so EPA sees no need to make further adjustments in its cost estimates. A nd while the requirements at 40 CFR 745.85(a)(4)(iii) do not appl y to third party waste hauli ng firms, placing the dust and55 debris into plastic bags before putting it into a dumpster or truck owne d by a third party waste

hauler can also contain th e waste during transportation.

The waste disposal activities described by th e commenter are not requirements of the rule. Therefore, the additional waste disposal costs claimed by the commenter are not costs of compliance with the rule.

Comment: A commenter (Robert Hanbury) states that th e cost of testing for lead-based paint will vary depending on how many surfaces/rooms ar e “disturbed” and must be tested. The

commenter assumes that 10 tests will be needed per job. According to the commenter, each lead check stick costs $9.75 and can be used for two test s, resulting in a cost of $48.75 per project.

The commenter estimates that the labor to test e ach surface, record the results carefully, and note the manufacturer and expira tion date for these 10 tests will ta ke a total of 20 minutes, and at a labor rate of $75/hour, the labor cost for lead paint testing will be $25 per project.

Response: EPA agrees that the cost of testi ng will vary depending on how many rooms and

surfaces are disturbed. EPA believes that the comm enter’s claim that 10 tests are needed per job may reflect the types of jobs he performs, but it does not represent the typical job covered by the RRP rule. For example, there are many smaller repair jobs that may only involve removing a section of drywall or plaster, where a single test will need to be performed. EPA assumed that an average of 4 tests would be performed per job. EPA believes that this is a reasonable estimate for a typical job, given the range of jobs covered by the RRP rule.

EPA disagrees that the materials for the test kits will cost $4.87 per test (i.e., $9.75 for two tests). EPA’s 2008 economic an alysis estimated that the test kits would cost $0.50 each, based on the tests currently on the market at that time. EPA has currently recognized two lead test kits, the LeadCheck ® kit (manufactured by Hybrivet Systems) and the State of Massachusetts kit (which is only available to certified Massachus etts state lead inspectors and risk assessors). The LeadCheck ® kit recognized by EPA is available in bulk at www.LeadCheck.com for a cost of $1.65 to $2 e ach, depending on the quantity ordered. EPA believes that prices may decline in the future as more test kits are recognized. However, the commenter’s claim that a job requiring 10 test will cost $48.75 is an overstatement.

EPA assumed that a renovator would take 15 minut es to use 4 test kits on a job. This is not significantly different from the commenter’s claim of 20 minutes to use 10 test kits. EPA’s assumption would yield more time than the comment er claimed if the number of test kits was identical. Finally, EPA has explained elsewhere in this response to comments document why the labor rate claimed by the commenter overstates hourly costs.

Comment: A commenter (Robert Hanbury) claims that cleaning verification will cost $25 per project to obtain, utili ze, label, and store the materials, ca lculated as 20 minutes per job at $75 per hour (and assuming 17 pads will be used for a small room, using one pad for 40 square feet). The commenter also claims that recordkeepi ng for cleaning verification will require 0.33 hours.56 Response : EPA’s 2008 economic analysis assumed th at the cleaning veri fication step would take 5 minutes of labor for the 40 square foot area that one cloth can be used on. Thus, EPA would estimate that a job requiring 17 cloths would take 85 minutes of labor, which is more than

the commenter has claimed. EP A has explained elsewhere in this response to comments document why the labor rate claimed by the comm enter overstates hourly costs. The rule does not require the renovator to labor and store the cleaning verificati on cloths. EPA disagrees that recordkeeping for the rule’s cleaning verifica tion requirements will typically require 0.33 hours per job. Finally, the recordkeeping costs for cl eaning verification are already accounted for in the checklist costs, and it w ould double-count costs to claim them separately as well.

Comment: A commenter (Robert Hanbury) claims that the materials for post-renovation cleaning (wipes, swiffers, and cleaning supplies) will cost $22 per project.

Response : Based on a review of online prices, EPA f ound that the hardware for the electrostatic cloth sweeper (which is reusable) costs $13.60, a nd that the cleaning cloths cost $0.46 each. Given that the commenter is assuming a job sizes that requires 17 cloths, EPA estimates that the materials cost for this job would be less than $8. Although the total cost w ill increase if the work

area needs to be cleaned more than once because it fails cleaning verification, only the particular areas that fail cleaning verificati on need to be re-cleaned. Thus, the commenter appears to have

overstated the materials cost for cleani ng a typical work area of this size.

Comment: A commenter (Robert Hanbury) claims that firms will need to purchase a $175 fire

safe for records needed when sued or audite d for the 24 jobs per year that he performs.

Response : EPA believes that the commenter misunders tands the recordkeeping requirements of the rule. For example, as explained elsewher e in this response to comments, the commenter appears to incorrectly assume that he must st ore all of the cleaning ve rification cloths. EPA believes that the recordkeeping requirements fo r the commenter’s 24 jobs per year will be modest, and can readily be maintained along with ot her records that the firm is already keeping. Therefore, EPA has not included the cost of a fire safe in its cost estimates.

Comment: A commenter (Robert Hanbury) claims that creating a compliance form in consultation with an attorney will cost $450, re presenting $200 of the firm owner’s time and $250 of an attorney’s time.

Response : The rule allows firms to create their ow n form, but EPA has provided a checklist that they can use. EPA has not estimated a cost to develop a form, because if a firm decides to develop their own form it is a vo luntary decision on their part and not a requirement of the rule. Therefore, the additional time the commenter refers to is not a cost of the rule.57 Comment: A commenter (Robert Hanbury) states that th e proposed opt-out rule will result in a

cost for the firm’s owner to train the certifie d renovator how to comp lete the post-renovation disclosure form. According to the commente r, this training will take one hour of time.

Response : The certified renovator training cour se has a module on recordkeeping, which includes the sample renovation recordkeeping checklist that fulfills the recordkeeping requirement. The firm’s owner does not need to re -train the certified renovator on this task. If the firm develops it own form and has to train th e certified renovator in ho w to use it, that is a voluntary decision on their part and not a requirement of the rule. Therefore, the additional time

the commenter refers to is not a cost of the rule.

Comment: A commenter (Robert Hanbury) states that completing the check list form will take .66 hours per job. The commenter also states th at completing the post re novation notice form will require 1.25 hours per job, plus 0.25 hours for the owner to review the form, and 0.1 hours

to file the form.

Response : EPA disagrees that completing its check lis t will typically require 40 minutes per job. EPA has estimated that completing the 1 page form will take an average of 5 minutes per job. And the commenter’s statement about the post re novation notice form appears to be a reference to the requirement in the proposed opt-out rule that the renovation firm provide a copy of the records demonstrating compliance with the trai ning and work-practice requirements of the RRP rule to the owner and/or occupant of the building. But that does not require a separate form. If the renovation firm is using the checklist for recordk eeping, it can provide a copy of the same form to the owner and occupant. The only additiona l cost the firm would n eed to incur would be for copying and delivery.

Comment: A commenter (Robert Hanbury) stated that copying the post re novation notification form would take 2 minutes of labor per client, and addressing an envelope and stuffing it would require 5 minutes of labor.

Response : The opt-out rule proposes that the firm provide the information when the final

invoice for the renovation is delive red, or within 30 days of th e completion of the renovation,

whichever is earlier. EPA believes that the burd en for delivering the information to the client will be minimal, since the renovator will typica lly be delivering the checklist along with an invoice or other job-related paperwork. EPA es timated that photocopying and distributing one copy of the checklist will take an aver age of 3 minutes of the renovator’s time.

Comment: A commenter (Kessler Construction) states that professional clearance examination/testing by an independe nt testing agency may need to be performed and could cost $200 to $400 in additional fees, plus wage s for recordkeeping and documentation.

Response : Neither the 2008 final rule or the proposed opt-out rule require clearance testing. Therefore, clearance testing is not a cost of this rulemaking.58 Comment: A commenter (Kessler Constr uction) states that hazardous waste disposal costs may also be needed on larger sized jobs, which could cost $200 to $1,000.

Response : This rule does not require that dust and debris from c overed renovations be treated as hazardous waste. To the extent that existing Fe deral, state and local regulations allowed this waste to be treated as normal household waste prio r to the RRP rule or the opt-out rule, it can

continue to be treated in this manner. The RRP program does not change how this waste can be disposed. Therefore, the rule does not result in additional costs for waste disposal.

Comment: A commenter (Beatch Construc tion) states that “To comply with the current rule is enough. Most of my clients opt out. The cost my company would have to charge for us to test, clean up, and do the work per the rules would be in excess of $1000 per job.”

Response : The commenter may misunderstand the existi ng rule and the opt-out provision. It is not possible that most of the commenter’s clie nts opt out, since the co mment was submitted in

November 2009. This was five months before th e work practice requirements of the rule went into effect in April 2010. It was not possible fo r any clients to opt out of the work practice requirements before those requirements went into effect. EPA believes that the commenter may also be misinformed about the requirements of th e rule and the cost of complying. For reasons spelled out in more detail elsewhere in this response to comments document, EPA does not believe that the incremental cost for a typical firm to comply with the rule will be $1000 per job. The commenter has not provided suff icient detail for EPA to res pond to the claim that the rule will cost in excess of $1000 per job. But given the lack of detail in the comment and the apparent misunderstanding of the LRRP program, EPA is skeptical of the commenter’s claim

that the rule will cost in excess of $1000 per job.

Comment : A commenter (#985) assert ed that the rule would be unduly burdensome renovation firms and homeowners. According to the comme nter, “In this opt-out rulemaking alone, EPA finds that the 75,000 non-employer impacts (m ostly single employee firms) would face economic impacts of 1.3 percent to 4.7 percent of revenues, wh ich is extremely high.” The commenter goes on to state that “EPA’s plans to promulgate a series of additional requirements to supplement the already costly LRRP rule will impose substantial burdens on small firms, homeowners and building owners , with questionable benefit ... EPA’s proposal would instead impede low-income residents from improving th eir residences by imposing unnecessarily costly requirements.”

Response : The commenter cites the small business impacts in EPA’s economic analysis but failed to note that these impacts were calculate d assuming that the firms did not pass any costs on to their customers (i.e., that they absorbed all of the cost increases themselves). But if the firms do not pass any costs on to their customer s, there cannot be any burden on homeowners, including low-income residents. Conversely, if firms were to pass some or all of the costs on to customers, it would reduce the economic impact on th e firms. It is illogical for the commenter to59 make statements based on an assumption that fi rms do not pass on costs to their customers, while simultaneously claiming that the customers will have an increase in costs, since that requires firms to pass on costs. In any event, EPA disa grees that the rule will be unduly burdensome on renovators, building owners, or homeowners.

Comment: A commenter (#985) states that “Despite the Executive Order 12866’s requirement to include a benefits analysis, EPA’s original OMB submission c ontained no benefits estimates. The agency frankly acknowledges that its attemp t at estimating benefits was ‘crude’. The estimates are, therefore, extr emely speculative, at best.”

Response : The commenter’s reference to the draft Economic Analysis that EPA submitted to OMB is curious, given that the proposal is s upported by the final version of that document referenced in the preamble, and not an earlier draft. But the commenter’s implication that Executive Order 12866 requires benefits to be qu antified is incorrect. Both Executive Order 12866 and OMB’s Circular A-4 (which provides guidance to implement Executive Order 12866) acknowledge the importance of qual itative measures where it is di fficult to quantify benefits. Both EPA’s original OMB submission and the pu blished version of the Economic Analysis did so. EPA has complied with Executive Order 12866, and indeed with all applicable statutory requirements and Executive Orders.

Comment : Commenters claim that homeowners will avoid compliance costs by hiring

unlicensed contractors who can offer a lowe r price by not complying with the rule.

Response : Unlicensed contractors may offer a lowe r price by ignoring th e requirements of EPA’s lead rule. Such unlicensed operators can also lower their costs by ignoring other requirements that have costs such as a build ing license, insurance, bonding, building permits, worker’s compensation, and withhol ding taxes. However, that is not a valid argument for doing away with all of those other requirements. Responsible renovators recognize that complying with those requirements is a cost of doing bus iness for a legitimate firm, even if some competitors ignore them. In the same way, re sponsible renovators need to recognize that complying with EPA’s lead rule is a cost of doing business, the same as a building license, insurance, or a building permit. EPA disagrees that imperfect compliance is a rationale for retaining the opt-out provision.

Miscellaneous

Comment: Two commenters stated that EPA should provide financial support to renovators and firms seeking certification due to the large size of the regulated co mmunity 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.60 Response : 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 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 renovato r training courses.

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

Response : The Agency would like to thank the commenter for the suggestions. While EPA

did not ask for comment on how it could make th e regulations less confusion, the Agency will may consider these suggestions in future rulemakings.

Comment: 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.

Response : 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.

Comment: 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.

Response : Again, EPA is not reopening the RRP rule beyond the changes proposed. The issue

of whether renovation activities create lead-based paint hazar ds 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.

Comment: 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.61 Response : EPA has a wide-ranging educational campa ign 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 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.

Comment: 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.

Response : 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.

Comment: One commenter stated that the RRP rule wi ll be bad for the environment because of all the disposable plastic material that will end up in landfills.

Response : The Agency believes that the rule will re sult in substantial benefits due to reduced risk from lead-based paint hazards and that these benefits will outweigh any drawbacks of disposing of plastic materials.

Comment: One commenter states that EPA shoul d require renovation firms to provide documentation of training and firm certificati on to owners and occupants before renovation begins. The commenter di d not give a reason why.62 Response : The Agency requires that certified re novators have a copy of their course completion certificate at the work site. Thus, occ upants will able to veri fy that renovators are

certified. Those who hire renovation firms can al ways ask to see the firm’s certificate or they can verify the firm’s certification by looking on EP A’s lead program home page or by calling the

National Lead Information Center.