U.S. Environmental Protection Agency

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

Response to Public Comments

April 2010

Opt-out Provision

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

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

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

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

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

Response:	EPA disagrees that removing the opt-out will create more
opportunity for non-compliance.  To the contrary, having a simpler more
generally applicable rule should make compliance easier.  Indeed, EPA
believes that a provision such as the opt-out can cause renovation firms
to be confused about how to comply with the RRP requirements and
therefore believes removal of the opt-out provision is likely to enhance
compliance.  

Comment:	One commenter believes that removing the opt-out provision will
result in impediments to the implementation of other federal programs
such at the Department of Energy’s Weatherization Assistance Program
because of the additional costs associated of complying with the rule.  

Response:	The Agency disagrees with this comment.  EPA does not believe
that the costs associated with the rule such as certification, equipment
and cleaning costs are overly burdensome.  Thus, EPA believes that this
rule will not be an impediment to the implementation of federal
programs.   

Comment:	One commenter stated that professional renovators using
lead-safe work practices reduce the dust lead loading levels
significantly from a home’s pre-renovation loading level, making homes
safer.  Another commenter stated that renovations performed by
professional subject to reasonable clean up standards do not create
additional health hazards.  This commenter believes that a “no visible
dust” standard should be required instead of the RRP work practices.  

Response:	These comments go to issues beyond the scope of this
rulemaking.  EPA explicitly did not reopen issues related to the work
practices.  EPA therefore considers this comment outside the scope of
this rulemaking.  Nonetheless, EPA disagrees that a “no visible
dust” standard is sufficient nor does EPA believe that renovations
done by professionals will typical reduce lead dust below the hazard
standard.  EPA’s Dust Study indicated that renovation, repair, and
paint preparation activities produce large quantities of lead dust that
create dust-lead hazards. The Dust Study showed that the largest
decreases in dust levels were observed in the experiments where the
rule’s practices of containment, specialized cleaning, and cleaning
verification were all used instead of typical work practices commonly
used by professional renovators. The Dust Study indicated that if the
prohibited and restricted practices are avoided, the suite of work
practices as a whole are effective at addressing the lead-paint dust
that is generated during renovation activities.

Comment:	One commenter stated that do-it-yourself (DIY) renovations
contribute to health hazards and that the RRP rule does not cover that
type of work.  

Response:	EPA understands that the rule will not prevent dust hazards
created by DIY renovation. However, EPA interprets the statutory
directive to regulate remodeling and renovation activities found in TSCA
§ 402(c)(3) as applying to contractors, rather than homeowners.
Therefore, the RRP rule does not regulate renovations performed by
homeowners in their own homes.

Comment:	One commenter contends that a survey of its members found over
91% of their clients range in age between 41 and 64 years old and
therefore it is highly unlikely that children under age 6 or pregnant
women are present in these households.  Thus, removing the opt-out would
have little benefit to children under age 6.  Considering these factors,
the commenter believes it is more cost effective to keep the opt-out in
place.  

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

Comment:	Several commenters suggested that removing the opt-out
provision would be arbitrary and capricious because EPA did not provide
new evidence or sufficient reasons to support a decision to change
course and remove the opt-out provision.  In so doing, one commenter
relied upon a 2003 decision from the U.S. Court of Appeals for the D.C.
Circuit for the proposition that absent new information that was not
available to the Agency at the time it made its initial determination,
EPA cannot provide a reasoned analysis to justify its “change in
policy.”  See Ramaprakash v. Federal Aviation Admin., 346 F.3d 1121,
1124 (D.C. Cir. 2003).  

Response:	As an initial matter, EPA disagrees that the Ramaprakash
decision stands for the proposition that only information previously not
available to the Agency can justify a regulatory change or, for that
matter, a change in policy.  Furthermore, the Ramaprakash case is
readily distinguishable and, therefore, inapposite.  In Ramaprakash, the
DC Court of Appeals held that the National Transportation Safety Board
(NTSB) impermissibly deviated from its precedent without acknowledging
or providing reasons for departing from its precedent.  Specifically,
the court found that the NTSB did not even attempt to explain its
departure from precedent when it ruled that the Federal Aviation
Administration (FAA) had shown good cause for its delay in sanctioning a
pilot for offenses that had occurred more than 6 months prior. 
According to the court, for more than 20 years the NTSB had explained
that a party seeking dismissal of a stale complaint (over six months
old) was not required to show prejudice from the delay.  Yet, in the
challenged order, the NTSB simply noted, as a basis for its decision,
that no showing of prejudice had been made.  Similarly, the NTSB’s
decision announced that it was more willing to excuse delay on the part
of the FAA if the alleged violation was serious.  In so doing, the court
held that the NTSB reversed its long standing precedent (that it should
not bend its procedural rules because the alleged violation was serious)
without even an “attempt to explain that departure from precedent.” 
346 F.3d at 1125.  Finally, the court held that although the NTSB said
it was troubled by the length of time between the FAA’s receipt of the
evidence and the investigation, the NTSB nonetheless departed from its
own precedent involving the “longstanding” requirement of
prosecutorial diligence in stale complaint cases.  According to the
court, NTSB failed to provide a reasoned explanation for changing the
standard.  Id. at 1128 (“The [NTSB] cannot undertake such a departure
from its precedent without providing a reasoned explanation for its
decision, and it provided none here.”).  

First, this case is distinguishable on its facts.  There is a
fundamental difference in the importance of precedent to a
quasi-judicial proceeding versus notice and comment rulemaking.  In the
adjudication context, precedent plays a critical role because it
provides the basis for future decisions and the orderly administration
of justice.  Reliance on precedent not only creates stability but also
provides the framework that affected persons expect will be applied in
future cases.  One reason for this is that rules governing the regulated
community are established through precedent and create a reasonable
basis for reliance.  A departure from precedent has a retroactive effect
on past acts and is akin to changing the rules to determine the winner
after the game has been played (according to the previous rules).  Thus,
the court held that, at the very least, the NTSB must acknowledge that
it is deliberately departing from it prior decisions and provide a
reasoned analysis to indicate that its precedent it not being casually
ignored.  

In contrast, EPA has engaged in notice and comment rulemaking to
deliberately change a regulatory provision.  Here, after
reconsideration, EPA announced and took comment on a deliberate and
prospective change to the underlying rule.  Indeed, EPA proposed to make
a change before the regulatory provision at issue even when into effect.
 Thus, the reliance interests at issue in the case are not implicated
here.  Moreover, whereas the NTSB decision “did not even attempt” to
provide a reasoned explanation, EPA, in both the proposed and final
rules, provided extensive discussion of its concerns with the opt-out
provision and the reasons why it believes removing the opt-out is in the
best interest of the public.  

Second, contrary to the suggestion of the commenter, in a recent Supreme
Court decision, the Court explained that there is no heightened standard
of review under the Administrative Procedures Act for changes in agency
policies or rules that requires a more substantial explanation when an
agency “reverses course.”  See FCC v. Fox Television Stations, Inc.,
129 S.Ct. 1800, 1810 -1812 (2009).  “We find no basis in the
Administrative Procedures Act or in our opinions for a requirement that
all agency change be subjected to more searching review.”  Id. at
1810. The Court further explained that the APA makes no distinction
between initial agency action and subsequent agency action undoing or
reversing that action.  

To be sure, the requirement that an agency provide reasoned explanation
for its action would ordinarily demand that it display awareness that it
is changing position. An agency may not, for example, depart from a
prior policy sub silentio or simply disregard rules that are still on
the books. See  HYPERLINK
"http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType
=Y&SerialNum=1974127252" United States v. Nixon,  HYPERLINK
"http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType
=Y&SerialNum=1974127252"  418 U.S. 683, 696, 94 S.Ct. 3090, 41 L.Ed.2d
1039 (1974) . And of course the agency must show that there are good
reasons for the new policy. But it need not demonstrate to a court's
satisfaction that the reasons for the new policy are better than the
reasons for the old one; it suffices that the new policy is permissible
under the statute, that there are good reasons for it, and that the
agency believes it to be better, which the conscious change of course
adequately indicates. This means that the agency need not always provide
a more detailed justification than what would suffice for a new policy
created on a blank slate. Sometimes it must-when, for example, its new
policy rests upon factual findings that contradict those which underlay
its prior policy; or when its prior policy has engendered serious
reliance interests that must be taken into account.  HYPERLINK
"http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType
=Y&SerialNum=1996125805" Smiley v. Citibank (South Dakota), N. A., 
HYPERLINK
"http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType
=Y&SerialNum=1996125805"  517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d
25 (1996) . It would be arbitrary or capricious to ignore such matters.
In such cases it is not that further justification is demanded by the
mere fact of policy change; but that a reasoned explanation is needed
for disregarding facts and circumstances that underlay or were
engendered by the prior policy.

Id. at 1811; see also Westar Energy v. F.E.R.C., 568 F.3d 985, 989
(C.A.D.C. June 12, 2009) (“The fact that FERC changed its approach
required no additional or special explanation.”).  Here, EPA has
consciously proposed to remove the opt-out provision and concluded that
doing so is in the best interest of the public.  Clearly, applying the
work practice standards to all target housing is permissible under the
statute and supported by the record.  Indeed, one of the better reasons
for this change is that it clearly promotes the congressional directive
to regulate renovation activities in target housing that create
lead-based paint hazards.  Other good reasons include that it is more
protective for children under six and, in contrast to the retaining the
opt-out, it is protective for children six and older as well as adults. 
In addition, EPA’s decision is based upon environmental justice
considerations and practical implementation issues.  Moreover, rather
than ignoring contradictory factual findings, EPA believes removing the
opt-out better takes into account EPA’s finding (and the data
supporting that finding) that all renovation activities that disturb
lead-based paint in target housing create lead-based paint hazards,
which is the trigger Congress established for requiring EPA to regulate
renovation activities.  Finally, this change was proposed before the
opt-out provision even became effective.  Accordingly, there can be no
serious contention that reliance interests are implicated.  In sum, EPA
has more than adequately explained the basis for the change being made
in this rulemaking.  

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

Response:	EPA disagrees that this rulemaking is inconsistent with TSCA
section 2(c).  To the contrary, EPA has explicitly taken the
environmental, economic, and social impacts of this action into account.
 The environmental and human health impacts of lead are well documented
and the Agency has taken particular care to consider the social impacts
of today’s action on low-income and other high risk populations.  In
addition, in connection with this rulemaking, EPA prepared both an
initial and a final economic impact analysis pursuant to the Regulatory
Flexibility Act.  Thus, there can be no serious contention that EPA
failed to consider the economic impact of today’s rule.  

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

Comment:	Some commenters asserted that the opt-out provision violated
federal law by impermissibly creating an exception to the statutory
definition of “target housing” and excluding some target housing
from the rule based upon claims about its occupancy at the time of the
regulated RRP work.  These commenters further contend that unlike other
places in the law, such as the definition of lead-based paint, Congress
did not authorize EPA to change its definition of target housing.  In
addition, these commenters assert that the statute is clear on its face
that renovations that create lead-based paint hazards in target housing
should be covered and that nothing in the statute limits the mandate to
childhood exposures. 

Response:	These commenters raised this issue as part of a lawsuit
challenging the underlying rule.  EPA agreed to settled the case and, as
part of the settlement, issue a proposal to eliminate the opt-out. 
While it is not necessary in this context to address the commenters’
specific legal positions, EPA believes that amending the RRP rule to
remove the opt-out provision is better supported by the record and more
consistent with the factual findings made by the Agency in connection
with the RRP rule.  EPA also agrees that the statute directs EPA to
regulate renovation activities in target housing that create lead-based
paint hazards.  EPA has found that renovation activities that disturb
lead-based paint in target housing create lead-based paint hazards. 
Thus, while EPA believes that focusing resources on preventing lead
poisoning in children can be sound public policy in certain
circumstances, EPA agrees that the statute is not limited to protecting
children under six or housing where children under six currently reside.
  

Comment:	One commenter suggests that EPA is mistaken that removing the
opt-out promotes, to a greater extent, the statutory directive to
promulgate regulations covering renovation activities in target housing.
 To the contrary, the commenter asserts that EPA is only authorized to
regulate renovation activities in target housing that create lead-based
paint hazards.  The commenter argues that because EPA has not made a
“hazard determination associated with the risk of renovation
activities among older children and adults,” EPA is therefore, “not
statutorily authorized to regulate renovation activities in
buildings—such as public or commercial buildings or even residential
homes—that are not frequented by young children.”  

Response:	The commenter is mistaken.  EPA has determined that renovation
activities that disturb lead-based paint create lead-based paint hazards
in target housing and child-occupied facilities.  Specifically, EPA has
set hazard standards for paint-lead hazards, dust-lead hazards, and
soil-lead hazards.  In target housing and child-occupied facilities,
dust that equals or exceeds the mass-per-area concentration of lead of
40 µg/ft2 on floors or 250 µg/ft2 on window sills is a lead-based
paint hazard.  Therefore, EPA is clearly authorized to regulate
renovation activities in target housing under section 402(c)(3) of TSCA.


Furthermore, EPA disagrees with the commenter that the statute limits
EPA’s authority to housing where children under six currently reside. 
While EPA continues to believe that Congress was concerned with low
level lead poisoning among children, it did not limit its scope to
children or where children under six reside.  In fact, the legislative
history suggests an overall goal of addressing lead in the housing stock
of the United States, not just where children currently live.  Indeed,
the stated purpose of the Residential Lead-Based Paint Hazard Act of
1992 (which added subchapter IV to TSCA) is to “develop a national
strategy to build the infrastructure necessary to eliminate lead-based
paint hazards in all housing as expeditiously as possible.”  See P.L.
102-550, § 1003(1), (October 28, 1992) (emphasis added).  

Similarly, EPA disagrees that it must make a “hazard determination
associated with the risk of renovation activities among older
children” before the Agency can regulate renovation activities in
target housing where children don’t currently reside.  Again, EPA has
defined lead-based paint hazards in target housing.  The promulgated
standard is applicable to target housing and child-occupied facilities
generally, not just those frequented by young children.  The standard
was designed to be protective of the most vulnerable and sensitive
population—children under six.  That does not, however, limit the
applicability of the standards to housing where children under six
currently reside.  It simply means that the standard is presumptively
protective of all populations.  When considering human health, the
Agency regularly sets regulatory standards of general applicability at
levels that are protective of the most sensitive or most exposed
population.  Accordingly, renovation activities in target housing that
create dust on floors with lead equal to or in excess of 40 µg/ft2, by
definition, create lead-based paint hazards, regardless of whether a
child under six currently resides there.  

Finally, removal of the opt-out results in a rule that is more
protective of children under six who spend time in houses where they
don’t reside and that are not COFs.

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

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

Benefit and Costs 

Comment:	One commenter claims that the Criteria Document that EPA cited
in the preamble to the proposed rule is not applicable to lead-based
paint exposures.  According to the commenter, the Criteria Document
looks at lead exposure through contamination in the ambient air, not
from lead-based paint.  

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

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

Response:	EPA conducted a limited analysis of some of the benefits of
the rule as explained in the preamble to the proposed rule.  Benefits
ranged from $870 million to $3.2 billion.  However, these estimates did
not account for every situation where someone would be impacted by lead
contamination due to renovations and thus, these figures only partially
account for the benefits of the rule.  These calculations provide a
sense of the magnitude of benefits from this rule but should not be
interpreted as strict upper or lower bound estimates of total benefits.

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

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

Comment:	Many commenters believe that the rule’s costs are too high. 
Several commenters believe the increased cost of renovations due to the
RRP rule will lead to many homeowners and property managers not doing
need renovations or doing the work themselves.  As a result, more
renovations will be performed without following the RRP work practices. 
One commenter claims that small businesses do not have the staff to
comply with the regulations and will be forced out of business.  One
commenter claimed that the increased costs will hurt retired people on
fixed incomes. Another commenter conducted a survey which found that 80%
of homeowners would not pay extra to have lead-safe work practices used.

Response:	EPA is not generally reopening the RRP rule for consideration
or comment.  These same comments were addressed in the RRP rulemaking. 
In summary, EPA disagrees with premise behind these comments.  The
Agency does not believe the rule is overly costly.  EPA estimated that
the rule’s work practice requirements will add $8 to $167 to the cost
of a typical renovation project (with the exception of those using
vertical containment).  EPA does not believe that this cost increase
will lead to many homeowners to do their own renovations, not do them at
all, or put undue financial burden of people who hire renovation firms. 


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

Response:	The Agency disagrees with this comment.  There are many
different factors that impact the timing of the rulemaking process.  For
example, EPA has agreed to undertake a number of related rulemakings
over the next few years.  Developing the record for some will take
longer than for others.  That is not a reason, however, to delay action
on this rule.  Moreover, the public had or will have the opportunity to
comment on all of EPA’s rules regarding renovations that the commenter
mentions.  The Agency is planning to develop an economic assessment of
each rule that will help commenters understand the impacts of the rules.
 Therefore, EPA believes that commenters will be able to understand the
cumulative impact of these rules.  

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

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

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

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

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

Comment:	One commenter is opposed to the rule because it will require
costly testing before and after each renovation which will lead to
expensive remediation and cleanup.  

Response:	The RRP rule does not require firms to test for lead
contamination before or after renovations.  Instead, firms are required
to perform cleaning verification after renovations.  The cleaning
verification procedure do not include dust sampling. 

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

Response:	EPA would like to clarify that some small jobs are not
considered renovations under the RRP rule.  Specifically, minor
maintenance activities as defined in 40 CFR 745.83 are not regulated by
the rule.  Minor repair and maintenance activities are activities,
including minor heating, ventilation or air conditioning work,
electrical work, and plumbing, that disrupt 6 square feet or less of
painted surface per room for interior activities or 20 square feet or
less of painted surface for exterior activities where none of the work
practices prohibited or restricted by §745.85(a)(3) are used and where
the work does not involve window replacement or demolition of painted
surface areas.  When removing painted components, or portions of painted
components, the entire surface area removed is the amount of painted
surface disturbed.  Jobs, other than emergency renovations, performed in
the same room within the same 30 days must be considered the same job
for the purpose of determining whether the job is a minor repair and
maintenance activity.

Small Business Advocacy Review Panel

Comment:	Several commenters assert that EPA has failed to comply with
the Regulatory Flexibility Act (RFA). They assert that EPA did not
conduct a Small Business Advocacy Review (SBAR) panel prior to issuing
this proposed rulemaking. 

Response:	EPA disagrees with these comments.  Contrary to the assertions
of these commenters, the Agency has fully complied with the requirements
of the RFA. 

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

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

Exposure

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

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

Comment:	One commenter stated that he hasn’t seen any effects of lead
poisoning in the homes he worked in.  The commenter states that single
family homes do not seem to be where the problem exits.  

Response:	EPA would like to point out that renovators would not
recognize the effects of lead exposure on the people living in the homes
they work on.  These health effects include those that may manifest
externally such as neurobehavioral effects that the renovator may not
realize are associated with lead exposure, and those effects such as
cardiovascular, immune system and renal effects and would not likely be
“seen” by the renovator.  

Alternatives to the Opt-out Provision

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

Response:	The Agency agrees that a staged implementation is not
appropriate.  This option would make the RRP program more complex to
implement and might lead to confusion by renovators and homeowners.
These options would also lead to increased exposures during the delay
period. In addition, based upon the record before it, EPA cannot now
find that an opt-out in a segment of target housing would be effective,
reliable, or safe.

Comment:	EPA received several comments on the alternative to the opt-out
provision discussed in the preamble that would require the RRP work
practices on exterior renovations but not interior.  One commenter
supports and alternative where the opt-out applies to exteriors when
neighboring homes are not in close proximity to the renovation.  This
commenter believes that EPA should develop a proximity threshold for
work done on exteriors.  Another commenter states that exterior
renovations in rural areas or homes on large lots do not have the
potential to contaminate neighboring properties, although they believe
this alternative is of limited value because most renovations involve
both interiors and exteriors.  One commenter who opposed the alternative
stated that this option could expose visiting children and the families
of future purchasers and renters to dangerous levels of leaded dust.  A
second commenter opposed to this alternative states that exteriors are
more likely to have been painted with lead-based paint.  This commenter
also claims that contractors are not as careful during exterior
renovations resulting in a greater chance of dust migration and leaving
paint chips behind.  Another commenter believes that preserving the
opt-out for interiors is of limited value because most renovations
involve both interior and exterior work.  

Several commenters stated that they do not support the alternative of
requiring dust sampling for renovations where the owner-occupant opts
out of the work practice requirements.  One commenter disagrees with
this alternative approach because the renovation firm would be
responsible for preexisting conditions.  One commenter stated that
contractors should have to pass clearance testing if this alternative
were allowed, not simply provide the results to the next owner under the
1018 Disclosure Rule.  One commenter asserts that this alternative could
address a number of concerns if certain protections are required.  The
commenter states that the rule must require that testing is done by
party independent of the owner and renovation firm; that dust hazards
found as a result of the testing be eliminated, and that the test
results are given to the owner of the property.  Other commenters agreed
that, if this alternative were implemented, testing must be done by an
independent party.  One commenter stated that if dust testing is
required, then the results must be given to the home owner and occupant.
 

Several commenters support the alternative that would restrict the work
practice prohibited under RRP in homes that take advantage of the
opt-out provision.  One commenter does not condone the use of the
prohibited practices as a matter of policy.  One commenter states that
this alternative approach that is not consistent with the law and that
all the RRP work practices must be followed.  The commenter asserts that
this alternative would not protect occupants of neighboring properties,
visitors or future occupants.

Response:	After considering these alternatives, the Agency has decided
not to adopt any of the alternatives.  One concern with the alternatives
described in the proposed and those suggested by comments is that they
do not adequately address the risks of lead-based paint hazards to
children older than five years old or adults.  Each of these
alternatives can also result in exposures to children under the age of 6
and pregnant women to lead-based paint hazards.  For example, an
alternative that allows the opt-out provision on exteriors of houses
that are not in close proximity to neighboring homes will still result
in lead paint hazards which could harm the occupants or visitors.  EPA
also has concerns that populations that are already at a higher risk for
elevated blood lead levels may be disproportionately and adversely
affected by the alternatives.  

Another concern with the alternatives is that they can create confusion
among both contractors and consumers.  Several commenters stated that
the alternatives could cause confusion that could potentially result in
non-compliance by renovation firms.  EPA agrees and believes that
simplifying the applicability of the work practices will greatly enhance
the effectiveness and reliability of the rule.  

Based on the data available to EPA (e.g., the Dust Study), the Agency
cannot now conclude that the alternative approaches are safe, reliable
or effective because none of these would sufficiently minimize exposure
to lead-based paint hazards.  In sum, when the RRP work practices are
not used, residents and visitors are exposed to the lead hazards created
by the renovation, and therefore these approaches would not protect
older children, women of childbearing age, or other adults currently
residing in the home and can result in exposure to children under the
age of 6 and pregnant women of lead-based paint hazards.  Although EPA
specifically requested information or data that would shed any light on
the reliability, effectiveness, or safety of these options in relation
to EPA’s lead hazard standards, the Agency did not receive any.  The
Agency took these factors into consideration in deciding not to adopt
these alternatives.   

Post-Renovation Recordkeeping and Notification

Comment:	One commenter states that the post-renovation information
should be given to residents at the same time they receive information
on test kits used for that renovation.  The commenter further states
that the post-renovation information is not a record or report subject
to the Disclosure Rule.  Another commenter claims that the
post-renovation information should be subject to the Disclosure Rule.

Response:	The Agency agrees that post-renovation information must
include the test kit information.  EPA would like to point out that the
rule requires information pertaining to test kits used for the
renovation be part of the post-renovation notification.  The results of
the test kits would also be subject to disclosure under the Disclosure
Rule.  However, the Agency also agrees that, as a general matter, other
information provided on the checklist will not necessarily be subject to
the Disclosure Rule.  

Comment:	One commenter states that firms should not be responsible for
distributing the post-renovation information to parents of children at a
child-occupied facility.  The commenter believes that this should be the
responsibility of the property manager or owner.   

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

Comment:	One commenter asserts that the informational signs required as
part of the post-renovation recordkeeping should be findable,
informative and no less specific than other common area notification.  

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

Comment:	One commenter states that the information signs containing
post-renovation information should specify the general nature and
locations of the renovation and the completion date.

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

Comment:	One commenter states that a lack of post-renovation notice
violates section 407 of TSCA that requires certain recordkeeping and
reporting.  Because there is no realistic threat of surprise inspections
of renovations, the post-renovation notification requirements are
essential to comply with section 407.  The commenter further states that
current requirements are insufficient to verify that the work practices
were followed.  

Response:	EPA disagrees with this comment.  While it is not feasible for
EPA to inspect every renovation, the Agency may conduct on-site
inspections of a portion of them or it may conduct audits of firm
records.  EPA believes this can be an effective way to enforce the
requirements.  EPA also believes that the current recordkeeping
requirement is sufficient to verify that the work practices were
followed.  Renovation firms are required to keep records of the
renovation including spot test kit use, a description of the work area,
information about how the work area was contained, information on waste
removal, and results of cleaning verification or dust clearance testing.

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

 745.226 or an EPA-authorized State or Tribal certification program)
and records prepared by a certified renovator after using EPA-recognized
test kits.

Comment:	One commenter states that EPA should clarify that a dust
testing report must be written and what information should be in the
report.  

Response:	EPA developed model training materials for the dust sampling
technician course.  The course includes instruction on report
preparation.

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

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

Comment:	One commenter suggests that the post-renovation information be
distributed when the firm delivers the final invoice and receives final
payment for the renovation.  The commenter states that without this
change the firm would have to generate a lot of documentation without
being properly compensated. 

Response:	EPA disagrees with this comment.  The regulations require that
the post-renovation information be delivered to the owner or occupant
when the final invoice for the renovation is delivered or within 30 days
of the completion of the renovation, whichever is earlier.  The purpose
of this requirement is to ensure that the information is delivered in a
timely fashion.  The burden on firms will be minimal, since the
renovator will typically be delivering the checklist along with an
invoice or other job-relate paperwork. The post-renovation information
requirement would only result in renovation firms incurring the
incremental labor costs of photocopying and distributing the checklist
to the owners and/or occupants.  EPA assumed that photocopying and
distributing the checklist would take an average of three minutes of a
renovator’s time at a loaded wage rate of $31.64 per hour, for an
average cost of $1.58.

Burden

Comment:	One commenter stated that the post renovation notification will
not be a significant burden to renovation firms because it is similar to
the documents the contractor will have to complete to comply with the
recordkeeping requirements.  Another commenter believes EPA
underestimated the burden for firms to distribute the post-renovation
records.  This commenter claims that firms must post signs, make copies,
enter names and addresses in databases of affected parties, and deliver
the records.  

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

Delayed Effective Date

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

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

Training Capacity

Comment:	One commenter disagrees with EPA’s assertion that there is
enough training capacity to train all of the renovators that EPA has
estimated must take the training.  The commenter claims that the 6:1
student to teacher ration for the hands-on portion of the training
results in a lower training capacity than EPA estimates.

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

Renovator Certifications

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

Response:	This issue is outside the scope of the proposal. 
Nevertheless, the Agency disagrees with the commenter.  Processing a
firm application takes much less time than taking the renovator training
course.  EPA believes it will be able to process a large number of firm
applications that may be submitted close to the April 22, 2010,
effective date.  Thus, the Agency has not extended the certification
date for firm certifications.

Principal Instructor Requirement

Comment:	One commenter claims that EPA should require Principal
Instructors take a train the trainer course.  This would help ensure
that instructors are competent in teaching the required course work. 
One commenter stated that Principal Instructors should be required to
pass a test before being able to teach lead paint trainings to ensure
that the person is qualified.

Response:	EPA disagrees with these commenters.  Principal Instructors
must meet multiple education and work experience requirements in order
to teach lead-based paint training courses.  EPA believes these
requirements are sufficient and is not requiring instructors to take an
additional train the trainer course or pass a test.

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

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

Enforcement

Comment:	Once commenter believes EPA should conduct targeted enforcement
after the rule become effective.  Several commenters stated that the
rule will be detrimental to business because many competitors will not
follow the rule requirements and therefore undercut the costs of firms
that comply with the rule.   

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

State Authorization

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

Response:	EPA disagrees with this comment.  The Agency believes that
States and Indian Tribes must demonstrate that they meet the new
requirements instead of indicating that they have only begun the process
of updating their program.  The purpose of this requirement is so EPA
can ensure that States and Indian Tribes meet new RRP program
requirements within a specified time frame which, under this final rule,
is two years.  The commenter’s suggestion implies that States and
Indian Tribes only have to begin the process of changing their programs
by a specified date.  This would allow states to take much longer than
the time specified in the regulations. 

Cost Estimates 

Comment:  Commenters claim that EPA underestimated the cost of the rule.
 Commenters state that EPA’s estimated that the rule will cost $35 per
job and that this grossly underestimates the cost.  Commenters made
various claims about the cost of the rule per job, ranging from $296 to
$10,815.  

Response:

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

Firm certification;

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

Renovator and worker time spent in on-the-job training;

Purchasing HEPA vacuums, HEPA shrouded power tools, and HEPA filters; 

Additional labor required to use low temperature heat guns instead of
high temperature heat guns or torching of paint;

Time and materials costs for:

Installing signs;

Covering floors and walls with plastic sheeting for interior jobs;

Covering the ground with plastic for exterior jobs (including erecting
scaffolding for some jobs);

Covering doors with plastic; 

Installing tack pads and wearing disposable shoe covers;

Removing and bagging plastic sheeting after the job;

HEPA vacuuming the work area and workers’ clothes;

Mopping floors and wiping other areas with a wet cloth; 

Performing cleaning verification; and

Recleaning areas that fail cleaning verification, and repeating cleaning
verification; 

	

Time spent becoming familiar with the requirements of the rule;

Time spent filling out the firm certification form;

Time spent for paperwork and keeping records related to compliance with
the rule; and

Time and materials providing the lead pamphlet for work in public or
commercial building COFs

EPA used a commercial data source (the Means CostWorks Repair &
Remodeling Cost Data by R.S. Means) to estimate the labor requirements
for the rule’s work practice requirements.  Means CostWorks is
designed to help contractors estimate the cost of projects by providing
the unit labor and material costs of different renovation activities. 
EPA estimated the labor requirements by adjusting R.S. Means data for an
asbestos abatement project.  The containment and cleaning requirements
for asbestos abatement are more stringent than those in the LRRP rule. 
For example, the containment in an asbestos abatement project must
maintain negative air pressure in the work area and contain water used
to mist or wet the asbestos material.  As a result, EPA assumed that
installing containment for an LRRP project would take 75% of the time
than R.S. Means indicated is needed to install containment for an
asbestos abatement project (which is probably an overestimate of the
time needed for RRP compliance).  

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

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

EPA’s estimates do not include the cost of providing EPA’s lead
pamphlet to homeowners.  The pre-renovation lead information rule
(published on June 1, 1998) required renovators to distribute a lead
hazard information pamphlet to housing owners and occupants before
conducting renovations in pre-1978 housing.  Therefore, providing a
pamphlet to owners and occupants in target housing is not a cost of this
rule.  (The 2008 rule does require renovators to provide the pamphlet to
child-occupied facilities, so that cost was accounted for in EPA’s
estimates.)

Nor do EPA’s estimates include the cost of certified renovator
training for all workers, or of having a certified renovator on the job
site at all times, because the rule does not require either of these.  A
certified renovator must be physically present at the work certain times
(including when the signs are posted, while the work area containment is
being established, and while the work area cleaning is performed); must
perform the post-renovation cleaning verification; and must regularly
direct the work being performed by uncertified persons.  But the
certified renovator is not required to be physically present at the work
site at all times.  (When a certified renovator is not physically
present at the work site, the uncertified workers must be able to
contact the renovator immediately by telephone or other mechanism.) 
Because the rule does not require a certified renovator to perform all
renovation activities, EPA assumes that in firms with multiple workers,
only some of them will become certified renovators.  EPA does not assume
that all workers will become certified renovators.  

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

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

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

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

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

The $35 does not represent the initial start-up costs of the rule.  EPA
estimated that the social cost of the rule will be $758 million in the
first year (when the largest number of renovators become trained and
certified), nearly twice as much as the long run social cost of $404
million per year.  Thus, even as an average incremental social cost, the
$35 figure represents the long run cost and not the start-up cost.

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

EPA’s economic analysis (and thus the $35 figure that was derived from
it) estimates the average incremental social cost per job of compliance
with the rule (work practices, training, and certification) for all jobs
above the minor maintenance size threshold.  It includes jobs with
lead-based paint (LBP) and those without LBP (where the paint is tested
for the presence of lead, but other work practice costs are not
incurred).  EPA’s estimate of the incremental cost of complying with
the rule containment, cleaning and cleaning verification requirements
(i.e., the additional cost compared to typical baseline cleaning and
containment practices) ranges from $8 to $167 per job, not including the
additional costs for training and certification, test kits, and vertical
containment (where necessary).  EPA estimates that a renovator who
didn’t do any cleaning or containment in the baseline might have costs
of $35 to $400 for containment, cleaning, and verification, plus the
costs for training, certification, and test kits (and vertical
containment, if necessary). 

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

Therefore, EPA estimated that the rule only creates incremental costs
for both labor and materials for using plastic sheeting on floors for
the 23% of jobs (100% - 77%) where renovators reported they were not
using plastic before the rule.  EPA estimated that the rule creates
incremental materials costs for plastic sheeting on floors in 49% of
jobs (77% x 63%) where renovators reported they were using plastic
before the rule but were not reusing it.  And EPA estimated that the
rule does not create costs for using plastic on floors for the 28% of
jobs (77% x (100% - 63%)) where renovators reported they were already
using disposable plastic before the rule.  

Similarly, EPA estimated that the rule creates incremental labor,
equipment, and materials costs for HEPA vacuuming floors only for the
19% of jobs where renovators reported they did not vacuum without the
rule in place.  EPA estimated that the rule creates equipment and
materials costs (for HEPA vacuums and filters) for the 50% of jobs (81%
x (100% - 38%) where renovators reported they vacuumed floors without a
HEPA vacuum in the baseline.  And EPA estimated that the rule does not
create costs for the 31% of jobs (81% x 38%) where renovators reported
that they used a HEPA vacuum on floors in the baseline.

A renovator who didn’t do any containment or cleaning in the baseline
might incur work practice costs of up to several hundred dollars for
containment, cleaning, and cleaning verification for a large job (with
lower costs for a small job), plus the costs for training,
certification, and test kits.  However, EPA believes that many
contractors did some containment and cleaning before the rule was in
place.  Indeed, EPA received comments from the renovation industry on
the original LRRP proposed rule claiming that customers demanded
containment and cleaning, and that in some cases renovators left a job
site cleaner than they found it.  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.

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

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

Many of the commenters used a template that was circulated in the
remodeling industry to develop the cost claims in their comments.  This
template was accompanied by what purports to be a summary of EPA’s
rule on remodeling and renovation.  However, as described below, many of
the statements in the document are inaccurate, or fail to differentiate
between work practices that are required under EPA’s RRP program, and
work practices that EPA recommends but does not require.  EPA recommends
that renovators voluntarily adopt some of these work practices in order
to further limit exposure to lead dust generated during renovation
activities, but EPA leaves this decision to the discretion of the
certified renovator.  While the work practices outlined in the industry
summary document would cost more than EPA has estimated, these costs are
not attributable to EPA’s RRP rule, since renovators are not required
to adopt them.  

The differences between the rule overview that was circulated in the
industry and the actual requirements of EPA’s rule are summarized
below.  Many of them are also discussed in more detail elsewhere in this
response to comments document.

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

(b) The rule overview accompanying the template advises that all workers
should become certified renovators, which is not required by the rule. 
In reality, the rule requires that every project must have a certified
renovator, and that certain activities must be performed by the
certified renovator.  The rule does not require all employees to become
trained as certified renovators.  Assuming that all workers must become
certified renovators overstates the cost of the rule’s requirements.

(c) The rule overview accompanying the template states that the rule
prohibits the use of tools, vacuums, sanders, grinders, etc., without
HEPA filters.  This is an inaccurate description of the rule.  EPA
recommends the use of HEPA filters when power tools are used to disturb
lead-based paint, but the rule only requires the use of HEPA filters in
certain situations.  The rule requires the use of HEPA exhaust controls
for machines that remove lead-based paint from a substrate through high
speed operation.  The rule does not require the use of HEPA filters for
tools such as saws and drills that are used to cut or shape a substrate.
 Assuming that all power tools must have HEPA filters overstates the
cost of the rule’s requirements.

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

(e) The rule overview accompanying the template states that firms should
educate and train workers and then repeat in order to prepare workers
for the renovation.  Commenters seem to have interpreted this to mean
that the rule requires workers to be trained in the full scope of
lead-safe work practices, and that this education and training must be
repeated for every renovation job.  This is an inaccurate description of
the rule’s requirements for on-the-job training.  The rule requires
firms to train workers to perform their jobs in a lead-safe manner. 
Furthermore, a worker who has been trained does not need to have the
training repeated at every job.  Assuming that all workers must receive
extensive training for every job overstates the cost of the rule’s
requirements.

(f) The rule overview accompanying the template states that workers
should wear disposable respirators (N100), disposable gloves, and
disposable coveralls.  EPA recommends having workers wear this
protective clothing to minimize their exposure to lead dust, but the
rule does not require this.  Assuming that workers must wear disposable
respirators, gloves, and coveralls overstates the cost of the rule’s
requirements.

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

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

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

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

(k) The rule overview accompanying the template states that when the job
is complete, the renovator should vacuum all surfaces, including walls,
with a HEPA vacuum cleaner; clean the work area with a wet rag or mop;
vacuum all surfaces again once they are dry; and re-clean as previously
described if there is remaining dust or debris.  For interior
renovations, the RRP rule requires cleaning with a HEPA vacuum and a
damp cloth and mop.  However, the RRP rule does not require the work
area to be vacuumed a second time prior to cleaning verification. 
Assuming that renovators must vacuum twice prior to conducting cleaning
verification overstates the cost of the rule’s requirements.

(l) The rule overview accompanying the template states that renovators
must keep all information on file for 3 years, including the white
cloths from the cleaning verification and pictures of the work area. 
The rule does not require renovators to keep the cleaning verification
cloths or pictures of the work area on file.  To the extent that keeping
these materials on file increases the cost of a renovation, assuming
that the rule requires renovators to keep this material on file
overstates the costs of the rule’s requirements.

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

	The specific cost claims made by the commenters are discussed in more
detail below.

Comment:  Commenters made various claims about the cost per person for 8
hour training to become a certified renovator.  Many commenters stated
that the average tuition cost per person is $150 to $300 per person, and
then used $300 as the basis for their total cost claims.  Some
commenters used a lower tuition cost.  For example, McKean Building &
Remodeling claimed a cost of $150, Great River Construction claimed a
cost of $190, and Jud Construction claimed a cost of $225 per person. 
Some commenters used higher training costs that included more than
tuition costs.  For example, several commenters (such as RebuildEx,
Thompson Building, Menold Construction, and Alan Hanbury) included lost
revenues for a day of training, resulting in cost claims ranging from
$525 per employee to $890 per employee.  One commenter (Degnan Design
Builders) claimed a cost of $600 per employee for tuition, wages, and
travel expenses, and another commenter (J.J. Swartz Co.) claimed a cost
of $600 to account for both training and travel.  Another commenter
(Robert Hanbury) claimed a cost of $1,095 per person, including tuition,
lost wages (including travel time), and $95 in employee reimbursement
for lunch, a beverage break, and personal mileage.  

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

EPA believes that the hourly labor rates used by commenters who included
lost revenues in their cost claims overstate economic costs because they
do not reflect the value of time for the staff being trained.  (This
issue is described in detail elsewhere in this response to comments
document.)  EPA notes that many of the cost claims range from $300 to
$600 per person, which are in line with EPA’s estimate of $562 per
person.  EPA believes that the highest cost claims made by the
commenters (such as $1,095) are not representative of the average cost
per person that most firms will incur.  

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

Response:  EPA believes that the total cost per firm for certified
renovator training claimed by many of the commenters overstates the
actual costs, and that these claims are not representative of the costs
that typical firms will incur to comply with the rule.  The total cost
per firm depends on both the training cost per person and the number of
employees assumed to be trained.  EPA believes that the costs claimed by
some of the commenters overstate the average cost per person; that issue
is addressed elsewhere in this response to comments document.  Many of
the commenters calculated training costs assuming that all of their
workers will be trained as certified renovators; that issue is addressed
below.  Note that some of the comments appear to reflect a
misunderstanding of the requirements and purpose of formal 8 hour
certified renovator training in relation to on-the-job training; that
issue is also addressed elsewhere in this response to comments document.
 

Under the rule, a certified renovator is responsible for performing and
directing lead-safe work practices; providing on-the-job training to
non-certified workers; keeping a copy of the initial and/or refresher
training certificates onsite; using EPA-recognized test kits to identify
lead-based paint (if the remodeler does not assume that lead-based paint
is present without testing); being physically present while posting
signs, containing work areas, and cleaning work areas; being available
by telephone when off-site; maintaining the containment to keep dust and
debris within the work area; implementing the cleaning verification
procedure; and preparing and maintaining required records.

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

The rule overview accompanying the template for commenting on the
proposed rule that was circulated to some remodelers advises that all
workers should become certified renovators, and many of the commenters
did calculate total training costs by assuming that all of their
employees receive formal 8 hour certified renovator training.  This is
not required by the rule.  The rule requires that every project must
have a certified renovator, and that certain activities must be
performed by the certified renovator, but it does not require all
employees to become trained as certified renovators.  Assuming that all
workers must become certified renovators overstates the cost of the
rule.  EPA does not know whether these commenters have misunderstood the
requirements of the rule regarding certified renovator training, or
whether they are voluntarily choosing to have all of their employees
trained.  But EPA does not think that it is appropriate for its economic
analysis to assume that all employees of a firm receive certified
renovator training.  Furthermore, some of the commenters have many more
employees than the average firm affected by the rule, so it is not
surprising that such firms might have higher total costs than a typical
firm in the industry.    

The number of employees assumed to receive certified renovator training
differs from commenter to commenter.  For example, Bell’s Remodeling
stated that this training would cost an average of $150 to $300 per
employee, for a total cost of $900.  This means the commenter assumed
that at least three people will receive certified renovator training. 
According to an article in Remodeling Magazine, Bells’ Remodeling has
two employees:  

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

The rule only requires a certified renovator to be on site to perform
certain activities.  Some firms may choose to have more than one staff
member trained in order to increase scheduling flexibility and reduce
travel costs.  (Indeed, EPA’s economic analysis assumes that some
larger firms have multiple employees trained as certified renovators.) 
However, EPA would not assume that a typical firm the size of Bell’s
Remodeling would have all 3 people trained as certified renovators.  And
given that the Remodeling Magazine article says that Bell’s Remodeling
only does one job at a time and the firm is oat the site every day until
the job is done, it is unclear whether this firm would benefit from
having the owner and both staff members all trained as certified
renovators.  It may be that Bell’s Remodeling was confused about the
requirements of the rule when it submitted its comments.  In any event,
the rule does not require that all employees become certified
renovators, so EPA does not believe it is appropriate to estimate costs
on this basis.  

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

Similarly, the $9,000 employee training cost claimed by J.J. Swartz Co.
of Bloomington-Normal was based on 15 employees receiving the formal 8
hour certified renovator training.  According to a magazine profile from
2002, J.J. Swartz Co. in Bloomington had 12 employees, including two
salespeople.  While the firm may have hired additional staff since then,
it appears that the $9,000 cost claimed for employee training is based
on the cost of having all field employees receive 8 hour certified
renovator training.  

Likewise, Southwestern Remodeling derived its $20,400 cost claim on the
revenue it says would be lost in order for all of the 34 field
carpenters it employs to receive a day of training.  And Thompson
Building and Menold Construction both claimed a total cost of $19,950
for employee training, based on a cost of $525 per employee (including
wages), which means each company assumed it would train 38 employees. 
The web site for Thompson Building states that it has a field crew of
over 30 skilled carpenters and an office support staff of nearly 20.  An
article in Remodeling magazine states that Menold Construction has 45
employees (some of whom are presumably office support staff).  Both
companies appear to have derived their cost claims assuming that all of
their field staff will receive certified renovator training.  Not only
is this not required by the rule, it seems unlikely that it would be
beneficial to the firms in terms of increased staffing flexibility.  

Thompson Building and Menold Construction both claimed that on-the-job
training would require 16 labor hours per job.  On-the-job training is
only required for workers who are not certified renovators.  Certified
renovator training takes 8 hours and is valid for 5 years.  A firm would
have to spend less money for on-the-job training than for certified
renovator training or it would be less expensive to have all staff
trained as certified renovators.  Accepting that on-the-job training
takes some fraction of the 8 hours for certified renovator training, the
16 hours per job of on-the-job training claimed by the commenters
obviously represents the time to train a crew of workers on a job site. 
But if there is a crew of workers at every job site, and the rule only
requires one certified renovator for a job, it is unclear why the firm
would think it benefits from having every crew member trained as a
certified renovator.  It is more sensible to assume that the firm would
choose to train certain staff (such as owners, managers, supervisors, or
foremen) trained as certified renovators, and that the rest of the
workers would receive on-the-job training. 

The rule does not require all staff to become certified renovators, and
EPA believes that many firms will avail themselves of the option to use
on-the-job training in lieu of formal certified renovator training.  EPA
convened a Small Business Advocacy Review (SBAR) panel (the R&R Panel)
in connection with the proposal to regulate renovation and remodeling
activities.  As a part of the panel process, EPA collected advice and
recommendations from several Small Entity Representatives (SERs). 
Several of the SERs supported training for supervisors only, in order to
limit the cost of the training requirements.  One SER stated that since
risk management decisions are usually centralized, only the supervisor
needs to be trained and certified, and that training several workers in
addition to the owner or manager would be cost-prohibitive for small
painting firms.  Another SER stated that supervisors are responsible for
directing workers and, because they are present throughout the project
anyway, there would be no additional cost in requiring a trained
supervisor to be present on the job site.  And another SER thought that
a trained supervisor can instruct his or her employees on lead-safe
practices.   EPA relied upon the R&R Panel to inform its decisions on
the 2008 RRP rule, and thus the rule does not require all workers to
receive 8 hour certified renovator training.  EPA believes that many
firms will take advantage of this provision of the rule, and will
provide OJT for workers (while supervisors will receive formal 8 hour
training to become a certified renovator).  

While some commenters on this proposed rule based their cost claims on
the assumption that all of their employees will be trained as certified
renovators, others clearly intend to have only a fraction of their
employees trained as certified renovators.  For example, Sutton Siding
and Remodeling’s comments claim that total employee training costs
will be $2,625.  The comments do not indicate how many employees they
assumed would be trained or the cost per person they assumed.  But
assuming they used a cost of $525 per employee (which is a cost per
employee that several other commenters claimed, and is close to EPA’s
estimate of $562 per employee) and back-calculating means that they
would have assumed that 5 employees will be trained as certified
renovators.  According to a profile in Professional Remodeler magazine,
Sutton Siding and Remodeling has 70 employees.  This yields a much
higher ration of workers with OJT to certified renovators than EPA’s
estimate that the maximum ratio is 3 workers with OJT to 1 certified
renovator per firm.

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

EPA agrees with the commenters who stated that there are additional
costs due to staff turnover.  Due to staff turnover, firms can incur
costs for certified renovator training more often than every 5 years
(the period the certification is valid for).  EPA accounted for turnover
in making its cost estimates.  Using data from the lead abatement
program, EPA estimated that after the first year, 17 percent of the
renovators trained each year will be seeking their initial
certification. This is equivalent to a staff turnover of 17 percent a
year.  (Similarly, EPA estimated that 18 percent of firms will be
seeking their initial certification.)  EPA continues to believe that
these are valid estimates. 

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

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

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

EPA believes that many of the commenters misunderstand the rule’s
on-the-job training requirements.  For example, as described elsewhere
in this response to comments document, the rule overview accompanying
the template for commenting on the proposed rule that was circulated to
some remodelers advises that all workers should become certified
renovators, and that firms should educate and train workers and then
repeat in order to prepare workers for the renovation.  Commenters seem
to have interpreted this to mean that they must have all of their field
staff trained as certified renovators, that they must provide extensive
OJT (covering the full scope of lead-safe work practices), and that they
must repeat this extensive OJT for every job.  This is an inaccurate
description of the rule’s requirements for on-the-job training.  

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

As described below, EPA disagrees with the claims made by the commenters
about the time required to provide OJT.  But if the commenters believe
that OJT takes this much time, it would be cost-effective for them to
have all their workers trained as certified renovators instead of
providing them with OJT, especially given that certified renovator
training is valid for 5 years.  For example, Bells’ Remodeling has 2
employees in addition to the owner, and claims that OJT will require 12
hours per job.  The comments from Bell’s Remodeling appear to assume
that all employees are formally trained at a total cost to the firm of
$900.  But the comments also assumed that on-the-job training will cost
$600 per job.  Not only does EPA disagrees that OJT will be this
expensive or need to be repeated at every job, but the commenter is
double-counting training costs.  If a firm voluntarily chooses to have
all of the workers become certified renovators, they would not need to
receive OJT.  And if the workers receive OJT they do not all need to
become certified renovators (since the firm only needs a certified
renovator to perform certain activities, as described at 40 CFR
745.90(b)).  

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

As another example, Menold Construction and Thompson Building both
appear to assume that each of their field staff will receive 8 hour
certified renovator training.  But they also assume 16 hours per job of
OJT.  Again, while the rule does not require firms to train all their
staff as certified renovators, if firms do so, the field staff will not
need any OJT.  And while EPA does not believe that OJT will take 16
hours a job, if the firms thought that it did, it would make sense to
provide certified renovator training for all employees rather than OJT. 
Yet these firms appear to have based their cost claims on the assumption
that all field staff become certified renovators and receive OJT at
every job. 

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


When a certified renovator is providing OJT to a worker, the rule only
requires the renovator to discuss elements directly related to the work
preformed by that worker.  For example, if the worker will not be
establishing containment, there is no need to train the worker in how to
establish containment, although the certified renovator will need to
provide instruction on maintaining the integrity of the containment.  If
the worker in question is installing a window as part of a larger job,
then there may be no need to provide any training to this worker other
than making sure he knows not to disturb the plastic on the floor and
that he, his tools, and other equipment must be free of dust and debris
before they leave the work area.  

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

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

	As another example of a comment that overstates the time needed to
comply with the rule, AWS Remodeling and Design made its cost claims
based on a job profile of a one man, one week job, and it claimed that
40 hours of labor per job would be required for OJT.  Given the job
profile, this is 40 hours of OJT per person per job.  For the reasons
described above, EPA disagrees that OJT will require 40 hours per worker
per job.  But if the commenter believes OJT will take 40 hours a job,
they should have concluded that it would be less expensive to have
workers receive 8 hour certified renovator training rather then
receiving OJT.  Since certified renovator training is valid for 5 years,
if a worker performed one covered job per year, over 5 years time the
commenter’s OJT claim would be equivalent to a total of 200 hours,
compared to 8 hours for certified renovator training.  If the worker
performed 10 covered jobs per year, the comparison would be a total of
2,000 hours claimed for OJT over 5 years versus 8 hours for certified
renovator training.  If the worker performed 20 covered renovations per
year, the comparison would be a total of 4,000 hours for the claimed
OJT, compared to 8 hours for certified renovator training.  And worker
turnover does not seem to be an issue for this commenter, since its web
site states that its newest employee has been with the company for 10
years, and that some employees have been with the company for 20 years. 
EPA believes this commenter has clearly overstated the cost of OJT.

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

Comment:  Commenters made various claims about the cost of firm
certification.  Most commenters stated that there will be an initial
compliance cost of $300 for firm certification.  One commenter (Kessler
Construction) claimed a cost of $360, with the additional $60
representing wages to research requirements, prepare and mail
application, make copies, etc.  Several commenters (Menold Construction,
Thompson Building, and RebuildEx) claimed an initial compliance cost of
$500 for firm certification and Clifton View Homes claimed a cost of
$600, but these commenters provided no explanation of how they derived
these figures.  One commenter (Cornerstone Home Improvements) claimed a
cost of $1,050 for firm certification and head installer certification.

Response:  EPA agrees that the fee for certifying a non-tribal
renovation firm for 5 years is $300.  (The cost for certifying a tribal
firm is $20.)  EPA believes its cost estimates are in line with those of
the commenter (Kessler Construction) who claimed an additional cost of
$60 associated with firm certification.  EPA agrees that there would be
additional costs associated with firm certification beyond the $300 fee.
 EPA estimated that a typical firm would spend 3 hours becoming familiar
with the LRRP rule’s requirements and half an hour filling out and
mailing the one-page application for certification, and would also incur
minor costs to make a photocopy and for an envelope and postage.  EPA
estimated that these activities would cost a typical firm a total of
$111.30 in 2005 dollars.  Combined with the $300 certification fee, this
would bring the total to $411.30.  (The cost would be slightly higher in
2010 dollars due to inflation).  Menold Construction, Thompson Building,
and RebuildEx provided no explanation of how they derived the $500 cost
they claimed, so EPA is not able to respond in detail to these claims. 
However, the $500 cost claimed by these commenters is relatively close
to EPA’s estimate, especially after the $411 estimate is updated to
2010 dollars.  Because the cost claim from Cornerstone Home Improvements
appears to believe there is an additional cost for the head installer to
become a certified renovator (aside from the costs associated with the 8
hour training course), it is not possible to determine from the comment
how much the commenter believes that firm certification costs.

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

Response:  EPA’s economic analysis does not include insurance as a
compliance cost.  Insurance is a method to transfer risk from the
insured to the insurer, who is in a position to spread this risk over a
large pool of insured parties. Insurance provides a method to restore
the insured back to approximately the same position after a loss. The
rule does not require firms to purchase additional insurance.  The firms
can decide for themselves whether insurance premiums are higher or lower
than their expected losses based on the probability and magnitude of
adverse judgment. Based on this assessment, they may decide to remain
self-insured (i.e., assume all risk of loss themselves) or to purchase
insurance.

EPA’s economic analysis estimates the incremental social cost of
complying with the rule, and the rule does not require firms to buy
insurance.  Furthermore, EPA does not believe that insurance should be
counted as a social cost of the rule.  Insurance premiums are largely a
transfer of money between different parties and not a social cost. 
Insurance shifts the distribution of resources needed to pay for the
damages caused by exposure to lead dust.  It spreads a smaller share of
the expense over a larger pool of people.  Renovators disturbed
lead-based paint without the RRP rule in place and thus already had a
potential liability.  By contrast, renovators who adhere to the work
practices required by the rule will decrease the lead exposures created
by their work, creating real social benefits.  To the extent that this
regulation establishes a “standard of care” for the 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, EPA believes that this
regulation may lessen the potential liability of renovation contractors.
  

This conclusion is bolstered by a comment by the North Carolina
Department of Health and Human Services that “Some [affected entities]
have indicated they also see following established work practices as
supportive to their potential liability concerns of doing ‘lead
work’ and that they may possibly turn down work if the owner insisted
on the opt-out.”

Regarding the claim that insurance will be difficult or impossible to
purchase, the comment from Wadlington Remodeling cites GAO report
RCED-94-231.  This was a 1994 report by GAO titled “Lead-Based Paint
Hazards: Abatement Standards Are Needed to Ensure Availability of
Insurance.”   The report addresses lead abatement not renovation,
repair, and painting, and it primarily addresses public housing and
owners of rental properties.  The report was written in 1994, before EPA
had published hazard standards for lead or abatement regulations, and it
concludes that the lack of abatement standards was one of the primary
reasons that limited the availability of insurance.  But the report does
also mention that abatement contractors had difficulty obtaining
insurance, and again indicates that this was due to the lack of
abatement standards.  The GAO report states that “Without such
standards, the property owners who hire the contractors have no
assurance that hazards in their units are properly abated.”  The
report goes on to state that:

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

During the 1980s, insurance for asbestos contractors was generally
unavailable, but it became more obtainable after federal abatement
standards were developed.  The regulations issued under the Asbestos
Hazard Emergency Response Act of 1986 established requirements for
training and accrediting contractors and for the monitoring methods they
used.  These regulations increased the availability of asbestos
liability insurance for abatement contractors.  We believe that the
recent increase in the availability of insurance for asbestos removal
contractors may be a harbinger of similar developments in the lead
removal business if similar standards are developed.

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

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

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

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

EPA believes that the commenters misunderstand the requirements for HEPA
shrouded tools.  For example, EPA believes it is more likely that Robert
Hanbury has misunderstood the requirements of the rule than that he
plans on using a reciprocating saw and a circular saw (i.e., a Sawzall
and a Skil saw) to remove paint in a manner covered by 40 CFR
745.85(a)(3)(ii).  EPA believes that other commenters have also based
their cost estimates on the assumption that all power tools are required
to have a HEPA shroud, rather than just the equipment covered by 40 CFR
745.85(a)(3)(ii). Assuming that all tools must have HEPA filters
overstates the cost of the rule.

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

The rule requires a HEPA vacuum to be used for the additional cleaning
for interior renovations described at 40 CFR 745.85(a)(5)(ii).  Based on
an online search in 2005, EPA estimated that the average cost of a HEPA
vacuum was $626 and the average cost of a power sander that is
compatible with a HEPA vacuum was $209.  (EPA’s cost estimates would
be slightly higher in 2010 to reflect inflation.)  EPA’s estimates of
the cost of a HEPA vacuum and a HEPA shrouded sander are similar to the
costs claimed by Robert Hanbury for this equipment, particularly if
EPA’s estimates are adjusted for inflation.  EPA’s cost estimates do
not include estimates for shrouded tools such as Sawzalls and Skil saws,
because EPA does not believe that renovators will typically use such
tools in a manner covered by 40 CFR 745.85(a)(3)(ii), and the Agency’s
estimates are limited to the costs to comply with the rule’s
requirements.  

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

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

Because most of the comments do not provide details on how the cost
claims were derived, EPA cannot respond to the individual claims.  For
example, Bell’s Remodeling claimed a cost of $2,500 for specialized
tools, but does not spell out which tools or how many tools it thinks it
would need to purchase, or the assumed cost per tool.  Because Bell’s
Remodeling does one job at a time (and has two employees in addition to
the owner), it does not seem likely that it would need multiple pieces
of equipment, such as multiple HEPA vacuums and multiple shrouded
sanders.  EPA believes that Bell’s Remodeling (and other commenters)
may have overstated the equipment costs needed to comply with the rule
in the same way that Robert Hanbury did (by including the costs for HEPA
compatible equipment that is not required by the rule).  And given the
large number of firms in the industry with few or no employees, EPA does
not believe that the typical firm will need to purchase multiple pieces
of equipment to comply with the rule.

EPA believes that its assumptions about the cost for a HEPA vacuum and
HEPA shrouded equipment to comply with the rule are reasonable, and that
many of the commenters have overstated the cost of the rule by making
incorrect assumptions about the equipment required to comply with the
rule.

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

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

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

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

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

The $3,000 in revenues for a 40 hour work week mentioned by the
commenter (equivalent to $75/hour) represents more than the loaded
hourly cost of the labor.  In addition to the lost value of employees’
time, a firm must use the revenues a worker brings in to pay for a
variety of other expenses such as materials, supplies, and equipment,
which are significant in this industry.  While workers are not
generating revenue while they are in training, the firm is not incurring
job-related costs for materials, supplies, and equipment either.  The
social cost of the rule is better represented by the loaded wage rates
in the industry (as represented by the BLS data) than by the firms’
hourly revenue.

The difference between the hourly labor costs claimed by the commenters,
the labor costs they incur, and the wages paid to their workers can be
demonstrated using Sutton Siding and Remodeling as an example.  The
comments on the proposed rule by Sutton Siding and Remodeling used a
labor cost of $45 per hour, which significantly exceeds the average BLS
value for loaded wage rates.  Yet a profile in Professional Remodeler
magazine described Sutton’s labor costs as follows:

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

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

Although the article notes that Sutton has a relatively high labor
burden compared to the one- or two-person operation or specialty
contractor that is typical of the industry, the $26.50/hour mentioned in
the article is in line with the BLS data on loaded wage rates. 

EPA does not believe that it is appropriate to consider the labor costs
claimed by the commenters as an opportunity cost of the rule.  Given
that the labor costs claimed by some of the commenters are as much as
double or triple the loaded wage rates according to BLS, this would
suggest a very high profit rate for these industries.  There is no
indication that such high profit rates exist in this industry.  Given
the low barriers to entry in this industry, such rates would lure
additional firms to enter the industry until profit rates were driven
down to levels comparable with other industries opportunities. 
Moreover, given that EPA continues to believe that the incremental time
requirements to comply with the rule will be relatively small for the
typical firm in the industry, the Agency does not believe that following
the rule’s requirements will significantly change the number of jobs
that a typical firm will perform.  

Calculating costs based on hourly revenues (as the commenters have done)
overstates the social cost of the rule.  Both EPA’s cost estimates and
the cost claims made by the commenters account for labor costs
separately from costs for materials, equipment, supplies, and fees.  EPA
continues to believe that it is appropriate for the Agency to calculate
the incremental social costs of the rule using BLS data on loaded wage
rates.  Therefore, the Agency has not revised its cost estimates based
on the commenters’ claims about their labor costs.

Comment:  The commenters’ cost estimates for plastic sheeting range
from $10 per job (Home Check Plus) to $400 per job (NCP Design/Build). 
For example, Roskelly Group and Jeff Howard both claimed a cost of $20,
Ramtra Management Services  and OneCall Services claimed a cost of $25,
J.J. Schwartz claimed a cost of $45, Bell’s Remodeling and Legal Eagle
Contractors both claimed a cost of $100, Brown Construction and JB
Construction Services both claimed a cost of $200, and Sutton Siding and
Remodeling claimed a cost of $175.  

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

The incremental cost of the plastic sheeting required to comply with the
rule’s requirements depend on several factors:  (1) the cost of the
plastic per square foot; (2) the number of square feet of plastic used;
(3) how the plastic is used; and (4) the renovator’s baseline
containment practices (i.e., the containment practices used without the
rule in place).  These factors are addressed below.  

(1) The cost of the plastic per square foot.  None of the commenters
provided any information on the cost they were assuming per square foot
of plastic.  EPA’s Economic Analysis for the 2008 rule used a price of
$0.06 per square foot for 6 millimeter polyethylene sheeting, based on a
2005 web search.  To determine whether prices have increased since then,
EPA checked prices again online in 2010.  EPA found that one national
home improvement chain sold a 2,000 square foot package of 6 mil.
plastic for $94, equivalent to $0.047 per square foot, and another
national home improvement chain sold the same size package for $79,
equivalent to $0.0395 per square foot.  These are 22% to 34% less than
EPA’s 2005 estimate of the cost per square foot, which indicates that
the price of plastic sheeting has not increased since EPA made its
original costs estimates.  Therefore, EPA does not believe that it
underestimated the cost per square foot of plastic.

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

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

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

(4) How often the renovator follows the rule’s requirements for
containment in the baseline.  EPA’s economic analysis calculated the
incremental increase in the social cost due to the rule’s
requirements.  This represents the additional cost of the job due to the
rule, above and beyond anything that renovators were already doing
before the rule took effect.  EPA estimated the extent to which
different work practices required under the rule were used in the
baseline (without the rule in place) based on a telephone survey of
contractors.  For example, EPA estimated that without the rule,
contractors kept all windows and doors in the work area closed or
covered with plastic sheeting in 76% of jobs; covered the floor within
the work area with taped down plastic sheeting in 77% of jobs; and
disposed of the plastic after each job (instead of reusing it multiple
times) in 37% of jobs. 

Due to the baseline work practices, the rule’s incremental cost for
containment is only a fraction of the total material and labor cost for
using plastic sheeting.  For example, the rule generates incremental
costs for both labor and materials for using plastic sheeting on floors
for only the 23% of jobs (100% - 77%) where renovators were not using
any plastic before the rule.  The rule generates incremental materials
costs for using plastic sheeting on floors in the 49% of jobs (77% x
63%) where renovators were using plastic before the rule but were not
reusing it.  And the rule does not create costs for using plastic on
floors for the 28% of jobs (77% x (100%-63%)) where renovators were
already using disposable plastic before the rule.  

	There are also indications that the increase in labor required to use
lead-safe work practices is largely offset by resulting reductions in
the time required for cleaning up after the job.  One commenter on the
2006 proposed rule for the RRP program (WDC-0017) disagreed with claims
that the rule would increase the cost of a job by 20 or 30 percent.  The
commenter stated that he had performed  “hundreds and hundreds of jobs
and what I'm doing is exactly what I did before using different tools
and creating a situation where I have much less clean-up at the end
because I'm cleaning up as I go and I'm masking areas that will absorb
dust, so my clean-up costs go down, my safety goes up, and I wind up
costing approximately the same thing but maybe four or five percent
more, maybe four or five percent less, but I guarantee there's no 20 or
30 percent unless you compare maintenance with abatement and we're not
doing that.”

Commenters on both the 2006 proposed rule for the RRP program and this
proposed rule have claimed that professional remodelers improve the
condition of homes and leave job sites cleaner than before the work
started.   EPA believes that renovators must spend significant amounts
on time on containment and cleaning in the baseline, and that relatively
little additional time is typically required to follow the rule’s work
practices.  Yet none of the commenters mention their baseline
containment or cleaning practices, or make any comparison between the
rule’s requirements and their baseline practices.  Therefore, some of
the cost claims made by the commenters (including the containment costs)
may represent the total costs of the rule’s work practices, and not
the additional costs above what renovators were already doing.   To the
extent that the cost claims made by the commenters ignored baseline work
practices, they overstated the incremental cost of complying with the
rule’s requirements.

As described above, various commenters may have:  assumed the use of a
double layer of plastic and daily replacement of the top layer, which is
not required by the rule; assumed a large job size not representative of
the typical job size regulated by the rule; and may not be accounting
for the use of baseline work practices.  EPA believes that the
commenters’ claims overstate the additional costs that renovators will
incur in order to follow the rule’s work practices.  EPA further
believes that its estimates represent reasonable values for the
incremental cost of plastic for typical jobs regulated under the rule. 

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

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

EPA’s cost model is a simplified representation of the universe of
remodeling jobs.  The model cannot capture all of the variations in the
millions of renovation, repair, and painting jobs that are conducted
each year, which range from simple drywall repair to window replacement
to complete kitchen and bath renovations to building additions and
everything in between.  EPA’s methodology was not meant to estimate
the cost for a particular individual job or a particular renovator, so
it is not appropriate to overemphasize the model’s prediction for any
individual job.  Still, the labor hours predicted by EPA’s model can
be compared to the claims made by a sample of the commenters using the
industry template for their comments, in order to contrast the rough
magnitude of the results.  

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

As can be seen from this table, EPA’s unadjusted estimates of the time
required for cleaning, containment, and cleaning verification are
comparable to those provided by many of these commenters.  In a number
of cases, the labor hours claimed by the commenter falls within the
range estimated by EPA for this size of job.  The remaining comments are
split between cases where EPA’s estimates exceed the labor hours
claimed by commenter, and cases where the labor hours claimed by these
commenter exceed EPA’s estimate.  With the exception of two outliers,
the differences between EPA’s estimate and the commenter’s claim are
not substantial.  The two outliers are in the comments from Rollins
Contracting, and from Alan Hanbury of the House of Hanbury.

Rollins Contracting claimed that containment would require 45 hours per
job, cleaning would require 45 hours per job, and cleaning verification
would require 2 hours per job, for a total of 92 hours, compared to
EPA’s estimate of 23.3 to 29.5 hours for a job of this inferred size
(1,583 to 2,021 square feet).  While this inferred job size is fairly
large, the labor hours Rollins Contracting claims are much larger than
the claims made by the other commenters in the table with similar
inferred job sizes, such as Bell’s Remodeling, Living Improvements,
and DreamMaker Bath and Kitchen, and Sutton Siding and Remodeling (which
vary from 10 to 31 hours).  Given that the claims by Rollins Contracting
significantly exceed not only EPA’s estimate but the claims made by
these other apparently similar commenters, EPA does not find the
commenter’s claim to be a credible estimate of the total time needed
to comply with the rule’s work practices for a typical job.

The other outlier is in the comments from Alan Hanbury, who claims that
the time required for cleaning will vary from 3.5 to 200 hours per job,
resulting in a claim of 6 to 202.5 hours for containment, cleaning, and
cleaning verification.  By comparison, EPA’s estimate is that the
rule’s containment, cleaning, and cleaning verification work practices
will take 6.3 to 8 hours for a job of this inferred size (417 to 532
square feet).  EPA believes that the high end of the commenter’s range
(which is two order of magnitude greater than the low end) represents an
unlikely scenario.  The top end of the range is much higher than the
claims made by the other commenters in the table with similar inferred
job sizes, such as J.J. Swartz, Menold Construction, Thompson Building,
RebuildEx, and Earl Williams (which vary from 8 to 14 hours).  Given
that the top end of the range claimed by Alan Hanbury significantly
exceed not only EPA’s estimate but the claims made by other apparently
similar commenters, EPA does not find the commenter’s claim to be a
credible estimate of the time needed for a typical job to comply with
the rule’s work practice requirements.

There are several issues to consider when comparing the figures in the
table (both the commenters’ claims and EPA’s inferred values) to
EPA’s estimates of the costs of the rule in its Economic Analysis
document:  



Labor Hours Commenters Claimed and EPA’s Estimate, based on inferred
job size

Commenter	Square footage inferred from commenter’s plastic costs 1
Labor hours per job commenters claimed for containment, cleaning, and
cleaning verification	EPA’s estimate of labor hours (based on inferred
square footage) prior to adjustment for baseline practices

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

J.J. Swartz Co.	750 to 957	8 hours	11.3 to 14.3 hours

Living Improvements	1,250 to 1,596	18 hours	18.5 to 23.5 hours

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

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

Menold Construction	633 to 809	14 hours	9.5 to 12.1 hours

Thompson Building	633 to 809	14 hours	9.5 to 12.1 hours

RebuildEx	633 to 809	14 hours	9.5 to 12.1 hours

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

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

Earl Williams	333 to 426	9 hours	5 to 6.4 hours

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

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

Home Check Plus	167 to 213	8 hours	2.5 to 3.3 hours

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



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

(2) Some of the commenters’ cost claims may represent the total time
they think will be spent on the various activities, and not the
incremental labor requirements due to the rule.  Based on its survey of
renovators and various comments from industry, EPA believes that most
renovators were doing some containment and cleaning in the baseline. 
For example, most renovators report that they did some cleaning in the
baseline, such as using a vacuum without a HEPA filter.  The rule
requires the use of a HEPA vacuum, but EPA does not believe that using a
vacuum with a HEPA filter to clean the work area takes significantly
longer than using a vacuum without a HEPA filter.  Yet many commenters
claimed cleaning times of 8 hours or more per job.  Some of the
commenters’ claims may address the total time they believe will be
associated with rule cleaning, and not the additional time to follow the
rule’s work practices, such as substituting a HEPA vacuum for a
regular shop vacuum.  Similarly, EPA’s survey indicated that most
renovators use containment in the baseline.  Even setting aside the
outlier who claimed that containment required 45 hours of time,
commenters claimed that containment requires up to 12 hours.  The labor
hours claimed by some of the commenters may represent the total time
associated with using the rule’s containment work practices, and not
the additional time required under the rule (such as taping or sealing
all edges or seams of the containment plastic).  Adjusting for baseline
practices means that, overall, the incremental cost of the rule’s
containment and cleaning work practice requirements is only a fraction
of the total cost of these activities.

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

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

(5) The comments do not appear to reflect any of the methods that can be
used to reduce the time and cost need to comply with the rule’s work
practices.  For example, pre-engineered containment systems (purchased
or home-made) are very helpful in cutting time spent on the job erecting
containment and are easier to install than hanging plastic with tape. 
One company making such a pre-engineered containment system claims that
a three-sided plastic dust barrier can be installed by one person in
less than five minutes.  While there is an equipment cost for such
products, the labor savings could make this a worthwhile investment for
some renovators.  But the commenters do not appear to have sought any
ways to minimize the time and cost of following the rule’s work
practices.

(6) The commenters may not be appropriately accounting for the different
work practice requirements in the rule for interior and exterior jobs. 
Some of the commenters make separate claims of the total cost of labor
and materials per job for interior and exterior jobs.  For example
Bells’ Remodeling states that the total cost of compliance per job for
labor and materials will be $1485 to $1885 per job for interior work,
and $1950 to $3000 for exterior work, depending on the size of the job. 
Thus, it is claiming that the typical exterior job will cost $465 to
$1,115 per job more than the typical interior job.  Bell’s Remodeling
claimed that the total labor costs per job will be $1200 to $1600, and
the total materials costs per job will be $285, which adds up to the
$1,485 to $1,885 claimed for interior jobs.  But it does not provide any
explanation for why the typical exterior job would cost more than this. 


Other commenters provided a total cost claim in their comments that did
not differentiate between interior and exterior jobs, despite the fact
that they appear to perform both types of work.  For example, the web
sites for Sutton Siding & Remodeling and Kessler Construction indicates
that they perform both interior and exterior renovations, but the cost
claims in their comments do not differentiate between the two types of
jobs, even though the rule’s work practices do differ. 

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

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

The commenters using the industry template make cost claims for HEPA
vacuums and cleaning verification that apply to interior jobs but not
exterior ones.  And they have not provided any indication of what other
factors would increase costs for exterior renovations over interior
ones.  It is possible that these commenters have included costs for HEPA
vacuuming and cleaning verification in their exterior cost estimates,
where such practices are not required.  This issue affects the
commenters’ claims about material and equipment costs (HEPA filters,
cleaning verification pads, etc), as well as labor costs.

It is difficult to determine how these commenters generated their claims
of the total compliance cost per job from the labor and materials costs
per job they claim, particularly since some of the claims do not add up.
 For example, J.J. Swartz Co. claims that the total labor costs per job
will be $430, and the total materials costs per job will be $345, which
add to $775.  But it also stated that the total cost of compliance for
labor and materials will be $1,205 per job, which is $430 more than
$775.  Living Improvements claimed that the total labor costs per job
will be $1220, and the total materials costs per job will be $475, which
add to $1,695.  But it also stated that the total cost of compliance for
labor and materials will be $2288.25 pre job, which is $593.25 more than
$1,695.  And Sutton Siding and Remodeling claimed that the total labor
costs per job will be $1,755, and the total materials costs per job will
be $950, which add to $2,705.  But it also stated that the total cost of
compliance for labor and materials will be $2,605 per job, which is $100
less than $2,705.  

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

	For the above reasons, EPA believes that the commenters’ claims
overstate the additional costs that renovators will incur to follow the
rule’s work practices.  EPA believes that its estimates represent
reasonable values for the incremental time and cost required for the
containment, cleaning, and cleaning verification work practices required
by the rule.

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

Response:  Most of the commenters did not provide information on the
size and nature of their jobs, how many filters they assumed would be
used per job (or if less than one per job, how many jobs they assume a
filter would be used for), or what they think the cost per filter would
be, so it is difficult for EPA to evaluate these claims.  EPA estimated
the cost of HEPA vacuum filters assuming that renovators would use
re-useable HEPA filters.  To the extent that renovators use disposable
HEPA filters, their costs would be higher than EPA estimated.  However,
some renovators extend the life of a HEPA filter by using two filters in
tandem, first a non-HEPA filter to catch large particles, and a HEPA
filter to catch the smaller particles that pass through the first
filter.  Because the non-HEPA filters are much less expensive, they can
be changed frequently, while the HEPA filter can be changed less
frequently, thus reducing overall costs for filters.  Also, as described
elsewhere in this response to comments document, some of the commenters
appear to have based on their cost claims on very large jobs, which are
not representative of the size (and thus the cost) of a typical job
covered by the rule.  

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

Response:  Firms do not need to incur all of these expenses in order to
comply with the rule.  The commenters’ cost claims combine items and
activities required by the LRRP rule with those that EPA recommends but
does not require under the rule.  EPA recommends the use of personal
protective equipment when working with lead-based paint.  But EPA’s
LRRP rule does not require the use of such equipment.  EPA’s cost
estimates reflect only those items and activities that are required to
comply with the LRRP rule.  Therefore, EPA’s cost estimates do not
include the cost for personal protective equipment not required by the
LRRP rule, such as disposable coveralls, Tyvek suits, respirators and
masks (including getting workers medically fitted for a respirator or
mask), eye wear, painters’ hats, and gloves. 

EPA’s estimates do include costs for materials required to comply with
the rule, including tape for the plastic sheeting; warning signs to warn
occupants and other persons not involved in the renovation to remain
outside of the work area; a tack pad; disposable shoes covers; plastic
bags for waste disposal; and disposable cleaning cloths for the cleaning
verification process.  The cost per job for these materials will differ
from job to job, depending on factors including the size of the job, the
characteristics of the job, and the type of work being done.  The
evidence that EPA reviewed indicates that the costs for such materials
are modest.  Therefore, EPA disagrees that the $19 to $950 costs claimed
by the commenters for other materials are reasonable estimates of the
cost of compliance with the rule.

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

Response:  The mark-up and any sales tax are not part of EPA’s cost
analysis because EPA estimated the cost of the rule to society, not the
price that contractors charge their customers.  In addition, in the
context of a benefit-cost analysis, taxes represent a transfer and not a
social cost.

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

Response:  The rule does not require firms to use the elaborate
containment referred to by the commenter for all exterior renovations. 
The work practice standards at 40 CFR 745.85(a)(2)(ii) require firms to
use the following containment work practices for exterior renovations: 
(1) close all doors and windows within 20 feet of the renovation; (2)
ensure that doors within the work area that will be used while the job
is being performed are covered in a manner that allows workers to pass
through while confining dust and debris to the work area; (3) cover the
ground with sheeting extending 10 feet beyond the perimeter of surfaces
undergoing renovation or a sufficient distance to collect falling
debris, whichever is greater, unless the property line prevents 10 feet
of such covering; and (4) in certain situations, the renovation firm
must take extra precautions in containing the work area to ensure that
dust and debris from the renovation does not contaminate other buildings
or other areas of the property or migrate to adjacent properties.

The commenter is assuming that firms will need to adopt the extra
precautions mentioned in step 4 for all exterior renovations, and that
is not the case.  In many situations, renovators will only need to
follow steps 1 through 3.  Step 3 involves simple practices such as
stapling or taping the protective sheeting to the wall of the building,
or using a 2x4 wrapped in protective sheeting to hold the material next
to the wall, and using heavy objects (e.g. rocks) to weight the other
edges of the protective sheeting to the ground so that it won’t blow
in the wind.  These practices are simple and inexpensive.

	Even in situations where vertical containment is needed to ensure that
dust and debris from the renovation does not contaminate other buildings
or other areas of the property or migrate to adjacent properties (e.g.,
work areas in close proximity to other buildings, work areas that abut a
property line, and windy conditions), such vertical containment could
take a number of forms.  This could range from attaching plastic
sheeting to a fence or other support at the property line, to attaching
the plastic to a building or a frame attached to the building, to
attaching the plastic to scaffolding erected next to the building. 

In contrast to the commenter (who is assuming that such vertical
containment is used in 100% of exterior renovations), EPA’s economic
analysis assumed that vertical containment is used for 2% of exterior
painting events.  Furthermore, EPA assumed that for those jobs using
vertical containment, 50% of the events in residential units will not
need scaffolding because they will use plastic at the fence line or
attached to the building, and that 50% of those events that do need
scaffolding for vertical containment are already using it for other
reasons, and only incur incremental costs related to plastic sheeting.
This means that only 25% of the residential units that undertake
vertical containment were predicted to incur incremental costs for
scaffolding.  To the extent that vertical containment is needed in a
larger share of jobs than EPA estimated, then the costs of the rule
would be higher than EPA estimated but so would the benefits (because
there would be more incidents in the baseline where lead dust is
migrating to other buildings or adjacent properties).

EPA estimated that the cost of vertical containment using scaffolding
would vary from $760 for one wall in a single-family unit to just under
$6,250 for all four walls in multi-family housing.   (The cost for
child-occupied facilities in public or commercial buildings was
estimated to range from $330 to $1,470 because jobs requiring vertical
containment on these buildings were assumed to use scaffolding in the
baseline, so that there were only incremental costs for the plastic
sheeting.)  Thus, EPA’s cost estimates for jobs involving scaffolding
exceed the commenter’s claim that such practices will cost $250 to
$1,000 per job.  The difference is that EPA’s estimate recognizes that
the fourth step under 40 CFR 745.85(a)(2)(ii) only applies in certain
situations, whereas the commenter is assuming this applies to all
exterior renovations.  Therefore, EPA disagrees with the commenter’s
claim that there will be an additional cost of $250 to $1,000 for a
typical exterior renovation. 

Finally, the commenter’s claim that there is an industry standard
markup of 50% over direct costs is not relevant to EPA’s cost
analysis.  EPA estimated the cost of the rule to society, not the price
that contractors charge their customers.

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

Response:  The commenter does not understand the requirements of the
rule.  First, the rule does not require the use of a covered, locked
dumpster.  The rule requires that at the conclusion of each work day and
at the conclusion of the renovation, waste that has been collected from
renovation activities must be stored under containment, in an enclosure,
or behind a barrier that prevents release of dust and debris out of the
work area and prevents access to dust and debris.  Covering the dumpster
is one way to prevent release of dust and debris.  It is not necessary
to cover the dumpster if the waste inside the dumpster is contained in a
way that prevents release of dust and debris, for example, in closed
trash bags.  Locking the dumpster and placing it behind a locked barrier
are good examples of ways to prevent access to the dust and debris, but
these are not requirements of the rule.  

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

The commenter’s statement that the rule requires renovators to receive
a commitment from waste haulers not to allow any dust or debris to
escape during transportation is incorrect.  The rule states at 40 CFR
745.85(a)(4)(iii) that when the firm transports waste from renovation
activities, the firm must contain the waste to prevent release of dust
and debris.  However, the firm referred to in the rule is the renovation
firm, not a third party firm such as a waste hauler.  For instance, the
rule would prohibit a renovator from placing uncontained dust and debris
in the open bed of his own pick-up truck and transporting it to a
landfill.  However, the renovator can transport the waste to a landfill
himself if it is contained, for example in a garbage bag.  But the rule
already requires the waste to be contained before it is removed from the
work area, and EPA has already accounted for the materials and labor
cost for placing the waste in plastic bags, so EPA sees no need to make
further adjustments in its cost estimates.  And while the requirements
at 40 CFR 745.85(a)(4)(iii) do not apply to third party waste hauling
firms, placing the dust and debris into plastic bags before putting it
into a dumpster or truck owned by a third party waste hauler can also
contain the waste during transportation.

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

Comment:  A commenter (Robert Hanbury) states that the cost of testing
for lead-based paint will vary depending on how many surfaces/rooms are
“disturbed” and must be tested.  The commenter assumes that 10 tests
will be needed per job.  According to the commenter, each lead check
stick costs $9.75 and can be used for two tests, resulting in a cost of
$48.75 per project.  The commenter estimates that the labor to test each
surface, record the results carefully, and note the manufacturer and
expiration date for these 10 tests will take a total of 20 minutes, and
at a labor rate of $75/hour, the labor cost for lead paint testing will
be $25 per project.

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

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

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

Comment:  A commenter (Robert Hanbury) claims that cleaning verification
will cost $25 per project to obtain, utilize, label, and store the
materials, calculated as 20 minutes per job at $75 per hour (and
assuming 17 pads will be used for a small room, using one pad for 40
square feet).  The commenter also claims that recordkeeping for cleaning
verification will require 0.33 hours.

Response:  EPA’s 2008 economic analysis assumed that the cleaning
verification step would take 5 minutes of labor for the 40 square foot
area that one cloth can be used on.  Thus, EPA would estimate that a job
requiring 17 cloths would take 85 minutes of labor, which is more than
the commenter has claimed.  EPA has explained elsewhere in this response
to comments document why the labor rate claimed by the commenter
overstates hourly costs.  The rule does not require the renovator to
labor and store the cleaning verification cloths.  EPA disagrees that
recordkeeping for the rule’s cleaning verification requirements will
typically require 0.33 hours per job.  Finally, the recordkeeping costs
for cleaning verification are already accounted for in the checklist
costs, and it would double-count costs to claim them separately as well.

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

Response:  Based on a review of online prices, EPA found that the
hardware for the electrostatic cloth sweeper (which is reusable) costs
$13.60, and that the cleaning cloths cost $0.46 each.  Given that the
commenter is assuming a job sizes that requires 17 cloths, EPA estimates
that the materials cost for this job would be less than $8.  Although
the total cost will increase if the work area needs to be cleaned more
than once because it fails cleaning verification, only the particular
areas that fail cleaning verification need to be re-cleaned.  Thus, the
commenter appears to have overstated the materials cost for cleaning a
typical work area of this size.

Comment:  A commenter (Robert Hanbury) claims that firms will need to
purchase a $175 fire safe for records needed when sued or audited for
the 24 jobs per year that he performs.

Response:  EPA believes that the commenter misunderstands the
recordkeeping requirements of the rule.  For example, as explained
elsewhere in this response to comments, the commenter appears to
incorrectly assume that he must store all of the cleaning verification
cloths.  EPA believes that the recordkeeping requirements for the
commenter’s 24 jobs per year will be modest, and can readily be
maintained along with other records that the firm is already keeping. 
Therefore, EPA has not included the cost of a fire safe in its cost
estimates.

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

Response:  The rule allows firms to create their own form, but EPA has
provided a checklist that they can use.  EPA has not estimated a cost to
develop a form, because if a firm decides to develop their own form it
is a voluntary decision on their part and not a requirement of the rule.
 Therefore, the additional time the commenter refers to is not a cost of
the rule.

Comment:  A commenter (Robert Hanbury) states that the proposed opt-out
rule will result in a cost for the firm’s owner to train the certified
renovator how to complete the post-renovation disclosure form. 
According to the commenter, this training will take one hour of time.

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

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

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

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

Response:  The opt-out rule proposes that the firm provide the
information when the final invoice for the renovation is delivered, or
within 30 days of the completion of the renovation, whichever is
earlier.  EPA believes that the burden for delivering the information to
the client will be minimal, since the renovator will typically be
delivering the checklist along with an invoice or other job-related
paperwork.  EPA estimated that photocopying and distributing one copy of
the checklist will take an average of 3 minutes of the renovator’s
time.

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

Response:  Neither the 2008 final rule or the proposed opt-out rule
require clearance testing.  Therefore, clearance testing is not a cost
of this rulemaking.

 

Comment:   A commenter (Kessler Construction) states that hazardous
waste disposal costs may also be needed on larger sized jobs, which
could cost $200 to $1,000.

Response:  This rule does not require that dust and debris from covered
renovations be treated as hazardous waste.  To the extent that existing
Federal, state and local regulations allowed this waste to be treated as
normal household waste prior to the RRP rule or the opt-out rule, it can
continue to be treated in this manner.  The RRP program does not change
how this waste can be disposed.  Therefore, the rule does not result in
additional costs for waste disposal.

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

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

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

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

Comment:  A commenter (#985) states that “Despite the Executive Order
12866’s requirement to include a benefits analysis, EPA’s original
OMB submission contained no benefits estimates.  The agency frankly
acknowledges that its attempt at estimating benefits was ‘crude’. 
The estimates are, therefore, extremely speculative, at best.”  

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

Comment:  Commenters claim that homeowners will avoid compliance costs
by hiring unlicensed contractors who can offer a lower price by not
complying with the rule.

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

Miscellaneous

Comment:	Two commenters stated that EPA should provide financial support
to renovators and firms seeking certification due to the large size of
the regulated community and the current economic climate.  One commenter
stated that a large portion of the cost for renovators is from lost
income and travel expenses while taking the training.

Response:	EPA appreciates the commenter’s concerns about ensuring that
renovators firms get certified. However, EPA can not provide financial
assistance to firms or individuals.  EPA is required by TSCA to collect
fees to recover the costs of implementing the renovation program. 
Further, EPA does not currently have funding to subsidize renovator
training courses.

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

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

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

Response:	EPA is not reopening the RRP rule beyond the changes proposed.
 Nevertheless, the Agency disagrees with this comment.  EPA does not
believe the rule is overly costly.  EPA estimated that the rule’s work
practice requirements will add $8 to $167 to the cost of a typical
renovation project (with the exception of those using vertical
containment).  Even if renovations of lead-based paint are part of
negotiations of home prices, EPA does not believe that such a modest
cost for these renovations will result in decreased home prices.

  

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

Response:	Again, EPA is not reopening the RRP rule beyond the changes
proposed.  The issue of whether renovation activities create lead-based
paint hazards is therefore not open for consideration in this
rulemaking.  Nevertheless, the agency disagrees with this comment.
EPA’s Dust Study indicated that renovation, repair, and paint
preparation activities produce large quantities of lead dust that create
dust-lead hazards.  

Comment:	One commenter stated that EPA should increase its efforts to
make contractors and property owners aware of the rule.  Another
commenter asserts that EPA’s efforts to raise public awareness have
been inadequate and that the success of the RRP rule depends on consumer
demand for certified renovators.  The commenter claims that EPA’s
partnership with the Ad Council will be limited in its effectiveness
because of the limited broadcast opportunities.  Anther commenter states
that EPA should increase its outreach through multi-media advertising in
order to spur demand for certified renovators.  

Response:	EPA has a wide-ranging educational campaign to ensure that
both the regulated community and the general public know about this
regulatory program.  The Agency has a very accessible Web site at
http://www.epa.gov/lead/pubs/renovation.htm with much information about
lead in general, instructions on how contractors can get certified,
where to find accredited training courses, and other useful information
about the RRP rule.  Furthermore, EPA is conducting extensive outreach
to the renovation community and will continue to do so.  The Agency has
completed mass mailings to over 1,000 trade organizations, trade
magazines, unions, property management associations, and others,
encouraging them to get trained and certified.  EPA has presented and/or
exhibited information on the rule’s requirements at numerous major
trade conferences, reaching tens of thousands of attendees.  EPA is
working closely with major industry stakeholders to help them inform
their members and clients about the RRP rule.  These organizations have
in turn contracted with accredited trainers to present training during
major conferences, allowing for on-the-spot certification of large
numbers of renovators. 

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

Comment:	One commenter believes that the RRP requirements are not needed
when replacing windows.  Another commenter claims that installers of
hearth appliances should be exempted because do not create a reasonable
risk that would justify the RRP work practice requirements.  

Response:	EPA is not reopening the RRP rule beyond the changes proposed.
 Nevertheless, the Agency disagrees with these comments.  EPA has
determined that renovation activities that disturb lead-based paint
create lead-based paint hazards in target housing and child-occupied
facilities.  The Dust Study showed that window replacement resulted in
lead-dust levels above the hazard standard.  While the Dust Study did
not include installing hearth appliances, EPA has determined that
activities that disturb surfaces with lead-based paint—regardless of
the purpose, create lead-based paint hazards.  The commenter did not
supply information showing that this activity does not disturb painted
surfaces or would not result lead-based paint hazards.

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

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

Comment:	One commenter states that EPA should require renovation firms
to provide documentation of training and firm certification to owners
and occupants before renovation begins.  The commenter did not give a
reason why.

Response:	The Agency requires that certified renovators have a copy of
their course completion certificate at the work site.  Thus, occupants
will able to verify that renovators are certified.  Those who hire
renovation firms can always ask to see the firm’s certificate or they
can verify the firm’s certification by looking on EPA’s lead program
home page or by calling the National Lead Information Center.

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

 http://www.ncpalaska.com/

 “Second Look: Evelyn Yowell”, Remodeling magazine, September 2002,
http://www.remodeling.hw.net/remodeling/second-look-evelyn-yowell.aspx

   HYPERLINK "http://www.thompsonbuilding.com"  www.thompsonbuilding.com


 “Stop Wasting Time” by Jim Cory.  Remodeling magazine, December
2003.  http://www.remodeling.hw.net/associations/stop-wasting-time.aspx

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

 Professional Remodeler:  “Blueprint for Success, Chapter 5: Job
Costing”, 6/1/2001, 

http://www.housingzone.com/topics/pr/management/pr01ga019.asp

 EPA does not believe there will be complete employee turnover each year
at a typical firm.  This scenario is presented as an extreme example, to
demonstrate the situation under a worst-case scenario.

 http://www.allweathersystems.com/

 Note that the 8 hour certified renovator training is actually required
for one day out of 5 years, not one day out of one year, and that the
rule does not require all of the firm’s 34 field carpenters to become
trained as certified renovators.

 For example, for residential remodelers (NAICS code 236118), the cost
of materials, components, supplies and fuels is 40% of the net value of
construction work ($12.5 billion out of $30.6 billion).  2002 Economic
Census, Construction, Subject Series EC02-23SG-1, U.S. Census Bureau,
October 2005, http://www.census.gov/prod/ec02/ec0223sg1.pdf

 Professional Remodeler:  “Blueprint for Success, Chapter 5: Job
Costing”, 6/1/2001, 

http://www.housingzone.com/topics/pr/management/pr01ga019.asp

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

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

 Even if remodelers using baseline work practices leave job sites
cleaner than they were before the renovation, that does not mean that
the lead dust levels are below EPA’s hazard standard, or that the
baseline work practices are safe, reliable, and effective, as required
by the Toxic Substances Control Act.  

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

 If these particular contractors never used plastic before the rule,
then they are not representative of baseline work practices, and the
incremental changes to their work practices are not representative of
the industry.  If their estimates are meant to represent the increment
over typical baseline practices, then the effective square footage of
the job sizes they are using for cost purposes is even larger than
calculated above and elsewhere in this response to comments document. 
This would mean that their jobs are that much larger than the typical
renovation job, also yielding a significant overestimate of costs.

 For example, Jud Construction claimed a labor and materials cost of
$296.27 per day per job, yet the activities that went into its cost
claim (such as containment, cleaning, and cleaning verification) are not
required by the rule on a daily basis.  Similarly, Creative Construction
Co. estimated a daily cleanup cost for 5 days, but the rule does not
require daily cleanup.

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