Results of EPA's Section 610 Review of the Final Rule for
Lead; Renovation, Repair, and Painting Program
EPA Office of Pollution Prevention and Toxics
April 2018
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Summary
On April 22, 2008, EPA published the final rulemaking "Lead; Renovation, Repair, and Painting
Program" (73 FR 21692), hereinafter referred to as the "RRP" rule. EPA promulgated this rule primarily
to address lead-based paint hazards created by renovation, repair, and painting activities that disturb lead-
based paint in target housing1 and child-occupied facilities2. Pursuant to Section 610 of the Regulatory
Flexibility Act (RFA), EPA has completed a review of the RRP rule to determine whether the provisions
that could affect small entities should be continued without change, or should be rescinded or amended to
minimize adverse economic impacts on small entities. In this report, EPA exercised its discretion to
consider not only the original RRP rule, but also actions taken to amend it in 2010 and 2011, as well as
comments EPA received pursuant to information requests regarding lead test kits in 2015 and 2016. More
specifically, this document addresses comments the Agency received from May 14, 2015 to July 6, 2015
and December 21, 2015 to February 19, 2016 pursuant to lead test kits, and June 9, 2016 to September 7,
2016 pursuant specifically to the Section 610 Review. The Agency concluded that the RRP rule should
remain unchanged without any actions to amend or rescind it.
The Agency based its conclusion on a review of stakeholder comments, other data that EPA reviewed that
are relevant to the factors set forth under Section 610, and the stated objectives of TSCA § 402(c)(3) to
reduce hazards associated with lead in paint. If EPA were aware of changes that would reduce burdens
that were consistent with Congress's objectives, the Agency would consider adopting them. Following a
review of relevant evidence, EPA did not identify such potential changes that would reduce burden on a
substantial number of small entities in a manner consistent with the stated objectives of TSCA. With
respect to lead test kits, the Agency acknowledges that a lead test kit meeting the rule's positive response
criterion has not come to market. Based on a reexamination of the costs of the RRP rule, the available
evidence indicates that the benefits continue to exceed its costs even if lead test kits meeting the positive
response criterion are not developed in the foreseeable future. Consequently, EPA is not initiating a
rulemaking to amend the RRP rule.
Background
As EPA began to develop the rule, the Agency formally evaluated the potential impacts of the program on
small businesses according to the requirements of the Small Business Regulatory Enforcement Fairness
Act (SBREFA), which is part of the Regulatory Flexibility Act. During this process, we assessed the
potential impact of the rule on the types of small entities that would be directly affected by the rule
including, but not limited to - building construction contractors/remodelers, specialty trade contractors,
real estate lessors and managers who either contract to or directly perform maintenance work on target
housing or child-occupied facilities properties that they lease, child day care service providers, elementary
and secondary school staffs, technical and trade school training providers, and engineering service firms.
EPA determined that many companies in these categories met the Small Business Administration criteria
of small entities, and we took the additional steps specified by the RFA and SBREFA to identify and
address concerns of these small entities. A federal Interagency SBREFA Panel was convened to consider
the available information from small entities and other sources. The Panel made several recommendations
for EPA to consider in the rule, and the Agency proposed and took comment on these recommendations.
1 Section 401(17) of TSCA defines target housing as "any housing constructed prior to 1978, except housing for the
elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in
such housing for the elderly or persons with disabilities) or any 0-bedroom dwelling.''
2 §745.83 and §745.223 defines child-occupied facility to mean "a building, or portion of a building, constructed
prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any
week (Sunday through Saturday period), provided that each day's visit lasts at least 3 hours and the combined
weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours."
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Discussion of the Five Statutory Factors
EPA reviewed the RRP with respect to the five factors set forth in Section 610 of the Regulatory
Flexibility Act (5 U.S.C. 610). In conducting this review, the Agency also considered amendments made
in 2010 (75 FR 24802) and 2011 (76 FR 47918) to eliminate a provision for contractors to opt-out of
prescribed work practices and to affirm the qualitative clearance of renovated or repaired spaces,
respectively, as well as comments it received regarding lead test kits in 2015 (80 FR 27621) and 2016 (80
FR 79335).
1. Continued Need for the Rule
The Agency considered the continued need for the rule in light of the passage of time since its
promulgation. The reexamination of the benefits of the Lead RRP rule is an important part of the
consideration of the continued need for the rule. Exposure to lead dust resulting from renovation, repair,
or painting activities can cause a variety of serious health effects in children. The adverse health effects of
lead are well documented. In children especially, cognitive effects including effects on attention,
executive functions, language, memory, learning, and visuospatial processing with attention and
executive function effects have been observed. These effects have not changed since the rule was
promulgated. In fact, adverse health effects have been shown to occur at even lower blood lead levels
than when the rule was first promulgated3.
When Congress enacted Title X of the Housing and Community Development Act of 1992, Public Law
102-550, it established a national goal of eliminating lead-based paint hazards in housing as expeditiously
as possible. EPA believes the RRP rule minimizes exposure to lead-based paint hazards to help achieve
the stated goal of the statute. EPA concludes that the rule continues to appropriately take into account
reliability, effectiveness, and safety.
2. Nature of Complaints or Comments Received Concerning the Rule
EPA received fifteen public comments during the 610 review period from June 9, 2016 to September 7,
2016. The Agency also exercised its discretion by responding to twenty public comments received in
2015 and 2016 during two separate lead test kits comment periods. Specific responses to the thirty-five
comments are found in this report, but comments fell into the following general categories: lead test kits
and alternative technologies; training and the minor amendments rule; rule implementation,
recertification, and enforcement; qualitative/quantitative post-job clearance testing; EPA's conduct of the
Section 610 review; rule scope; economic analysis; removal of the option to opt-out of using rule-
mandated work practices in target housing and child-occupied facilities; and comments that were beyond
the scope of this review.
With respect to lead test kits and alternative technologies, the Agency responded that TSCA does not
require that benefits of the RRP rule exceed its costs. Rather, TSCA § 402(c)(3) requires EPA to address
lead-based paint hazards created during renovation, remodeling and painting activities, taking into
account reliability, effectiveness, and safety. The statute defines lead-based paint hazards as "any
condition that causes exposure to lead . . . that would result in adverse human health effects," which are
currently identified by regulation at 40 CFR 745.65. EPA acknowledges that no lead test kit meeting the
3 Low Level Lead Exposure Harms Children: A Renewed Call for Primary Prevention - Report of the Advisory
Committee on Childhood Lead Poisoning Prevention of the Centers for Disease Control and Prevention, Advisory
Committee on Childhood Lead Poisoning Prevention, Centers for Disease Control and Prevention, January 4, 2012,
https://www.cdc.gov/nceh/lead/acclpp/final_document_030712.pdf.
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rule's positive response criterion has come to market. EPA has reexamined the costs of the RRP program
using a false positive rate of 63% to 84%, which is the high end of the rate for EPA-recognized test kits
that are currently available nationally. This results in an estimate that the annualized cost of the RRP
program is roughly $1 billion. While this is higher than EPA originally estimated in 2008 and 2010, the
quantified annualized benefits are roughly $1.5 billion to $5 billion. Thus, the available evidence
indicates that the benefits of the RRP rule continue to exceed its costs even if lead test kits meeting the
positive response criterion are not available in the foreseeable future. EPA is also aware of two lead test
kits currently under development that aim to meet the lead test kit performance criteria. EPA continues to
monitor the progress of these technologies.
Table 1. Total costs and benefits of RRP Program ($ million) based on test kits with 63% to 84%
false positive rate
Annualized costs
Annualized benefits
3% discount rate
7% discount rate
3% discount rate
7% discount rate
$956 - $1,063
$1,026 - $1,139
$1,547 - $4,731
$1,645 - $5,036
With respect to training and minor amendments made to the rule, the Agency received comments
addressing the 2016 change that now allows renovators to complete refresher training online. One
commenter thought the change made the rule too complicated. Another commenter supported the addition
of online training. EPA reaffirmed its conclusion that online training reduced burden and costs to industry
and clarified language for training providers.
Commenters criticized the Agency's implementation of the rule, recertification practices, and
enforcement actions. Commenters stated that the Agency allows too many people who are not trained
renovators and who do not comply with rule standards to conduct business without a penalty. The
commenters reported that the lack of enforcement places an undue burden on compliant firms by making
their bids less competitive than non-compliant firms. In the Appendix to this document, the Agency
provides data to quantify its enforcement activities, and encourages individuals to report violations
through EPA's website.
Some commenters requested that the Agency revisit its decision not to require quantitative post-job
clearance. One commenter claimed that requiring quantitative clearance would improve the rule's
effectiveness and another stated that they considered the current requirement for qualitative clearance to
be adequate. The Agency reaffirms the conclusion it reached in 2011. EPA does not support imposing a
dust wipe testing or a clearance requirement on renovations. EPA is convinced that the work practices
established in the 2008 rule are reliable, effective, and safe, and that imposing a dust wipe testing or
clearance requirement is unwarranted.
One commenter objected to the Agency's conduct of the 610 review. Among other things, the commenter
stated that the description of the rule in the regulatory agenda was deficient and that the Agency failed to
explain the rule's "legal basis." EPA's process for this review complies fully with the requirements of the
Regulatory Flexibility Act, and is consistent with how the Agency has handled the Section 610 review for
other rulemakings. EPA did not withdraw this notice and there are no plans to undergo a second comment
period on the report on the Agency's 610 review process.
With respect to the rule's scope, some commenters stated that they believed residences and child-
occupied facilities constructed between 1960 and 1978 should not be regulated under RRP. Commenters
suggested that the Agency change the scope of the rule to include residences and child-occupied facilities
constructed before 1960 exclusively. Commenters also stated that some job types currently covered by the
rule, namely window replacements, should not be included under RRP. With respect to the vintage of
homes, the Agency concluded that, because some target housing and child-occupied facilities built
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between 1960 and 1978 contain lead-based paint, EPA does not have a record basis to conclude that
exempting them from the rule would address lead-based paint hazards taking into account reliability,
effectiveness, and safety. With respect to replacing windows, since evidence suggests that activity
generates lead hazards, the Agency declined the commenter's request.
Some commenters criticized the Agency's original economic analysis. They claimed that the analysis was
flawed because it inaccurately estimated what compliance would cost renovation firms. Others reported
that the Agency failed to adequately account for the economic impact of amendments to the rule and the
lack of an improved lead test kit that could meet the specified performance criteria. Some of these
commenters claimed that a new economic analysis would show that the rule's costs exceed its benefits. In
summary, they claim that EPA should conduct a new economic analysis for the RRP program. If the new
analysis were to show that costs exceed benefits, they argue that EPA should amend or rescind the rule.
As described above and shown in Table 1, EPA's reexamination of the costs of the RRP program using a
test kit false positive rate of 63% to 84% indicated that the annualized cost of the RRP program is roughly
$1 billion compared to quantified annualized benefits of roughly $1.5 billion to $5 billion. Thus, even
with the uncertainties in the estimates, the magnitude of the differential suggests that the benefits of the
rule exceed its costs.
Some commenters thought that the Agency should reinstate the provision of the rule that allowed
homeowners to opt-out of RRP requirements for all homes, regardless of housing vintage. Some
commenters suggested reinstating the option to opt-out of rule provisions only in residences and child-
occupied facilities constructed after 1960. The "opt-out" provision allowed homeowners to opt-out of the
2008 RRP Rule's requirements in certain limited situations. Specifically, the firm performing the
renovation has obtained a statement signed by the owner that the renovation will occur in the owner's
residence, no child under age six resides there, no pregnant woman resides there, the housing is not a
child-occupied facility, and the owner acknowledges that the renovation firm will not be required to use
the work practices contained in EPA's renovation, repair, and painting rule. In both cases, the Agency
reaffirmed the conclusion it reached when it removed the option to opt-out of rule provisions in 2010.
EPA concluded that reinstating the opt-out provision of the rule's work practices would make the RRP
rule less protective and effective. TSCA § 402(c)(3) requires EPA to address lead-based paint hazards
created during renovation, remodeling and painting activities, taking into account reliability,
effectiveness, and safety. The statute defines lead-based paint hazards as "any condition that causes
exposure to lead . . . that would result in adverse human health effects," which are currently identified by
regulation at 40 CFR 745.65. EPA does not have a record basis to conclude that reinstating the opt-out
would address lead-based paint hazards, taking into account reliability, effectiveness, and safety.
Some comments did not address issues related to the RRP rule or its amendments. The Agency responded
to these comments but did not substantively address them because they were beyond the scope of this
review.
3. Complexity of the Rule
The Agency considered the complexity of the rule under review. Although effectively achieving the
objectives of TSCA § 402(c)(3) required the Agency to establish a number of regulatory provisions, EPA
coordinated the various requirements and worked with industry participants, large and small, to facilitate
implementation. Partially as a result of these groups' participation, a rule amendment included a provision
aimed at easing the burden of compliance for all regulated entities by accommodating online
recertification. Further, EPA developed a Small Entity Compliance Guide following the publication of the
final rule, which provided descriptions of the regulations and small entity provisions, questions and
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answers, and other helpful compliance information. EPA has tried not to make the rules overly
complicated. The provisions that EPA has included to offer flexibility to the regulated community while
achieving the objectives of the statute do add some degree of complexity, but those requirements are not
overly complex. The Agency concludes that the rule does not need to be amended or rescinded due to its
level of complexity.
4. Extent to Which the Rule Overlaps, Duplicates, or Conflicts with Other Federal, State, or
Local Government Rules
The Agency considered the extent to which the rule overlaps, duplicates, or conflicts with other federal,
state, or local government rules. EPA considered the relationship between its regulation of lead-based
paint activities and those regulated by the Department of Housing and Urban Development (HUD) and
the Occupational Safety and Health Administration (OSHA). EPA has continued to consult with these
agencies since 2008 to avoid overlapping, duplicating, or conflicting with their regulations. As it did at
the time of the rule's initial promulgation, the Agency continues to believe that those agencies' statutes
and subsequent regulations differ substantially from EPA's and do not overlap, duplicate or conflict with
EPA's regulations. However, in 2009, EPA and HUD completed a joint model training curriculum
designed to address the requirements of EPA's RRP regulation as well as HUD's Lead Safe Housing
regulation. EPA does not believe similar synergies exist between the EPA/HUD programs and OSHA's
requirements. Therefore, EPA has concluded that neither HUD's nor OSHA's regulations overlap,
duplicate, or conflict with RRP. The Agency specifically addresses this issue in response to commenters
who suggested that EPA collaborate more closely with OSHA to develop a shared training curriculum.
The Agency also considered the impact of states that operate their own RRP programs under delegated
authority from EPA. Since these programs are developed in cooperation with Agency staff and, when
approved, operate in lieu of the federal program, EPA believes that they do not overlap, duplicate, or
conflict with the federal program. However, the Agency responded to a commenter who incorrectly
alleged that the state of Illinois requires RRP paint-chip sampling be conducted by a third party.
Therefore, at this time, EPA is not aware of any overlap, duplication, or conflict with other similar
programs.
5. Relevant Changes to Technology, Economic Conditions, or Other Factors
Finally, the Agency considered the degree to which technology, economic conditions, or other factors
have changed in the area affected by the rule under review in light of the length of time since it has been
evaluated. Although no improved lead test kit is available, the Agency believes alternatives (i.e., XRF
instrument, paint chip sampling) to an improved lead test kit exist. During this review, EPA was also
notified of two developing lead test kit technologies that may be able to meet the lead test kit performance
criteria in the RRP rule. EPA will continue to monitor the progress of these technologies. Whether or
when these lead test kits are eventually recognized by EPA will depend on the success of the entities that
are developing them.
EPA does not believe that there have been any changes that have introduced any significant additional
burdens on small entities subject to this rule. In fact, economic conditions have improved since the rule's
analysis was conducted in 2008. In the response to comments, EPA provides evidence to show that the
adverse impacts alleged by some commenters have not prevented increases in employment among people
who work in renovation and construction since 2008. Renovation, repair, and painting activities still rely
on the same basic technologies that EPA considered at the time of the 2008 rulemaking, such as cutting,
sawing, drilling, scraping, sanding, component removal, and window replacement. EPA is not aware of
any evidence that contradicts its 2008 findings (based on the 2007 Dust Study) that these activities can
create lead-based paint hazards. Nor is EPA aware of any new technologies that can substitute for the
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containment, cleaning, cleaning verification, and other requirements in the RRP rule and achieve the goal
of minimizing exposure to lead-based paint hazards created during renovation, remodeling and painting
activities, taking into account reliability, effectiveness, and safety. EPA is not aware of any new
technologies that would lead the Agency to revise the conclusion it made in 2010.
Conclusion
Based on EPA's Section 610 review of the 2008 RRP final rule, its amendments, and comments pursuant
to lead test kits, the Agency has concluded that there is still a need to mitigate lead-based paint hazards,
that no new technology has superseded the need for the rule, that it serves a purpose that is distinct from
state and local governments' as well as other agencies' rules, that it is not too complex, that there have not
been any changes that have introduced any significant additional burdens on small entities subject to it,
and that it continues to be reliable, effective, and safe. Therefore, the rule will be continued without
change. As part of any future rulemakings related to these industries, EPA will continue to work with
small-entity representatives to minimize any potential unfavorable impacts while continuing to discharge
the Agency's statutory mandate of eliminating lead-based paint hazards in housing and child-occupied
facilities as expeditiously as possible.
Response to Comments
In the Appendix to this document, EPA responds to the thirty-five comments it received pursuant to the
Section 610 Review of the RRP rule as well as to the invitation for comments on lead test kits in 2015 and
2016. Prior to each response, the Agency summarized commenters' concerns and cited the docket
number(s) associated with them (citations are structured 20XX [year]-XXXX [docket number]-XXXX
[document number]. These numbers refer to docket IDs headed EPA-HQ-OPPT-[year] - [docket
number]-[document number] at www.regulations.gov'). In some cases, the Agency elected to address
multiple commenters' concerns in a single response. In those cases, the Agency cites all the comments
associated with the response. The Agency appreciates the time and effort invested by the commenters
who provided comments on these issues.
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Appendix: Response to Comments
Comment: Several commenters (Commenters #2016-0126-0011, #2016-0126-0012, #2015-0780-0010,
#2015-0780-0011, #2015-0780-0012, #2015-0780-0027 and #2015-0780-0024) claimed that EPA must
perform a new economic analysis because there is no lead test kit on the market that meets the false
positive criteria that EPA set in 2008. According to these commenters, a new analysis would indicate
much higher costs than EPA originally estimated. As evidence, the commenters point to EPA's estimates
of the first-year costs of the rule (before new lead test kits meeting the false positive standard were
assumed to come on the market). According to these commenters, EPA should amend or rescind the rule
if a revised economic analysis shows that costs exceed benefits.
Response: For this review, EPA considered the evidence presented by public commenters and utilized
existing available data to reexamine the 2008 Lead RRP rule and the 2010 Amendment. EPA recalculated
the cost of the rule using a test kit false positive rate reflective of the EPA-recognized test kits that are
currently available nationally. (These rates are higher than EPA assumed in its original analyses.) One of
these EPA-recognized test kits has a false positive rate of 22%, while the other has a rate of 63% to 84%.
EPA used the rate for the more sensitive test kit (63% to 84%) and, for purposes of this calculation,
assumed that improved test kits do not enter the market in the future. This results in an estimate that the
annualized cost of the RRP program is roughly $1 billion, as shown in the table below. While this is
higher than EPA originally estimated in 2008 and 2010, the table also shows that the quantified benefit
estimates (taken from EPA's previous Economic Analyses) are still at least 1.5 times the new cost
estimates. Thus, even with the uncertainties in the estimates, the magnitude of the differential suggests
that the benefits of the rule exceed its costs even if the lead test kits do not meet the positive response
criterion.
Total costs and benefits of RRP Program ($ million) based on test kits with 63% to 84% false positive rate
Annualized costs
Annualized benefits
3% discount rate
7% discount rate
3% discount rate
7% discount rate
$956 - $1,063
$1,026 - $1,139
$1,547 - $4,731
$1,645 - $5,036
This calculation does not reflect the current availability of an EPA-recognized lead test kit with a false
positive rate of approximately 22%. Furthermore, XRF testing and paint chip sampling have much lower
false positive rates than test kits. These technologies provide feasible approaches to testing for lead-based
paint, and can be cost-effective methods for reducing compliance costs - particularly for large jobs in
buildings where there is a low probability of disturbing lead-based paint. (This issue is addressed in detail
later in this document.) Finally, the estimates in the table above do not include the modest savings due to
EPA's 2016 amendments to allow renovator refresher training to be taken periodically without a hands-on
component.
The total costs in the table above are based on EPA's existing cost estimates for containment and
cleaning. EPA disagrees with industry commenters who have claimed that EPA has substantially
underestimated the costs of the work practice standards. EPA summarizes some of the misconceptions
and errors in those claims later in this document, and has provided detailed explanations in other
documents.4
4 See Response to Public Comments. Lead; Amendment to the Opt-out and Recordkeeping Provisions in the
Renovation, Repair, and Painting Program. U.S. Environmental Protection Agency. April 2010. EPA-HQ-OPPT-
2005-0049-1134.
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The reexamination of the benefits of the Lead RRP rule is an important part of the consideration of the
continued need for the rule. Exposure to lead dust resulting from renovation, repair, or painting activities
can cause a variety of serious health effects in children. The adverse health effects of lead are well
documented. In children especially, cognitive effects including effects on attention, executive functions,
language, memory, learning, and visuospatial processing with attention and executive function effects
have been observed. These effects have not changed since the rule was promulgated. In fact, adverse
health effects have been shown to occur at even lower blood lead levels than when the rule was first
promulgated5.
Furthermore, the table above only includes the quantified benefits estimates. EPA notes that EO 12866
and Circular A-4 stress the importance of considering unquantified effects.6 As described in EPA's
economic analyses for the 2008 and 2010 rulemakings, there are numerous benefits to reducing lead
exposure that were not quantified. These include additional types of benefits to populations included in
the analysis, due to decreases in:
• IQ loss in children resulting from prenatal and breast milk exposure;
• Medical costs to treat very high levels of lead;
• Additional education costs for special and remedial education due to IQ impacts;
• Behavioral problems;
• Blood pressure effects due to the 2008 rule; and
• Other health effects (e.g., immune and renal system effects).
Nor do the quantified estimates include benefits from avoided negative health effects in other
populations that were not included in the analysis, such as those who:
• Live near houses that are renovated (other than occupants in houses that are contiguous and
attached to a renovated house eligible for the opt-out provision, evaluated in the 2010 analysis); or
• Spend time in a friend's or relative's house that is renovated.
These comments have focused on the costs of the rule but, as noted by EO 12866, it is essential to
consider both the quantified and unquantified benefits of the rule.
EPA promulgated the Lead RRP rule because it was required to do so by statute. The work practice
requirements were necessary to address lead-based paint hazards and were based (as directed by the
statutory standard) on studies of renovation activities. Based on the results of the four-phase study entitled
"Lead Exposure Associated with Renovation and Remodeling Activities," EPA concluded that all
renovations that disturb lead-based paint in target housing and child-occupied facilities create lead-based
paint hazards. Upon making this finding, EPA was obligated to issue regulations under TSCA § 402(c)(3)
that addressed those hazards, taking into account reliability, effectiveness, and safety. EPA reviewed a
number of studies in developing work practice requirements, but the Characterization of Dust Lead
Levels After Renovation, Repair, and Painting Activities (the "Dust Study") was EPA's primary work
practice resource in crafting the requirements of the final RRP rule. EPA concluded in 2008 that the
training, containment, cleaning, and cleaning verification requirements achieve the goal of minimizing
exposure to lead-based paint hazards created during renovation, remodeling and painting activities, taking
5 Low Level Lead Exposure Harms Children: A Renewed Call for Primary Prevention - Report of the Advisory
Committee on Childhood Lead Poisoning Prevention of the Centers for Disease Control and Prevention, Advisory
Committee on Childhood Lead Poisoning Prevention, Centers for Disease Control and Prevention, January 4, 2012,
https://www.cdc.gov/nceh/lead/acclpp/final_document_030712.pdf.
6 "Costs and benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be
usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless
essential to consider." Executive Order 12866, Regulatory Planning and Review, September 30, 1993.
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into account reliability, effectiveness, and safety. The requirements in the RRP rule were consistent with
the stated objectives of the statute. Following this review, EPA has seen no new evidence to change that
conclusion, so it would not be consistent with those objectives to rescind the rule.
The commenters appear to believe that EPA's adoption of the requirements in the 2008 rule was
predicated on the presumed availability of lead test kits with a lower false positive rate. That is not the
case. EPA's economic analysis indicated that there were other less costly options available, but EPA
concluded that those alternatives did not achieve the stated objectives of the statute.
As discussed elsewhere in this document, commenters have suggested various amendments (such as
exempting post-1960 housing from the RRP rule, reinstating the opt-out provision, allowing the opt-out
for post-1960 housing, or requiring disclosure of renovation activities when the owner opted out of the
RRP requirements). EPA does not have a record basis to conclude that these options would address lead-
based paint hazards, taking into account reliability, effectiveness, and safety. Some commenters also
indicated that changes to the work practice requirements might be appropriate, but they did not identify
specific changes or provide supporting data. EPA does not have a record basis that would lead the Agency
to revise its 2008 conclusion that the required work practices (containment, cleaning, and cleaning
verification) are needed to minimize exposure to lead-based paint hazards created during RRP activities.
EPA does not believe that the evidence indicates that it should amend or rescind the rule. Section 610 of
the Regulatory Flexibility Act explains that, "The purpose of the review shall be to determine whether
such rules should be continued without change, or should be amended or rescinded, consistent with the
stated objectives of applicable statutes, to minimize any significant economic impact of the rules upon a
substantial number of such small entities." The threshold question is whether potential amendments to the
rule that would minimize any significant economic impact of the rule upon a substantial number of such
small entities are consistent with the stated objectives of the statute. At this time, EPA does not intend to
initiate a rulemaking for reasons described in this document.
Complying with the Section 610 requirements does not require revising the rulemaking record for earlier
rulemakings. Instead, EPA's focus is on determining whether there are factual grounds to conclude that
changes to the rule are warranted and would be consistent with the statutory objectives. If evidence
supported such potential changes, EPA would initiate a rulemaking. EPA has determined that initiating
such a rulemaking is not necessary.
EPA has already amended the RRP rule to provide renovators with more flexibility and reduce
compliance costs.7 If EPA were aware of changes that would reduce burdens that were consistent with
Congress's objectives, the Agency would consider adopting them. While a lead test kit that meets the
positive response criterion has not come to market, the available evidence indicates that the benefits of the
RRP rule exceed the costs of the rule even if lead test kits meeting the positive response criterion are not
developed in the foreseeable future. EPA believes that the reanalysis described above is sufficient to
address the comments about the impact of the test kit false positive rate on the rule's costs.
Comment: Commenters #2016-0126-0011 and #2015-0780-0010 stated that EPA should amend or
rescind the rule if a revised economic analysis shows that costs exceed benefits. According to the
commenter, under EO 12866, agencies should only adopt regulations whose benefits exceed their costs.
7 For example, EPA's 2011 amendments to the RRP rule allowed a certified renovator to collect paint chip samples
for analysis instead of using a test kit (76 Federal Register 47918, August 5, 2011). And the 20f6 amendments
allowed a renovator to take refresher training without a hands-on component every other training cycle, with a
shorter certification period (81 Federal Register 7987, February 17, 2016).
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The commenter claimed that it is unclear whether the benefits of the rule would still exceed the costs if
EPA performed an economic analysis without assuming that the lead test kit false positive rate improved.
The commenter claimed that if a revised economic analysis showed that the rule's costs exceed its
benefits, EPA may need to consider reinstituting some form of the opt-out provision limiting the
applicability of the rule to pre-1960 housing, revising the lead-safe work practices, and revisiting the
training and recertification requirements.
Response: As EPA has addressed elsewhere in this document, EPA estimates that the benefits of the RRP
rule exceed its costs even if the lead test kits' false positive rate is not improved. Furthermore, the
commenters' contention that EPA should amend or rescind the rule if the costs exceed the benefits is
based on an incorrect reading of the applicable requirements. The Regulatory Flexibility Act, and the
Toxic Substances Control Act (TSCA) do not require monetized benefits to exceed monetized costs.
Section 610 of the Regulatory Flexibility Act states that:
The purpose of the review shall be to determine whether such rules should be continued without change, or
should be amended or rescinded, consistent with the stated objectives of applicable statutes, to minimize
any significant economic impact of the rules upon a substantial number of such small entities.8
Regarding the lack of a requirement in TSCA that the benefits of this rule exceed its costs, as the U.S.
Court of Appeals for the District of Columbia explained in response to a petition from this same
commenter for review of EPA's final rule removing the opt-out provision:
We note first that EPA does not have a statutory duty to demonstrate that the benefits of the amended rule
outweigh its costs. The TSCA was passed in 1976 with the following preface: "It is the intent of Congress
that the Administrator shall carry out this chapter in a reasonable and prudent manner, and that the
Administrator shall consider the environmental, economic, and social impact of any action the
Administrator takes or proposes to take under this chapter." 15 U.S.C. § 2601(c. Although the TSCA thus
"expressly requires the Administrator to consider" the "economic consequences" of action taken under the
Act ... this does not mean that the regulation's benefits must outweigh its costs ... Indeed, when Congress
amended the TSCA in 1992 to authorize regulations addressing lead-paint hazards, it instructed EPA to
"tak[e] into account reliability, effectiveness, and safety" ~ but did not mention cost. 15 U.S.C. §
2682(a)(1).9
Before EPA expends resources conducting an economic analysis of potential revisions to the rule, the
threshold issue is whether the alternatives suggested by the commenters are consistent with the statutory
objectives. If the suggested alternatives are inconsistent with the statutory objectives, there is no reason to
initiate an action to amend the rule or prepare an economic analysis.
EPA notes its previous explanation about whether available evidence demonstrates that alternative
options would fulfill the statutory directives. In removing the opt-out provision, EPA stated that:10
The Agency believes that it should only allow provisions such as the opt-out for situations where the
information available to EPA indicates that the RRP rule work practices are not necessary to minimize
exposure of occupants to lead paint hazards. Because lead paint dust exposure can cause adverse health
effects for populations other than just children under age 6 and renovations can result in lead dust levels
8 Regulatory Flexibility Act as amended by Small Business Regulatory Enforcement Fairness Act. Section 610:
Periodic review of rules (emphasis added in the quoted language).
9 Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1040 (D.C. Cir. 2012) (emphasis added in the quoted
language.
10 75 Federal Register 24806, May 6 2010.
11
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many times higher than the hazard standard, EPA believes the work practices should be followed in target
housing without regard to the age of the occupants.
Moreover, EPA believes that implementing the regulations without the opt-out provision promotes, to a
greater extent, the statutory directive to promulgate regulations covering renovation activities in target
housing. Among other things, TSCA section 402(c)(3), directs EPA to promulgate regulations that apply to
renovation activities that create lead-based paint hazards in target housing. Pursuant to section 403 of
TSCA, EPA has identified dust-lead hazards in target housing and child-occupied facilities as surface dust
that contains a mass-per-area concentration of lead equal to or exceeding 40 jxg/ft2 on floors or 250 jxg/ft2
on windowsills. In the RRP rule, EPA found that renovation, repair, and painting activities that disturb
lead-based paint create lead-based paint hazards. Thus, renovations in target housing that create lead-based
paint hazards should be covered unless there is a record basis to conclude that coverage is unnecessary.
Shortly after promulgating the RRP rule, the RRP rule, and specifically the opt-out provision, was
challenged. EPA decided to settle the lawsuit. As part of the settlement, EPA agreed to issue a proposed
rule removing the opt-out. In turn, as part of this rulemaking, EPA requested information or data that would
shed any light on the reliability, effectiveness, or safety of the opt-out or any variation thereof in relation to
EPA's lead hazard standards. EPA did not receive any information in response to its request.
EPA's Dust Study demonstrated and EPA found that renovation, repair, and painting activities produce
lead dust above the regulatory hazard standards. In fact, many renovation activities create large quantities
of lead dust. The Dust Study shows that renovation activities result in lead levels many times greater than
the hazard standard when the RRP rule containment and cleanup procedures are not followed. It also
demonstrated that work practices other than those restricted or prohibited by the RRP rule can leave behind
lead dust well above the hazard standards when the RRP rule requirements are not followed. The Dust
Study also showed that alternative practices (broom cleaning, not using containment) were not effective or
safe in relation to EPA's lead hazard standards. Under the opt-out, contractors performing renovations
would have no obligation to minimize or clean up any dust-lead hazards created by the renovation. Indeed,
contractors would not be prevented from using practices that EPA has determined create hazards that
cannot be adequately contained or cleaned up even when following the RRP rule requirements. The
Agency also took these factors into consideration in its decision to remove the opt-out provision in this
final rule...
... Based on the data available to EPA (e.g., the Dust Study), the Agency cannot now conclude that the opt-
out nor that the alternative approaches are safe, reliable or effective because none of these would
sufficiently minimize exposure to lead-based paint hazards. In sum, when the RRP work practices are not
used, residents and visitors are exposed to the lead hazards created by the renovation, and therefore these
approaches would not protect older children, women of childbearing age, or other adults currently residing
in the home and can result in exposure to children under the age of 6 and pregnant women to lead-based
paint hazards. Again, although EPA specifically requested information or data that would shed any light on
the reliability, effectiveness, or safety of these options in relation to EPA's lead hazard standards, the
Agency did not receive any. The Agency took these factors into consideration in deciding not to adopt
these alternatives.
EPA is not aware of any information, based on comments submitted during this review, that would allow
it to conclude that the alternative options offered by the commenters during this Section 610 review
would sufficiently minimize exposure to lead-based paint hazards. Therefore, EPA does not have a record
basis to conclude that these options (including exempting post-1960 housing, reinstating the opt-out
provision, allowing the opt-out provision for post-1960 housing, or requiring disclosure of renovation
activities when the owner opted out of the RRP requirements) would address lead-based paint hazards,
taking into account reliability, effectiveness, and safety.
Regarding the commenter's suggestion that EPA revise the lead-safe work practices, and revisit the
training and recertification requirements, the commenter has not provided any new data about the safety,
12
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reliability, and effectiveness of the required work practices. Therefore, EPA does not have a basis to
change its conclusions about what activities are necessary to achieve the objectives of the rule.
As EPA explained in 200811:
The primary objective of the rule is to minimize exposure to lead-based paint hazards created during
renovation, repair, and painting activities in target housing and child-occupied facilities ... the Agency
concludes that the training, containment, cleaning, and cleaning verification requirements in the final rule
achieve the goal of minimizing exposure to lead-based paint hazards created during renovation, remodeling
and painting activities, taking into account reliability, effectiveness, and safety.
EPA is not aware of information demonstrating that alternative work practices or training and certification
requirements would meet these objectives. As one commenter stated, "Since the final rule was
promulgated, there have been, to our knowledge, no additional studies published that would refute EPA's
findings from 2008."12
When Congress enacted Title X of the Housing and Community Development Act of 1992, Public Law
102-550 it established a national goal of eliminating lead-based paint hazards in housing as expeditiously
as possible. EPA does not have a record basis to conclude that amendments suggested by the commenters
would address lead-based paint hazards, taking into account reliability, effectiveness, and safety.
Comment: Commenter #2016-0126-0011 claimed that the new renovator recertification requirements are
unnecessarily complex and burdensome. According to the commenter, EPA's February 17, 2016
amendment to the RRP rule (which allows renovators to take refresher training without a hands-on
component under certain circumstances) creates additional burdens for renovators, and contradicts the
Agency's goals by reinstating burdens it sought to avoid.
Response: The 2016 amendment to the training requirement will not increase the burden for renovators
compared to the original requirements in the RRP rule. Limiting to three years the period for which
refresher training without a hands-on component is valid does not create additional burdens for renovators
because all renovators still have the option of being certified for five years each training cycle if they take
a refresher training class that includes a hands-on component. Moreover, renovators that take an online
refresher training course without the hands-on training component will save the time and expense needed
to travel to a training facility. Furthermore, training providers may pass along to renovators some of the
savings from offering classes without the hands-on training component. EPA estimates that the savings in
time and travel costs alone for online training average $144 per renovator.13 While the final rule provides
less burden reduction than the proposed rule, it is still a burden reduction.
A renovator who can take the class online saves the time and associated costs incurred by traveling to a
training site. The farther renovators would have had to travel, the greater the savings from taking the class
online. The travel savings may not outweigh the shorter certification period for renovators who travel
only a short distance to a training site. But those renovators can continue to take the hands-on component
every training cycle and be certified for five years.
11 Final Regulatory Flexibility Analysis for the Lead; Renovation, Repair, and Painting Program. U.S.
Environmental Protection Agency. March 2008, page 1.
12 Environmental Defense Fund, Section 610 Review of the 2008 Lead Renovation, Repair, and Painting Program
(RRP), August 26, 2016. EPA-HQ-OPPT-2016-0126-0008.
13 Economic Analysis for the Lead-Based Paint Program Minor Amendments Final Rule. U.S. Environmental
Protection Agency. February 2016.
13
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The 2016 amendment does not increase or reinstate burdens for renovators because the five-year
certification is still available to any renovator that takes refresher training with a hands-on component.
Therefore, the amendment does not contradict the Agency's goals. The amendment reduces costs for
renovators who faced high travel costs, while allowing renovators with low travel costs (who would not
save money under the amended provisions) to continue taking refresher training with a hands-on
component on a five-year cycle. The resulting burden reduction was acknowledged by another commenter
that stated it does not think that hands-on training is necessary for recertification, but nevertheless said
that it "welcomes the recent change to the recertification requirement and applauds EPA for listening to
the remodeling sector's concerns to make the rule less burdensome."14
The revised rule merely allows renovators additional flexibility, which is consistent with the principles of
the Regulatory Flexibility Act and EO 12866. The commenter acknowledged this additional flexibility
earlier in 2016 when it stated that "As a longtime advocate for a simplified recertification process, NAHB
Remodelers appreciates that the EPA's changes provide some flexibility ... "15 The commenter has not
explained or justified the switch from its position in February 2016 that the change to the training
requirements provides some flexibility for renovators (albeit not as much flexibility as the commenter
would have liked) to its September 2016 claim that the change creates additional burden for renovators.
The evidence indicates that the 2016 amendment will reduce burden for those renovators that choose to
take advantage of the additional flexibility in refresher training.
Comment: Commenter #2016-0126-0015 stated that in the initial rulemaking EPA used data from only
nine firms to estimate the rule's compliance costs for over 323,000 firms. According to the commenter,
by using data from the first nine firms that responded, EPA used a convenience sample. The commenter
stated that random samples, rather than convenience samples, should be used to develop generalizations
about a target sample.
Response: EPA's data collection was based on a random sample, not a convenience sample. Examples of
convenience samples include TV viewers who call in response to TV polls to vote their opinions on a
particular topic; students who volunteer to participate in a laboratory experiment in response to flyers
posed on school bulletin boards; friends and relatives asked to complete a questionnaire; and shoppers at a
mall, truck drivers visiting a weigh station, attendees at a conference, or visitors at a website.16, 17 By
contrast, EPA collected data by randomly selecting businesses in SIC 172101 (Painting Contractors),
1521 (General Contractors - Single-Family Houses), and 1522 (General Contractors - Residential
Buildings Other Than Single-Family), which are industry sectors subject to the rule. EPA randomly
selected the businesses it contacted from an online service that contains contact information for 14 million
U.S. businesses.18 The commenter appears to have confused the sample size with the derivation of the
sample frame. Using data from the first Xfirms that respond does not mean that the methodology is based
on a convenience sample instead of a random sample, whether X is 900 or 90 or 9. And this is irrespective
of the size of the population being sampled.
14 Statement of the National Lumber and Building Material Dealers Association on Review of the 2008 Lead
Renovation, Repair and Painting Program', September 7, 2016. EPA-HQ-OPPT-2016-0126-0015, p. 7.
15 NAHB Moves Needle on EPA Online Lead Paint Training, But Remodelers Still Face Challenges. February 11,
2016. http://www.nahb.org/en/news-and-publications/Press-Releases/2016/02/nahb-moves-needle-on-epa-online-
lead-paint-training-but-remodelers-still-face-challenges.aspx.
16 Paul P. Biemer and Lars E. Lyberg, Lntroduction to Survey Quality, John Wiley & Sons, 2003, p.309.
17 Questions and Answers When Designing Surveys for Lnformation Collections, Office of Information and
Regulatory Affairs, Office of Management and Budget, January 2006, p. 30.
18 Economic Analysis for the TSCA Lead Renovation, Repair, and Painting Program Final Rule for Target Housing
and Child-Occupied Facilities. U.S. Environmental Protection Agency, March 2008, page 4-72.
14
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EPA used the information from the nine respondents to estimate the extent to which the containment and
cleaning practices required by the rule were used prior to the RRP rule.19 This is referred to as the
baseline for the work practices. The baseline rate of these work practices was used to estimate both the
incremental costs and the incremental benefits of the rule, which reflect the difference between the policy
scenario and the baseline scenario. To the extent that the actual baseline differed from the estimated
baseline, it would affect estimates of both costs and benefits in the same direction. For instance, the firms
that were questioned reported that they covered the floor within the work area with taped down sheeting
in 77% of jobs. So EPA estimated that the rule would result in additional labor costs for taping down
sheeting in the 23% percent of jobs where taped down sheeting was not already being used. Similarly,
EPA estimated benefits by assuming that requiring taped down sheeting in the RRP rule would reduce
exposure to lead dust in the 23% of jobs where this was not already being done. To the extent that the
actual baseline rates differed from the estimated values, it would affect the estimates of both costs and
benefits. If, for example, only 40% of jobs were actually performed using taped down sheeting prior to
the rule, both incremental compliance costs and incremental benefits would be higher than EPA
estimated.
EPA performed a sensitivity analysis in the 2008 Economic Analysis calculating the effect on estimated
net benefits if the work practices required by the rule were used in the baseline with 50 percent greater or
lesser frequency than indicated by the responses from the 9 renovators. The sensitivity analysis showed
that net benefits are not sensitive to the baseline use of the work practices. A change in the assumed
baseline level of work practice use increased both benefits and costs at about the same rate. A 50 percent
change in the baseline work practices changed the net benefits estimate by only 5 percent, and net benefits
were still approximately $1.2 billion per year.
Allcrnali\e \cl licniTils I'lslimalc: liasclinc l.c\cl I so of Kc(|iiirc(l Work
(Anniiali/cri. 3 percent discount rale. millions 2005S)
Praclices
Description
Estimate
Percent
Change
Primary Estimate
$1,266
50% Higher Baseline Work Practice Use
$1,205
-5%
50% Lower Baseline Work Practice Use
$1,198
-5%
Source: Economic Analysis for the TSCA Lead Renovation, Repair, and Painting Program Final
Rule for Target Housing and Child-Occupied Facilities. U.S. Environmental Protection Agency,
March 2008, Table 7-10, page 7-7.
While the baseline level of the required work practices influences the magnitude of the benefits and costs,
it has little impact on the relative relationship between benefits and costs. Thus, it is unlikely that
gathering data from more respondents would have changed the conclusion that the benefits of the RRP
rule significantly outweigh the costs.
EPA notes that it resorted to questioning a random sample of nine firms only after it failed to receive
responses from the industry in an earlier attempt to gather information about baseline work practices. The
2006 proposed RRP rule had specific requests for information in the section of the preamble discussing
the Economic Analysis (71 Federal Register 1621). Among the 11 questions asked were the following:
The work practice requirements of this proposal cover 3 general categories of activities: Containing the
work area, cleaning up the work area after the project has been completed, and verifying that the clean-up
was adequate. Costs associated with these work practice requirements are primarily related to the cost of
materials, such as the plastic used to cover the floors, and the cost of the labor needed to establish
19 The cost of the specific work practices was estimated from other sources, not the responses from the nine firms.
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containment before the project, clean the work area afterwards, and perform the post-renovation cleaning
verification step.
To further improve the analysis for the final rule, the Agency is also specifically interested in comments
and supporting information on the following questions related to assumptions used in the Agency's
analysis:
• To what extent do renovators/contractors already conduct any of the individual activities described in the
proposed rule, and under what renovation, repair or painting circumstances are any of these activities
routinely or rarely conducted? Do any contractors already perform all of the lead-safe work practices
described in this proposal? ...
• To what extent do renovators/contractors or homeowners already use vacuums equipped with HEP A
filters to clean-up debris created during renovation, repair or painting activities?
• Under what circumstances do renovators/contractors use plastic sheets or other methods to isolate and
collect dust and debris, during or after renovation, repair or painting activities?
However, EPA did not receive data about the use of these work practices from any industry commenters
on the 2006 proposed rule. In its response to the current request for comments, the commenter does not
provide estimates about the rates at which renovators used the required work practices prior to the RRP
rule taking effect. In addition, the commenter does not indicate whether they think the rates were higher
or lower than EPA estimated. Some commenters have continued to claim that the work practice
requirements are very expensive, but these claims do not specifically discuss the work practices being
used in the baseline. If their cost estimates are based on the assumption that there was little to no use of
basic practices to control dust (such as containing the work area before the job and cleaning it afterwards)
prior to the RRP rule, incremental compliance costs would be higher than EPA estimated but as
demonstrated by EPA's sensitivity analysis benefits would also be higher than estimated so there would
be little impact on estimated net benefits.20
Comment: Commenter #2016-0126-0012 stated that EPA decided it did not need to quantify some
opportunity costs associated with implementation of the rule, and did not include estimates for three
categories of opportunity costs: social welfare costs, transitional costs, and other indirect costs. According
to the commenter, some opportunity costs affecting consumer and supplier resources and potential
unemployment should have been considered in estimating the costs.
Response: EPA disagrees with the commenter's conclusions about the economic analysis. Basing the
analysis of the RRP rule on direct costs would only be an issue if there was some evidence that the other
categories of potential social cost are more likely to be significant for this rule than for other Agency rules
where the analysis was also limited to direct costs. This is not the case. In conducting the original
analyses, EPA concluded that it was not necessary to attempt to quantitatively analyze all of these types
20 EPA believes that many renovators did some containment and cleaning before the RRP rule was promulgated.
Indeed, EPA received comments from the renovation industry on the original RRP proposed rule claiming that
customers demanded clean job sites. For example, "It is essential that [professional remodelers] 'clean-as-you-go'
during any project, simply because the customer will not tolerate the nuisance of high dust levels in the rest of the
home." [Comment submitted by Susan Asmus, National Association of Home Builders. RE: EPA Regulatory Docket
number EPA-HQ-OPPT-2005-0049. April 16, 2007. EPA-HQ-OPPT-2005-0049-0682, page 10.] Also, "several
studies show that remodeling done by professionals leaves homes 'cleaner' than prior to the renovation." [NAHB
Comments on EPA Docket EPA-HQ-OPPT-2005-0049. Susan Asmus, National Association of Home Builders, July
5, 2007. EPA-HQ-OPPT-2005-0049-0838, page 11.] The only way they could do so was by using some containment
and cleaning, although this baseline activity may have been insufficient to remove all lead hazards.
16
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of potential costs. Some types of opportunity costs simply do not apply to the RRP rule. In other cases,
EPA did not believe that potential costs were sizable enough to make a difference in the conclusions
drawn from the analysis. Even where an effect may occur, the necessary data were not always available to
make quantitative estimates. The commenter did not provide evidence or identify specific instances of
significant examples of social welfare losses, transitional costs, or other indirect costs due to the RRP
rule. EPA continues to believe its conclusions from 2008 and 2010 are correct that, even if such costs
exist, their magnitude is not sufficient to be significant or relevant.
Comment: Commenter #2016-0126-0012 stated that EPA did not quantify social welfare costs associated
with implementation of the rule.
Response: It was appropriate for EPA's economic analysis not to quantify social welfare losses for the
RRP rule. Partial equilibrium models that quantify social welfare losses (lost producer and consumer
surplus) are data-intensive and usually not available "off-the-shelf' for use in economic analysis. In
practice, other methods such as compliance cost are often used in economic analysis when data on supply
and demand elasticities for the affected market are lacking to construct a partial equilibrium model.
Compliance costs can be considered a reasonable approximation of social cost where the regulation is not
expected to significantly impact the behavior of producers and consumers, as is the case for the RRP rule.
For the RRP rule, EPA estimated that the cost of the common work practices for the various types of
model jobs in the economic analysis varied from $35 to $400 per job if the renovator did not perform any
cleaning or containment in the baseline, and significantly less than that when factoring in typical baseline
rates of cleaning and containment. (EPA estimated that the average incremental cost of complying with
the rule's work practice requirements ranged from $8 to $124.) To put these costs into context, a study by
Harvard's Joint Center for Housing Studies found that the average expenditure for a professional home
improvement job in 2013 was $9,713.21 While there can be considerable differences from one job to
another, the typical cost of compliance with the RRP rule is small compared to the rest of the cost of a
renovation, even if there was no cleaning or containment in the baseline. Because typical incremental
compliance costs were estimated to be small compared to the other renovation costs, EPA did not expect
significant shifts in the equilibrium quantity or price of renovations. Therefore, EPA does not believe that
it was necessary to attempt to quantify changes in consumer surplus due to changes in quantity and price
from these additional costs.
The change in social welfare resulting from fees paid to the government is also small. The rule requires
renovation firms to become certified by EPA or an EPA-approved state RRP program in order to perform
renovation, repair or painting activities for compensation in target housing or child-occupied facilities.
EPA is required by law to charge firms a certification fee that covers the government's cost of
administering the program. Firm certification is valid for 5 years. The fee for most firms is $30022, which
is equivalent to a cost of $60 per year. This is a small cost compared to the value of work performed by an
RRP firm during the course of a year, so it will not result in significant shifts in the equilibrium quantity
or price of renovations. Thus, EPA does not expect a significant change in consumer surplus due to the
economic impact of the RRP rule fees.
21 Harvard Joint Center for Housing Studies. Emerging Trends in the Remodeling Market (2015), Table A-2. The
$9,713 value for renovation expenditures has not been adjusted for inflation to match EPA's compliance cost
estimates, which were in 2005 dollars. The average post-rule renovation expenditure of $9,713 is nearly unchanged
from the average value of $9,620 in 2005, prior to the RRP rule (Harvard Joint Center for Housing Studies,
Foundations for Future Growth in the Remodeling Industry (2007), Table A-2.
22 The combined firm certification fee for renovation and lead-based paint activities is $550, and fee for tribal firms
is $20.
17
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Comment: Commenter #2016-0126-0012 stated that EPA did not estimate the costs to markets that are
indirectly affected by the rule.
Response: EPA disagrees with the implication that it should have attempted to make such estimates. It is
standard practice to limit the analysis to the directly affected markets. EPA concluded that the social costs
of the RRP rule could be measured with sufficient accuracy by limiting the modeling to the directly
affected market. The professional judgment of EPA's staff was that the level and type of analysis it
performed for the RRP rule was appropriate for the issues at hand. Importantly, the commenter did not
identify any markets other than the renovation, repair, and painting industry that might potentially be
affected, or whether the magnitude (if any) of such costs would justify an attempt at quantification.
Comment: Commenter #2016-0126-0012 stated that EPA's cost analysis did not include transitional
costs, a category of opportunity costs, and some opportunity costs affecting consumer and supplier
resources and potential unemployment should have been considered in estimating the costs.
Response: Transitional costs are resources that are displaced while the economy reallocates resources
from one market to another. The commenter provided no evidence on the existence or magnitude of
transitional costs associated with the RRP rule. Four types of transitional effects are frequently included
in EPA analyses: firm closings and unemployment; shifts of resources to other markets; transaction costs;
and disruptions in production. There was no need for EPA's analysis to estimate costs for the effects, as
they either do not apply to this rulemaking or were not expected to be significant. The limited available
data confirms those conclusions, as described below.
Firm closings and unemployment: In most cases, involuntary unemployment and plant closings
are consequences that are difficult to model using a conventional partial equilibrium framework.
Predicting these specific consequences would require far more detailed analysis and data than are
usually available for practical assessments. EPA did not have the data to attempt to include such
modeling for the analysis of the RRP rule. Furthermore, EPA has seen no retrospective data
showing that the RRP rule has caused firm closings and unemployment, much less the extensive
level of such impacts that could be addressed meaningfully in a conventional partial equilibrium
model. Actually, the unemployment rate in the construction industry peaked at the beginning of
2010 (before renovators were required to comply with the RRP rule), and has trended downward
since then. Employment in the construction industry is predicted to continue to grow in the future.
For example, according to the Bureau of Labor Statistics, employment of construction laborers
and helpers is projected to grow 13 percent from 2014 to 2024, nearly twice as fast as the average
for all occupations, which is predicted to increase by 7 percent.23
23 Occupational Outlook Handbook, 2016-2017 Edition: Construction Laborers and Helpers, Job Outlook. Bureau
of Labor Statistics, U.S. Department of Labor.
18
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Unemployment Rate in the Construction Industry
FRED — Unemployment Rate: Construction Industry, Private Wage and Salary Workers
30
0
2010 2011 2012 2013 2014 2015 2016 2017 2018
Shaded areas indicate U.S. recessions Source: US. Bureau of Labor Statistics myf.red/g/iVdw
Source: Bureau of Labor Statistics. (Unadj) Unemployment Rate - Construction Industry, Private
Wage and Salary Workers. Series LNU04032231.
Furthermore, as described elsewhere in this document, the number of renovations, the value of
renovations, the number of renovation firms, and employment in renovation firms have all
increased since April 2010 (when renovators had to start complying with the RRP rule) due
largely to improving economic conditions.24
The actual increase in the number of renovation firms and the decrease in unemployment since
renovators had to comply with the RRP rule requirements does not support the claim that the RRP
rule would result in significant firm closures and unemployment that should have been estimated
in EPA's analysis.
Shifts of resources to other markets: As noted above, employment in the renovation industry has
been increasing since the RRP rule went into effect. And the RRP rule does not require existing
equipment to be scrapped. EPA does not expect shifts in resources to other markets outside of the
contracting industry as a result of the rule. While industry commenters have claimed in the past
that the RRP rule would cause a shift from professional renovations to Do-It-Yourself (DIY)
work25, the share of DIY projects has not increased.26 As mentioned above, numerous metrics
indicate that the renovation market has improved since April 2010, so resources have been
24 This employment growth is expected to continue in the future. According to the Bureau of Labor Statistics,
employment of construction laborers and helpers is projected to grow 13 percent from 2014 to 2024, which is nearly
double the 7 percent average growth rate for projected all occupations. Bureau of Labor Statistics, U.S. Department
of Labor, Occupational Outlook Handbook, 2016-17 Edition. Construction Laborers and Helpers,
http://www.bls.gov/ooli/construction-and-extraction/construction-laborers-and-helpers.htm (December 17, 2015).
25 For instance, "This will provide an incentive for homeowners to do the work themselves or not have it done at
all." Gerald M. Howard, Executive Vice President and Chief Executive Officer. Comments by the National
Association of Home Builders regarding EPA's Proposed Rule: Lead; Renovation, Repair, and Painting Program,
Published in the Federal Register, January 10, 2006 at 71 FR 1587, EPA Docket ID: EPA-HQ-OPPT-2005-0049.
May 25, 2006, page 27. EPA-HQ-OPPT-2005-0049-0536
26 According to the Harvard Joint Center for Housing Studies, the DIY share of total home improvement spending
trended down from about 25 percent in the late 1990s to just 17 percent in 2013. Emerging Trends in The
Remodeling Market. 2015.
19
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flowing into the professional renovation market - not out of it - since the RRP rule requirements
took effect for renovators.
Transaction costs: These costs are encountered with incentive-based policies, such as with a
tradable permits program. The RRP program does not utilize an incentive-based policy such as a
tradable permits program, so transaction costs are not relevant to the RRP rule.
Disruptions in production: This may take place when new equipment is installed or new
production processes or inputs are applied. These costs can be estimated as the amount of time
the production line is stopped or slowed down to account for the necessary changes to comply
with the new policy regulations. RRP activities do not use a production line. However, renovators
cannot conduct RRP activities during the 8-hour initial training they must take (a one-time
activity) or the 4-hour refresher training (every 3 or 5 years). EPA's Economic Analysis did
account for the value of the renovator's time during the training, as well as while they travel to
training. But these time commitments are not significant enough to be separated out as
disruptions in production.
Since these four effects (firm closings and unemployment; shifts of resources to other markets;
transaction costs; and disruptions in production) were not expected to be significant for the RRP rule,
there was no need for EPA to include them in its cost estimates.
Comment: Commenters #2016-0126-0012 and #2015-0780-0012 stated that EPA's economic analysis
excluded additional contractor liability insurance costs. According to the commenters, it's clear that
paying for additional liability insurance in performing renovation, repair and painting work on residential
housing is an additional cost, yet EPA failed to include this as part of the costs associated with the rule.
Response: The commenter has not provided evidence indicating that the RRP rule has caused liability or
insurance costs to increase. The RRP rule does not require firms to purchase additional insurance. Some
renovators may voluntarily choose to purchase insurance coverage for lead pollution. While renovators
have complained that this insurance is expensive, a GAO report written before EPA had published lead
hazard standards or lead abatement regulations concluded that the lack of lead abatement standards was
one of the primary reasons that limited the availability of insurance for abatement firms and increased its
cost.27 GAO concluded that lead abatement insurance would be easier to obtain and less expensive once
EPA published standards for lead abatement. GAO's conclusion that regulatory requirements reduce
uncertainty and decrease insurance costs is still applicable and is relevant to the RRP rule.
An article in a trade press magazine for the building industry acknowledged the beneficial effect of the
RRP rule on reducing renovator liability:
Q: Doesn't the RRP rule leave contractors vulnerable to potential lawsuits?
No. On the contrary, actually. If you've been working in older homes, you have already been assuming
liability for the results of your remodeling work. (In other words, you could have been sued if your work
endangered a child.) Adopting lead-safe work practices will reduce rather than increase the likelihood that
your remodeling work will be linked to a case of lead poisoning, thereby lowering rather than increasing
your liability. If you're certified and have documented the process properly, you're actually better protected
from such suits.28
27 Lead Based Paint Hazards: Abatement Standards Are Needed to Ensure Availability of Insurance, (RCED-94-
231), General Accounting Office, 1994.
28 The EPA's new Renovation, Repair, and Painting Rule, Fine Homebuilding, July 2010, No, 212, p. 82.
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Renovators had a potential liability when they disturbed lead-based paint prior to the RRP rule because
they may have been exposing other individuals to lead-based paint hazards. Adhering to the rule's work
practices decreases the potential for such lead exposures. To the extent that this regulation establishes a
"standard of care" for the industry, contractors who follow the requirements of the regulation will have
evidence that they have not been negligent with respect to how they handled lead-based paint. As a result,
the regulation lessens the potential liability of renovation contractors.
Comment: Commenter #2016-0126-0012 stated that EPA-recommended work practices were excluded
from the costs the Agency used to justify the residential rule. These "recommended" work practices were
not included in EPA's cost estimate but costs associated with "required" work practices were included.
These cost estimates did not include standard work practices for renovation, repair, and painting activities
such as attaching plastic sheeting to the window's exterior. By excluding compliance costs associated
with the rule, EPA further understated the compliance costs for the regulated community that were used
as justification for the renovation, repair, and painting program for residential buildings.
Response: It was appropriate for EPA to limit the economic analysis to activities that were required by
the rule. The recommended work practices are merely suggestions, so EPA cannot take enforcement
actions against firms that do not perform recommended work practices. Because the use of recommended
work practices is not required to comply with the RRP rule, excluding the costs of these activities does not
understate the compliance costs for the regulatory community.
The commenter stated that the cost estimates did not include some "standard work practices." To the
extent that some RRP firms already perform certain activities as a standard practice, those firms do not
incur additional costs if EPA then recommends or requires the use of such practices. EPA's analysis
accounted for the baseline use of the required work practices.
EPA notes that it also excluded the benefits of the recommended work practices from its analysis, and
including them in the analysis would increase the quantified benefits.
Comment: Commenter #2016-0126-0004 stated that the $200 million drop in costs after the first year
projected by the EPA in its economic analysis likely never materialized given that new and improved lead
test kits meeting the criteria in the rule have yet to be developed and approved by the EPA. According to
the commenter, the extra $200 million per year estimate has grown to $246.83 million in 2016 based on
inflation. The commenter calculates that based on inflation rates from mid-2011 through 2016, the
estimated cumulative burden to consumers is over $1.3 billion.
Response: It is not clear what the commenter is trying to demonstrate with its calculation, other than that
cumulative costs increase with time and inflation such that aggregating costs over multiple years yields a
larger number. As explained elsewhere in this document, combining the benefits estimates from EPA's
economic analyses of the initial RRP rule and the opt-out rule yields a total benefit estimate of $ 1.5
billion to $4.7 billion per year. When inflating and aggregating this range over the 2011 to 2016 time-
period, the results is a cumulative value of $ 11 billion to $34 billion, which is significantly larger than the
commenter's cost estimate of $ 1.3 billion. As explained elsewhere in this document, the benefits of the
RRP program exceed the costs even if the lead test kits continue to have a high false positive rate. That is
the case whether the comparison is made on an annual basis or a cumulative one.
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Comment: Commenters #2016-0126-0004 and #2016-0126-0012 claimed that EPA underestimated the
cost of complying with the RRP rule. Both commenters made claims about the cost for a window
replacement job. Commenter #2016-0126-0012 claimed that complying with the rule costs at least $90
per window opening (more than $1,000 for a project replacing 12 windows), but did not provide details
on how it arrived at this estimate. Commenter #2016-0126-0004 submitted calculations from 2010
claiming that the RRP rule would result in a window replacement job incurring additional materials and
labor costs of $729 to replace 6 windows ($121.50 per window). The industry cost calculations were
based on a job where a contractor and an assistant replaced 6 windows in 3 rooms measuring 11 feet by
11 feet, in a house with exterior dimensions of 55 feet by 25 feet. The commenter claimed that 12 hours
of additional labor would be required (at a rate of $50 per hour), and $179 of disposable materials.
Adjusting for inflation, the cost per window in 2016 is $134.31. Assuming atypical house with 15
windows, that equates to $2,014.65 per house job.
Response: EPA does not believe that the claims made by the commenters are accurate, or that they
represent the typical incremental costs of complying with the requirements of the RRP rule. EPA cannot
respond in detail to claims by Commenter #2016-0126-0012 that the rule costs $90 per window because
the commenter did not provide supporting details describing how it arrived at that value. However,
Commenter #2016-0126-0004 provided a table with the time and costs it claims are needed for a variety
of activities. There are a number of issues with this commenter's estimates.
The commenter made its estimate in 2010 and uses a labor rate of $50 per hour for both a contractor and
an assistant. EPA's original economic analysis used Bureau of Labor Statistics (BLS) data on the average
wages and benefits for construction supervisors ($31.64/hour in 2005 dollars) and construction laborers
($16.94/hour). The BLS data represents national average wages and benefits, and EPA believes that this is
the best available data. Adjusting the BLS rates for inflation between 2005 and 2010 would make up
some of the difference. But based on the BLS data on national average wages, the $50 per hour labor rate
assumed by commenter would still be somewhat high for the renovator and quite high for an assistant.
The commenter's estimate does not specifically address which, if any, of the activities required by the
RRP rule were already performed in the baseline. The commenter appears to be assigning all containment
and cleaning costs to the RRP rule, instead of assuming that some of these activities occurred prior to the
rule.29 If so, this is not realistic. In discussions with EPA prior to the promulgation of the RRP rule,
individual renovators stated that they often performed some containment and/or cleaning activities.
Previous industry commenters have indirectly acknowledged this. In the past, the renovation industry
repeatedly claimed that professional renovators left job sites cleaner than when they started.30 If true, this
29 For example, most of the commenter's labor estimate is due to setting up and tearing down the containment,
which was likely to have been incurred by many firms in the baseline simply to control nuisance dust.
30 For example, the National Association of Home Builders stated in 2007 that "several studies show that
remodeling done by professionals leaves homes 'cleaner' than prior to the renovation ... The most significant
finding within NAHB's research is remodeling activities, when performed by a trained professional remodeler, will
significantly reduce pre-existing lead-dust levels." [NAHB Comments on EPA Docket EPA-HQ-OPPT-2005-0049.
Susan Asmus, National Association of Home Builders, July 5, 2007. EPA-HQ-OPPT-2005-0049-0838, pages 11
and 12.] Numerous forms letters submitted during the opt-out rulemaking stated that "Previous studies have shown
that a professional remodeler improves the conditions of a home. And in the case of lead paint, the work and
thorough clean up can reduce lead paint dust in the home, minimizing potential exposure" (emphasis added). See,
for example, comments submitted by Home Check Plus (EPA-HQ-OPPT-2005-0049-0998), Gandolfi & Associates,
Inc. (EPA-HQ-OPPT-2005-0049-1000), Menold Construction and Restoration (EPA-HQ-OPPT-2005-0049-1001),
Kessler Construction (EPA-HQ-OPPT-2005-0049-1003), and Thompson Building Associates (EPA-HQ-OPPT-
2005-0049-1009), among others.
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implies that they must have been doing significant cleaning (and probably containment) in these cases.
EPA's 2007 Dust Study found that not using exterior containment resulted in high lead levels following
exterior renovations. Similarly, the Dust Study found that not using both interior containment and
specialized cleaning (including the use of a HEPA vacuum) resulted in high lead levels following interior
renovations.31 In order for renovators to leave behind a moderately clean job site in the baseline they must
often have been using some containment and cleaning, even if it may have been insufficient to prevent the
creation of lead-based paint hazards.
The largest material cost in the commenter's estimate is for plastic, but this cost may have been incurred
in the baseline by some renovators (perhaps with related costs such as duct tape and painter's tape). Most
of the commenter's labor estimate is due to setting up and tearing down the containment, which is likely
to be incurred by many firms in the baseline (because set up and tear down labor is expended whether the
containment material is reused or disposed of). By contrast, testing for lead-based paint and performing
cleaning verification seem unlikely to have been performed in the baseline. The commenter reported only
modest materials costs for these activities, and labor costs also appear to be low.32 Many of the remaining
activities described by the commenter seem likely to represent costs that would be incurred in the absence
of the RRP rule.
Furthermore, industry sources such as Commenter #2016-0126-0016 claim that in order to comply with
OSHA requirements, renovators already take steps (including using HEPA vacuums to clean the
workplace and posting warning signs) for some jobs where lead is present. To the extent this is the case,
then some of the costs in the commenter's estimate were likely already being incurred in the baseline and
thus are not incremental costs of the RRP rule. The more jobs where these practices are used to comply
with OSHA requirements, the lower the incremental cost of EPA's rule.
In addition, the commenter's estimate includes costs for disposable coveralls and latex gloves. The RRP
rule does not require the use of such personal protective equipment.33
EPA notes that the commenter's cost table contains a number of mathematical mistakes. The commenter
provides the labor hours for each task, but these only sum to a total of 11 hours, not the 12 hours claimed
by the commenter. Also, the listed labor costs for each task sum to $625, not $600 as the commenter
claims. And one of the tasks is listed in the table as taking 1.5 hours at a cost of $150, but 1.5 hours at a
labor rate of $50 per hour is only $75. Finally, the commenter states that the sum of $179 for materials
and $600 for labor is $729, but $179 plus $600 actually equals $779.
There is other evidence that claims such as those made by Commenters #2016-0126-0004 and #2016-
0126-0012 ($90 or $121.50 per window replaced) overstate the cost of compliance. Using the specific
example of window replacements used by these commenters, an article in a trade journal by a small
general contractor stated:
31 Revised Final Report on Characterization of Dust Lead Levels After Renovation, Repair, and Painting Activities.
Prepared by Battelle for U.S. Environmental Protection Agency, OPPT, National Program Chemicals Division,
Program Assessment and Outreach Branch. November 13, 2007. EPA-HQ-OPPT-2005-0049-0857.
32 The commenter reported materials costs of $23 for lead test kits and $10 for cleaning verification wipes. Labor
costs are the undisclosed fraction accounted for by verification in the combined 4 hours claimed for cleaning and
verification.
33 Such personal protective equipment may be needed to comply with OSHA requirements to protect workers from
exposure to lead dust but it is not mandated by the RRP rule. More discussion about why the Agency's estimate does
not include work practices that are recommended but not required by EPA is provided elsewhere in this document.
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Back when the RRP was first introduced, I asked a representative of a large replacement window installer
how the new rule was going to affect his company's business. He explained that staff members had
examined the law carefully and found ways to reduce compliance costs to about $25 per window, a cost
that they felt they could absorb.34
Other commenters also made statements that support the conclusion that the incremental cost of the rule is
low. Commenter #2016-0126-0005 states that "It is important to understand that the burden of this rule
have been minimal for any contractor who as a part of their service would ordinarily seek to prevent the
dissemination of dusts and who would incorporate avoiding harmful contamination as part of doing
business."35 Commenter #2016-0126-0017, a training provider that has trained more than 20,000 students,
claims that complying with the RRP protocol creates reductions in other costs that partially offset
compliance costs. According to this commenter:
The first, and most important, item that should be stressed is that every estimate we have seen of costs to
contractors to conduct their work in a lead-safe manner is way over stated. Many of our contractors have
found savings in the RRP protocol that offset some, if not much, of the additional expense created. The use
of HEP A vacuum attachments has saved so much of the normal non-lead clean up costs that many of our
trained contractors now use them on all jobs. These savings on all jobs are not calculated in lead-safe
estimates.36
Commenter #2016-0126-0004 made its original cost estimate of $121.50 per window in March of 2010,
before the work practice requirements of the RRP program went into effect. Thus, its estimates do not
reflect actual experience complying with the rule, or the potential for the rule to reduce certain j ob costs
as explained by Commenter #2016-0126-0017.
Typical replacement windows can cost consumers from $339 to $1,200 apiece.37 The incremental costs
due to EPA's rule are a relatively modest and affordable addition to the cost of the rest of the job.
The statements by Commenter #2016-0126-0004 and other industry commenters regarding testing
methods also suggest that they are overstating the incremental cost of the rule's work practice
requirements. Many of the industry commenters expressed concern about the accuracy of the existing lead
test kits, and the potential cost of having the paint tested using X-Ray Fluorescence (XRF) technology.
EPA previously estimated that hiring a certified inspector or risk assessor to test for the presence of lead-
based paint (LBP) would typically cost $100 to $300 for a single room and $300 to $500 for an entire
house.38 It would not be cost-effective for a renovator to spend $400 for XRF testing in order to avoid
$122 in incremental work practice costs (EPA's cost estimate). But it would be cost-effective to spend
$400 for XRF testing in order to avoid $729 or $1,000 or $2,000 in work practice costs (the commenters'
cost estimates for replacing multiple windows), particularly in the post-1960 housing that the commenters
state is unlikely to contain lead-based paint. The fact that the industry commenters have indicated that
using XRF technology is not cost-effective is further support for the conclusion that their estimates of the
work practice costs are significantly overstated.
34 RRP Compliance for Small Jobs: You can work safely and still compete with uncertified remodelers by
understanding the rule. Journal of Light Construction. January 2012.
35 Rick Reibstein, The Regulated Community Compliance Project. EPA- HQ-OPPT-2016-0126-0005.
36 James F. Stump, Seagull Environmental Management Company, Inc. EPA- HQ-OPPT-2016-0126-0017.
37 New Windows: See Your Choices, Washington Consumers' CHECKBOOK, Summer/Fall 2010.
38 Economic Analysis for the Renovation, Repair, and Painting Program Proposed Rule. U.S. Environmental
Protection Agency, February 2006, p. 4-37.
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Comment: Commenter #2016-0126-0004 claims that the estimated increased cost to replace windows in
a house determined to have lead-based paint, using the EPA Lead Renovation, Repair and Painting rule,
was $121.50 per window in 2010. Adjusting for inflation, the cost in 2016 is $134.31. If one assumes a
typical house with 15 windows, then that equates to $2,014.65 per house job. This exceeds the EPA's
initial estimated overall average cost of $35 per house job by 5,656 percent.
Response: EPA has addressed elsewhere in this document why the commenter's claim that the rule cost
$121.50 per window in 2010 is overstated. Setting that aside, the commenter's comparison to the $35
figure and its statement that compliance cost exceeds EPA's estimate by 5,656 percent is inaccurate and
inappropriate for various reasons.
As EPA has explained previously, the figure of $35 per job (which was not part of EPA's cost
calculations) was intended to explain the average incremental compliance cost across all renovation jobs
subject to the rule.39 So it includes the compliance cost in houses that test negative for lead-based paint
(and thus incur costs for testing but do not incur work practice costs for containment, cleaning, or
cleaning verification) as well as the cost for renovations that test positive for lead. This alone means that
the $35 figure should not be compared to the commenter's estimate, which is only for a house that has
lead-based paint. Furthermore, the $35 figure is an average across all jobs, which means that it includes
many commonly-performed small jobs, such as creating an opening in a single wall for a plumbing,
electrical, or HVAC repair, or repainting part of a house. This is very different from replacing all the
windows in a house, which is a very large job requiring both interior and exterior containment of the
entire house. Replacing all the windows also occurs less frequently than many other small jobs, where
compliance is less expensive. Furthermore, EPA's cost estimates represent incremental costs (subtracting
out the cost for required activities that were already being performed prior to the rulemaking), while the
commenter's cost claim does not appear to reflect baseline practices.
EPA's analysis was based on a range of renovation types, sizes, and circumstances. For replacing
windows in a home, EPA's analysis reflected the costs and benefits of the rule when replacing one, three,
or 12 windows. EPA did not include a job with 15 windows, as the commenter's calculation does. It
would typically cost more to apply the rule's work practices to a job with 15 windows than a job with 12
windows. However, the amount of lead dust generated per household also goes up as the number of
windows increases. So the benefits of the rule's work practices are higher for a job replacing 15 windows
compared to one with only 12 windows, all other things being equal.
The commenter exacerbated the lack of comparability between the two values because it increased the
value of its claimed costs to reflect inflation from 2010 to 2016, and then compared that inflated figure to
the $35 figure reflecting average incremental costs denominated in 2005 dollars.
Finally, EPA notes that the commenter made its original cost claim in March 2010, before renovators
were required to follow the rule's work practices.40 So its claim is not based on experience complying
with the rule. While various industry commenters stated that there is now six years of experience
complying with the rule, EPA did not receive any new data or evidence based on this experience. In this
case, the commenter did not provide additional costs firms have actually incurred in practice in complying
with the RRP rule, or what other savings they have accrued. Instead, the commenter increased its original
39 Response to Public Comments. Lead; Amendment to the Opt-out and Recordkeeping Provisions in the Renovation,
Repair, and Painting Program. U.S. Environmental Protection Agency. April 2010 EPA-HQ-OPPT-2005-0049-
1134.
40 Letter from Richard G. Walker (President and CEO of the American Architectural Manufacturers Association) to
David Rostker (Policy Analyst, Office of Information and Regulatory Affairs) dated March 26, 2010, Re: EPA
LRRP.
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claim (1) to account for inflation, and (2) to increase the assumed number of windows being replaced in a
house from six windows (in the original 2010 estimate) to 15 windows (in the current estimate).
Comment: Commenter #2016-0126-0009 claimed that the opt-out provision would not pose a risk to
public health. The commenter went on to say that the opt-out provision posed virtually no risk to children.
Another commenter (Commenter #2016-0126-0015) claimed that removing the opt-out provision did
nothing to improve safety. And Commenter #2016-0126-0012 said that, "EPA has stated on numerous
occasions that their goal is to protect pregnant women and children from lead exposure" and that the opt-
out provision was limited to homeowners where "no at-risk individuals occupied the home."
Response: EPA disagrees with the commenters' characterization of EPA's goals, the populations at risk
from lead exposure, and the effect of an opt-out on public health. EPA initially promulgated the opt-out
provision as part of the 2008 RRP rule, based on the hypothesis that limiting the applicability of the opt-
out provision to owner-occupied target housing where no children or pregnant woman resided would be
sufficient to protect public health. However, subsequent analysis indicated that this was not the case.
EPA's 2010 analysis found that removing the opt-out provision would reduce IQ losses in children under
the age of six that live contiguous to attached housing that could be renovated under the opt-out provision,
move into a house that could be renovated under the opt-out provision, or receive childcare in such
housing. It would also reduce blood pressure effects in older individuals living in these houses, as well as
in their own housing that would qualify for the opt-out. The quantified benefits to these populations of
removing the opt-out provision is shown in the table below. There were additional benefits that were not
quantified, as summarized in the table. Given these results, the commenter's contention that allowing the
opt-out would pose virtually no risk to children or adults is clearly incorrect. Furthermore, the stated
purpose of the Residential Lead-Based Paint Hazard Act of 1992 (which added subchapter IV to TSCA)
is to "develop a national strategy to build the infrastructure necessary to eliminate lead-based paint
hazards in all housing as expeditiously as possible." See P.L. 102-550, § 1003(1), (October 28, 1992)
(emphasis added).
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Annualized Benefits from Removing the Opt-out Provision
Population
Individuals
Protected
(millions)
Monetized Benefits ($ millions)
3% Discount Rate 7% Discount Rate
Quantified Benefits*
(1) Reside in renovated housing
5.2
$657 to $2,626
$699 to $2,795
(2) Live contiguous to attached renovated housing
0.3
$134
$143
(3) Move into renovated housing
0.05 to 0.2
$68 to $273
$73 to $290
(4) Receive childcare in renovated housing
0.02
$7 to $28
$7 to $29
Subtotal for Quantified Benefits
5.6 to 5.7 $866 to $3,061
$920 to $3,258
Unquantified Benefits
Benefits were quantified for decreases in lifetime income due to IQ loss in children under the age of 6, and blood
pressure effects in other individuals. Unquantified effects include:
• Other benefits to these populations due to decreases in: IQ loss in children resulting from prenatal and breast
milk exposure; medical costs to treat very high levels of blood lead; additional education costs for special and
remedial education due to IQ impacts; behavioral problems; and other health effects (e.g., immune and renal
system effects).
• Health effects in other populations, including those who: live near house renovated under opt-out provision,
other than contiguous attached housing; spend time in friend's or relative's house renovated under opt-out
provision; and adverse effects on animals, including family pets.
Source: Tables 5-4, 5-5, 5-6, 5-7, 5-8, and 5-11. Economic Analysis for the TSCA Lead Renovation, Repair, and Painting
Program Opt-out and Recordkeeping Final Rule for Target Housing and Child-Occupied Facilities. U.S. Environmental
Protection Agency. April 2010.
Comment: Several commenters (including #2016-0126-0004, #2016-0126-0011, #2016-0126-0012, and
#2016-0126-0015) claimed that there is no adequate existing field test alternative to lead test kits. These
commenters claimed that no existing lead test method can serve as an adequate substitute for a qualifying
lead test kit (one that meets both the negative response and positive response criteria). In the absence of a
qualifying lead test kit, renovators reportedly assume the presence of lead in pre-1978 housing and adhere
to the lead-safe work practices. The commenters acknowledge that the presence of lead-based paint can
be determined with paint-chip analysis and hand-held XRF testing. However, these commenters stated
that paint chip samples must be sent to a certified laboratory for analysis, which costs money and causes
project delays, and that the state of Illinois requires paint-chip sampling to be conducted by a third-party.
These commenters claimed that there are practical, economic, and regulatory barriers to using XRF
testing, including the cost of the XRF device, certification and training requirements to operate the device,
and delays in not having enough XRF devices and certified staff to perform timely testing at all potential
job sites. Commenter #2016-0126-0011 stated that EPA evaluated both these methods in developing the
2008 RRP rule but dismissed them as infeasible and too expensive.
Response: EPA disagrees with the commenters' characterizations. Under the RRP rule, renovators have
the flexibility to choose among four strategies: use either (1) a lead test kit, (2) an XRF instrument, (3)
paint chip sampling to indicate whether lead-based paint is present; or (4) assume that lead-based paint is
present and follow all the work-practice requirements. Both XRF testing and paint chip sampling have
low false positive rates for detecting the presence of lead-based paint.41 Despite the claims of the
41 EPA notes that there is a test kit on the market with a false positive rate of 22%. While that rate is higher than
XRF testing or paint chip sampling, that test kit is a quick inexpensive field test. Renovators using that test kit do
not need to perform the planning or scheduling that they may need to do to use the alternate testing technologies.
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commenters, EPA believes that both paint-chip analysis and XRF testing are feasible alternatives to lead
test kits.
These commenters dismiss the feasibility of XRF testing based on the cost of purchasing and operating
the XRF unit. However, the price of purchasing and operating an XRF device does not preclude their use
for renovation projects, since renovators can rent an XRF unit or hire a third party to conduct XRF
testing.42 Hiring a certified inspector or risk assessor to test for the presence of LBP would typically cost
$100 to $300 for a single room and $300 to $500 for an entire house.43 As explained in an article in a
trade journal:
In the hands of a certified operator, a portable X-ray fluorescence (XRF) analyzer can quickly determine
lead levels in many surfaces without cutting into the paint or coating. The cost for testing is reasonable —
typically in the $100 to $150 range for a limited inspection. It's well worth the cost if the test confirms that
there's no lead present. I've become such an advocate of lead testing that I became a licensed lead inspector
and purchased an XRF analyzer (a good machine costs about $20,000). When I do lead testing for other
contractors in the Dallas-Fort Worth area, I check only those components that will be disturbed — not the
whole house — which helps lower the inspection cost.44
Contrary to the claim of Commenter #2016-0126-0011, when EPA was developing the RRP rule it did
not dismiss paint chip and XRF testing as infeasible and too expensive. EPA concluded that renovators
were more likely to use an inexpensive lead test kits than to pay $100 to $500 for a third-party to perform
XRF testing. As EPA stated in 2006, "The benefits of the lower false positive rates associated with XRF
testing are likely to outweigh the higher testing costs only in a few cases. Thus, the expected savings from
avoiding the RRP rule' s work practice costs are generally lower than the $ 100 to $5 00 cost of XRF
testing."45, 46 However, EPA acknowledged at the time that alternative methods for indicating the
presence of lead-based paint could be cost-effective in some circumstances, noting that: "The benefits of a
lower false positive rate are increasing with the costs of using LSWP and decreasing with the likelihood
of LBP (i.e., the larger the job and the newer the house, the more likely that a RRP purchaser can avoid
paying extra for LSWP by having an XRF test)."47
EPA also believes that it is feasible for renovators to use paint chip sampling, which is why the Agency
amended the RRP rule in 2011 to allow a certified renovator to collect paint chip samples instead of using
a test kit (76 Federal Register 47918, August 5, 2011). In addition, EPA has included instructions about
how to collect paint chip samples in the model training course for RRP renovators.
42 This is analogous to renovators needing excavation work done hiring a subcontractor with a backhoe, rather than
purchasing a backhoe themselves. While few renovators own their own backhoe, that doesn't mean that all
excavation work must be done with a shovel, or that it is too complicated to schedule time for the backhoe operator
to do the work. Renovators don't need to operate their own laboratories in order to use paint chip sampling. Nor do
they need to purchase an XRF unit themselves in order to avail themselves of the speed and accuracy of XRF
testing.
43 Economic Analysis for the Renovation, Repair, and Painting Program Proposed Rule. U.S. Environmental
Protection Agency. February 2006. Page 4-37.
44 RRP Compliance for Small Jobs: You can work safely and still compete with uncertified remodelers by
understanding the rule. Journal of Light Construction. January 2012.
45 Economic Analysis for the Renovation, Repair, and Painting Program Proposed Rule. U.S. Environmental
Protection Agency. February 2006. Page 4-37.
46 EPA estimated that the average incremental work practice cost for a typical job in a single-family home ranged
from $8 to $124, depending on the size and nature of the job. Renovator, Repair, and Painting (RRP) Rule,
Frequent Questions, Question (23002-17725).
47 Economic Analysis for the Renovation, Repair, and Painting Program Proposed Rule. U.S. Environmental
Protection Agency. February 2006. Page 4-37.
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Several commenters expressed concern about the cost of the RRP work practices (particularly for window
replacement jobs), and the low probability of disturbing lead-based paint in post-1960 housing. For
instance, Commenter #2016-0126-0012 claims that complying with the rule easily adds more than $1,000
to the cost of each project, and states that only 14% of windows and doors in post-1960 housing contains
lead-based paint. As described elsewhere, EPA believes that the industry cost estimates are overstated.
But if the cost claims were accurate, such jobs would be prime candidates for XRF testing, since spending
$300 to $500 would result in an 86% chance of saving more than $1,000 or even $2,000 (the amount that
another commenter has claimed the work practices cost for window replacement jobs).
The cost of hiring a third party to conduct XRF testing depends on factors such as travel time for the
third-party to reach the site, whether surfaces in the entire house are tested, and the size of the work area.
Renovators can adopt strategies to reduce the cost of XRF testing. According to an article in a trade
publication, "Testing for lead is not expensive. It should add little cost if the consultant is already present
and if the entire building does not need to be tested. In those cases, the key to paying less is saving the
consultant's time. Be flexible on scheduling so the consultant is able to avoid a special trip... Providing
your consultant with a group of job sites that can be tested the same day in an efficient route is another
good approach."48
Using paint chip sampling avoids some of the concerns that certain commenters have expressed about
XRF testing. In many jurisdictions a certified renovator can collect the samples themselves, and the
testing is inexpensive. (EPA estimates that the laboratory costs associated with testing can range from $12
to $25 per paint chip sample.49 Laboratory testing costs depend on the turnaround time and the number of
samples tested. According to the Department of Housing and Urban Development, costs are in the range
of $6 to $25 for a single sample with 3-day turnaround. While costs for a single sample can be
significantly higher for same day service, large volume pricing can reduce the cost for same-day pricing
to the range of $4.50 to $7.00 per sample.50) And according Commenter #2016-0126-0008 and
Commenter #2016-0126-0010, laboratories offer turnaround times of as little as three hours so that lab
results can be available the next business day.
Depending on the number of samples to be tested (which in turn depends upon the individual renovation
job), paint chip sampling may be much less expensive than XRF testing of an entire house. If, as the
commenters claim, many renovators are not using paint chip sampling, this is further support for the
proposition that the work practice requirements are less expensive than commenters have claimed (e.g.,
$1,000 or $2,000 per job). EPA estimated that the average incremental work practice cost for atypical job
in a single-family home ranged from $8 to $124, depending on the size and nature of the job. At $12 to
$25 per sample, the upper end of the work practice cost range is equivalent to 5 to 10 paint chip samples.
It would not be cost-effective to spend $125 in paint chip sampling costs to save $124 in work practice
costs. But it would be worthwhile to spend $125 in testing costs if there is a high probability of saving
$1,000 or $2,000 in work practice costs. This suggests that either the incremental cost of the work
practices for a typical job are less than the commenters have claimed, or that paint chip testing is feasible
in some situations.
Some commenters dismissed third-party testing (XRF testing or lab analysis of a paint chip) as being
disruptive to project scheduling. For example, Commenter #2016-0126-0004 claimed that submitting
48 F. Stephen Masek. Lead Paint: EPA Steps Up Enforcement; Noncompliance carries hefty fines—and even the
threat ofprison—but it's not difficult to follow the rules. Cleaning & Restoration. May 2013, Vol. 50 No. 4.
49 EPA communication with AMA Analytical Services Inc., Environmental Hazards Services LLC, Martel
Laboratories, and Schneider Laboratories Inc. on February 27, 2015.
50 Lead Hazard Control Clearance Survey Final Report. Prepared by QuanTech, Inc. for the U. S. Department of
Housing and Urban Development, Office of Lead Hazard Control and Healthy Homes. October 2015. Page 11.
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paint chip sampling for outside testing takes time and is not necessarily conducive to customer demands
for project scheduling. Commenter #2016-0126-0004 stated that sending paint chip samples to a certified
laboratory for analysis creates project delays, and that there are not enough XRF devices and certified
staff to perform timely testing at all potential j ob sites. Commenter #2016-0126-0012 indicated that the
need to bring in a qualified professional to conduct XRF testing costs additional time. Commenter #2016-
0126-0014 wrote that sending paint chip samples to a lab is an unacceptable solution as it creates a delay
in work. And according to Commenter #2016-0126-00015, XRF testing leads to delays as the certified
remodeler must coordinate with someone certified to perform the testing.
However, it is not uncommon in other contexts for contractors to schedule activity by a third party when
planning a project. For example, numerous states require that notice must be given several days before
beginning any excavation project so that buried utility lines can be flagged, and these notices are often
valid for only two or three weeks. As another example, many jurisdictions require an inspection by a
building inspector at different stages of project completion to determine whether the building meets
building code requirements. And it is very common for a contractor to have to schedule work by
subcontractors, such as plumbers or electricians, as part of a project.
Given the ability of contractors to incorporate the time to conduct these other third-party activities in their
jobs, it is reasonable to conclude that there are numerous instances where the project schedule can
incorporate the time for a laboratory to test paint-chip samples, or for a third-party inspector to conduct an
XRF test. Several of the renovation industry commenters used window replacements to make claims
about the cost of the RRP rule. For instance, Commenter #2016-0126-0004 bases its cost estimates on a
job replacing all the windows in a house. Yet replacing all the windows in a house is not usually an
emergency job that is undertaken with no advance warning. There is typically time to prepare, especially
as windows may be made-to-order, allowing the opportunity to have paint chips sampled or XRF readings
taken without delaying the project.
The presence or absence of lead-based paint may affect the price that a contractor charges for a particular
job. Contractors make different decisions about how to handle that. Some contractors can take weeks to
provide the customer with a price quote, while others offer a quote within 48 hours. Taking weeks to
provide a price quote allows sufficient time to have the site tested for lead-based paint using an XRF unit
or paint chip sampling, if the contractor so chooses. Providing a quote within 48 hours is a business
decision reflecting a perceived competitive advantage to the firm of a fast turnaround. Such a business
decision incorporates the available options (using a lead test kit, purchasing a XRF unit, hiring a third
party to test with an XRF unit, sending paint chip samples to a lab for analysis, or assuming that lead-
based paint is present). One contractor indicated that it includes a clause in its contracts that there will be
additional charges if lead-based paint is found to be present, but allows the customer to cancel the
contract without any financial penalties if that is the case.51
To the extent that renovators are using the rule's work practices instead of testing for lead-based paint,
this may indicate that the cost of compliance is less than some commenters have claimed. As noted above,
it is cost effective to spend $300 for XRF testing if there is a high probability of avoiding $1,000 or
$2,000 in other costs. But if the incremental work practices only cost $200, then it would not make sense
to spend $300 for testing to avoid even a 100% probability of spending $200 on work practices.
Renovators may also be skipping testing and using the required work practices because there are ancillary
benefits to them of doing so (e.g., faster cleanup due to better containment, and a customer who is pleased
with the general cleanliness of the job site following the work). Commenter #2016-0126-0017 stated that
51 RRP Compliance for Small Jobs: You can work safely and still compete with uncertified remodelers by
understanding the rule. Journal of Light Construction. January 2012.
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some renovators are now using lead-safe work practices on all pre-1978 structures, including buildings
other than target housing or child-occupied facilities (COFs). Since the RRP program does not currently
apply to these buildings, such actions cannot be attributed to the lead test kit false positive rate.
EPA notes that HUD's Lead Safe Housing Rule requires testing paint with an XRF unit or using paint
chip sampling, or presuming that lead-based paint is present, including for rehabilitation work.52 EPA
believes that this is further evidence that it is feasible in some circumstances to use XRF testing or paint
chip sampling for RRP work.
With respect to the commenter's statement about the state of Illinois, the state's requirements do not
apply to renovation, repair or painting activities covered by the RRP rule. While the state of Illinois has
regulations related to testing pursuant to their EPA-authorized lead abatement program, they are not
applicable here.53 Therefore, the commenter's assertion that lead test kit use for renovations is or could be
limited to state-certified third parties in Illinois is incorrect. Even if Illinois or another state were to
require testing for renovations to be conducted by a third-party, any incremental costs attributable to using
a third-party (instead of performing the testing in-house) would be attributable to the state requirement.
Comment: Commenter #2016-0126-0004 stated that EPA should include window repair in the definition
minor repair and maintenance activities. The commenter states that "window repair, such as window
pocket replacement, window inserts and sash kits, does not significantly disturb painted surfaces." The
commenter goes on to say that since "the frame of the original window remains in place and a sash and
jamb liner kit or a sash and narrow frame are installed into an existing window frame..." that their
removal "results in a very limited disturbance of the opening." The commenter claims that their position
is supported by EPA's answer to Question (23002-19759) which states that "Replacement of a window
sash by simply unscrewing hinges or releasing it from a jamb liner does not constitute 'window
replacement' for the purposes of the RRP Rule. Therefore, such tasks may fit within the definition of
minor repair and maintenance i.e., activities that disturb six square feet or less of interior painted surface,
or twenty square feet or less of exterior painted surface."
Response: Commenters have not provided the Agency with a record basis to conclude that such a
potential amendment would address lead-based paint hazards, taking into account reliability,
effectiveness, and safety. EPA's exclusion of window replacement from minor repair and maintenance
activities was based on the conclusions of its 2007 Dust Study. The Dust Study showed that window
replacement resulted in lead-dust levels above the hazard standard. The commenter did not supply
information showing that this activity does not disturb painted surfaces or would not result in lead-based
paint hazards. However, the Agency continues to distinguish between unscrewing hinges or releasing a
window sash from a jamb liner and window replacement as explained in its answer to Question (23002-
19759).54
52 24 CFR 35, subparts B - R. Under 24 CFR § 35.110, rehabilitation means the improvement of an existing
structure through alterations, incidental additions or enhancements. Rehabilitation includes repairs necessary to
correct the results of deferred maintenance, the replacement of principal fixtures and components, improvements to
increase the efficient use of energy, and installation of security devices.
53 77 Illinois Administrative Code Section 845.200 says that only licensed individuals as specified in Section
845.125 shall conduct sampling. This section does not regulate renovation, repair, or painting activities. It is part of
an Illinois statute on lead paint abatement.
54 See Renovation, Repair, and Painting (RRP) Rule Frequent Questions, Question 23002-19759.
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Comment: Commenters #2016-0126-0011, #2015-0780-0012, and #2015-0780-0014 stated that, as of
September 2016, only two approved lead test kits are available nationwide, but they meet only the
negative-response criterion, which means they are likely to result in false positive readings. The
commenter claims that this deters both renovators and homeowners from using the lead test kits.
According to these commenters, renovators working on pre-1978 homes or child-occupied facilities must
either (i) assume lead-based paint is present or (ii) use an available lead test kit that is prone to "false
positive" results. Both options can cause a renovator to apply lead-safe work practices in buildings that do
not present any actual lead-based paint hazard. According to the U.S. Department of Housing and Urban
Development (HUD), only 24 percent of homes built between 1960 and 1977 contain lead-based paint.
This means that when renovators assume that lead is present in these pre-1978 homes, it is likely that 76
percent of the time renovators are applying the rule in a home never intended to be covered by the
program.
One commenter notes that EPA has indicated that a new lead test kit is under development and may reach
the market in 2017, but few details have been provided. But even if such a lead test kit enters the market
in 2016 or later, it would not change the fact that EPA's economic analysis for the RRP rule assumed a
qualifying lead test kit would be available in mid-2011, and that the commenter's members have been
implementing the RRP program for the past six years without a technology EPA relied on in seeking to
minimize the impacts the rule would have on small businesses.
Response: The commenter's assumption that 76 percent of the time renovators apply the work practices
in post-1960 housing occurs where no lead-based paint is present implies that renovators never test the
paint. EPA does not believe this is the case. Despite the fact that the lead test kits do not meet the positive
response criterion, in a significant fraction of cases the kits will accurately indicate that no lead-based
paint is present. Therefore, renovators will still have an incentive to use the lead test kits in order to avoid
the work practice requirements. This would particularly be true if the work practice requirements were as
expensive as industry comments claim. And as EPA has explained elsewhere in this document, it believes
that using XRF or paint chip testing is both feasible and particularly advantageous in buildings where
there is a lower probability of lead-based paint occurring, such as those built after 1960.
When EPA promulgated the RRP rule it assumed that a lead test kit meeting the positive response
criterion would be on the market by 2011. But predictions of the future are inherently uncertain, and EPA
acknowledged that at the time. EPA's economic analysis for the proposed RRP rule included one
sensitivity analysis that considered the costs and benefits if lead test kits meeting the positive response
criterion were not available until the sixth year the rule was effective, and another sensitivity analysis
assuming that lead test kits would never meet the 10% positive response criterion but would only achieve
a 15% false positive rate.55 (Quantified benefits significantly exceeded estimated costs under both of these
alternate scenarios.) EPA's assumption that improved lead test kits would be available by 2011 did not
represent a guarantee by the Agency that this would be the case, nor was the promulgation of the rule
predicated on this assumption.
Comment: Commenter #2016-0126-0015 stated that according to the Centers for Disease Control and
Prevention (CDC), in 1997, 7.61 percent of children under the age of six were found to have an elevated
blood lead level, which is defined as having 10 or more micrograms per deciliter of lead in blood.
However, in 2014, the last year for which data is available from the CDC, only 0.53 percent of children
under age six had an elevated blood lead level. The commenter stated that it is encouraged "by this very
55 Economic Analysis for the Renovation, Repair, and Painting Program Proposed Rule. U.S. Environmental
Protection Agency, February 2006, p. 7-1.
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low percentage of effected | v/c | children and believes this new data should have significant weight in the
Agency's review of the rule and reconsideration of the ill-considered removal of the opt-out provision."
Response: In enacting Title X of the Housing and Community Development Act of 1992, Public Law
102-550, Congress established a national goal of eliminating lead-based paint hazards in housing as
expeditiously as possible. There are approximately 24 million children under the age of six, so the 0.53
percent of children with a blood lead level of 10 or more micrograms of lead per deciliter of blood would
mean that there are 127,000 children with such high levels 24 years after the passage of Title X.
The Consumer Products Safety Commission banned paint containing more than 0.06 percent lead for
many uses after 1977. And EPA began requiring the use of unleaded gasoline in new cars equipped with
catalytic converters in 1979, resulting in decreases in blood lead levels. EPA does not believe that the
success of these requirements is a reason to repeal or amend them. Nor does the Agency believe that the
continued decrease in blood lead levels since 2010 is a rationale for overturning the RRP rule, or for
reinstating the opt-out provision.
Furthermore, CDC stopped using a blood lead level of 10 or more micrograms per deciliter of lead in
blood to identify children with a blood lead "level of concern" in 2012, noting that no safe blood lead
level in children has been identified. CDC is no longer using the term "level of concern" and is instead
using a reference level of 5 micrograms per deciliter to identify children who have been exposed to lead
and who require case management.56 This new level is based on the U.S. population of children ages 1-5
years who are in the highest 2.5% of blood lead levels. The decrease in average blood lead levels over
time is an indication that regulatory programs are succeeding. The Agency does not believe this means
the programs should be scaled back. Large numbers of children continue to have blood lead levels
warranting attention. EPA continues to believe that it is important to prevent children, pregnant women,
and other individuals from being exposed to lead-based paint hazards. Thus, EPA does not believe it
would be appropriate to reinstate the opt-out provision at this time.
Comment: One commenter has submitted multiple comments (#2016-0126-0015, #2015-0780-0016,
#2015-0780-0027) suggesting reinstating the opt-out provision for home owners living in residences built
between 1960 and 1977, and without a pregnant woman or child less than six years of age. According to
the commenter, residential housing built between 1960 and 1977 only used lead-based paint for exterior
applications.
Response: It is not true that lead-based paint in houses built between 1960 and 1977 is only found on the
exteriors. Not only was lead-based paint used on the interiors of post-1960 housing, data from the U.S.
Department of Housing and Urban Development indicates that houses built between 1960 and 1977 are
more likely to have lead-based paint on interiors than exteriors.57 In any event, EPA's analysis for the
2010 opt-out rulemaking found that renovations of buildings with lead-based paint create risks to building
occupants over the age of six, occupants of neighboring properties (from exterior renovations) and
visitors to renovated buildings (from both interior and exterior renovations). Therefore, it is not
appropriate to create a new opt-out provision for post-1960 housing as the commenter has suggested,
since doing so would expose numerous individuals to lead-based paint hazards generated from
renovations in target housing.
56 What Do Parents Need to Know to Protect Their Children? Update on Blood Lead Levels in Children.
http://www.cdc.gov/nceh/lead/ACCLPP/blood_lead_levels.htm
57 U.S. Department of Housing and Urban Development, Office of Healthy Homes and Lead Hazard Control.
National Survey of Lead and Allergens in Housing, Volume L: Analysis of Lead Hazards. October 31, 2002. Table
4.6.
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Comment: Commenter #2016-0126-0015 claimed that EPA has conducted an irregular rulemaking
process when developing the RRP program. According to the commenter, in 2009 EPA entered into a
consent decree with public interest groups and committed to: 1) eliminating the opt-out provision, (2)
applying the Housing and Urban Development (HUD) clearance test to applicable renovation activities,
and (3) expanding the RRP requirements to commercial and other non-residential buildings. The
commenter claimed that when EPA completed the initial RRP rulemaking, the three requirements agreed
to as part of the consent decree were considered and rejected by the Agency as offering no significant
benefits and being inconsistent with the Toxics Substances Control Act (TSCA), yet EPA committed to
these new rulemakings, and did so without consulting with small businesses affected by the changes or
the Small Business Administration's (SBA) Office of Advocacy, and without the benefit of convening a
Small Business Regulatory Enforcement Fairness Act (SBREFA) panel addressing the potential impact of
the new requirements.
Response: The commenter is mischaracterizing the rulemaking history. The 2009 settlement agreement
did not commit EPA to eliminating the opt-out, requiring clearance testing, or expanding the RRP
requirements to non-residential buildings. Instead, EPA agreed to a schedule for issuing proposals on
those topics and taking final action. Those final actions could include deciding not to amend the RRP
rule. EPA clearly did not commit to require clearance testing for renovation activities, since EPA's final
action for that item under the settlement agreement was a decision not to require it (76 FR 47918). While
EPA did incorporate the opt-out provision into the 2008 rule, it did not analyze all of the implications of
doing so at the time. When the Agency conducted further analysis in 2010, it concluded that allowing the
opt-out provision would expose numerous individuals to lead-based paint hazards. Regarding pre-1978
public and commercial buildings, EPA did not commit in the settlement agreement to any particular
outcome, contrary to commenter's assertions, but rather agreed to sign a proposal (unless EPA notifies the
petitioners that the Agency has concluded that renovation activities in pre-1978 public and commercial
buildings do not create a lead-based paint hazard) and, if EPA publishes a proposal, to take final action
eighteen months later.
As EPA explained in 2010 (75 FR24815) and 2011 (76 FR47937), the Small Business Advocacy
Review (SBAR) Panel convened for the original RRP rule published in 2008 met the statutory obligation
for input on the opt-out and clearance rules. The Small Business Administration's Office of Advocacy
participated in the interagency review of the opt-out and clearance rules and submitted comments to the
public docket. Small businesses potentially affected by the rules also had the opportunity to submit
comments during the public comment periods for both rulemakings. The D.C. Court of Appeals for the
District of Columbia acknowledged this in its opinion on a petition to review the opt-out rulemaking:
The small business advocacy review panel, by contrast, is a purely procedural device, a process
by which interested parties can present their views to the agency. See Oral Arg. Recording at
41:00-: 14 (acknowledgment by petitioners that the absence of a review panel is "a process point,"
and that they cannot cite any information they could not have presented during the normal notice-
and-comment period).58
Finally, EPA intends to convene an SBAR Panel for the public and commercial building rulemaking if it
does not certify that the rule will not have a significant impact on a substantial number of small entities.
58 Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1040 (D.C. Cir. 2012).
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Comment: Commenter #2016-0126-0012 supported the goal of protecting children and pregnant women
from lead exposure. The commenter proposed that EPA consider reinstating the opt-out provision for
post-1960 target housing.
Response: While EPA appreciates the commenter's support for the protection of children and pregnant
women, the suggestions to exempt post-1960 housing or reinstate the opt-out provision would increase
lead exposure to these sensitive populations. While the opt-out provision contained exclusions for
housing where children under the age of six or pregnant women resided, EPA's 2010 rulemaking
identified scenarios where these populations could be exposed to lead dust resulting from renovations.
(For example, individuals living adjacent to a renovated building, or receiving child-care in one.)59 That
would continue to be the case if the opt-out provision were limited to post-1960 housing. Therefore, EPA
does not have a record basis to conclude that allowing an opt-out for post-1960 housing would address
lead-based paint hazards, taking into account reliability, effectiveness, and safety.
Comment: Several commenters (Commenters #2016-0126-0011, #2016-0126-0012, #2016-0126-0014,
and #2015-0780-0012) suggested that the rule should be amended because technology and economic
conditions have changed. Suggestions for revising the rule include exempting post-1960 housing,
reinstating the opt-out provision, allowing the opt-out provision for renovations in post-1960 housing, or
allowing the opt-out provision if the property owners disclose the information to subsequent buyers.
Response: Section 610(a) of the Regulatory Flexibility Act directs agencies to review rules which have or
will have a significant economic impact upon a substantial number of small entities to determine whether
the rules should be continued without change, or should be amended or rescinded, consistent with the
stated objectives of applicable statutes. Section 610(b) identifies factors to be considered in an Agency's
review of rules to minimize any significant economic impact of the rule on a substantial number of small
entities in a manner consistent with the stated objectives of applicable statutes. These factors include the
degree to which technology, economic conditions, or other factors have changed in the area affected by
the rule. As described below, the data indicate that these factors do not provide a justification for revising
the RRP rule as suggested by the commenters.
Economic Conditions
While economic conditions have changed since the RRP rules were promulgated, the change has been for
the better. Specifically, conditions for the renovation, repair and painting industry have improved since
EPA promulgated the final RRP rule in 2008 and removed the opt-out provision in 2010. At the time of
those rulemakings, the country was in the midst of a recession which negatively affected the RRP
industry. However, economic conditions have improved significantly since 2010 (when the requirements
for renovators went into effect), as indicated in the following charts about the remodeling industry. The
improvement in economic conditions since 2010 does not provide a rationale for adopting the
commenters' suggestions to exclude some renovations from the RRP program.
59 See Lead; Amendment to the Opt-Out and Recordkeeping Provisions in the Renovation, Repair, and Painting
Program, 75 Federal Register 24802, May 6, 2010, and Economic Analysis for the TSCA Lead Renovation, Repair,
and Painting Program Opt-out and Recordkeeping Final Rule for Target Housing and Child-Occupied Facilities,
U.S. Environmental Protection Agency, April 2010.
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Remodeling Market Index (RMI): Overall RIM I
Source: National Association of Home Builders. The RMI survey asks remodelers to rate a variety
of aspects of the remodeling market as 'higher' or lower' than three months earlier. Each question
in the RMI survey is measured on a scale of 0 to 100, where an index number of 50 indicates equal
numbers of remodelers report activity 'higher' and 'lower' than the previous quarter. The Overall
Remodeling Market Index is calculated by averaging the Current Marketing Index and the Future
Market Indicators Index. Any number over 50 indicates that more remodelers view remodeling
market conditions as higher than the previous quarter.
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Leading Indicator of Remodeling Activity (LIRA)
Four-Quarter Moving Rate of Change
15%
-•-Former LIRA -*-Re-benchmarked LIRA
Source: Harvard Joint Center for Housing Studies. Re-benchmarking of the Leading
Indicator of Remodeling Activity. Research Note, April 2016.
-10%
-15%
-20%
Homeowner Improvement and Repair Activity
Four-Quarter Moving Rate of Change
20.0%
15.0%
10.0%
5.0%
0.0%
-5.0%
-10.0%
-15.0%
fN
a
a
to to
o o
o o
-------
Number of Employees at General Residential Remodeling Firms
(Thousands)
320
300
280
260
240
220
200
310
289
306
284
248
I
282
I
I
2^5
266
252
241
I
2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
Source: Harvard Joint Center for Housing Studies. Emerging Trends in the
Remodeling Market. 2015.
Number of Firms with Payrolls (Thousands)
90
85
80
75
70
86.9
86.4
2005 2006 2007 2008 2009 2010 2011 2012 2013 2014:2
Note: Estimate far ZD14;Z Is preUmlnaiy.
SourcEzllS Departnieiit of Lalior. Sura of Labor Statistics. Quarter^ Census of Empbyrnentaifl Wages.
Source: Harvard Joint Center for Housing Studies. Emerging Trends in the Remodeling
Market. 2015.
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Median Compound Annual Change in Revenue for Qualified Remodeler
Top 500 Firms (Percent)
-12
Design/Build Full-Service Replacement All Larger Firms
¦ Boom (2004-07) ¦ Bust 12007-101 ¦ Recovery (2010-13) 4
Source: Harvard Joint Center for Housing Studies. Emerging Trends in the
Remodeling Market. 2015.
Technological Change
EPA is not aware of any significant changes in technology in the area affected by the rule, nor have the
commenters provided data indicating that such change has occurred. Indeed, the com me liters' argument is
that technology has not changed (specifically that a lead test kit that meets EPA's positive response
criterion is not yet available). Regardless, the lack of technological change in lead test kit technology does
not justify the regulatory exemptions suggested by these commenters because EPA does not have a record
basis to conclude that such exemptions would address lead-based paint hazards, taking into account
reliability, effectiveness, and safety.
TSCA § 402(a) directs EPA to promulgate regulations covering lead-based paint activities to ensure that
persons performing these activities are properly trained, that training programs are accredited, and that
contractors performing these activities are certified. These regulations must contain standards for
performing lead-based paint activities, taking into account reliability, effectiveness, and safety. TSCA §
402(c)(3) further directs EPA to revise its lead-based paint activities regulations under TSCA § 402(a) to
apply to renovation or remodeling activities that create lead-based paint hazards. When promulgating the
RRP rule, EPA determined that activities commonly performed during renovation and remodeling create
lead-based paint hazards. The primary objective of the rule was to minimize exposure to lead-based paint
hazards created during renovation, repair, and painting activities in target housing and child-occupied
facilities, taking into account reliability, effectiveness, and safety as directed by TSCA § 402(a).
Specifically, the Agency concluded that the training, containment, cleaning, and cleaning verification
requirements in the RRP rule achieved the goal of minimizing exposure to lead-based paint hazards
created during renovation, remodeling and painting activities, taking into account reliability,
effectiveness, and safety.
Renovation, repair, and painting activities still rely on the same basic technologies that EPA considered at
the time of the 2008 rulemaking, such as cutting, sawing, drilling, scraping, sanding, component removal,
and window replacement. EPA is not aware of any evidence that contradicts its 2008 findings (based on
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the 2007 Dust Study) that these activities can create lead-based paint hazards. Where lead-based paint is
present, conducting these activities in post-1960 housing or in housing where no child under the age of
six or pregnant woman resides can still create lead-based paint hazards. Furthermore, EPA's analyses for
the 2010 opt-out rulemaking indicated the potential for negative health effects for individuals of all ages if
they are exposed to lead-based paint hazards from such renovations.
Nor is EPA aware of any new technologies that can substitute for the containment, cleaning, cleaning
verification, and other requirements in the RRP rule and achieve the goal of minimizing exposure to lead-
based paint hazards created during renovation, remodeling and painting activities, taking into account
reliability, effectiveness, and safety. For instance, the rule requires the use of HEP A exhaust controls
when using machines that remove lead-based paint through high speed operations such as sanding,
grinding, power planing, needle gun, abrasive blasting, or sandblasting. Commenters have presented no
evidence of new cleaning technologies having been developed since 2008 that EPA could substitute for
the HEPA exhaust control requirement in the rule.
EPA also notes that it is not aware of any significant changes in the medical technology for treating
children or other individuals with very high blood lead levels. Such individuals are still treated with
chelation therapy, which has the potential for serious side effects. In addition, while chelation therapy can
prevent further injury, it does not reverse or cure the damage that has already occurred. Therefore, EPA
believes it is preferable to minimize exposure to lead-based paint hazards (consistent with the statutory
goal) rather than relying on medical treatment for children with elevated blood lead levels.
The commenters who suggested exempting post-1960 housing from the rule argue that only 24 percent of
post-1960 residences contain lead-based paint. There are 8.7 million renovations per year performed in
the 37 million target housing units and child-occupied facilities built after 1960. The same standard
renovation techniques (sanding, scraping, drilling, etc.) are used in pre- and post-1960 buildings. Where
lead-based paint is present and disturbed in a renovation, exempting renovations in post-1960 buildings
from the RRP rule would expose the residents and other individuals to lead-based paint hazards. EPA
does not have a record basis to conclude that such an approach would address lead-based paint hazards,
taking into account reliability, effectiveness, and safety.
Several commenters suggested that EPA should reinstate some form of the opt-out provision. When EPA
took action in 2010 to eliminate the opt-out provision, it stated:
Based on the data available to EPA (e.g., the Dust Study), the Agency cannot now conclude that
the opt-out nor that the alternative approaches are safe, reliable or effective because none of these
would sufficiently minimize exposure to lead-based paint hazards. In sum, when the RRP work
practices are not used, residents and visitors are exposed to the lead hazards created by the
renovation, and therefore these approaches would not protect older children, women of
childbearing age, or other adults currently residing in the home and can result in exposure to
children under the age of 6 and pregnant women to lead-based paint hazards. Again, although
EPA specifically requested information or data that would shed any light on the reliability,
effectiveness, or safety of these options in relation to EPA's lead hazard standards, the Agency
did not receive any. The Agency took these factors into consideration in deciding not to adopt
these alternatives.60
60 Lead; Amendment to the Opt-Out and Recordkeeping Provisions in the Renovation, Repair, and Painting
Program. 75 Federal Register 24807, May 6, 2010.
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EPA is not aware of any new technologies that would lead the Agency to revise the conclusion it made in
2010. Therefore, EPA does not have a record basis to conclude that reinstating the opt-out provision
would address lead-based paint hazards, taking into account reliability, effectiveness, and safety.
Comment: Commenter #2016-0126-0011 claimed that EPA's Section 610 review is deficient. According
to the commenter, EPA appears to be treating the Section 610 review process as a mere "check the box"
exercise. The commenter asserts that the brief descriptions of the rule in the regulatory agenda were too
short, and there was no apparent attempt to explain the "legal basis" for the rule. The commenter claims
that without additional information from EPA, commenters cannot respond adequately to the five
statutory Section 610 factors and can only reiterate the comments they previously made to the Agency.
The commenter states that EPA has not provided its own assessment of the RRP program, although this is
not strictly required by the statute. The commenter then states that EPA should withdraw the current
notice and re-issue it along with a report analyzing the rule's performance to which commenters can
respond, and an explanation of what information the Agency seeks and how it intends to use the
information it receives. The commenter believes that, at a minimum, EPA should allow a second public
comment period on the draft report it prepares in response to the initial round of Section 610 comments.
Response: EPA's process for this review complies fully with the requirements of the Regulatory
Flexibility Act, and is consistent with how the Agency has handled the Section 610 review for other
rulemakings. EPA does not intend to withdraw this notice, or to undergo a second comment period on the
report it has prepared. As the commenter acknowledged, the statute does not require EPA to provide the
public an opportunity to comment on this document.
EPA believes that commenters could respond to the five statutory Section 610 factors based on the
information in the notice. EPA solicited comments on the following factors: (1) The continued need for
the rule; (2) the nature of complaints or comments received concerning the rule; (3) the complexity of the
rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal, State, or local
government rules; and (5) the length of time since the rule has been evaluated or the degree to which the
technology, economic conditions or other factors have changed in the area affected by the rule. EPA
believes that the notice was sufficiently clear about what information it sought (responses on the five
factors) and how it intended to use it (to determine whether the rule should continue without change or
should be amended or rescinded, consistent with the stated objectives of applicable statutes, to minimize
any significant economic impact of the rules upon a substantial number of small entities).
This commenter wants to respond to EPA's assessment but it has not provided information on actual
compliance experiences for EPA to review. Public commenters are in a position to provide their
perspective on all of five factors61 (especially the actual experience of themselves or their members in
complying with the rule) in the absence of an EPA assessment.
EPA notes that the Agency has previously explained the legal basis for the rule in more detail. This
explanation was provided in the preambles for proposed and final rulemakings for the RRP program (and
this commenter provided lengthy comments on those rules), in response to comments documents, in
initial and final regulatory flexibility analyses, and in a brief the government filed as part of litigation
involving this same commenter. It is unnecessary to reiterate this information at length in the Federal
Register as part of this effort. The succinct explanation EPA provided is sufficient for the Section 610
review.
61 Including factor #2 (the nature of complaints). At least one other commenter, a trade association, used the
opportunity to summarize the comments that it received from its members.
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EPA concurs with the commenter's assessment that they have reiterated comments they have previously
made to the Agency, and notes that the commenters have not provided experience-based evidence to
support their claims. Several of the commenters mentioned the need to reconsider the rule based on six
years of experience, but these commenters provided no new evidence of the industry's experience in
complying with the rule.
EPA did not wait for the RFA Section 610 review to make changes to the program that were consistent
with the statute. In 2011, EPA amended the rule to allow renovators to take paint chip samples, instead of
relying on a third party to do so.62 In 2016, EPA revised the requirement that certified renovators take
hands-on training as part of every cycle of refresher training, in order to provide more flexibility to the
industry.63 EPA did not adopt various comments (dating back as far as the 2006 proposed rule) about
other potential changes to the program, such as exempting post-1960 housing, because EPA does not have
a record basis to conclude that such changes would address lead-based paint hazards, taking into account
reliability, effectiveness, and safety.
Comment: Commenters #2016-0126-0011, #2016-0126-0012, #2016-0126-0015, #2015-0780-0012, and
#2015-0780-0027 commented that a 2012 report by EPA's Office of Inspector General (OIG) stated that
EPA relied on limited data (including a survey of nine firms) in developing cost and benefit estimates for
the rule's underlying economic analysis, and did not quantify additional contractor liability insurance
costs, costs to markets that are indirectly affected by the rule, or some opportunity costs associated with
implementation of the rule.
Response: As explained in the OIG report, EPA believes the economic analysis was appropriate to
support decisions made by Agency officials, and notes that the OIG report concluded that "We agree that
the economic analysis was conducted according to Agency guidelines, was subject to public comment,
and was cleared by OMB as complying with the requirements of Executive Order 12866."64
Comment: Commenter #2016-0126-0016 stated that its members are particularly concerned about the
overlap between certain aspects of the 2008 Lead RRP rule and the Occupational Safety and Health
Administration's (OSHA) Lead Standard for the Construction Industry. The commenter requested that
EPA revisit OSHA's Lead Standard for the Construction Industry and evaluate whether or not there is
opportunity to streamline EPA's lead work practice requirements, reduce redundancies, and clarify
processes for the regulated small-business community. According to the commenter, in contrast to EPA's
RRP rule, the OSHA Lead Standard for the Construction Industry applies to all construction work where
an employee may be occupationally exposed to lead (this is not dependent on the size of a job or the
concentration of lead).
The commenter stated that OSHA requirements for "housekeeping" covered at 20 C.F.R. 1926.62(h)
require employers to maintain all surfaces as "free as practicable" of accumulations of lead dust.
Vacuuming is the preferred method of meeting this requirement. Vacuums must be equipped with a
HEPA filter, and dry or wet sweeping, shoveling, or brushing may not be used except where vacuuming
or other equally effective methods have been tried and do not work. According to the commenter, for
62 Lead; Clearance and Clearance Testing Requirements for the Renovation, Repair, and Painting Program. 76
Federal Register 47918, August 5, 2011.
63 Lead-Based Paint Programs; Amendment to Jurisdiction-Specific Certification and Accreditation Requirements
and Renovator Refresher Training Requirements. 81 FR7987, February 17, 2016.
64 See EPA's response in "Review of Hotline Complaint Concerning Cost and Benefit Estimates for EPA's Lead-
Based Paint Rule", Report No. 12-P-0600 (July 25, 2012), pages 11 to 12 and 19 to 28.
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work where exposure to lead is found to exceed 50 |ig/m3 of airborne lead, additional requirements
include the use of respirators; engineering controls (including HEPA vacuums, negative air machines, and
wet methods); personal protective equipment; regulated areas, signs, and labels; and a decontamination
facility.
The commenter cited one letter of interpretation from OSHA regarding what it means to maintain all
surfaces as "free as practicable" of accumulations of lead dust, and another OSHA letter of interpretation
that (according to the commenter) indicated that testing for lead can be helpful but may not eliminate the
need to do exposure monitoring and provide interim protections.
Response: The RRP program is not redundant with OSHA's Lead Standard for the Construction Industry,
so there is not a need to streamline the lead work practice requirements for the regulated small business
community. As EPA has indicated previously, OSHA's requirements are designed to protect workers, and
do not ensure that all occupants and other members of the public are safe during and after renovation,
repair, and painting projects.
OSHA's standard applies to construction work where an employee may be occupationally exposed to
lead. The Occupational Safety and Health Act65 states that
The term "employee" means an employee of an employer who is employed in a business of his employer
which affects commerce.
and
The term "employer" means a person engaged in a business affecting commerce who has employees, but
does not include the United States (not including the United States Postal Service) or any State or political
subdivision of a State.
Thus, OSHA standards do not apply to self-employed individuals and partnerships with no employees
(which are also referred to as non-employer firms) or to individuals working as independent contractors.66
Given that approximately 75% of the construction establishments performing residential RRP in pre-1978
housing are estimated to be non-employer firms67 - and thus exempt from the OSHA standard - there is a
large universe of RRP jobs that are not covered by the OSHA requirements.
There are other differences between the OSHA standard and the RRP rule which demonstrate why the
requirements are not duplicative. For example, since the OSHA standard is intended to protect employees,
it does not require clean-up at the end of the project.68 EPA believes that cleaning up at the end of the
project is an important step for protecting building's occupants, including children.
Furthermore, many provisions of the OSHA standard only apply if the level of lead in the air exceeds the
action level. The action level is an airborne concentration of 30 (ig/m3, averaged over an eight-hour
65 29 U.S.C. §652.
66 See 29 CFR 1975.4, and
https://www.osha. gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24317
67 Economic Analysis for the TSCA Lead Renovation, Repair, and Painting Program Opt-out and Recordkeeping
Final Rule for Target Housing and Child-Occupied Facilities. U.S. Environmental Protection Agency, April 2010.
Table 4-47.
68 Regulatory Review of 29 CFR 1926.62 Lead in Construction Pursuant to Section 610 of the Regulatory Flexibility
Act and Section 5 of Executive Order 12866. Occupational Safety and Health Administration, Directorate of
Evaluation and Analysis, Office of Evaluations and Audit Analysis, August 2007, p. 149.
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period. There are additional requirements if the level in the air exceeds the permissible exposure limit
(PEL), which is 50 (ig/m3 averaged over an eight-hour period.
EPA's 2007 Dust Study measured air lead levels as well as dust lead levels. In the figure below, each
point represents the work room results from a separate experiment in the 2007 Dust Study.
(Measurements that were below the detection limit are plotted at one-half of the detection limit.69) The
blue line represents the regression line fitted to the data. (The R2 for the regression is 0.05, suggesting that
there is not a strong relationship between air dust lead concentrations and floor dust lead levels.) The red
line is the OSHA action level, while the green line is the OSHA PEL. With the exception of jobs where
restricted or prohibited practices were used, lead levels in the work room during the work phase were
generally below the Action Level and were often below the detection limit for air monitoring.7" Yet many
of these jobs resulted in high levels of lead in floor dust. The Dust Study results indicated that lead levels
can exceed EPA's hazard standards even where air levels did not exceed the OSHA action level. Thus,
there can be situations where dust lead hazards are created but many of the OSHA provisions do not
apply. EPA therefore cannot rely on the OSHA requirements to protect individuals other than the
construction employee-workers.
Figure F3.7a. Scatter Plots of Work Room Air Dust Lead Concentration (jig/m3) by Stage and Avg.
Avg. Floor Dust Lead in Post-Work Work Room (R-Square = 5.64°/<)
69 The method detection limit for air samples was 2 ng/filter. When expressing the detection limit as a concentration
for a specific air sample, this value is divided by the sample's measured flow rate (in cubic meters). Thus, the
detection limit in ng/m3 differs from sample to sample.
711 Some of the air dust lead concentrations shown in the figure as exceeding 30 or 50 ng/m3 could actually be below
the action level or the PEL. Under the OSHA standard, the action level and the PEL are calculated over an 8-hour
sampling period (i.e., using a time-weighted average). However, the duration of interior work in EPA's Dust Study
ranged from 7 to 300 minutes, with an average of 105.2 minutes. When excluding jobs involving high temperature
heat guns (>1100 degrees), interior work durations were no higher than 201 minutes. The air sampling continued for
up to an hour after each stage, to allow for dust to settle from work activities in that stage. Even with the extra time
for settling, the maximum air sampling period was often much less than the 8 hours used to calculate the action level
and the PEL. Using an 8-hour time-weighted average would presumably reduce the calculated air dust level for
many of the jobs, given that dust generating activities were not occurring in the last few hours.
71 Revised Final Report on Characterization of Dust Lead Levels After Renovation, Repair, and Painting Activities.
Prepared by Battelle for U.S. Environmental Protection Agency, OPPT, National Program Chemicals Division
Program Assessment and Outreach Branch. November 13, 2007. EPA-HQ-OPPT-2005-0049-0857.
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Lead levels below the PEL also have the potential to result in exposures to the family members of
construction workers. According to the National Institute of Occupational Safety and Health (NIOSH):
Airborne lead exposures exceeding the PEL of 50 |ig/m3 may not be as reliable a measure of the potential
for lead-contaminated skin and clothing when compared to approaches that supplement air sampling with
surface sampling information. NIOSH researchers found that employees with low air exposures have the
highest levels of lead contamination in their cars when working at a construction site where the hygiene
provisions were required only for employees with high exposures to airborne lead. Study findings further
indicated that while the proximity and time spent by employees near lead sources did not necessarily result
in high air exposures, employee activities alone may still result in lead deposition onto clothes and skin
from contact with contaminated surfaces or dust settling. Therefore, airborne lead exposure alone is not
sufficient for determining the potential for lead-contaminated clothing and skin and the need for hygiene
provisions at construction sites. The availability of new, inexpensive surface sampling methods can provide
alternative trigger mechanisms and options to improve the targeting of hygiene measures.72
Since young children are very sensitive to lead exposures, lead levels below the PEL may still present a
risk if the children of construction workers are exposed through contamination in homes or cars.
While HEPA vacuums may be used in certain limited situations to comply with the OSHA standard, EPA
also notes that using a HEPA vacuum alone (without the containment, cleaning verification, and other
requirements in the RRP rule) is not sufficient to minimize exposure to lead-based paint hazards created
during renovation, repair, and painting activities in target housing and child-occupied facilities, taking
into account reliability, effectiveness, and safety as directed by TSCA § 402(a). EPA's 2007 Dust Study
examined jobs where rule cleaning (including HEPA vacuuming) was used without containment, and
found that high levels of lead could remain. EPA concluded in 2008 that the combination of training,
containment, cleaning, and cleaning verification were required to achieve the goal of minimizing
exposure to lead-based paint hazards created during renovation, remodeling and painting activities, taking
into account reliability, effectiveness, and safety.
To the extent that renovation firms are subject to the OSHA requirements, those requirements suggest that
many industry commenters have exaggerated the cost of complying with the RRP rule. For example,
numerous renovations firms with employees that commented in 2009 on the proposed opt-out rule
provided compliance cost estimates that included the cost of a HEPA vacuum, HEPA filters, and the labor
needed to clean the work site with a HEPA vacuum. Yet these firms were not incurring additional costs
associated with HEPA vacuums due to the RRP rule if they were already using the vacuums to comply
with OSHA requirements. Furthermore, while EPA only requires HEPA vacuuming after the renovation
has been completed, many of the industry commenters on the opt-out rule estimated their cleaning costs
assuming that the work area is cleaned with a HEPA vacuum frequently during the day, and at the end of
the day. While daily cleaning may be necessary to protect workers under the OSHA standard, it is not
needed to comply with the RRP rule. It appears that either industry commenters with employees have
been attributing the cost of OSHA compliance to the RRP rule, or that they are not subject to or not
complying with the OSHA standard (in which case EPA cannot assume that the OSHA standard will
protect building occupants).
Similarly, many industry commenters on the opt-out rule included the cost of personal protective
equipment to justify their claims that EPA had underestimated the work practice costs for the RRP
program by not including these in the economic analysis. The RRP rule does not require the use of
personal protective equipment, although EPA does recommend its use. In any event, either the opt-out
72 Regulatory Review of 29 CFR 1926.62 Lead in Construction Pursuant to Section 610 of the Regulatory Flexibility
Act and Section 5 of Executive Order 12866. Occupational Safety and Health Administration, Directorate of
Evaluation and Analysis, Office of Evaluations and Audit Analysis, August 2007, p. 61.
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rule commenters were inflating their cost claims by including costs they were already incurring due to the
OSHA standard; or most renovators are not in a situation where the OSHA provisions apply (or
renovators are just not complying with the OSHA standard), in which case the OSHA standard is not
relevant to the goal under TSCA of minimizing exposure to lead-based paint hazards created during RRP
activities.
One of the OSHA interpretive letters cited by Commenter #2016-0126-0016 states that:
The requirements of 29 CFR 1926.62 at Section 1926.62(h)(1) state that "All surfaces shall be
maintained as free as practicable of accumulations of lead." Section 1926.62(i)(2)(i) of this
standard requires that "The employer shall provide clean change areas for employees whose
airborne exposure to lead is above the permissible exposure level ..." Section 1926.62(i)(4)(ii)
requires that "The employer shall assure that lunchroom facilities or eating areas are as free as
practicable from lead contamination..." Also, in the Compliance Directive for the Interim
Standard for Lead in Construction, CPL 2-2.58, OSHA recommends the use of HUD's acceptable
decontamination level of 200 ug/ft2 for floors in evaluating the cleanliness of change areas,
storage facilities, and lunchrooms/eating areas. ... In situations where employees are in direct
contact with lead-contaminated surfaces, such as working surfaces or floors in change rooms,
storage facilities and, of course, lunchroom and eating facilities, OSHA has stated that the
Agency would not expect surfaces to be any cleaner than the 200-ug/ft2 HUD level.73
EPA adopted the current Section 403 rule in 2001, setting a floor lead level of 40 ug/ft2, and HUD
adopted this level in 2004.74 If construction firms are still relying on the 200 ug/ft2 level mentioned in the
2003 OSHA interpretive letter for use in target housing and child-occupied facilities, then their activities
under the OSHA standard are clearly insufficient to meet EPA's requirements. But if construction firms
now interpret OSHA's requirement that "as clean as practicable" refers to the current HUD standard of 40
ug/ft2 for floors, then to the extent that the OSHA standard applies to jobs subject to the RRP rule,
industry commenters seem to be exaggerating the cost of complying with the RRP rule by double-
counting costs that they were already incurring due to the OSHA rule. In that case these firms are likely to
have already been using some containment and specialized cleaning to comply with the OSHA
requirements.
Commenter #2016-0126-0016 also cited an OSHA interpretive letter that states that, with limited
exceptions, XRF testing does not eliminate the need to perform exposure monitoring and provide interim
controls.75 This interpretation undercuts the criticism made by other commenters. Specifically, they claim
that they are forced to assume that lead-based paint is present and use lead-safe work practices under the
RRP rule because the lead test kits have a high false positive rate. Yet under the OSHA rule, contractors
may already be incurring the costs of adopting housekeeping and interim protections in some cases where
the lead level falls below the definition of lead-based paint but the lead test kit indicates that lead is
present.
Again, either (1) the other commenters were inflating their cost claims by including costs for such
activities they were already incurring due to the OSHA standard; or (2) renovators are not subject to or
not complying with the OSHA standard (in which case Commenter #2016-0126-0016's references to the
OSHA standard are not compelling); or (3) in the limited applications allowed under the OSHA
73 https://www.osha. gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25617.
74 Requirements for Notification, Evaluation, and Reduction ofLead-Based Paint Hazards in Housing Receiving
Federal Assistance and Federally Owned Residential Property Being Sold, Conforming Amendments and
Corrections. 69 Federal Register 34262, June 21, 2004.
75https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22701
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standards, renovators are in fact relying on the results of XRF testing or paint chip sampling, and those
are practical methods.
Comment: Commenter #2016-0126-0012 claimed that EPA eliminated the opt-out provision based on
subjective assumptions rather than sound data. According to the commenter, this is particularly disturbing
given EPA did rely on sound studies when justifying inclusion of the opt-out provision in the original
rule. Those studies, one by the Agency, and two by the New York State Department of Health regarding
lead exposure associated with renovation and remodeling activities, were used to support the decision to
include the opt-out provision.
Response: EPA disagrees with the commenter. The commenter appears to be referring to studies EPA
cited in support of the original 2008 rule demonstrating that residential renovation and remodeling is
associated with an increased risk of elevated blood lead levels (EBLs) in children.76,77•78 Those studies
justified regulating RRP activities in target housing and COFs, not allowing homeowners to opt-out of the
RRP rule. The children in these studies had EBLs because renovation and remodeling can create lead-
based paint hazards. As EPA described in the 2010 rule removing the opt-out provision, those hazards can
harm children under the age of six that live contiguous to attached housing that could be renovated under
the opt-out provision, or move into a house that could be renovated under the opt-out provision, or receive
childcare in such housing, as well as older children and adults that are in these situations or already live in
the renovated housing. The studies showed that renovation and remodeling activities created risks for
children under the age of six living in the renovated housing. That does not mean that unregulated
renovations were safe for other individuals.
Comment: Commenter #2016-0126-0011 urged EPA to revisit the issue of an opt-out provision.
According to the commenter, reincorporating an opt-out provision into the rule would help ensure that the
program is effectively targeting the at-risk population and not being applied where lead-based paint
hazards are not present. The commenter urged EPA to consider reinstating the opt-out for homes built
after 1960, at a minimum.
Response: EPA explained its rationale for removing the opt-out in 2010. The commenter has not
provided any new evidence or explanation as to why EPA should now conclude that allowing some form
of opt-out would be consistent with the rule's overall goal.
Comment: Commenter #2016-0126-0006 requests that the RRP rule allow for new industry technologies
for preventing lead health hazards to be considered for use. According to the commenter, there are several
new lead treatment and sealant technologies which have been in existence for over 10 years and for which
there is amble [s/'c] EPA specified analytical test verifications as to the technologies' effectiveness at
reducing lead dust spread, lead environmental hazards and lead bioavailability hazards. There should be a
procedure established which allows for a timely review or verification of acceptance too [s/'c] new RRP
76 U.S. Environmental Protection Agency. Lead Exposure Associated with Renovation and Remodeling Activities:
Phase III, Wisconsin Childhood Blood-Lead Study (EPA 747-R-99-002, March 1999).
77 U.S. Department of Health and Human Services (HHS), U.S. Public Health Service (PHS), CDC. Children with
Elevated Blood Lead Levels Attributed to Home Renovation and Remolding Activities—New York, 1993-1994.
Morbidity and Mortality Weekly Report (45(51); 1120-1123, January 3, 1997).
78 Reissman, Dori B., Thomas D. Matte, Karen L. Gurnite, Rachel B. Kaufmann, and Jessica Leighton. Is Home
Renovation or Repair a Risk Factor for Exposure to Lead Among Children Residing in New York City], Journal of
Urban Health: Bulletin of the New York Academy of Medicine. Vol. 79, No. 4, 502-511, (December 2005).
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means and methods which will lower overall costs to home owners, contractors and provide for an
improvement in environmental protection and human health protection.
Response: The commenter has provided no data supporting its claims and did not describe the
technologies to which it is referring. Therefore, EPA cannot commit to taking any action as part of this
Section 610 review in response to this comment.
Comment: Commenter #2016-0126-0011 states that individual certified renovators should be provided
the same resources provided to certified firms. According to the commenter, EPA does not provide the
general public with the same level of information about individual renovators as certified firms. For
instance,
• EPA's online search function for locating certified renovators only provides information about
certified firms and training providers. It does not provide information about individual renovators.
• EPA allows certified firms to submit applications (for both certification and recertification),
payments, updates, and certificate requests online. Individual renovators do not have these
options. Further, individual renovators who had their certifications extended via EPA's April
2015 final rule had no means of receiving formal "extension" certificates. Instead, renovators
were instructed to include a copy of the Federal Register notice with their certification
paperwork. This created confusion and additional burdens for many of the commenter's
members.
• EPA allows certified firms to order a copy of their certificate online. Individual renovators do not
have this option. This means that individual certified renovators have no centralized location from
which to obtain a replacement certificate if needed. This has serious implications for individual
renovators who obtained their original certificate from a trainer that is now out-of-business or
otherwise unreachable.
The commenter states that it appreciates EPA's efforts to develop website tools and other resources for
certified firms, and urges EPA to consider developing similar resources for individual certified
renovators. This would help address some of the disparities between the burdens certified firms and
individual certified renovators face, as well as the disparities in publicly available information. Overall,
these changes would make the program more efficient and transparent, benefiting renovators and the
public alike.
Response: EPA disagrees that it can or should make the changes that the commenter requests. Firms and
renovators are handled differently because of the basic requirements of the RRP program, as discussed
below.
Online search function
Under 40 CFR 745.85(a), renovations must be performed by certified firms using certified renovators.
And under 40 CFR 745.89(d), all individuals performing renovation activities on behalf of the firm must
be either certified renovators or have been trained by a certified renovator. Both the firm and the
renovator must be certified (although these are different certifications). A homeowner hires a certified
firm to conduct a renovation, and the firm is responsible for ensuring that a certified renovator oversees
the renovation and performs certain activities. The homeowner does not hire the certified renovator
directly. Were EPA to post information about individual renovators online, this could suggest to the
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public that either the firm or the individual renovator must be certified but that both certifications are not
required. This would cause misunderstandings among homeowners and the regulated industry,
particularly in regard to self-employed renovators (nonemployer firms).
Furthermore, EPA's website provides a search function for locating certified firms and training providers
because members of both of those groups submit their applications directly to EPA. However, renovators
become certified by successfully completing an accredited course offered by a third-party training
provider. Renovators do not submit their information directly to EPA, nor have they consented to EPA
posting their name, address, and phone number (which are personally identifiable information) online.
Even if EPA were to collect this information directly from the renovators and publish it online, the
Agency would have to charge a fee to renovators to recover the Agency's costs of doing so. That would
be an additional burden for renovators.
Submit applications online
EPA does not allow individual renovators to submit applications, payments, updates, or certificate
requests through its website because renovators (unlike firms) do not become certified by submitting this
information to EPA. Instead, renovators become certified by successfully completing an accredited course
offered by a training provider. EPA notes that many training providers do allow renovators to apply for
training and submit their payment online, either through their own website or through a third-party
website.
EPA did not issue "extension" certificates in 2015 because the original certificates were issued by the
training provider, not the Agency. Furthermore, EPA does not agree that the April 2015 rule created
additional burdens for renovators. This rule provided renovators with flexibility by extending the period
that their initial training was valid, so that they would not need to take refresher training until after EPA
had promulgated the 2016 amendments allowing renovators to take refresher training without a hands-on
component under certain circumstances. EPA does not believe this was too confusing. In addition, the
extension did not create additional burden because any renovator who might have felt that the change was
burdensome could have declined the extension and instead taken the 4-hour refresher training (with a
hands-on component) prior to the normal expiration of their certification period.
In terms of whether the extension was confusing, EPA notes that this same commenter supports an
amended opt-out provision (where the RRP work practices would be required in rental housing, or in
owner occupied housing built in 1960 or earlier, or in post-1960 owner occupied housing where a child
under the age of six resides, or in post-1960 owner occupied housing where a pregnant woman resides;
but the RRP work practices would not be required in post-1960 houses that are owner occupied and no
child under the age of six resides and no pregnant woman resides, and the owner opts out of using the
RRP work practices, and the renovator documents this). EPA believes that the 2015 extension was much
less confusing than the commenter's suggested amendment to the opt-out process.
Order replacement trainins certificate online
The training providers - not EPA - provide renovators with their course completion certification, and thus
are responsible for providing any replacement certificates. Therefore, the renovator should first contact
their training provider. If the trainer is out of business or otherwise unreachable, the renovator should
contact the National Lead Information Center (NLIC).79 If the trainer provided EPA with complete
79 As of this writing, the NLIC is available by phone Monday through Friday, 8:00 am to 6:00 pm Eastern time
(except federal holidays) at 1 (800) 424-LEAD [5323] (or by leaving a message 24-hours a day, seven days a week);
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information in its post-training notification for the class, EPA can provide the renovator with a document
that serves as a substitute for the training certificate.
Note that according to 40 CFR § 745.90(b)(7), certified renovators "Must have with them at the work site
copies of their initial course completion certificate and their most recent refresher course completion
certificate" (emphasis added). Renovators who are concerned about losing or damaging their certificate
and being unable to get a replacement because their training provider has gone out of business or
otherwise become unavailable can bring a photocopy or an electronic version80 to the job site, and keep
the original in a safe place.
Comment: Commenter #2016-0126-0011 claimed that regional disparity in recordkeeping protocols
makes program compliance unnecessarily complicated. The commenter notes that EPA never has
finalized a standardized recordkeeping form; renovators are not required to use the sample recordkeeping
"checklist" form the Agency provided. According to the commenter, EPA has also not established
standardized protocols for filling out the sample form for renovators required to certify compliance with
the RRP rule's training, work practice, and other requirements. The commenter claims that as a result,
different regions maintain different protocols for filling out forms and maintaining records. For example,
some renovators are allowed to "pre-fill" company information on the forms, while others cannot; some
renovators are able to fill out all or portions of the forms online, while others must do so by hand. This
regional disparity makes it difficult for the commenter to advise its members, who operate across many
different regions and states, on the applicable protocols.
Response: Compliance requirements do not differ across regions. While some variation in interpretation
may occur periodically, the Agency trains field personnel on an ongoing basis to ensure consistency. EPA
does not require renovators to use a "one size fits all" recordkeeping form. Instead, EPA allows
renovators flexibility in how they comply with the recordkeeping requirement. Therefore, when
monitoring compliance inspectors may encounter varying methods of providing the requisite information
and some subjectivity may be required to determine if rule requirements are met. EPA does not think that
mandating that all renovators use a standardized form would reduce burdens for renovators.
Comment: Commenter #2016-0126-0012 stated that EPA should immediately resume efforts to approve
a compliant lead test kit. The commenter finds it alarming that the Agency will not be developing or
recognizing a compliant lead test kit at any time in the near future. The commenter believes that EPA has
a responsibility to ensure a commercially available lead test kit that meets both the positive and negative
response criterion is developed as originally envisioned and foundational to the RRP Rule. The
commenter does not believe that EPA should abandon the development of a compliant lead test kit while
still requiring contractors to demonstrate by other means that target housing is lead free, or at levels below
that required to follow lead-safe work practices. According to the commenter, EPA evaluated several field
testing alternatives during the RRP Rule's development and settled on the use of a lead test kit. The lack
of a compliant lead test kit forces the full application of the RRP Rule on too many homes that otherwise
would have tested negative for LBP. The commenter believes forcing renovators and homeowners into
compliance without knowing if a LBP hazard exists is unnecessary, unreasonable and unfair.
by fax at 585-232-3 f f f; by mail at 422 South Clinton Avenue, Rochester, NY 14620; or online at
https://www.epa.gov/lead/forms/lead-hotline-national-lead-information-center.
80 See Renovation, Repair, and Painting (RRP) Rule Frequent Questions, Question 23002-32221. "Question: Can
the certified renovator comply with the rules by keeping records regarding his certification and employee training
electronically, provided he can display them on a hand held device or laptop on the job site? Answer: Yes. The RRP
Rule does not specify the format in which these documents must be kept..."
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Commenter #2015-0780-0018 stated that lead content levels associated with renovation projects need to
be accurately and reliably measured using readily accessible and affordable methods, and requiring RRP
practices in cases where lead is not present is an unnecessary expense that may deter fenestration product
replacement. They also support "all efforts to identify and/or develop a lead test kit that can easily be used
in the field without specialized training and produces accurate results compliant with the criteria set by
the EPA in 2008."
Response: As the commenters noted, EPA has no current plans to sponsor additional development of new
lead test kits. The commenter implies that EPA chose not to allow the use of alternative testing
technologies when it developed the RRP rule. That is not the case, as the rule always allowed the use of
paint chip sampling or XRF testing when performed by a qualified individual. (In 2011, EPA amended
the rule to allow renovators to take paint chip samples, instead of relying on a third party to do so.81) At
the time, EPA expected that lead test kits that met the positive response criterion would soon be available,
and EPA believed that renovators would use them for most jobs. However, in 2008 EPA believed that
there would be circumstances where a renovator would want to utilize paint chip sampling or XRFs
because of the lower false positive rate those technologies offer - which is why EPA originally allowed
their use in the 2008 rule. It is still the case that paint chip sampling and XRF units offer lower false
positive rates than lead test kits, and the use of those two alternative technologies is still allowed under
the rule. As described elsewhere in this document, EPA believes that those technologies are feasible
alternatives to lead test kits.
In an effort to gain more information on the potential availability of additional lead test kits and lead-
based paint field testing alternatives, EPA solicited stakeholder input by hosting a public meeting on June
4, 2015. Ninety-five stakeholders attended the meeting including lead test kit developers and
manufacturers, non-government organizations, trade associations, National Lead Laboratory
Accreditation Program accreditation organizations and laboratories, and state and federal government
staff members. The Agency also opened a public comment period (80 FR 27621) and held several
individual company and association meetings. Initial stakeholder input received in 2015 did not indicate
any new lead test kits available or forthcoming that can meet the lead test kit performance criteria
promulgated in the RRP rule. EPA then opened a second comment period (80 FR 79335) on lead test kits
to revisit the lead test kit performance criteria and alternatives. EPA received one comment during this
second comment period specific to the development of a new lead test kit that may meet EPA's
performance criteria. EPA is also aware of at least one other organization working towards developing
new lead test kit technologies. EPA continues to monitor the progress of such technologies.
Comment: Several commenters (#2016-0126-0012 #2016-0126-0015, #2015-0780-0025 and #2015-
0780-0024) stated that EPA should not amend the positive response criterion. While EPA does have the
authority to amend the positive response criterion, currently set at 10 percent, the commenters are
strongly opposed to raising that number. According to the commenters, raising the allowable false
positive rate would subject an unreasonable number of renovations that do not contain lead-based paint to
lead-safe work practices that are simply not needed, imposing significant additional costs on homeowners
for work practices that provide little to no additional value. Commenter #2015-0780-024 also stated that
modifying the positive response criterion would necessitate a new economic analysis. Furthermore,
EPA's consideration of raising the positive response criterion would be based solely on solving the lack
81 Lead; Clearance and Clearance Testing Requirements for the Renovation, Repair, and Painting Program. 76
Federal Register 47918, August 5, 2011.
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of a compliant lead test kit. EPA should not subject even more homes to the RRP Rule's requirements
simply to address a failure of the Agency.
Response: EPA has no plans at this time to amend the positive response criterion.
Comment: Commenter #2016-0126-0012 claimed that EPA should have convened a SBAR Panel for the
2010 amendment. According to the commenter, EPA acknowledged that the 2010 rule amending RRP
would have a significant economic impact on a substantial number of small entities, requiring EPA to
convene a Small Business Advocacy Review (SBAR) panel under federal law. While EPA stated the
SBAR panel convened in 1999 for the original RRP Rule published in 2008 met the statutory obligation
for the 2010 rule, the panel's activities were almost 20 years ago. EPA should have convened a separate
SBAR Panel for the 2010 amendment to remove the opt-out and any expansions to the RRP Rule, such as
applicability to public and commercial buildings, should be subject to the full requirements of the RFA.
The commenter states that it and other stakeholders have raised this matter with EPA in the past and were
rebuffed by the Agency. The commenter believes this Section 610 review provides another opportunity
for EPA to take action to correct this shortcoming.
Response: EPA disagrees with the commenter. First, the purpose of the Section 610 review is to
determine whether such rules should be continued without change, or should be amended or rescinded. If
the commenter felt that small business impacts are relevant to the Section 610 review, it should have
provided relevant data or other information as part its comments. Instead, the commenter is addressing the
process used for the 2010 rule. That earlier process is not in and of itself a change to the rule
contemplated under Section 610. As the D.C. Court of Appeals for the District of Columbia stated in its
opinion on a petition to review the opt-out rulemaking:
The small business advocacy review panel, by contrast, is a purely procedural device, a process by which
interested parties can present their views to the Agency. See Oral Arg. Recording at 41:00-: 14
(acknowledgment by petitioners that the absence of a review panel is "a process point," and that they
cannot cite any information they could not have presented during the normal notice-and-comment
period).82
Second, as EPA explained in 2010,
This rule is closely related to the RRP rule and the conclusions made in 2008 regarding the Panel's
recommendations are applicable to this final rule. Although this final rule expands the number of
renovation firms that must comply with the RRP requirements, it does not change the elements identified
by the Panel. For example, this rule does not change the work practice or certification requirements of the
RRP rule. EPA believes that reconvening the Panel would be procedurally duplicative and is unnecessary
given that the issues here were within the scope of those considered by the Panel.83
Finally, EPA notes that the SBAR Panel issued its report in 2000, the initial RRP rule was promulgated in
2008, and the opt-out rule was proposed the following year, and finalized the year after that. The fact that
eight more years have passed since then is not a justification for convening another panel.
82 Nat'l Ass'nof Home Builders v. EPA, 682 F.3d 1032, 1040 (D.C. Cir. 2012).
83 Lead; Amendment to the Opt-Out and Recordkeeping Provisions in the Renovation, Repair, and Painting
Program Final Rule. 75 Federal Register 24815, May 6 2010.
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Comment: Commenter #2016-0126-0012 stated that before any expansion of the rule to public and
commercial buildings, EPA must clearly identify and substantiate a lead-based paint hazard.
Response: This comment addresses an action for which EPA has not published a proposed rule, and it is
outside the scope of this Section 610 review.
Comment: Commenter #2016-0126-0014 urged EPA and the Department of Housing and Urban
Development (HUD) to open up the Disclosure Rule for comment and request comments regarding the
viability of the Rule requiring disclosure of renovation activities or that the owner opted out of the RRP
rule requirements. In the 2010 final rule regarding the opt-out provision, EPA contended that such a joint
rulemaking effort, while something worth considering, still would not address the issue of "reliably and
effectively minimizing exposure to lead-based paint hazards created by renovation activities" (75 Fed.
Reg. 24802; Page 24804; May 6, 2010). Furthermore, revising the Disclosure Rule wouldn't "satisfy
EPA's obligation under section 402 to put into place standards that take into account reliability,
effectiveness, and safety to address lead-based paint hazards created by renovation activities in target
housing" (75 Fed. Reg. 24802; Page 24804; May 6, 2010). However, it is for these very reasons that the
Disclosure Rule should be opened up for comment, in addition to considering reinstatement of the opt-out
provision, because today's Lead RRP Program is not reliable, effective, or improving safety concerns
related to lead-based paint hazards.
Response: EPA does not agree with the commenter's characterization that the Lead RRP Program is not
reliable, effective, or improving safety concerns related to lead-based paint hazards. As discussed in the
preamble to the 2008 rule and again in the 2010 revision to remove the option for consumers to opt-out of
rule work practices, based on the evidence that EPA reviewed (including its 2007 Dust Study), the
Agency concluded that the rule's requirements achieve the goal of minimizing lead-based paint hazards,
taking into account reliability, effectiveness, and safety. The commenter has not provided any new
information, so EPA is not persuaded to revise its earlier conclusion. Nor has the commenter provided
any new information that would persuade EPA to revise its 2010 conclusion that allowing home owners
to opt-out of the RRP requirements if they disclosed the renovation activities would not satisfy EPA's
obligation under section 402.84 Furthermore, as indicated in EPA's analysis for the 2010 rule, children
receiving child care in the house and other visitors are at risk from renovations that do not apply the RRP
work practices. Exterior renovations can also expose residents of nearby houses. Requiring individuals
selling a house to disclose to the prospective buyers that they opted out of the RRP requirements would
not address these risks.
In short, EPA believes this commenter's suggestion does not address the present issue. The disclosure
rule's intent differs fundamentally from RRP, and reliance on the disclosure rule to address renovations
that may have occurred years in the past is problematic and difficult to enforce. Rather than mandating the
disclosure of hazards or potential hazards, the RRP rule is intended to reliably and effectively minimize
exposure to lead-based paint hazards created by renovation, repair and painting activities. This is not the
appropriate venue to consider amending the disclosure rule and EPA will not undertake action to revise it
as a part of this review.
Comment: Commenter #2016-0126-0014 stated that it has heard many complaints about the wasteful
nature of the rule's requirements for lead safe practices. Provisions of the rule require all drop cloths, used
cleaning materials, plastic sheeting, and materials be disposed of after completion of the work conducted
84 EPA encourages this commenter to refer also to the preamble of the Opt-Out rule appearing in 75 FR 24802
where this issue was previously addressed.
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under the lead-safe work practice requirements. According to the commenter, many renovators, the
majority of which are small businesses, reuse supplies for another job to extend the supply of materials,
cut down costs, and also be less wasteful.
Response: The rule requires using disposable supplies because reusing such items can spread lead dust to
another job site. An industry-funded study of renovation activities found that using disposable drop cloths
reduced lead dust loadings by nearly twice as much as reusable drop cloths (a 79% reduction with
disposable drop cloths compared to a 41% decrease with reusable ones).85 Studies have shown that the
children of construction workers have higher blood lead levels than control groups because the workers
inadvertently carry lead dust from jobs on their clothing and skin, contaminating their cars and homes.86
Given the ability of clothing and shoes to transfer lead dust from a job site to another location, reusing
supplies such as drop cloths and plastic sheeting has an even greater potential for causing contamination.
EPA does not have a record basis to conclude that allowing such supplies to be reused would address
lead-based paint hazards, taking into account reliability, effectiveness, and safety.
Comment: Commenter #2016-0126-0014 expressed concern about the level of enforcement. The
commenter has heard from its members that there are many individuals and organizations conducting
work in target housing that are not complying with the lead-safe work practices and are continuing to
operate without penalty while certified lead renovators have taken the time and investment to learn and
become certified lead renovators. According for the commenter, in order for more firms and organizations
to see the value and necessity of being certified and complying with this rule, there must be more
enforcement.
Response: EPA notes that in fiscal year 2017 conducted 766 inspections pursuant to EPA's lead-based
paint regulations and took 108 enforcement actions against non-compliant entities. Individuals can assist
with the enforcement efforts by reporting lead-based paint complaints, tips, and violations through EPA's
website at https://www.epa.gov/lead/report-lead-based-paint-complaints-tips-and-violations.
Commenter: Commenter #2016-0126-0015 stated that it does not see XRF testing as a viable option for
the home remodeling setting. According to the commenter, most certified remodelers would have to hire a
certified or licensed inspector to evaluate the lead paint that would be disturbed. This adds an additional
cost as part of the RRP evaluation, and could lead to additional delays as the certified remodeler must
coordinate with someone certified to perform XRF testing. The commenter cites a publication by the
USDA Forest Service that discusses two types of hand-held machines that can be used for XRF testing:
one uses radioisotopes and the other uses x-ray tubes. According to the commenter, an article titled
"Rapid New Methods for Paint Collection and Lead Extraction" published in the Journal of
Environmental Monitoring on November 4, 2008, stated that XRF analysis is "complicated, relatively
expensive and will represent a significant financial investment for a small repair and renovation
company." The commenter notes that this research was funded by EPA.
Response: The information mentioned in this comment does not demonstrate that XRF testing is not a
viable option for home remodeling. The USDA publication cited by the commenter states that:
85 Lead-Safe Work Practices Survey Project Report. Prepared for the National Association of Home Builders.
Prepared by Atrium Environmental Health and Safety Services, LLC. November 2006, p. 77. EPA-HQ-OPPT-2005-
0049-0163.
86 Elevated Blood Lead Levels in Children of Construction Workers. Elizabeth A. Whelan, et al., American Journal
of Public Health, Vol 87, No. 8, August 1997, p. 1352.
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Depending on the amount of use anticipated, it may be better to rent a hand-held lead detection device than
to buy one ... Because these devices are being improved so quickly, the best option may be to hire
contractors to test buildings or other structures for lead-based paint.87
EPA agrees that renting an XRF unit or hiring a third party to perform XRF testing are both feasible
options, as is performing paint chip sampling. As a related publication by USDA states:
Taking paint samples is an easy, cheap way to determine if you have lead-based paint on a
painted surface. All you have to do is remove a small paint chip from a surface and send the chip
to a certified lab for analysis. The lab will report back to you with the amount of lead contained in
the chip, usually within 24 to 48 hours. Lab costs have been falling recently ... 88
Regarding the 2008 article in the Journal of Environmental Management, the research was on a potential
method for collecting and extracting lead from paint samples, not on the feasibility of renovation
companies purchasing their own XRF units. Notwithstanding that, the statement in the article that an XRF
unit would represent a significant investment for a small renovation company does not conclude that this
would be an unaffordable investment for a small renovation company. Nor does it say anything about
how big an investment purchasing an XRF unit would be for a medium or large size renovation company.
And the article has nothing to say about the feasibility of renovation companies of any size renting an
XRF unit, or hiring a third party to perform XRF testing. Therefore, EPA continues to believe that using
XRF testing is feasible in some circumstances. EPA has addressed elsewhere in its responses to
comments about the cost and potential for delays if a renovator hires a third party to perform XRF testing.
Comment: Several commenters claimed that the RRP program is complicated. Commenter #2016-0126-
0011 claimed that the 2016 RRP rule amendments make the rule needlessly complex, and is likely to
reduce the overall number of certified renovators in the program. According to the commenter, in March
2016, EPA reported that there were approximately 550,000 certified individual renovators. As of July
2016, this number had dropped to approximately 304,000 certified individual renovators. While some of
the drop-off likely is attributable to other reasons (e.g., renovators now operating under a state-certified
program), a significant portion likely is due to the complexity of the new refresher training/recertification
requirements—especially in light of the large number of renovators whose certifications were set to
expire on March 31, 2016. See EPA, Lead-Based Paint Programs; Extension of Renovator Certifications,
80 Fed. Reg. 20,444 (Apr. 16, 2015). Commenter #2016-0126-0014 stated that the Lead RRP Program is
a very complicated set of rules with implementation issues that by no means can be addressed in a simple
manner.
Response: EPA disagrees that the 2016 amendments are needlessly complex, or that they resulted in a
decrease in the number of certified renovators. It was expected that a number of the renovators trained at
the beginning of the program would not become recertified. In 2010, EPA estimated that there would be a
long-term stock of 363,000 trained renovators (including those in authorized states), and that 52 percent
of the stock of trained renovators would exit the industry during their five-year certification period due to
87 Using XRF Hand-Held Devices to Detect Lead Based Paint. Facilities Tech Tips. U.S. Department of Agriculture,
Forest Service, Technology & Development Program. 7300, 0873-2310-MTDC. May 2008, p.4
88 Lead-Based Paint: Paint Sampling, Paint Inspections, and Risk Assessments. Engineering Tech Tips. U.S.
Department of Agriculture, Forest Service, Technology & Development Program. 7100, 9771-2330-MTDC.
October 1997.
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retirement, career changes, etc.89 The 550,000 trained renovators in March 2016 includes all the
renovators who were trained in the nearly 7-year period starting July 2009. Therefore, this count includes
both renovators trained in the early years of the RRP program (some of whom left the industry by 2016)
and those trained in the later years of the program (some of whom were replacing trained renovators that
had already left the industry). So the drop between March and July 2016 in the number of renovators with
a current certification is not due to the 2016 amendments, which provided additional flexibility for
recertification.
EPA has tried not to make the rules overly complicated, but the provisions that EPA has included to offer
flexibility to the regulated industry while achieving the objectives of the statute do add some degree of
complexity to the program.
Comment: Commenter #2016-0126-0016 requested that EPA revisit the lead training courses required by
EPA, HUD, and OSHA and evaluate whether there is opportunity to streamline EPA's requirements. EPA
stated in 2008 that it was recognizing only EPA and HUD training because the Agency had not
sufficiently evaluated the content of other courses. According to the commenter, this rationale is no
longer compelling nearly 10 years later. The commenter notes that when OSHA conducted its Section 610
review of the Lead in Construction Standard, it stated that it would consult with EPA and HUD to
determine whether a unified training course could be developed to meet the requirements of all three
agencies.
Response: EPA understands this commenter's desire to streamline training requirements, especially
where synergies appear to exist between different agencies' regulations. In 2009, EPA and HUD
accomplished such streamlining when they completed a joint model training curriculum designed to
address the requirements of EPA's RRP regulation as well as HUD's Lead Safe Housing regulation. EPA
does not believe similar synergies exist between the EPA/HUD programs and OSHA's requirements.
The training evaluation referred to by the commenter was conducted prior to the promulgation of the RRP
regulation. At that time there were many versions of lead renovation training that had been developed by
organizations like EPA, HUD, and several state lead programs. This evaluation simply identified which
training courses, if taken prior to the promulgation of the RRP regulation, would enable a renovator to
take the 4-hour refresher course instead of the 8-hour initial course. Following the promulgation of the
rule the joint EPA/HUD course has served as the model training curriculum for both EPA and HUD lead
programs. Training providers wishing to provide lead safe renovation training must apply to EPA for
accreditation and may choose to use the model curriculum or develop their own training course. If they
choose to develop their own training course, it is required to meet the standards set forth by EPA's
training provider accreditation standards at 40 CFR 745.225.
The OSHA requirements differ greatly from those of EPA and HUD, both in terms of the projects covered
and the renovators that are required to comply. For example, the OSHA requirements do not apply to sole
proprietorships, and many of the firms subject to EPA's requirements are sole proprietorships. There are
many such differences, and EPA believes the combination of EPA, HUD, and OSHA training would be
unwieldy, not applicable to many RRP firms and take far longer than the time currently required for RRP
training. In addition, under the OSHA lead in construction standard, employers have to provide annual
training for each employee subject to lead exposure above the action level,90 compared to every three or
89 Economic Analysis for the TSCA Lead Renovation, Repair, and Painting Program Opt-out and Recordkeeping
Final Rule for Target Housing and Child-Occupied Facilities. U.S. Environmental Protection Agency, April 2010,
pages ES-6 and 4-70.
90 29 CFR 1926.62(l)(l)(iv)).
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five years for RRP refresher training (depending on whether the previous refresher training included a
hands-on component). While the commenter might prefer that OSHA training be offered every five years,
the federal government might conclude that a unified training course should be offered on an annual
basis, which could increase industry burden.
With respect to the commenter's claim pursuant to OSHA's review of the Lead in Construction Standard,
while OSHA stated that it would consult with EPA and HUD to determine whether a unified training
course could be developed to meet the requirements of all three organizations, OSHA also stated at the
time that, "It does not appear that the content in either EPA's or HUD's training courses satisfy the
OSHA training requirements."91
In sum, EPA is concerned that incorporating HUD and OSHA's requirements into EPA's model course
would extend the length of the training and impose an unnecessary burden on the regulated community.
However, the Agency appreciates this commenter's suggestion.
Comment: Several commenters (#2016-0126-0011, #2015-0780-0027, #2015-0780-0012, #2015-0780-
0014 and #2015-0780-0016) cited the RRP rule's 2008 preamble saying that "EPA made a commitment
[in the rule] that 'if the improved lead test kits are not commercially available by September 2010, EPA
will initiate rulemaking to extend the effective date of this final rule for 1 year with respect to owner-
occupied target housing built after 1960.' 73 Fed. Reg. at 21,713 (emphasis added). That time has come
and gone, and EPA has failed to live up to its commitment.'"
Commenters #2015-0780-0014, #2015-0780-0024, and #2015-0780-0025 also urged the Agency to begin
a comprehensive examination of the RRP rule in accordance with Section 610 of the Regulatory
Flexibility Act. Commenter #2016-0126-0011 stated that, "the Section 610 review process presents a new
opportunity for EPA to examine the real-world implications of this failure and to look toward practical
fixes to reform the program going forward."
Response: The Regulatory Flexibility Act Section 610 review for the RRP rule was initiated by EPA on
June 9, 2016 (81 FR37374). The purpose of the Section 610 review for the RRP rule is to determine if
the provisions of this rule that are related to small entities should be continued without change, rescinded,
or amended to minimize adverse economic impacts on small entities consistent with the stated objective
of the statute. This review also served as an additional opportunity to provide comment on lead test kits,
field testing alternatives and broader concerns related to the RRP rule (80 FR 79335).
Complying with the Section 610 requirements does not require revising the rulemaking record for earlier
rulemakings. Instead, EPA's focus is on determining whether there are factual grounds to conclude that
changes to the rule are warranted and would be consistent with its statutory objectives. If evidence
supported potential changes, EPA would initiate a rulemaking and, if needed, perform an economic
analysis of such a proposed rule.
With respect to the commenter's statement about the rule's preamble (73 FR 21713), the commenter
correctly cites text from the preamble that says EPA initially intended to delay the effective date until
2011 for post-1960 target housing if improved test kits are not commercially available. However, EPA's
assumption that improved lead test kits would be available by 2011 did not represent a guarantee by the
Agency that this would be the case, nor was the promulgation of the rule predicated on this assumption.
91 Regulatory Review of 29 CFR 1926.62 Lead in Construction Pursuant to Section 610 of the Regulatory Flexibility
Act and Section 5 of Executive Order 12866. Occupational Safety and Health Administration, Directorate of
Evaluation and Analysis, Office of Evaluations and Audit Analysis, August 2007, p. 133.
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The Agency decided against initiating a rulemaking to extend the effective date of the RRP rule for one
year with respect to owner-occupied target housing built after 1960 due to the unavailability of improved
lead test kits for a number of reasons.
On May 6, 2010, EPA proposed revisions to the 2008 RRP rule including a provision to allow certified
renovators to collect a paint chip sample and send it to a recognized laboratory for analysis (75 FR
25038). After considering the public comments on this issue, EPA finalized this provision on August 5,
2011 (76 FR 47918). In August 2010, EPA recognized an additional lead test kit that met the negative
response criterion. This lead test kit had a much lower false positive rate than other lead test kits available
at the time. EPA believed that the recent availability of the paint chip analysis and the newly recognized
lead test kit would reduce the number of occurrences when lead-safe work practices were applied below
the regulated level, if utilized, and negate the need for an extended effective date for post-1960 housing.
The Agency was also greatly concerned that delaying the effective date until an improved lead test kit
was available would minimize the protections provided by the 2008 final rule. For these reasons, the
Agency made the decision to make the work practice requirements effective in April 2010 for all target
housing and child-occupied facilities, even without an improved lead test kit, in an effort to protect
against potential exposures to children in buildings built between 1960 and 1978.
Given that the year is now 2018, a retroactive change to the rule's effective date for post-1960 housing
would not be beneficial to the regulated entities, nor would it retroactively reduce the cost of compliance.
For these reasons, EPA does not plan to change the RRP rule effective date to April 2011 for post-1960
housing based on this Section 610 review.
Comment: Commenter #2016-0126-0013 suggested "that the EPA adopt a false positive rate according
to the rate accepted by the CDC for falsely elevated results in Pediatric Blood Lead Testing by Capillary
Methods." They also stated that "[t]he False Positive Threshold of 10% at a confirmed lead level of 0.8
mg/cm2, was adopted by the EPA based on ASTM Standard El828-01 'Standard Practice for Evaluating
the Performance Characteristics of Qualitative Chemical Spot Test Kits for Lead in Paint'. (73 FR
21713). Since then the ASTM has withdrawn this standard."
Response: EPA acknowledges that ASTM Standard El828-01 has been withdrawn in accordance with
section 10.5.3.1 of the Regulations Governing ASTM Technical Committees, which requires that
standards be updated by the end of the eighth year since the last approval date (2001). The preamble of
the RRP final rule allows lead test kits to be validated by a laboratory independent of the lead test kit
manufacturer using ASTM Standard El 828-01 or an equivalent validation method. If the commenter
would like to propose an equivalent method for the performance characteristics of lead test kits for lead in
paint, please do so by contacting the Director of the National Program Chemicals Division in EPA's
Office of Pollution Prevention and Toxics.
It seems the commenter is suggesting that EPA adopt the false positive rate utilized by the CDC's
Pediatric Blood Lead Testing by Capillary Methods rather than utilizing these methods to evaluate the
performance of a lead test kit, since the CDC method is for blood lead testing. The supporting
documentation submitted by the commenter cites false positive rates ranging from 56% to 77% in the
capillary methods, which is stated to be more protective of human health. The false positive rates of the
current EPA-recognized lead test kits that meet the negative response criterion range from 22% to 84%.
The CDC's recommended rates are only slightly lower that the currently available false positive rates for
lead test kits and much higher than the false positive rates for one of the currently EPA-recognized lead
test kits. Modifying the current positive response criterion to accept the referenced rates does not meet
EPA's goal to provide a fast, inexpensive and reliable option for lead-based paint testing in the field.
Applying these rates would likely halt further developments to create a lead test kit that can meet both the
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existing positive response and negative response criteria. Under the RRP rule, renovators have the
flexibility to choose among four strategies: use either (1) a lead test kit, (2) an XRF instrument, or (3)
paint chip sampling to indicate whether lead-based paint is present; or (4) assume that lead-based paint is
present and follow all the work-practice requirements. EPA believes utilizing any of these options
appropriately are protective of human health and are also feasible for renovators. For these reasons, EPA
has no plans at this time to amend the positive response criterion as suggested.
Comment: Commenter #2016-0126-0005 wrote that even though the lead test kit is not perfect, it is not a
reason to "change the law itself."
Response: EPA acknowledges the commenter's support of the RRP rule as it is currently written.
Comment: Commenter #2016-0126-0008 asserted that "it should be noted that the lead test kits were
provided [as a provision in the RRP Rule] as a low-cost and easy alternative to traditional testing as a way
to help potentially lower the cost to the regulated community. It is not a mandatory or even recommended
component of the rule. With the concerns about false positives well documented by EPA and trade
associations, renovators are free to choose if they feel the lead test kits are worthwhile or not. Many
renovators may find that for consistency in what they ask of their crew, it is easier to just assume lead is
present and always adhere to the [RRP work practice] requirements. EPA has also provided renovators
with the option to submit paint samples to certified laboratories for analysis. Although some trade
associations have dismissed this as disruptive to project scheduling, we believe that this option has been
underutilized. Certified laboratories with multiple locations nationally offer turnaround times of as little
as three hours, as do many independent local labs. With overnight package services, this means lab results
are available the next business day in almost all parts of this country." Commenter #2016-0126-0008 also
stated that it believed EPA should "maintain the status quo on lead test kits until such time that the
regulatory definition of lead-based paint is updated." This is because the "the concern surrounding 'false-
positives' from test-kits are, at best, a distraction from more pressing issues and are certainly not
justification for creating additional exemptions."
Response: EPA agrees with these comments. Certified renovators have the flexibility to use any of
options summarized above: a lead test kit, an XRF instrument, or paint chip sampling to indicate whether
lead-based paint is present; or assume that lead-based paint is present and follow all the work-practice
requirements. EPA believes these all represent feasible options to make a lead-based paint determination,
if desired. EPA has no plans to amend the positive response criterion or the recognition status of lead test
kits at this time.
Comment: Comment #2016-0126-0010 stated that, "Test-kits frequently indicate the presence of lead
when the level of lead in the paint is below the current regulatory definition of lead-based paint. This
means that renovators utilize lead-safe work practices... when they may not have had to if a more accurate
test of the paint had been conducted." The commenter encouraged "EPA to maintain the status quo on
lead test kits until such time that the regulatory definition of lead-based paint is updated."
Response: The commenter assumes that there are no other means by which to test the paint and that the
currently EPA-recognized lead test kits will always yield a positive result. EPA does not believe this is
the case. Despite the fact that the currently recognized lead test kits do not meet the positive response
criterion, they do meet the negative response criterion and in a significant fraction of cases the kits will
provide an accurate indication when no lead-based paint is present. Renovators may also choose to test
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the paint by XRF analysis or a paint chip analysis. EPA has no plans to amend the positive response
criterion or the recognition status of lead test kits at this time.
Comment: Commenter #2016-0126-0017 claimed "that over the next few years, the chemical lead testing
issue will become moot." The commenter stated that their experience showed "well-oriented and prepared
students [of our certification classes] have found the lead-safe protocol inexpensive enough that they no
longer test for lead. These contractors simply use lead-safe practices on all work for pre-1978 structures.
Some do not confine this to target housing and child-occupied facilities." The commenter also claims that,
"Many regions of Home Depot are currently adopting this strategy and no longer testing for lead."
Response: EPA continues to monitor the progress of chemical lead testing and industry practices.
Comment: Commenters #2016-0126-0012 and #2015-0780-0025 stated that it is important to note that
EPA lacks authority to modify regulated levels of lead in paint under the RRP Program. The commenter
states that "the Secretary of Housing and Urban Development (HUD) holds statutory authority to change
regulated lead levels, not EPA."
Response: EPA and HUD share the authority to establish a lower level than provided by the statute. For
example, EPA's authority would cover lead-based paint in child-occupied facilities.
Comment: Commenter #2015-0780-0020 stated that, "Lead Check swabs are easy to use and are
convenient for field work when an XRF is not readily available. Occasionally, I get a false positive. I
always back up the positive with extra testing such as a paint chip sample or request a lead investigation
with the regional specialist who does have access to an XRF." The commenter concluded that the Lead
Check swabs were "a great tool and [that] really makes my job simple."
Response: EPA agrees with the commenter on this issue.
Comment: Commenter #2015-0780-0008 stated that "lowering standards for the testing of lead-based
paint is not health protective for children." They clarified that "[o]ur objection to lowering of standards
refers both to the qualifying standards to allow the use of specific, qualitative, lead test kits and to the
current standards for training and certification for XRF instrument users. Lowering standards for either
will increase the percent of inaccurate results when testing lead-based paint. Inaccurate testing of lead-
based paint may falsely make renovators believe that they do not need to use lead-safe work practices
when they should, thus exposing more children and families to toxic lead-contaminated dust." The
commenter claimed that, "While acceptance of this 5% error rate is questionable, increasing such an error
rate, to allow one out of ten lead-based paint samples to be incorrectly read as not lead-based, is ill-
advised. False negative readings would encourage contractors to avoid using lead-safe work practices,
thereby increasing dispersal of toxic lead dust outside of the work area and exposing families to lead."
The commenter asserted that they were "less concerned with the positive response criterion" on the
grounds that "incorrectly identifying paint as lead-based paint may encourage a contractor to use lead-safe
work practices and thus be more health protective than a false-negative result."
Furthermore, the commenter was "not in favor of lowering the current standards for training and
certification for XRF instrument users, as these devices are complex and, when used inappropriately, may
produce inaccurate results." The commenter asserted that "[i]f XRF instruments were misused and
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yielded inaccurate results, contractors again might not use lead-safe work practices when they should.
That could expose children and families to toxic lead-contaminated dust."
Commenter #2015-0780-0021 was also against EPA proposing to provide reduced RRP certification
training requirements for XRF technicians. The commenter stated that, "a new certification category
would result in inappropriate testing and additional confusion within the regulated community and by the
general public as to what exactly constitutes the difference between XRF testing for renovation purposes
versus a "lead-based paint inspection", who should do such testing, and how the testing must be
documented, etc." The commenter also reported that there is sufficient infrastructure and capacity for
XRF testing that already exists within the current North Carolina certified Inspectors and Risk Assessor
population. Clearance sampling, when conducted for RRP projects in North Carolina, has also been
supported by the existing inventory of certified Inspectors and Risk Assessors.
Commenter #2015-0780-0024 supported reduced training requirements for XRF technicians, while
commenter #2015-0780-0025 stated that this proposal could not be fully considered because EPA did not
clearly illustrate how the training requirements would be changed. Commenter #2015-0780-0025 also
stated that integrating the function of XRF technicians within the certified renovator/contractor role is
outside of the tradition scope of their professions. However, both commenters felt that XRF testing, with
or without reduced training, is not a viable alternative to lead test kits citing the costs and time associated
with XRF testing.
Response: EPA has no plans to amend the negative response or positive response criteria at this time.
EPA solicited comment on potential lead test kit and field testing options, including specific comment on
proposing to provide reduced RRP certification training requirements for XRF technicians (80 FR
79335). This recommendation was supported by environmental consultants present at EPA's public
meeting on lead test kits held on June 4, 2015, and EPA sought further comment on this recommendation
in its second lead test kit public comment period beginning on December 21, 2015.
Some environmental consultants support the use of XRF testing with reduced certification requirements
to reduce barriers for XRF technicians entering the market and to allow for a quantitative method that
would remove the uncertainty of a true positive or false positive result for lead-based paint field testing.
Current lead regulations both for abatement activities and RRP only allow lead risk assessors and
inspectors to perform XRF testing. The environmental consultants affirmed that this type of testing should
be allowed to be performed by renovators and contractors, as well.
One commenter above supported the suggestion for reduced XRF training under the EPA regulations,
while the remaining commenters who provided input on this issue did not. These commenters suggested
that less training could result in increased operator error for XRF instruments and confusion in the
regulated community. Commenter #2015-0780-0021 further stated that the existing number of XRF
technicians available in North Carolina is sufficient to address the population's needs to comply with
EPA's regulations.
Although the technology behind XRF testing has greatly improved since the implementation of the 2008
RRP rule, EPA has reservations about modifying the EPA training requirements for XRF instruments.
Changing the training requirements may cause confusion among the regulated community because the
full certification training will still be required for risk assessors and inspectors to understand and apply
statistical methods to inspect multifamily housing. EPA also believes that reducing the RRP certification
requirements is unlikely to result in reduced cost for XRF testing or more XRF technicians entering the
market because the costs of the XRF instrument, maintenance, and the manufacturer's training
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requirements would remain the same. After carefully considering these reasons and the comments above,
EPA has decided not to pursue changes to the current EPA XRF training requirements at this time.
Comment: One commenterhas submitted two comments (#2015-0780-0024 and #2015-0780-0014)
urging EPA to resume the Agency's Environmental Technology Verification (ETV) Program.
A lead test kit developer (Commenter #2015-0780-0019)) stated that there is substantial cost to the
manufacturer to complete the EPA specified third party testing. With all of the variations in regulations
combined with the lack of available data on education, compliance and enforcement it is difficult to
justify this substantial expense for third party testing to meet the False Positive Criteria. The commenter
requested that EPA specifically review:
a. Test procedure specifications for recognition under the false positive criteria
b. The availability of test standards for use in third party testing for recognition under the
false positive criteria
c. The criteria used to evaluate the false positive response and
d. The financial cost to the lead test kit manufacturers to demonstrate a false positive rate.
With regard to the commenter's product for lead testing, they also requested that EPA "review the criteria
for false positive recognition." The commenter claims that "slight modification of these criteria could be
done and would in our opinion still allow the EPA to satisfy its mandate that an alternative can be as
protective of human health and the environment as the original requirement."
Furthermore, the commenter stated that EPA, HUD, OSHA and the states should collaborate on
standardizing their different approaches for paint testing. The commenter also requested that EPA require
all allowable Paint Testing Methods be presented during contractor [RRP] training. Lastly, they requested
that the Agency "increase its efforts in education, compliance and enforcement."
Response: EPA put forth significant effort and resources to foster the development of a lead test kit that
would meet both the negative response and positive response criteria outlined in the RRP rule. For more
than two years EPA supported lead test kit research and development efforts by several private companies
by funding not only the manufacture of reference materials, but also the technical evaluation of lead test
kits through EPA's ETV program. Despite EPA's commitment of resources to this effort, to date no
company's lead test kit meets both of the performance criteria outlined in the RRP rule.
At this time, EPA has no plans or resources to sponsor additional testing of kits as was done previously
through the Agency's ETV Program. However, any commercial entity that wishes to receive EPA
recognition may have an ETV Program, or equivalent, evaluation performed and submit their kit and
evaluation results to EPA for potential recognition. To date, one company has done this, which resulted in
EPA recognition in 2012; hence, in the interest of fairness, EPA would consider proceeding this way in
the future.
With respect to modifying the positive response criterion, the commenter has provided no data supporting
their claims of the recommended modification. Therefore, EPA cannot commit to taking any action as
part of this Section 610 review in response to this comment. EPA has no plans to amend the positive
response criterion at this time.
Assuring compliance with our regulations is one of EPA's primary commitments. As previously stated in
this document, EPA notes that in fiscal year 2017 the Agency conducted 766 inspections pursuant to
EPA's lead-based paint regulations and took 108 enforcement actions against non-compliant entities.
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Individuals can assist with the enforcement efforts by reporting lead-based paint complaints, tips, and
violations through EPA's website at https://www.epa.gov/lead/report-lead-based-paint-complaints-tips-
and-violations.
With respect to the commenter's statement that EPA, HUD, OSHA and States should collaborate on
standardizing their approaches to paint testing, the Agency points out that these agencies regulate lead
exposure in different ways and that therefore common paint approaches may not be appropriate to each
Agency's mission. While EPA and HUD collaboratively developed a definition for lead-based paint (for
which they have developed testing protocols), OSHA's requirements are focused primarily on exposure
monitoring and interim protection. For example, in a letter of interpretation to a member of the public,
OSHA stated that:
Other regulatory agencies, such as Housing and Urban Development, the Environmental
Protection Agency, and the Consumer Products Safety Commission (CPSC) have designated
levels of lead in paint, below which they consider the paint to be non-lead containing. The
missions of these agencies differ from OSHA's, and for that reason, OSHA cannot recognize these
levels as safe under workplace situations.92
The goal of OSHA training is different from EPA's training, and the exposure receptors of
concern to OSHA in many ways differ from those of EPA; therefore, while EPA intends to
continue collaboration with other agencies, appropriate differences in approach may sometimes
continue to occur.
With respect to states, as part of the authorization process, EPA ensures the programs are as
protective as the Federal program and adequately enforced. However, as allowable under the
statue, states may impose more stringent requirements, such as those for testing. In states where
RRP is managed directly by EPA, the Agency's standards for testing already apply. Therefore,
while it might seem logical for EPA to work with HUD, OSHA, and States to develop a shared
testing protocol, the Agency believes its mission and the purpose of RRP differ significantly from
these agencies' missions. EPA does not currently intend to develop a shared testing protocol.
Regarding the request that all allowable paint testing methods be presented during RRP training. With the
exception of the Massachusetts test kit, EPA's model renovator training does include either an instructor
led or video demonstration of each chemical kit type (rhodizonate and sulfide). The Massachusetts test kit
is generally not included because these test kits aren't available outside the state of Massachusetts. In the
hands-on portion of the model training, due to time constraints, the instructor chooses one of the kits for
the student hands-on activity.
Comment: Commenter #2015-0780-0013 suggested that EPA urgently recognize a new lead test kit or
utilize XRF testing for lead-based paint determination. They asserted that taxpayer funding could much
better be invested in technologies that already exist than on a qualitative lead test kit because using an
XRF instrument to test for lead-based paint is more reliable and safer for those living in homes with lead
based paint. The commenter stated, "the time, money and education required to operate this instrument
may draw many contractors away from using it personally. But, if they believe the costs would be worth it
for their company, with proper training and certification, they should be able to test for the presence of
lead."
92 OSHA letter to Hsin H. Chou
https://www.osha. gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22701
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The commenter also suggested another option "to have the owner provide the contractor with a lead-
based paint inspection prior to performing work. It will be more expensive, but it will be safer than using
unreliable tests that pose safety risks to people living and working in the home. It will also save the added
expense of materials required for RRP, such as containment plastic and a HEPA vacuum."
The commenter further stated that contractors perform "cost benefit analysis" every day to determine if
they should use lead-safe work practices. "Do they presume the job to be regulated and follow the more
than five (5) year practice of implementing lead-safe work practices or do they invest upfront money to
determine if they can reduce the overall cost of the job? To date no hard evidence has been presented that
this cost benefit analysis has stopped or reduced nationwide renovation activity. The use of XRF testing
has and will add cost to the job. Half day testing may run as low $ 300 or upwards of $675, as reported by
different firms. Multifamily testing may run as low as $6,000.00 to $16,000.00 per community. Again, if
the size of the job warrants testing - testing is done. If the cost of testing exceeds the potential savings -
than the contractor utilizes standard lead-safe work practices."
Response: In an effort to continue to encourage the development of a lead test kit that can meet the
performance criteria as stated in the RRP rule, EPA will continue to recognize the use of lead test kits as a
viable way to make a lead-based paint determination under RRP. EPA will also continue to allow the use
of XRF instruments to test the lead content in paint. Under the RRP rule, renovators will continue to have
the flexibility to choose among the four strategies to use either (1) a lead test kit, (2) a XRF instrument,
(3) paint chip sampling to indicate whether lead-based paint is present; or (4) assume that lead-based paint
is present and follow all the work-practices. EPA believes that both paint-chip analysis and XRF testing
are feasible alternatives to lead test kits.
Regarding the suggestion that the owner provide the contractor with a lead-based paint inspection prior to
performing work, building owners and renovators already have the flexibility to do this and no action is
needed by EPA.
Comment: Commenter #2015-0780-0009 reported that their members use the lead test kits approved by
EPA and will continue to do so until other lead test kits are approved that comply with the law and EPA
regulations; some also use XRF testing; and others proceed using the protocols for mitigating lead paint
hazards. The commenter recommended that EPA change the requirements for lead test kits, "because it
makes no sense to set a requirement that continues to be technologically unfeasible five years after the
start of EPA's Lead RRP program." They also suggest that the Agency should "at the same time continue
to work toward a commercially viable lead test kit that gives both adequate false negatives and false
positives. Should such a test become available in the future, EPA could then revisit this issue."
Response: EPA appreciates the commenter's compliance with the RRP rule. However, the commenter
has provided no data supporting its recommendation to change the lead test kit requirements. As
previously discussed in this document, EPA believes that removing the option to use lead test kits under
RRP would essentially halt further developments to create a lead test kit that can meet the existing
positive response and negative response criteria. EPA is aware of two organizations currently working on
new lead test kit technologies. Whether or when those kits are eventually recognized depends on the
success of the entities that are developing them. EPA will continue to monitor the progress of such
technologies. Based on the currently available information, EPA has decided not to amend the positive
response criterion at this time and to continue to allow lead test kits to be used under the RRP program.
Comment: One commenter (Commenter #2015-0780-0025 and #2015-0780-0012) stated that
"certification of test kits that require lead-safe work practices be applied in situations where lead-based
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paint is present at lower than regulated levels would blur the line between the concepts of renovation,
covered under RRP, and abatement, covered under separate EPA regulations." This commenter also
pointed out that the Agency stated in RRP's preamble that "EPA is not interested in teaching persons how
to be painters, plumbers, or carpenters. Rather, EPA's objective is to ensure that persons who already
know how to perform renovations perform their typical work in a lead-safe manner." According to the
commenters, because of this, "requiring RRP compliance when lead-based paint is present at lower than
federally regulated levels would go beyond the scope of the current Congressional directive, would alter
the foundation of the program, and exceed the statutory authority provided to the Agency under 402(c)(3)
of the Toxic Substances Control Act (TSCA)."
Response: EPA disagrees that the RRP program exceeds the statutory authority or goes beyond the
scope of the Congressional directive. EPA also disagrees that the line between renovation and abatement
is blurred because a lead test kit that meets the positive response criterion is not currently on the market.
As EPA stated in 2008:
Abatements have only one purpose-to permanently eliminate lead-based paint and lead-based paint
hazards. On the other hand, renovations are performed for a myriad of reasons, most having nothing to do
with lead-based paint. Renovations involve activities designed to update, maintain, or modify all or part of
a building. Renovations may be performed while the property is occupied or unoccupied. If the
renovation is performed while the property is occupied, the occupants do not typically relocate pending the
completion of the project. Further, performing abatement is a highly specialized skill that workers and
supervisors must learn in training courses accredited by EPA or authorized States, Territories, and Tribes.
In contrast, EPA is not interested in teaching persons how to be painters, plumbers, or carpenters. Rather,
EPA's objective is to ensure that persons who already know how to perform renovations perform their
typical work in a lead-safe manner.93
Because the lead test kits currently recognized do not meet the positive response criterion, renovators may
use lead-safe work practices (such as cleaning with a HEPA vacuum) in situations where lead is present at
lower than regulated levels. But the renovations are still being conducted to update, maintain, or modify
the building, instead of being intended to permanently eliminate the paint and reduce the lead levels in
dust and soil (as is the case with abatement). Therefore, there is not a blurring of the lines between
renovation and abatement. EPA also notes that the RRP and abatement programs both use the same
definition of lead-based paint, so any implication that abatement activities are based on lead levels in
paint below the regulated levels in the RRP program is inaccurate.
EPA does not agree that ensuring that persons perform their typical work in a lead-safe manner exceeds
the statutory authority, goes beyond the scope of the Congressional directive, or alters the foundation of
the program, even if lead is present in paint at lower than federally regulated levels. The commenter is
addressing the issue of whether the lead test kits on the market meet the positive response criterion
described at 40 CFR 745.88(c)(2).94 It is not possible for a fast, inexpensive, easy to use method such as
the lead test kits to be accurate 100% of the time. Even if a lead test kit is marketed that meets the positive
response criterion, the lead test kit may still yield a false positive result up to 10% of the time. The
statutory authority is not based on the performance criteria for the lead test kits. Congress did not specify
a value for the positive response criterion, so EPA sees no validity in the commenter's assertions that the
current lead test kits raise a question about the authority for the program. Finally, EPA notes that
renovators that are concerned about the false positive rate for lead test kits can use XRF testing or paint
chip sampling, both of which have low false positive rates for detecting the presence of lead-based paint.
93 73 Federal Register 21701, April 22, 2008.
94 Positive response criterion. For paint containing lead below the regulated level, 1.0 mg/cm2 or 0.5% by weight, a
demonstrated probability (with 95% confidence) of a positive response less than or equal to 10% of the time.
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Comment: Commenter #2015-0780-0012 claimed that as "it is currently being implemented the [RRP]
program is an inefficient tool for achieving the environmental and health goals of the underlying statue
and regulation." They also claim that the "use of time, resources, and capitol | v/c | on RRP renovation jobs
that could otherwise have been deemed outside the rule's scope of coverage undermines the programs
[s/'c] ability to target resources where they are most needed. The increased costs of these renovation jobs
can also contribute to homeowners increasing their risk by putting off needed renovations, taking them on
themselves or turning to uncertified contractors acting in violation of the rule."
Response: EPA believes that the RRP program uses an appropriate approach given the underlying goal
of the statute, which is to minimize exposures to lead-based paint hazards created during renovation,
remodeling and painting activities, taking into account reliability, effectiveness, and safety. EPA does not
agree with the commenter's implicit suggestion that these goals would be better achieved by scaling back
the RRP program. EPA also disagrees that the increased cost of the renovation jobs results in increased
homeowner risk. As previously explained, compliance costs are relatively modest compared to the cost of
a renovation. The factual evidence does not support the commenter's hypothetical scenarios. As explained
in a previous response in this document, the share of renovation projects conducted by do-it-yourselfers
has not increased since the RRP rule took effect. Therefore, the data do not support the commenter's
claim that homeowners will take on the work themselves. And as shown elsewhere in this document, the
number of renovations has increased since the rule took effect, which does not support the claim that
homeowners have put off needed renovations. Finally, since 100% of contractors were uncertified before
the RRP rule was promulgated, the rule has not caused an increase in the number of uncertified
contractors. Given the magnitude by which the benefits of the program exceed the costs, EPA does not
believe that the RRP program is an inefficient tool.
Comment: Commenter #2015-0780-0022 reported that they expect that a lead test kit meeting both the
positive response and negative response criteria will likely be available as soon as early as 2017. The
estimated time is based on progress to date of work under the second grant with HUD's Office of Lead
Hazard Control and Healthy Homes. The commenter recommended keeping the negative response
criterion as is and modifying the positive response criterion as follows:
1. For paint containing lead at or above the regulated level, 1.0 mg/cm2 or 0.5% by weight, a
demonstrated probability (with 95% confidence) of a negative response less than or equal to
5% of the time; and,
2. A demonstrated probability (with 95% confidence) of a false positive response of no more
than 10% to lead in paint at levels at or below 0.6 mg/cm2.
The commenter stated that this modification would "still provide adequate protection for contractors and
consumers against false positive test results in actual housing." They also claim that the "current positive
response criterion is more stringent than that required of XRF instruments currently holding Performance
Characteristic Sheets (PCSs) approved by HUD and EPA for lead testing in housing subject to the Lead-
Safe Housing Rule (24 CFR Part 35)." The commenter submitted supporting statistical analysis available
on the Lead; Renovation, Repair, and Painting Program; Lead Test Kits docket under docket ID numbers
EPA-HQ-OPPT-2015-0780-0022 and EPA-HQ-OPPT-2015-0780-0015.
The commenter submitted a public comment that statistically analyzed the probability of achieving a
correct positive result for one of the EPA-recognized lead test kits based on EPA positive response
criterion assuming a lower bound lead content of 0.8 mg/cm2 and upper bound lead content of 1.2 mg/cm2
(+ 20% the regulated level of 1 mg/cm2) yielding a 22% false positive rate consistent with the ETV
Program results. The commenter concluded that by combining data from the HUD American Healthy
Homes Survey (AHHS) on the actual extent of lead-based paint in housing with EPA's ETV analysis that
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EPA could relax the lower bound lead content of 0.8 mg/cm2 to 0.5 mg/cm2 and meet the current 10%
positive response criterion for the D-Lead lead test kit; the commenter found the upper bound of 1.2
mg/cm2 to be acceptable as is. The AHHS data was used to demonstrate that the actual number of homes
with a lead content between 0.5 mg/cm2 and 0.8 mg/cm2 is extremely low, and it was reported that
adopting this modified lower bound lead content of 0.5 mg/cm2 would require only a small percentage of
homes (<10%) to use lead-safe work practices unnecessarily.
Response: In the preamble of the 2008 RRP rule, to be consistent with the performance criteria used for
EPA's National Lead Laboratory Accreditation Program, EPA stated that the lead test kit testing protocol
would not include the testing performance of lead test kits on paint that contains between 0.8 mg/cm2 and
1.2 mg/cm2; meaning that test results between 0.8 mg/cm2 and 1.2 mg/cm2 are equivalent to 1 mg/cm2 and
require lead-safe work practices. The commenter suggested that results between 0.5 mg/cm2 and 1.2
mg/cm2 require lead-safe work practices. Incorporating this approach, as written, would increase the
number of true or correct positive results because the bounds for a positive result have been expanded,
and consequently lower the false positive results within this range of 0.5 mg/cm2 and 0.8 mg/cm2.
However, the number of renovations required to employ lead-safe work practices would remain the same;
this approach would simply re-designate the result from false positive to "true" positive.
An EPA analysis95 found that none of the lead test kits analyzed could meet the positive response
criterion at the recommended threshold of 0.5 mg/cm2 when including variables such as topcoat, substrate
and operator type assessed during the EPA's ETV analyses. In order to meet the 10% positive response
criterion, EPA would need to lower the acceptable threshold to 0.3 mg/cm2 instead of 0.5 mg/cm2 for one
of the EPA-recognized lead test kits. The difference between the commenters recommended 0.5 mg/cm2
lower bound lead content and EPA's 0.3 mg/cm2 lower bound lead content lies within the application of
the ETV data. It is unclear to what degree the commenter utilized the ETV data in the submitted public
comment. EPA found that the submitted analysis did not explicitly use the regression models referenced
in the ETV report to formulate its recommendations, but rather a combination of properties from the ETV
distribution and the AHHS data.
Only one of the EPA-recognized lead test kits could meet both the negative response and positive
response criteria using all of the ETV variables and the commenter's methodology. Changing the lower
bound lead content level to 0.3 mg/cm2 may allow EPA to recognize one lead test kit as a kit that meets
both the negative response and positive response criteria. However, this threshold would not reduce the
economic impact of the rule upon small entities because it would increase the burden to the regulated
community by requiring lead test kit results between 0.3 mg/cm2 and 1.2 mg/cm2 to initiate lead-safe
work practices. Based on the available data submitted, EPA does not plan to modify the positive response
criterion as recommended by the commenter at this time.
Comment: Commenter #2016-0126-0014 states with respect to the Agency's decision to remove the
option for some homeowners to opt-out of hiring contractors who would comply with rule work practices
that the problems it identified "can be addressed by amending the disclosure rule."
Response: This comment references a rulemaking other than RRP; therefore, the Agency considers it
beyond the scope of this review.
95 Lead Thresholds Associated with 10% False Positive Rates and 5% False Negative Rates, for 5 Lead Test Kits
(Updated). Prepared by Battelle for U.S. Environmental Protection Agency, OPPT, National Program Chemicals
Division, Program Assessment and Outreach Branch. September 14, 2015. EPA-HQ-OPPT-2015-0780-0028.
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