[Federal Register: May 6, 2010 (Volume 75, Number 87)]
[Rules and Regulations]
[Page 24802-24819]
[DOCID:fr06my10-10]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 745

[EPA-HQ-OPPT-2005-0049; FRL-8823-7]
RIN 2070-AJ55

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing several revisions to the Lead Renovation,
Repair, and Painting Program (RRP) rule that published in the Federal
Register on April 22, 2008. The RRP rule established accreditation,
training, certification, and recordkeeping requirements as well as work
practice standards on persons performing renovations for compensation
in most pre-1978 housing and child-occupied facilities. In this
document, EPA is eliminating the ``opt-out'' provision that currently
exempts a renovation firm from the training and work practice
requirements of the rule where the firm obtains a certification from
the owner of a residence he or she occupies that no child under age 6
or pregnant women resides in the home and the home is not a child-
occupied facility. EPA is also requiring renovation firms to provide a
copy of the records demonstrating compliance with the training and work
practice requirements of the RRP rule to the owner and, if different,
the occupant of the building being renovated or the operator of the
child-occupied facility. In addition, the rule makes minor changes to
the certification, accreditation and state authorization requirements.

DATES: This final rule is effective July 6, 2010.

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPPT-2005-0049. All documents in the
docket are listed in the docket index available at http://
www.regulations.gov. Although listed in the index, some information is
not publicly available, e.g., Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket
Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave.,
NW., Washington, DC. The EPA/DC Public Reading Room hours of operation
are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number of the EPA/DC Public Reading Room is
(202) 566-1744, and the telephone number for the OPPT Docket is (202)
566-0280. Docket visitors are required to show photographic
identification, pass through a metal detector, and sign the EPA visitor
log. All visitor bags are processed through an X-ray machine and
subject to search. Visitors will be provided an EPA/DC badge that must
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For technical information contact:
Marc Edmonds, National Program Chemicals Division, Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202) 566-0758; e-mail address<EMAIL_ADDRESS>    For general information contact: The TSCA Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; e-mail address<EMAIL_ADDRESS>    Hearing- or speech-challenged individuals may access the numbers in
this unit through TTY by calling the toll-free Federal Relay Service at
1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you operate a
training program required to be accredited under 40 CFR 745.225, if you
are a firm who must be certified to conduct renovation activities in
accordance with 40 CFR 745.89, or if you are an individual who must be
certified to conduct renovation activities in accordance with 40 CFR
745.90.
    This final rule applies only in States, Territories, and Indian
Tribal areas that do not have authorized programs pursuant to 40 CFR
745.324. For further information regarding the authorization status of
States, Territories, and Indian Tribes, contact the National Lead
Information Center (NLIC) at 1-800-424-LEAD [5323]. Potentially
affected categories and entities may include, but are not limited to:
     Building construction (NAICS code 236), e.g., single-
family housing construction, multi-family housing construction,
residential remodelers.
     Specialty trade contractors (NAICS code 238), e.g.,
plumbing, heating, and air-conditioning contractors, painting and wall
covering contractors, electrical contractors, finish carpentry
contractors, drywall and insulation contractors, siding contractors,
tile and terrazzo contractors, glass and glazing contractors.
     Real estate (NAICS code 531), e.g., lessors of residential
buildings and dwellings, residential property managers.
     Child day care services (NAICS code 624410).
     Elementary and secondary schools (NAICS code 611110),
e.g., elementary schools with kindergarten classrooms.

     Other technical and trade schools (NAICS code 611519),
e.g., training providers.
     Engineering services (NAICS code 541330) and building
inspection services (NAICS code 541350), e.g., dust sampling
technicians.
     Lead abatement professionals (NAICS code 562910), e.g.,
firms and supervisors engaged in lead-based paint activities.
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. To determine
whether you or your business may be affected by this action, you should
carefully examine the applicability provisions in 40 CFR 745.89, 40 CFR
745.225, and 40 CFR 745.226. If you have any questions regarding the
applicability of this action to a particular entity, consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.

II. Background

A. Agency's Authority for Taking This Action

    This final rule is being issued under the authority of the Toxic
Substances Control Act (TSCA) sections 402(c)(3), 404, 406, and 407 (15
U.S.C. 2682(c)(3), 2684, 2686, and 2687).

B. Introduction

    In the Federal Register issue of April 22, 2008, under the
authority of sections 402(c)(3), 404, 406, and 407 of TSCA, EPA issued
its final RRP rule (Ref. 1). The final RRP rule, codified in 40 CFR
part 745, subparts E, L, and Q, addresses lead-based paint hazards
created by renovation, repair, and painting activities that disturb
painted surfaces in target housing and child-occupied facilities.
    Shortly after the RRP rule was published, several petitions were
filed challenging the rule. These petitions were consolidated in the
Circuit Court of Appeals for the District of Columbia Circuit. On
August 24, 2009, EPA signed an agreement with the environmental and
children's health advocacy groups in settlement of their petitions. In
this agreement EPA committed to propose several changes to the RRP
rule, including the changes discussed in this document regarding the
opt-out provision and recordkeeping requirements.
    The RRP rule establishes requirements for training renovators,
other renovation workers, and dust sampling technicians; for certifying
renovators, dust sampling technicians, and renovation firms; for
accrediting providers of renovation and dust sampling technician
training; for renovation work practices; and for recordkeeping.
Interested States, Territories, and Indian Tribes may apply for and
receive authorization to administer and enforce all of the elements of
the new renovation requirements. More information on the RRP rule may
be found in the Federal Register document announcing the RRP rule or on
EPA's website at http://www.epa.gov/lead/pubs/renovation.htm.
    Many provisions of the RRP rule were derived from the existing
lead-based paint activities regulations at 40 CFR part 745, subpart L
(Ref. 2). These existing regulations were promulgated in 1996 under
TSCA section 402(a), which defines lead-based paint activities in
target housing as inspections, risk assessments, and abatements. The
1996 regulations cover lead-based paint activities in target housing
and child-occupied facilities, along with limited screening activities
called lead hazard screens. These regulations established an
accreditation program for training providers and a certification
program for individuals and firms performing these activities. Training
course accreditation and individual certification was made available in
five disciplines: Inspector, risk assessor, project designer, abatement
supervisor, and abatement worker. In addition, these lead-based paint
activities regulations established work practice standards and
recordkeeping requirements for lead-based paint activities in target
housing and child-occupied facilities.
    The RRP rule created two new training disciplines in the field of
lead-based paint: Renovator and dust sampling technician. Persons who
successfully complete renovator training from an accredited training
provider are certified renovators. Certified renovators are responsible
for ensuring that renovations to which they are assigned are performed
in compliance with the work practice requirements set out in 40 CFR
745.85. Persons who successfully complete dust sampling technician
training from an accredited training provider are certified dust
sampling technicians. Certified dust sampling technicians may be called
upon to collect dust samples after renovation activities have been
completed.
    The RRP rule contains a number of work practice requirements that
must be followed for every covered renovation in target housing and
child-occupied facilities. These requirements pertain to warning signs
and work area containment, the restriction or prohibition of certain
practices (e.g., high heat gun, torch, power sanding, power planing),
waste handling, cleaning, and post-renovation cleaning verification.
The firm must ensure compliance with these work practices. Although the
certified renovator is not required to be on-site at all times, while
the renovation project is ongoing, a certified renovator must
nonetheless regularly direct the work being performed by other workers
to ensure that the work practices are being followed.

C. Opt-Out Provision

    The RRP rule included a provision that exempts a renovation firm
from the training and work practice requirements of the rule when the
firm obtains a certification from the owner of a residence he or she
occupies that no child under age 6 or pregnant women resides in the
home and the home is not a child-occupied facility. Unless the target
housing meets the definition of a child-occupied facility, if an owner-
occupant signed a statement that no child under age 6 and no pregnant
woman reside there and an acknowledgment that the renovation firm will
not be required to use the lead-safe work practices contained in EPA's
RRP rule, the renovation activity is not subject to the training,
certification, and work practice requirements of the rule. Conversely,
if the owner-occupant does not sign the certification and acknowledg
ment for any reason (even if no children under age 6 or no pregnant
women reside there), the renovation is subject to the requirements of
the RRP rule.
    Even though the Agency included the opt-out provision in the final
RRP rule, EPA recognized that the opt-out presented concerns for
exposure to children under age 6. Nonetheless, EPA explained that it
believed it should focus the rule on scenarios with the greatest
exposure to children under age 6, that concerns for new homeowners
would be mitigated to some extent by the requirements of the
``Disclosure Rule'', and that older children and adults did not ingest
lead-dust at as high a rate as toddlers and therefore high dust lead
levels present a much greater risk to a young child than they do for an
older child or adult. After promulgation, the rule, and specifically
the opt-out provision, was challenged.

As part of a settlement agreement, EPA agreed to propose removing the
opt-out provision.
    On October 28, 2009, EPA proposed to remove the opt-out provision.
For the reasons discussed in this Unit, the Agency has now concluded
that it is important to require the RRP work practices and training and
certification requirements in target housing even if there is no child
under age 6 or pregnant woman residing there. By removing the opt-out
provision, the rule will go farther toward protecting children under
age 6 and pregnant women, as well as older children and adult occupants
of target housing where no child under age 6 or pregnant woman resides.
Therefore, the opt-out provision will no longer be available to owner-
occupants beginning on the effective date of this final rule.
    EPA believes the opt-out provision is not sufficiently protective
for children under age 6 and pregnant women, the most vulnerable
populations identified in the RRP rule. As pointed out by a number of
commenters on the RRP rule, the opt-out provision does not protect
families with young children who may purchase recently renovated target
housing. Removal of the opt-out will result in fewer homes being
purchased with lead hazards created by renovation, repair, and painting
activities. Under the RRP rule, the opt-out provision was limited to
owner-occupied target housing and did not extend to vacant rental
housing because of the concern that future tenants could unknowingly
move into a rental unit where dust-lead hazards created by the
renovation are present. In the same way, dust-lead hazards created
during renovations in an owner-occupied residence conducted prior to a
sale will be present for the next occupants. It is common for home
owners to hire contractors to perform activities that disturb paint
before selling a house, thus increasing the likelihood of lead hazards
being present for someone buying a home, which may include a family
with a child under age 6 or a pregnant woman. There are other benefits
to removing the opt-out provision, including protection for family
pets, as lead poisonings resulting from renovations have been
documented in both cats and dogs (Refs. 17 and 18).
    In the preamble to the RRP rule, EPA explained that it believed the
Disclosure Rule, 40 CFR part 745, subpart F (required by section 1018
of Title X of the Residential Lead-Based Paint Hazard Reduction Act of
1992 (Pub. L. 102-550), would help to address these concerns. The
Disclosure Rule requires sellers of target housing to disclose known
lead-based paint or lead-based paint hazard information to purchasers
and provide them with a copy of the lead hazard information pamphlet
entitled Protect Your Family From Lead in Your Home (Ref. 14). EPA
explained the receipt of this information could prompt the family to
inquire about potential lead-based paint hazards in the home. In
addition, EPA recommended that purchasers take advantage of their
statutory opportunity to have a lead-based paint inspection or risk
assessment done while in the process of purchasing target housing.
    In supporting the proposal to remove the opt-out provision, one
commenter disagreed that the Disclosure Rule adequately addresses the
risks to subsequent owners of target housing that undergo renovations
under the opt-out provision. In particular, this commenter pointed out
that there is nothing in the Disclosure Rule to alert homeowners to the
fact that RRP work practice requirements were not followed before they
purchased the home. Indeed, the Disclosure Rule only requires
disclosure of known hazards. It would not require disclosure of
renovation activities or that the owner opted out of the RRP rule
requirements. The commenter further states that it is unreasonable to
assume that a typical homeowner or someone renting a previously owner-
occupied dwelling would know the detailed exemptions on the RRP rule.
    The Agency continues to believe that the Disclosure Rule provides
valuable information to homeowners and that this information may help
homeowners become aware of lead hazards. However, EPA's study on the
Characterization of Dust Lead Levels after Renovation, Repair, and
Painting Activities (the ``Dust Study'', Ref. 11), demonstrated that
renovation, repair, and painting activities produce large quantities of
lead dust that create dust-lead hazards. The study also showed that the
RRP work practices are effective at minimizing exposure to dust hazards
that could result from renovation activities. As the commenter pointed
out, the Disclosure Rule will not, in many cases, provide the type of
renovation specific lead hazard information or provide recipients
information that can be said to reliably or effectively result in
minimizing exposure to lead-based paint hazards created by renovation
activities. Thus, there is little evidence to suggest that the
provisions of the Disclosure Rule are effective or reliable at
minimizing exposure to lead-based paint hazards created by renovation
activities in target housing. In addition, even if the Disclosure Rule
reliably disclosed relevant information relating to earlier renovation
activities, EPA does not believe this would be an adequate substitute
for the work practice standards, which EPA has a record basis to
conclude actually result in elimination--rather than simply
disclosure--of the hazards created by renovations.
    Perhaps in recognition of this shortcoming, one commenter suggested
that EPA should revise the Disclosure Rule, as opposed to making
changes to the RRP rule. That would not, however, satisfy EPA's
obligation under section 402 to put into place standards that take into
account reliability, effectiveness, and safety to address lead-based
paint hazards created by renovation activities in target housing.
Moreover, the Disclosure Rule was jointly promulgated by EPA and the
Department of Housing and Urban Development. Thus, changes would
involve a joint rulemaking effort and are not wholly within EPA's
control. Furthermore, changes to the Disclosure Rule would need to be
analyzed in the context of the underlying statute--not just because it
might be helpful in the context of actions taken by EPA under a
different statutory provision. In short, while this is a suggestion
that may be worth pursuing, it does not address the present issue; that
of reliably and effectively minimizing exposure to lead-based paint
hazards created by renovation activities.
    Furthermore, EPA is concerned about the effectiveness of disclosure
with respect to populations with the highest risk of exposure to
harmful lead levels. Children in minority populations and children
whose families are poor have an increased risk of exposure to harmful
lead levels (Ref. 3, at e376). Analysis of the National Health and
Nutrition Examination Surveys (NHANES) data from 1988 through 2004
shows that the prevalence of blood lead levels equal to or exceeding 10
[mu]g/dL in children aged 1 to 5 years has decreased from 8.6% in 1988-
1991 to 1.4% in 1999-2004, which is an 84% decline (Ref. 3, at e377).
However, the NHANES data from 1999-2004 indicates that non-Hispanic
black children aged 1 to 5 years had higher percentages of blood lead
levels equal to or exceeding 10 [mu]g/dL (3.4%) than white children in
the same age group (1.2%) (Ref. 3). In addition, among children aged 1
to 5 years over the same period, the geometric mean blood lead level
was significantly higher for non-Hispanic blacks (2.8 [mu]g/dL),
compared with Mexican Americans (1.9 [mu]g/dL) and non-Hispanic whites
(1.7 [mu]g/dL) (Ref. 3, at e377). For children aged 1 to 5 years from
families with low

income, the geometric mean blood lead level was 2.4 [mu]g/dL (Ref. 3,
at e377). Further, the incidences of blood-lead levels greater than 10
[mu]g/dL and greater than or equal to 5 [mu]g/dL were higher for non-
Hispanic blacks (14% and 3.4% respectively) than for Mexican Americans
(4.7% and 1.2%, respectively) and non-Hispanic whites (4.4% and 1.2%,
respectively) (Ref. 3, at e377). The ``analysis indicates that
residence in older housing, poverty, age, and being non-Hispanic black
are still major risk factors for higher lead levels'' (Ref. 3, at
e376). EPA is concerned that disclosure may be ineffective with respect
to these populations already at higher risk of having elevated blood
lead levels because the effectiveness of disclosure depends on the
recipient's understanding the significance of the disclosure and having
the means and ability to act upon the information.
    This also relates to practical issues that have implications for
the RRP rule in general, and for high risk, low-income, minority
populations in particular. The opt-out is a relatively complicated
overlay to the applicability provisions of the rule. EPA believes there
are practical benefits to removing the opt-out and simplifying the
applicability of the rule--both for renovators and homeowners. The opt-
out provision complicates the outreach and education about lead hazards
and makes the rule more complicated for renovators to apply and
consumers to understand. Furthermore, it not only assumes literacy but
also a working knowledge of what the rule would otherwise require and
an ability to provide informed consent. Accordingly, EPA believes that
populations that already have the highest risk factors for lead
exposure may be disproportionately adversely affected by the complexity
of a rule that contains the opt-out provision. More generally, EPA
believes that the more uniform the application of the rule work
practices in target housing is, the more effective and reliable they
will be at minimizing exposure to lead-based paint hazards. Contractors
who have a single set of work practices that are to be applied in most
pre-1978 housing and child-occupied facilities will be more likely to
apply them consistently and correctly.
    Renovations performed under the opt-out provision are also likely
to result in exposures for vulnerable populations in other ways.
Visiting children who do not spend enough time in the housing to render
it a child-occupied facility may nevertheless be exposed to lead from
playing in dust-lead hazards created by renovations. For example,
children may spend time in the homes of grandparents, but those homes
may be eligible for the opt-out provision of the RRP rule. A homeowner
who signs an opt-out statement may not realize that she is pregnant.
For example, ``A Case Report of Lead Paint Poisoning during Renovation
of a Victorian Farmhouse'' describes four cases of childhood lead
poisoning and two cases of adult lead toxicity resulting from a
renovation. One of the adults was a woman who did not realize she was
pregnant until after the exposure occurred. (Ref. 16)
    Eliminating the opt-out provision will also protect families with
young children residing near or adjacent to homes undergoing
renovations. Under the RRP rule, an owner occupant can take advantage
of the opt-out provision even if a child under age 6 or a pregnant
woman lives in an adjacent home. Renovations on the exterior of a
residence can spread leaded dust and debris some distance from the
renovation activity, which is why, for regulated renovations, EPA
requires renovation firms to cover the ground with plastic sheeting or
other impermeable material a distance of 10 feet from the renovation
and take extra precautions when in certain situations to ensure that
dust and debris does not contaminate other buildings or other areas of
the property or migrate to adjacent properties. One commenter cited a
study that shows housing in urban areas, such as Chicago, tend to be
only three to five meters apart, highlighting the likelihood of lead
contamination of adjacent prosperities in urban neighborhoods.
Similarly, another commenter stated that in urban communities, many if
not most of the homes are side by side. There are approximately 2
million owner-occupied, single-family attached homes (e.g., townhomes,
semi-detached or duplex homes) built before 1978. Renovations on the
exteriors of these homes are likely to contaminate neighboring yards
and porches resulting in exposure outside the house as well as inside
because dust can be tracked into the home. Many more owner-occupied,
single-family detached homes are located in close proximity to each
other, and renovations performed under the opt-out provision present a
similar risk for these homes. Another factor that EPA did not fully
consider in promulgating the original RRP rule, but that weighs heavily
against the opt-out provision, is that the risks posed by the opt-out
with respect to exterior work will disproportionally affect children
that are already at the highest risk for higher blood lead levels--low
income, non-Hispanic black children living in older housing in urban
areas, which is likely to be comprised of attached, or closely
constructed detached, homes.
    While the RRP rule focused principally on protecting children under
age 6, it is well known that older children and adults can also suffer
adverse effects from lead exposure. Adults are susceptible to lead
effects at lower blood lead levels than previously understood (e.g.,
Ref. 13, p. 8-25). Epidemiologic studies have consistently demonstrated
associations between lead exposure and enhanced risk of deleterious
cardiovascular outcomes, including increased blood pressure and
incidence of hypertension. A meta-analysis of numerous studies
estimates that a doubling of blood-lead level (e.g., from 5 to 10
[mu]g/dL) is associated with ~1.0 mm Hg increase in systolic blood
pressure and ~0.6 mm Hg increase in diastolic pressure. The evidence
for an association of lead with cardiovascular morbidity and mortality
is limited but supportive. (Ref. 13, p E-10). As evident from the
discussions in chapters 5, 6 and 8 of EPA's Air Quality Criteria
Document for Lead (Ref. 13), ``neurotoxic effects in children and
cardiovascular effects in adults are among those best substantiated as
occurring at blood lead concentrations as low as 5 to 10 [mu]g/dL (or
possibly lower); and these categories are currently clearly of greatest
public health concern'' (Ref. 13, p. 8-60). With regard to blood lead
levels in individual children associated with particular neurological
effects, the Criteria Document states ``Collectively, the prospective
cohort and cross-sectional studies offer evidence that exposure to lead
affects the intellectual attainment of preschool and school age
children at blood lead levels <10 [mu]g/dL (most clearly in the 5 to 10
[mu]g/dL range, but, less definitively, possibly lower).'' (Ref. 13, p.
6-269). Epidemiological studies have consistently demonstrated
associations between lead exposure and enhanced risk of deleterious
cardiovascular outcomes, including increased blood pressure and
incidence of hypertension. As one commenter pointed out, the half-life
of lead in bone is approximately 20 years. Thus, women of child-bearing
age exposed to lead will retain higher levels of lead in their bodies
throughout their child-bearing years. When pregnancy occurs, lead can
be transferred to the fetus causing an array of adverse effects. EPA
now believes the opt-out provision does not sufficiently account for
the importance of the health effects of lead exposure to adults and
children age 6 and older by

allowing renovations to be performed without following the RRP rule
requirements in housing that qualified for the opt-out. In supporting
the final RRP rule, EPA stated that older children and adults do not
ingest dust at the same high rate that a toddler does. This is
corroborated by a 2007 meta-analysis of studies of children's hand-to-
mouth behavior. (Ref. 4). However, as this analysis indicates, this
does not mean that hand-to-mouth behavior is not a potential concern
for older children. According to the meta-analysis, the average indoor
hand-to-mouth behavior ranged from 6.7 to 28.0 contacts/hour, with the
lowest value corresponding to the 6 to < 11 year olds and the highest
value corresponding to the 3 to < 6 month olds. Average outdoor hand-
to-mouth frequency ranged from 2.9 to 14.5 contacts/hour, with the
lowest value corresponding to the 6 to <11 year olds and the highest
value corresponding to the 6 to < 12 month olds. Although toddlers have
a higher incidence of hand-to-mouth behavior than 6 to < 11 year olds,
the latter group still averages more than 6 contacts/hour. Further
elevated blood lead levels do occur in children older than 6 and adults
(Ref. 15). The Dust Study shows that when the RRP requirements are not
followed, renovation activities result in dust lead levels that can be
orders of magnitude above the hazard standard and that can be orders of
magnitude higher than if the RRP requirements are followed. EPA
believes the information from this meta-analysis provides corroborating
support for EPA's concern for children 6 and older and its decision to
eliminate the opt-out provision.
    The Agency believes that it should only allow provisions such as
the opt-out for situations where the information available to EPA
indicates that the RRP rule work practices are not necessary to
minimize exposure of occupants to lead paint hazards. Because lead
paint dust exposure can cause adverse health effects for populations
other than just children under age 6 and renovations can result in lead
dust levels many times higher than the hazard standard, EPA believes
the work practices should be followed in target housing without regard
to the age of the occupants.
    Moreover, EPA believes that implementing the regulations without
the opt-out provision promotes, to a greater extent, the statutory
directive to promulgate regulations covering renovation activities in
target housing. Among other things, TSCA section 402(c)(3), directs EPA
to promulgate regulations that apply to renovation activities that
create lead-based paint hazards in target housing. Section 401(17) of
TSCA defines target housing as ``any housing constructed prior to 1978,
except housing for the elderly or persons with disabilities (unless any
child who is less than 6 years of age resides or is expected to reside
in such housing for the elderly or persons with disabilities) or any 0-
bedroom dwelling.'' Pursuant to section 403 of TSCA, EPA has identified
dust-lead hazards in target housing and child-occupied facilities as
surface dust that contains a mass-per-area concentration of lead equal
to or exceeding 40 [mu]g/ft \2\ on floors or 250 [mu]g/ft \2\ on
windowsills. In the RRP rule, EPA found that renovation, repair, and
painting activities that disturb lead-based paint create lead-based
paint hazards. Thus, renovations in target housing that create lead-
based paint hazards should be covered unless there is a record basis to
conclude that coverage is unnecessary.
    Shortly after promulgating the RRP rule, the RRP rule, and
specifically the opt-out provision, was challenged. EPA decided to
settle the lawsuit. As part of the settlement, EPA agreed to issue a
proposed rule removing the opt-out. In turn, as part of this
rulemaking, EPA requested information or data that would shed any light
on the reliability, effectiveness, or safety of the opt-out or any
variation thereof in relation to EPA's lead hazard standards. EPA did
not receive any information in response to its request.
    EPA's Dust Study demonstrated and EPA found that renovation,
repair, and painting activities produce lead dust above the regulatory
hazard standards. In fact many renovation activities create large
quantities of lead dust. The Dust Study shows that renovation
activities result in lead levels many times greater than the hazard
standard when the RRP rule containment and cleanup procedures are not
followed. It also demonstrated that work practices other than those
restricted or prohibited by the RRP rule can leave behind lead dust
well above the hazard standards when the RRP rule requirements are not
followed. The Dust Study also showed that alternative practices (broom
cleaning, not using containment) were not effective or safe in relation
to EPA's lead hazard standards. Under the opt-out, contractors
performing renovations would have no obligation to minimize or clean up
any dust-lead hazards created by the renovation. Indeed, contractors
would not be prevented from using practices that EPA has determined
create hazards that cannot be adequately contained or cleaned up even
when following the RRP rule requirements. The Agency also took these
factors into consideration in its decision to remove the opt-out
provision in this final rule.
    In development of the proposed rule, EPA considered and requested
comment on certain alternative approaches or work practice requirements
for owner-occupied target housing that is not a child-occupied facility
and where no children younger than 6 or pregnant women reside. EPA also
requested comment on possible alternate approaches that would meet
EPA's statutory obligation to apply work practice standards in target
housing that take into account reliability, effectiveness, and safety.
    One alternative for which EPA requested comment would have required
the RRP work practices only for exterior renovations. Under this
option, unless the target housing meets the definition of a child-
occupied facility, if an owner-occupant signed a statement that no
child under 6 and no pregnant woman reside there and an acknowledgment
that the renovation firm will only be required to use the lead-safe
work practices contained in EPA's RRP rule when renovating exteriors
then the renovation firm would only be required to follow the RRP work
practices when doing exterior renovations, but not when doing interior
renovations. This option would have addressed exposures to lead dust
from exterior renovations for people living in neighboring homes,
particularly attached homes or homes in close physical proximity.
Individuals residing in homes in close physical proximity could be
exposed during the entire renovation and post-renovation phase, and
their exposure would not necessarily be considered by an owner-occupant
in choosing not to require lead-safe work practices. However, this
option did not address lead hazards created during renovations of the
interiors of home which could lead to lead exposure to occupants, and
EPA received no comments mitigating this concern or supporting the
protectiveness of this option.
    EPA requested comment on an alternative option under which the only
work practices applicable to housing that is not a child-occupied
facility and where no children or pregnant women reside would be the
restriction or prohibition on certain work practice found at 40 CFR
745.85(a)(3). These include:
    1. Open-flame burning or torching of lead-based paint is
prohibited.
    2. The use of machines that remove lead-based paint through high
speed operation such as sanding, grinding, power planing, needle gun,
abrasive blasting, or sandblasting, is prohibited

unless such machines are used with HEPA exhaust control.
    3. Operating a heat gun on lead-based paint is permitted only at
temperatures below 1,100 degrees Fahrenheit.
    All the other work practice requirements in 40 CFR 745.85 would not
be required in target housing that is not a child-occupied facility and
where no children under age 6 or pregnant women reside. This option
would have prohibited or restricted the highest dust generating
practices but would not have required the other practices under 40 CFR
745.85. While the prohibited work practices create high amounts of lead
dust, the other work practices also create lead dust above the hazard
standard. The Dust Study shows that common work practices result in
lead levels many times greater than the hazard standard when the RRP
rule containment and cleanup procedures are not followed.
    EPA requested comment on a third option under which a subset of
target housing would not be subject to the RRP work practices but
instead would have been subject to dust wipe testing to be performed
after the renovation. Under this option, unless the target housing
meets the definition of a child-occupied facility, if an owner-occupant
signed a statement that no child under 6 and no pregnant woman reside
there and an acknowledgment that the renovation activity is only
subject to dust wipe testing after the renovation and providing the
results to the owner-occupant, then the renovation firm would not be
required to conduct the training, certification, and work practice
requirements of the rule. The testing results would become part of the
record for that house that must be disclosed under the Disclosure Rule
(40 CFR part 745, subpart F) required by section 1018 of Title X of the
Residential Lead-Based Paint Hazard Reduction Act of 1992 (Pub. L. 102-
550). This option would provide information that could protect
potential buyers of a home where renovation was completed prior to the
sale, because they would be notified of the results of the dust wipe
tests before purchase and could take appropriate action (e.g., thorough
cleaning and retesting of the home, or selecting a different home) if
the lead results were at a level that raised concerns for them. While
this alternative may provide helpful information to home owners and
occupants, as discussed above it would not address lead-based paint
hazards created by renovations because it does not require any of the
work practices required by the RRP rule.
    After considering these alternatives as well as keeping the opt-out
provision, the Agency has decided to eliminate the Opt-out provision
and not to adopt any of the alternatives. One concern with the opt-out
provision or the alternatives is that they do not adequately address
the risks of lead-based paint hazards to children older than five years
old or adults. The opt-out and each of these alternatives can also
result in exposures to children under the age of 6 and pregnant women
to lead-based paint hazards. In the same way as for the opt-out
provision itself, 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 opt-out as well as the alternatives is
that they can create confusion among both contractors and consumers.
Several commenters stated that the opt-out provision or 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 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 opt-out nor that the alternative
approaches are safe, reliable or effective because none of these would
sufficiently minimize exposure to lead-based paint hazards. In sum,
when the RRP work practices are not used, residents and visitors are
exposed to the lead hazards created by the renovation, and therefore
these approaches would not protect older children, women of
childbearing age, or other adults currently residing in the home and
can result in exposure to children under the age of 6 and pregnant
women to lead-based paint hazards. Again, although EPA specifically
requested information or data that would shed any light on the
reliability, effectiveness, or safety of these options in relation to
EPA's lead hazard standards, the Agency did not receive any. The Agency
took these factors into consideration in deciding not to adopt these
alternatives.

D. Recordkeeping and Reporting

    EPA's stated purposes in promulgating the recordkeeping
requirements were two-fold. ``The first is to allow EPA or an
authorized State to review a renovation firm's compliance with the
substantive requirements of the regulation through reviewing the
records maintained for all of the renovation jobs the firm has done.
The second is to remind a renovation firm what it must do to comply.
EPA envisioned that renovation firms would use the recordkeeping
requirements and checklist as an aid to make sure that they have done
everything that they are required to do for a particular renovation''
(Ref. 1, p. 21745). Several commenters on the RRP rule suggested that
the recordkeeping requirements could also be used to provide valuable
information about the renovation to the owners and occupants of
buildings being renovated. EPA responded to these comments by stating
that some of the information identified by these commenters was
included in the ``Renovate Right'' pamphlet and that the pamphlet was
the best way to get that information to the owners and occupants. With
respect to the other items identified by these commenters, EPA stated
its belief that the renovation firms were already providing much of
this information (Ref. 1, p. 21718).
    As part of EPA's preparations to administer the RRP program, EPA
has been developing an education and outreach campaign aimed at
consumers. In promulgating the RRP rule, EPA recognized the importance
of education and outreach to consumers, to teach them about lead-safe
work practices and to encourage them to hire certified renovation firms
(Ref. 1, p. 21702). EPA's work on the education and outreach campaign
has continued to highlight the importance of an informed public to the
success of the RRP program at minimizing exposures to lead-based paint
hazards that may be created by renovations. As a result, EPA has
determined that copies of the records required to be maintained by
renovation firms to document compliance with the work practice
requirements, if provided to the owners and occupants of the renovated
buildings, would serve to reinforce the information provided by the
``Renovate Right'' pamphlet on the potential hazards of renovations and
on the RRP rule requirements. While the ``Renovate Right'' pamphlet
provides valuable information about the requirements of the RRP rule,
the records that a firm would give to owners and occupants would
provide useful information regarding rule compliance that is not found
in the pamphlet. In covering the significant training and work practice
provisions of the RRP rule, these records would enable building owners
and occupants to better understand what the renovation firm did to
comply with the RRP rule and how the RRP rule's provisions affected
their specific renovation. Several commenters stated that educating
homeowners would help them monitor compliance by the

renovation firm. One commenter stated that the checklist would help the
public understand the RRP rule and that a better informed public would
choose to have renovation performed by professional remodelers who
would provide safe and quality work. Other commenters believe that the
distribution of the checklist is needed to address a lack of
accountability of renovation firms to owners and occupants. EPA agrees
that educating the owners and occupants in this way is likely to
improve their ability to assist the EPA in monitoring compliance with
the RRP rule and contribute to the effectiveness and reliability of the
rule.
    After considering public comments, EPA decided to finalize the rule
as proposed. This final rule requires that, when the final invoice for
the renovation is delivered, or within 30 days of the completion of the
renovation, whichever is earlier, the renovation firm provide
information demonstrating compliance with the training and work
practice requirements of the RRP rule to the owner of the building
being renovated and, if different, to the occupants of the renovated
housing or the operator of the child-occupied facility. For renovations
in common areas of target housing, the renovation firm must provide the
occupants of the affected housing units instructions on how to review
or obtain this information from the renovation firm at no charge to the
occupant. These instructions must be included in the notice provided to
each affected unit under 40 CFR 745.84(b)(2)(i) or on the signs posted
in the common areas under 40 CFR 745.84(b)(2)(ii). EPA is finalizing
similar requirements for renovations in child-occupied facilities.
Under this final rule, the renovation firm is required to provide
interested parents or guardians of children using the child-occupied
facility instructions on how to review or obtain a copy of these
records at no cost to the parents or guardians. This could be
accomplished by mailing or hand delivering these instructions, or by
including them on the signs posted under 40 CFR 745.84(c)(2)(ii).
    Under this new requirement, renovation firms must provide training
and work practice information to owners and occupants. The information
should be provided in a short, easily read checklist or other form.
EPA's ``Sample Renovation Recordkeeping Checklist'' may be used for
this purpose, but firms may develop their own forms or checklists so
long as they include all of the required information. The specific
information that is required to be provided are the training and work
practice compliance information required to be maintained by 40 CFR
745.86(b)(7), as well as identifying information on the manufacturer
and model of the test kits used, if any, a description of the
components that were tested including their locations, and the test kit
results. The checklist or form must include documentation that a
certified renovator was assigned to the project, that the certified
renovator provided on-the-job training for workers used on the project,
that the certified renovator performed or directed workers who
performed the tasks required by the RRP rule, and that the certified
renovator performed the post-renovation cleaning verification. This
documentation must include a certification by the certified renovator
that the work practices were followed, with narration as applicable.
However, EPA is not requiring that the renovation firm automatically
provide a copy of the certified renovator's training certificate, which
must be maintained in the firm's records pursuant to 40 CFR
745.86(b)(7), as an attachment to the checklist or other form.
    One commenter believes that the text of the form should be included
in the regulations. EPA disagrees with this comment. The Agency wants
to give renovation firms flexibility with regard to the format of the
information given to owners and occupants. Renovation firms must list
the information specified in the regulations and they can use EPA's
sample checklist if they choose. However, the final rule allows firms
to use their own version of the checklist as long as it includes the
required information.
    With respect to the option for dust clearance in lieu of cleaning
verification under 40 CFR 745.85(c), the RRP rule requires the
renovation firm to provide the associated results from dust wipe
sampling to the person who contracted for the renovation. This
requirement was promulgated in response to public comments on the
applicability of the Lead Disclosure Rule, 40 CFR part 745, subpart F,
to dust lead testing reports. These commenters stated that a
requirement for the information to be provided to the owner of the
property was necessary in order to make sure that the information would
be available to be disclosed in the future (Ref. 1, p. 21718). However,
in agreeing with these commenters and acknowledging the importance of
having the dust sampling reports available to disclose to future
purchasers and tenants, EPA neglected to consider the importance of
making dust sampling information available to the current occupants of
renovated rental target housing or child-occupied facilities. While 40
CFR 745.107 would require renovation-related dust sampling reports to
be disclosed to target housing tenants at the next lease renewal, this
may be months or years after the renovation was completed. In addition,
the Lead Disclosure Rule does not apply to child-occupied facilities in
public or commercial buildings, so those tenants may never receive this
information.
    Therefore, this final rule requires that, if dust clearance is
performed in lieu of cleaning verification, the renovation firm provide
a copy of the dust wipe sampling report(s) to the owner of the building
that was renovated as well as to the occupants, if different. With
respect to renovations in common areas of target housing or in child-
occupied facilities, EPA is also requiring that these records be made
available to the tenants of the affected housing units or the parents
and guardians of children under age 6 using the child-occupied
facilities. Dust sampling reports may be made available to these groups
in the same way as training and work practice records, by providing
information on how to review or obtain copies in individual
notifications or on posted signs.

E. Effective Date

    During the development of the proposed rule, EPA considered a delay
in the effective date of this final rule. EPA estimated that
eliminating the opt-out provision could increase the number of
renovators that need to be certified by 50%. A delayed effective date
would have allowed more time for additional renovators to get their
certification. The Agency asked for comment on whether a 6-month or 1-
year delay in the effective date is appropriate. In addition, EPA asked
for comment on whether a delay in the effective date of this rule would
be confusing for the regulated community or the certified personnel.
    Comments regarding the delay were mixed. Several commenters
opposing the delay believe that EPA has enough training capacity to
train additional renovators that may need certification because of this
rule. Several commenters pointed out that delaying the effective date
would result in more people being exposed to lead hazards that could be
avoided if the RRP rule work practices were in place for renovations
previously eligible for the opt-out. Another commenter believes that
phasing in the work practice requirements by delaying the effective
date of this rule would lead to confusion for the public and renovation
firms.

    Some commenters were in favor of delaying the effective date.
Several commenters said that many contractors were not aware of the
requirements and there is not sufficient time for them to understand
and comply with the regulations without a delayed effective date. Other
commenters stated that EPA should delay the effective date to allow
enough time for additional renovators to take the training. One
commenter asserts that EPA should delay the effective date rather than
create a shortfall of renovators.
    Another factor EPA considered with regard to extending the
effective date is whether firms specialize in housing that is eligible
for the opt-out. The cost estimates for the rule assume that renovation
firms are somewhat specialized in terms of whether they work in housing
where the RRP rule is applicable. However, there may be many instances
where firms working in opt-out housing will already have become
certified, and their staff been trained, because they also work in
regulated facilities ineligible for the opt-out provision. If firms are
less specialized than the analysis assumed, there may be little to no
incremental training and certification costs due to the proposed rule.
Furthermore, to the extent that some eligible homeowners would have
declined to opt out, the work practice costs for removing the opt-out
provision will be less than estimated. EPA requested comment in the
proposal on the degree to which the same firms and renovators are
likely to work both in opt-out housing and in child-occupied facilities
and target housing that are ineligible for the opt-out provision.
    Several commenters stated that they do not believe firms specialize
in housing based on occupancy. One commenter reviewed advertisements
and the market place, and did not find renovators that work only in
owner-occupied housing without children or pregnant women. According to
the commenter, because firms do not appear to specialize in this
manner, the additional costs of eliminating the opt-out are only the
costs associated with the materials and time for a particular job as
contractors would be required to get certification regardless of
whether the opt-out provision is removed. EPA agrees with these
comments. While the Agency has not done analysis to determine how many
firms may specialize based on occupancy, EPA believes it is likely that
most firms will not specialize in owner-occupied housing without
children or pregnant women. Commenters did not provide information
indicating that firms specialize in this way. If that is the case then
many of the approximately 110,000 firms and renovators estimated to
seek certification because of this rule would need certification
regardless of whether the opt-out provision is removed. If the majority
of the 110,000 firms and renovators have already been required to get
certification then there is less of an argument to extend the effective
date of this rule because many fewer firms and renovators will need
certification between publication of the rule and the effective date.
    Accordingly, the Agency decided not to delay the effective date of
this final rule. 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, based on the number of training courses accredited to date,
the Agency believes that there is sufficient training capacity
available to train any additional renovators that would need to get
certification because of this rule.

F. State Authorization

    As part of the authorization process, States and Indian Tribes must
demonstrate to EPA that they meet the requirements of the RRP rule. A
State or Indian Tribe would have to indicate that it meets the
requirements of the renovation program in its application for approval
or the first report it submits under 40 CFR 745.324(h). The Agency
proposed to give States and Indian Tribes 1 year to demonstrate that
their programs include any new requirements the EPA may promulgate,
such as the requirements in this final rule. EPA received two comments
regarding this requirement. One comment, from the Iowa Department of
Public Health, explained that Iowa's legislature only meets once a year
for 4 months. Depending on when the EPA publishes amendments to the
RRP, it could be very difficult for states in similar situations to
meet this requirement. The commenter requested that EPA give States and
Indian Tribes two years instead of one to demonstrate compliance. EPA
believes that the concern raised by the commenter has merit, and not
just for Iowa. Therefore, the Agency decided to allow States and Indian
Tribes up to two years to demonstrate to EPA that they meet the
requirements of the RRP rule in its application for approval or the
first report it submits under 40 CFR 745.324(h).

G. Renovator Certification Requirements

    EPA was made aware by stakeholders that some renovators want to
take the training course closer to April 2010 in order to maximize
their 5-year certification which is not required until the RRP rule
becomes effective on April 22, 2010. Under the RRP rule, the 5-year
certification begins when the renovator completes the training. The
Agency is concerned that if enough renovators wait until April 2010 to
take the training it may cause training courses to fill up resulting in
a lack of available courses near the effective date. In order to give
renovators incentive to take the course well in advance of the April
2010 effective date, the Agency considered a change to the requirements
that would allow renovator certifications issued on or before the
effective date of the RRP rule to last until July 1, 2015. The Agency
requested comment on whether it should extend the certification for
renovators that get their certification by April 22, 2010.
    EPA received several comments in favor of extending the renovator
certification to July 1, 2015. Several commenters believe this would
give renovators incentive to take the training early. One commenter
supported the extension so those who took the training in advance of
the April 22, 2010 implementation date would not be penalized. Another
commenter stated that an extension of the certification would prevent
logistical problems like waiting lists for trainings during the final
days before the effective date.
    The Agency decided to finalize an extension of the 5-year
certification for renovators who take the training before April 22,
2010. EPA agrees that renovators who take the training early should not
be penalized and therefore will extend those certifications until July
1, 2015.

H. Principle Instructor Requirements

    As discussed in the preamble to the proposed rule, EPA considered
modifying the requirements for training providers. Under the original
requirements for the accreditation of training providers, Principle
Instructors were required to take a 16-hour lead-paint course taught by
EPA or an authorized State, Tribe, or Territory. EPA became aware that
16-hour courses are not available in every state, making it difficult
for some instructors to get the required training. To address this
problem, EPA considered reducing the hourly requirement to 8 hours. EPA
received several comments on the Principal Instructor requirement,
mostly

in support of reducing the hourly requirement to 8 hours. One commenter
stated that there is no significant benefit to requiring 16 hours
instead of 8 hours and that the 8-hour requirement will fit more
closely to available training courses. Similarly, another commenter
stated that the 16-hour training shares little content with what the
Principal Instructors are going to teach in the renovator course. The
commenter also explained that there is no 16-hour lead training course
in Mississippi which led to difficulties with a local organization's
ability to offer the renovator course. One commenter opposed to
reducing the hourly requirement stated that 8 hours of lead training is
not sufficient for an instructor to know enough about lead paint, lead
hazards and federal regulations. Another commenter stated that there is
enough training capacity negating the need to reduce the hourly
requirement.
    EPA agrees that the 8-hour renovator course, instead of a longer
abatement course, is more closely related to what Principal Instructors
must know in order to teach the renovator training. In addition to the
training requirement, Principal Instructors must meet education and
work experience requirements in order to teach lead-based paint
training courses. The Agency believes that taking this course would be
sufficient training for future instructors of the renovator course and
therefore has reduced the requirement from 16 to 8 hours. By reducing
the required hours, future instructors can take the 8-hour renovator or
dust sampling technician trainings instead of a 16-hour or longer
abatement course.

III. References

    As indicated under ADDRESSES, a docket has been established for
this rulemaking under docket ID number EPA-HQ-OPPT-2005-0049. The
following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical contact listed under FOR FURTHER INFORMATION CONTACT.

1. EPA. Lead; Renovation, Repair, and Painting Program; Final Rule.
Federal Register (73 FR 21692, April 22, 2008) (FRL-8355-7).
Available on-line at: http://www.gpoaccess.gov/fr.
2. EPA. Lead; Requirements for Lead-Based Paint Activities in Target
Housing and Child-Occupied Facilities; Final Rule. Federal Register
(61 FR 45778, August 29, 1996) (FRL-5389-9). Available on-line at:
http://www.gpoaccess.gov/fr.
3. Jones, Robert L., David M. Homa, Pamela A. Meyer, Debra J. Brody,
Kathleen L. Caldwell, James L. Pirkle, and Mary Jean Brown. ``Trends
in Blood Lead Levels and Blood Lead Testing Among U.S. Children Aged
1 to 5 Years, 1988-2004.'' Pediatrics: Official Journal of the
American Academy of Pediatrics. Vol. 123, No. 3, pp. e376-385, March
2009.
4. Xue J, Zartarian V, Moya J, Freeman N, Beamer P, Black K, Tulve
N, Shalat S: A meta-analysis of children's hand-to-mouth frequency
data for estimating nondietary ingestion exposure. Risk Anal. 2007
Apr.; 27(2): 411-20.
5. EPA. Office of Pollution Prevention and Toxics (OPPT). Economic
Analysis for the TSCA Lead Renovation, Repair, and Painting Program
Opt-out and Recordkeeping Final Rule for Target Housing and Child-
Occupied Facilities. April 2010.
6. U.S. Department of Commerce, Bureau of Economic Analysis. Table
1.1.9. Implicit Price Deflators for Gross Domestic Product. August
17, 2009.
7. EPA. Opt-out and Recordkeeping Final Rule ICR Addendum for the
rulemaking entitled Lead: Elimination of the Opt-Out Provision and
Other Amendments to the Renovation, Repair, and Painting Program;
Proposed Rule. April 2010.
8. EPA. Final Regulatory Flexibility Analysis for the Elimination of
the Opt-Out Provision and Other Amendments to the Lead Renovation,
Repair, and Painting Program; Final Rule. April 2010.
9. EPA. Report of the Small Business Advocacy Review Panel on the
Lead-based Paint Certification and Training; Renovation and
Remodeling Requirements. March 3, 2000.
10. EPA. Lead; Renovation, Repair, and Painting Program; Proposed
Rule. Federal Register (71 FR 1588, January 10, 2006) (FRL-7755-5).
Available on-line at: http://www.gpoaccess.gov/fr.
11. EPA. Characterization of Dust Lead Levels after Renovation,
Repair, and Painting Activities. November 13, 2007.
12. EPA. Unfunded Mandates Reform Act Statement; Lead: Elimination
of the Opt-Out Provision and Other Amendments to the Renovation,
Repair, and Painting Program; Final Rule. April 2010.
13. EPA. Air Quality Criteria for Lead. October 2006.
14. EPA, Consumer Product Safety Commission (CPSC), U.S. Department
of Housing and Urban Development (HUD). Protect Your Family From
Lead in Your Home (EPA 747-K-99-001, June 2003).
15. CDC. Morbidity and Mortality Weekly Report. vol 54, no. 20, pp
513-516, May 27, 2005.
16. Marino, Phyllis E. et al. ``A Case Report of Lead Paint
Poisoning during Renovation of a Victorian Farmhouse.'' American
Journal of Public Health, 80 (10) pp. 1183-1185. October 1990.
17. Kowalczyk DF. ``Lead poisoning in dogs at the University of
Pennsylvania Veterinary Hospital.'' Journal of American Veterinary
Medical Association. 1976 Mar 1;168(5):428-32.
18. Knight TE, Kumar MS. ``Lead toxicosis in cats--a review.''
Journal of Feline Medicine and Surgery. 2003 Oct;5 (5): 249-55.

IV. Statutory and Executive Order Reviews

    EPA has prepared an analysis of the potential costs and benefits
associated with this rulemaking. This analysis is contained in the
Economic Analysis for the TSCA Lead Renovation, Repair, and Painting
Program Opt-out and Recordkeeping Final Rule for Target Housing and
Child-Occupied Facilities (Economic Analysis, Ref. 5), which is
available in the docket for this action and is briefly summarized here,
and in more detail later in this Unit.

------------------------------------------------------------------------
           Category                            Description
------------------------------------------------------------------------
Benefits......................  $866 million--$3,061 million annualized
                                 (3% discount rate).
                                $920 million--$3,258 million annualized
                                 (7% discount rate).
                                Due to avoided IQ loss in children under
                                 age 6 and cardiovascular effects in
                                 adults. EPA does not have sufficient
                                 information to fully quantify benefits
                                 due to avoided health effects to
                                 individuals not present in target
                                 housing and child-occupied facilities
                                 subject to this rule or benefits due to
                                 avoided health effects other than IQ
                                 loss and cardiovascular effects.
Costs.........................  $295 million annualized (3% discount
                                 rate).
                                $320 million annualized (7% discount
                                 rate).
------------------------------------------------------------------------

A. Executive Order 12866

    Under Executive Order 12866, entitled ``Regulatory Planning and
Review'' (58 FR 51735, October 4, 1993), it has been determined that
this rule is a ``significant regulatory action'' under section 3(f)(1)
of the Executive Order because EPA estimates that it is likely to have
an annual effect on the economy of $100 million or more. Accordingly,
this action was submitted to the Office

of Management and Budget (OMB) for review under Executive Order 12866
and any changes made based on OMB recommendations have been documented
in the public docket for this rulemaking as required by section
6(a)(3)(E) of the Executive Order.
    The following is a summary of the Economic Analysis (Ref. 5), which
is available in the docket for this action.
    1. Number of facilities and renovations. This rule applies to 78
million target housing units and child-occupied facilities in pre-1978
facilities. There are approximately 40 million target housing units
potentially affected by the removal of the opt-out provision (i.e.,
owner occupied housing units where no child under age 6 or pregnant
woman resides and that do not meet the definition of a child-occupied
facility). There are an additional 38 million facilities potentially
affected by the requirement that renovators provide owners and
occupants with copies of the records required to be maintained by the
renovator to document compliance with the training and work practice
requirements. Approximately 100,000 of these facilities are child-
occupied facilities located in public or commercial buildings, and the
remainder are located in target housing (either in rental housing,
owner-occupied housing where a child under age 6 or pregnant woman
resides, or owner-occupied housing that meets the definition of a
child-occupied facility).
    The removal of the opt-out provision will affect approximately 7.2
million renovation events per year in the 40 million housing units
previously eligible to use the opt-out provision. In the first year,
there will be an estimated 5.4 million renovation, repair, and painting
events in these housing units where the rule will cause lead-safe work
practices to be used. (In the remaining 1.8 million renovation events,
test kits for determining whether a surface contains lead-based paint
will indicate that lead-based paint is not present.) EPA expects test
kits that more accurately determine whether a painted surface qualifies
as lead-based paint will become available in late 2010. Once the
improved test kits are available, the number of renovation, repair, and
painting events using lead-safe work practices due to the rule in
housing previously eligible for the opt-out provision is expected to
drop to 3.0 million events per year.
    The requirement for renovators to provide owners and occupants with
records demonstrating compliance with the training and work practice
requirements will affect all of the 7.2 million renovation events per
year in housing units previously eligible for the opt-out provision.
This new recordkeeping requirement will also affect an additional 11.4
million renovation events per year in the 38 million facilities
ineligible for the opt-out provision.
    EPA's estimates are based on the assumption that owners of housing
eligible for the opt-out provision would always choose to exercise that
provision. To the extent that some eligible homeowners would decline to
opt out, the number of renovation events affected by the removal of the
opt-out would be lower than EPA has estimated, as would the costs of
this action and the estimated number of people protected by this
action, since they would choose to be protected by the requirements of
the RRP rule.
    2. Options evaluated. EPA considered a variety of options for
addressing the risks created by renovation, repair, and painting
activities disturbing lead-based paint in housing previously eligible
for the opt-out provision. The Economic Analysis analyzed several
options, including different options for the effective date of the
final rule when published; an option phasing out the opt-out provision
depending on when the facility was built (pre-1960 or pre-1978); and
different options for the work practices (such as containment,
cleaning, and cleaning verification) required in housing previously
eligible for the opt-out provision.
    All options evaluated in the Economic Analysis would also require
renovation firms to provide owners and occupants of the buildings with
a copy of the records demonstrating compliance with the training and
work practice requirements of the RRP rule. This additional
recordkeeping requirement would apply to renovation, repair, and
painting activities in all 78 million target housing units and child-
occupied facilities.
    3. Benefits. The benefits of the rule result from the prevention of
adverse health effects attributable to lead exposure from renovations
in pre-1978 buildings. These health effects include impaired cognitive
function in children and several illnesses in children and adults, such
as increased adverse cardiovascular outcomes (including increased blood
pressure, increased incidence of hypertension, cardiovascular
morbidity, and mortality) and decreased kidney function.
    Removing the opt-out provision will protect children under the age
of 6 who visit a friend, relative, or caregiver's house where a
renovation would have been performed under the opt-out provision;
children who move into such housing when their family purchases it
after such a renovation would have been performed; and children who
live in a property adjacent to housing where renovation would have been
performed under the opt-out provision. Removing the opt-out provision
will also protect individuals age 6 and older who live in houses that
would have been renovated under the opt-out provision; who move into
such housing; and who live in adjacent properties.
    EPA has estimated some of the benefits of the rule by performing
calculations based on estimates of the number of individuals in each of
these situations and the average benefit per individual in similar
situations from previous RRP rule analyses with some simple
adjustments. The resulting calculations provide a sense of the
magnitude of benefits from this action but should not be interpreted as
strict upper or lower bound estimates of total benefits. Based on two
scenarios for each of the situations described in the previous
paragraph, annualized benefits for the rule may range from
approximately $870 million to $3.2 billion assuming a discount rate of
3%, and $920 million to $3.3 billion assuming a discount rate of 7%.
Within these scenarios, 10% of these benefits are attributable to
avoided losses in expected earnings due to IQ drop in children under 6,
and 90% to avoided medical costs (or other proxies for willingness to
pay) for hypertension, coronary heart disease, stroke, and the
resulting incidence of deaths in older individuals. For children under
6, the largest proportion of these benefits derive from moving into
recently renovated housing; for older individuals, the largest
proportion derives from on-going residence in houses that would have
been renovated under the opt-out provision.
    EPA did not estimate benefits for those who live near a house
renovated under the opt-out provision unless in a contiguous attached
home; those who spend time in a friend's or relative's house renovated
under the opt-out provision; and for health effects other than IQ loss
in children under 6 and blood pressure effects in older individuals.
    To the extent that some eligible homeowners would have declined to
opt out, the benefits of this action will be lower than estimated,
since exposed persons will already be protected by the requirements of
the RRP program.
    4. Costs. Removing the opt-out provision will require firms
performing renovation, repair, and painting work for compensation in
housing previously eligible for the opt-out provision to

follow the training, certification, and work practice requirements of
the RRP rule. This may result in additional costs for these firms.
Furthermore, the additional recordkeeping requirements in this rule
will increase costs of renovations in all target housing and child-
occupied facilities. Costs may be incurred by contractors that work in
these buildings, landlords that use their own staff to work in
buildings they lease out; and child-occupied facilities that use their
own staff to work in buildings they occupy.
    The rule is estimated to cost approximately $500 million in the
first year. The cost is estimated to drop to approximately $300 million
per year starting with the second year, when improved test kits for
detecting the presence of lead-based paint are assumed to become
available. Over $200 million per year of the cost in subsequent years
is due to the work practice requirements in housing previously covered
by the opt-out provision. Training for renovators and workers and
certification for firms working in housing previously covered by the
opt-out provision is estimated to add approximately $50 million per
year to the cost. Requiring renovators to provide owners and occupants
with copies of the recordkeeping required to document compliance with
the RRP rule training and work practice requirements costs
approximately $30 million per year, with about two thirds of this
incurred in housing that was previously eligible for the opt-out
provision.
    Note that the costs of this rule as estimated in the Economic
Analysis are expressed in 2005 dollars. To express values in terms of
current dollars, the Implicit Price Deflator for Gross Domestic Product
as determined by the Bureau of Economic Analysis can be consulted for
an indication of how nominal prices for goods and services produced in
the economy have changed over time. From 2005 to the second quarter of
2009, the implicit price deflator increased from 100 to 109.753, a
difference of approximately 10% (Ref. 6).
    The cost estimates for training and certification assume that
renovation firms are somewhat specialized in terms of whether they work
in facilities where the RRP rule is applicable. However, there may be
many instances where firms working in opt-out housing will already have
become certified, and their staff been trained, because they also work
in regulated facilities ineligible for the opt-out provision. If firms
are less specialized than the analysis assumed, there may be little to
no incremental training and certification costs due to the rule.
Furthermore, to the extent that some eligible homeowners would have
declined to opt out, the work practice costs for removing the opt-out
provision will be less than estimated.
    The options EPA analyzed with a phase in or a delayed effective
date for removing the opt-out provision have a lower cost in the first
2 years but have identical costs to the final rule beginning in the
third year. Options with different work practice requirements for the
housing previously eligible for the opt-out provision would cost 1% to
17% less than the final rule. This difference would all be due to lower
work practice costs, as the training, certification, and recordkeeping
costs would be the same for these options as for this rule.

B. Paperwork Reduction Act

    The information collection requirements contained in this rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
EPA has prepared an Information Collection Request (ICR) document to
amend an existing approved ICR. The ICR document, referred to as the
Opt-out and Recordkeeping Final Rule ICR Addendum and identified under
EPA ICR No. 1715.12 and OMB Control Number 2070-0155, has been placed
in the docket for this rule (Ref. 7). The information collection
requirements are not enforceable until OMB approves them.
    Burden under the PRA means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, disclose,
or provide information to or for a Federal agency. This includes the
time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
    The information collection activities contained in this rule are
designed to assist the Agency in meeting the core objectives of TSCA
section 402. EPA has carefully tailored the recordkeeping requirements
so they will permit the Agency to achieve statutory objectives without
imposing an undue burden on those firms that choose to be involved in
renovation, repair, and painting activities.
    The information collection requirements under this rule may affect
training providers as well as firms that perform renovation, repair, or
painting for compensation. Removing the opt-out provision may cause
additional renovators to become trained and firms to become certified,
and there are paperwork requirements for both of these activities.
Removing the opt-out provision will also create paperwork due to the
requirement to maintain records documenting compliance with the
training and work practice requirements. This rule also requires
renovation firms to provide owners and occupants with these records.
Although firms have the option of choosing to engage in the covered
activities, once a firm chooses to do so, the information collection
activities become mandatory for that firm.
    The ICR document provides a detailed presentation of the estimated
paperwork burden and costs resulting from this rule. The burden to
training providers and firms engaged in renovation, repair, and
painting activities is summarized in this unit.
    Because this analysis assumes that renovation firms are somewhat
specialized in terms of whether they work in facilities where the RRP
rule requirements are applicable, removing the opt-out provision is
estimated to result in additional renovators becoming trained and
additional renovation firms becoming certified. Training additional
renovators will increase the paperwork burden for training providers,
since they must submit records to EPA (or an authorizing State, Tribe,
or Territory) pertaining to each student attending a training course.
Approximately 170 training providers are estimated to incur an average
burden of about 40 hours each for additional notifications, resulting
in an increase in training provider burden averaging 7,000 hours per
year as a result of the removal of the opt-out provision.
    Removing the opt-out provision is estimated to result in up to
110,000 additional firms becoming certified to engage in renovation,
repair, or painting activities. The average certification burden is
estimated to be 3.5 hours per firm in the year a firm is initially
certified, and 0.5 hours in years that it is re-certified (which occurs
every 5 years). Firms must keep records of the work they perform; this
recordkeeping is estimated to average approximately 5 hours per year
per firm. And under this rule, firms must also provide a copy of the
records demonstrating compliance with the training and work practice

requirements of the RRP rule to the owners and occupants of buildings
being renovated. This additional recordkeeping requirement is estimated
to average approximately 3.3 hours per year per firm. The total annual
burden for these 110,000 firms is estimated to average 1,072,000 hours,
of which 362,000 hours is due to the recordkeeping requirement to
provide owners and occupants with documentation of the training and
work practices used.
    To the extent that firms working in housing eligible for the opt-
out provision will already have incurred the training and certification
burdens because they also work in regulated facilities ineligible for
the opt-out provision, the training and certification burden for this
action will be lower than estimated.
    The requirement that firms provide owners and occupants with a copy
of the records demonstrating compliance with the training and work
practice requirements of the RRP rule also applies to firms working in
buildings that were not eligible for the opt-out provision. Under an
assumption that firms work in either buildings that are eligible for
the opt-out provision or buildings that are ineligible (but not in both
types of buildings), EPA estimated that 211,000 firms work in buildings
that are not eligible for the opt-out provision. EPA estimated that
these 211,000 firms will incur an average annual burden of
approximately 2.7 hours per firm due to the new recordkeeping
requirements, resulting in a total burden of 568,000 hours per year for
these firms. To the extent that firms work in both types of buildings,
the number of firms and the total burden in this category would be
higher than estimated. But this would be offset by a corresponding
decrease in the 110,000 firms and 362,000 burden hours estimated for
the firms that were assumed to work only in buildings previously
eligible for the opt-out provision.
    Total respondent burden for training providers and certified firms
from removing the opt-out provision and requiring additional
recordkeeping is estimated to average approximately 1,647,000 hours per
year during the 3-year period covered by the ICR.
    The rule may also result in additional government costs to
administer the program (to process the additional training provider
notifications and to administer and enforce the program for firms
working in housing previously eligible for the opt-out provision).
States, Tribes, and Territories are allowed, but are under no
obligation, to apply for and receive authorization to administer these
requirements. EPA will directly administer programs for States, Tribes,
and Territories that do not become authorized. Because the number of
States, Tribes, and Territories that will become authorized is not
known, administrative costs are estimated assuming that EPA will
administer the program everywhere. To the extent that other government
entities become authorized, EPA's administrative costs will be lower.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations codified in chapter I of title 40 of the CFR, after
appearing in the preamble of the final rule, are listed in 40 CFR part
9, are displayed either by publication in the Federal Register or by
other appropriate means, such as on the related collection instrument
or form, if applicable. When the ICR is approved by OMB, the Agency
will publish a technical amendment to 40 CFR part 9 in the Federal
Register to display the OMB control number for the approved information
collection requirements contained in the final rule.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a docket for this
rule, which includes this ICR, under docket ID number EPA-HQ-OPPT-2005-
0049. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES for where to submit comments to EPA. Send comments to OMB at
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW., Washington, DC 20503, Attention: Desk
Office for EPA. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after May 6, 2010, a comment to OMB is best
assured of having its full effect if OMB receives it by June 7, 2010.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small
entities, small entity is defined in accordance with section 601 of RFA
as:
    1. A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201.
    2. A small governmental jurisdiction that is a government of a
city, county, town, school district, or special district with a
population of less than 50,000.
    3. A small organization that is any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field.
    As required by section 604 of RFA, EPA has prepared a final
regulatory flexibility analysis (FRFA) for this rule. The FRFA is
available for review in the docket and is summarized in this unit (Ref.
8).
    1. Reasons why action by the Agency is being taken. After further
consideration of the opt-out provision, the Agency believes it is in
the best interest of the public to remove the provision. EPA believes
that the opt-out provision is not sufficiently protective for children
under age 6 and pregnant women, because it does not provide protection
from improperly performed renovations for visiting children and
pregnant women; for children and pregnant women who move into a newly
purchased house that was recently renovated under the opt-out
provision; and for children and pregnant women who live adjacent to a
home where the exterior is being renovated under the opt-out provision.
In addition, while the RRP rule focused mainly on protecting young
children and pregnant women from lead hazards, exposure can result in
adverse health effects for older children and adults as well. Removing
the opt-out provision will protect older children and adult occupants
of target housing where no child under age 6 or pregnant woman resides,
as well as residents of adjacent properties. Finally, EPA believes that
implementing the regulations without the opt-out provision promotes, to
a greater extent, the statutory directive to promulgate regulations
covering renovation activities in target housing.
    EPA has determined that providing owners and occupants of renovated
buildings with copies of the records documenting the renovation firm's
compliance with the RRP rule's training and work practice requirements
will serve to reinforce information on both the potential hazards of
renovations and on the RRP rule's requirements. It will also enable
building owners and occupants to better understand what the renovation
firm did to comply with the RRP rule and how the rule's provisions

affected their specific renovation. Educating the owners and occupants
in this way is likely to improve their ability to assist the EPA in
monitoring compliance with the RRP rule. These improvements in
education and monitoring will improve compliance with the RRP rule,
which will ultimately protect children and adults from exposure to lead
hazards due to renovation activities.
    2. Legal basis and objectives for this rule. TSCA section 402(c)(2)
directs EPA to study the extent to which persons engaged in renovation,
repair, and painting activities are exposed to lead or create lead-
based paint hazards regularly or occasionally. After concluding this
study, TSCA section 402(c)(3) further directs EPA to revise its lead-
based paint activities regulations under TSCA section 402(a) to apply
to renovation or remodeling activities that create lead-based paint
hazards. Because EPA's study found that activities commonly performed
during renovation and remodeling create lead-based paint hazards, EPA
issued the RRP rule in 2008 (Ref. 1). In issuing the RRP rule, EPA
revised the TSCA section 402(a) regulatory scheme to apply to
individuals and firms engaged in renovation, repair, and painting
activities. In this rule, EPA is revising the TSCA section 402(c)(3)
rule to cover renovations in all target housing and child-occupied
facilities. In so doing, EPA has also taken into consideration the
environmental, economic, and social impact of this rule as provided in
TSCA section 2(c). A central objective of this rule is to minimize
exposure to lead-based paint hazards created during renovation, repair,
and painting activities in all target housing and other buildings
frequented by children under age 6.
    3. Potentially affected small entities. Small entities include
small businesses, small organizations, and small governmental
jurisdictions. The small entities that are potentially directly
regulated by this rule include: Small businesses (including contractors
and property owners and managers); small nonprofits (certain childcare
centers and private schools); and small governments (school districts
which operate pre-schools, kindergartens and certain child care
centers).
    In determining the number of small businesses affected by the rule,
the Agency applied U.S. Economic Census data to the SBA's definition of
small business. However, applying the U.S. Economic Census data
requires either under or overestimating the number of small businesses
affected by the rule. For example, for many construction
establishments, the SBA defines small businesses as having revenues of
less than $14 million. With respect to those establishments, the U.S.
Economic Census data groups all establishments with revenues of $10
million or more into one revenue bracket. On the one hand, using data
for the entire industry would overestimate the number of small
businesses affected by the rule and would defeat the purpose of
estimating impacts on small business. It would also underestimate the
rule's impact on small businesses because the impacts would be
calculated using the revenues of large businesses in addition to small
businesses. On the other hand, applying the closest, albeit lower,
revenue bracket would underestimate the number of small businesses
affected by the rule while at the same time overestimating the impacts.
Similar issues arose in estimating the fraction of property owners and
managers that are small businesses. EPA has concluded that a
substantial number of small businesses will be affected by the rule.
Consequently, EPA has chosen to be more conservative in estimating the
cost impacts of the rule by using the closest, albeit lower, revenue
bracket for which U.S. Economic Census data is available. For other
sectors (nonprofits operating childcare centers or private schools),
EPA assumed that all affected firms are small, which may overestimate
the number of small entities affected by the rule.
    The vast majority of entities in the industries affected by this
rule are small. Using EPA's estimates, the revisions to the renovation,
repair, and painting program will affect approximately 289,000 small
entities.
    4. Potential economic impacts on small entities. EPA evaluated two
factors in its analysis of the rule's requirements on small entities,
the number of firms that would experience the impact, and the size of
the impact. Average annual compliance costs as a percentage of average
annual revenues were used to assess the potential average impacts of
the rule on small businesses and small governments. This ratio is a
good measure of entities' ability to afford the costs attributable to a
regulatory requirement, because comparing compliance costs to revenues
provides a reasonable indication of the magnitude of the regulatory
burden relative to a commonly available measure of economic activity.
Where regulatory costs represent a small fraction of a typical entity's
revenues, the financial impacts of the regulation on such entities may
be considered as not significant. For non-profit organizations, impacts
were measured by comparing rule costs to annual expenditures. When
expenditure data were not available, however, revenue information was
used as a proxy for expenditures. It is appropriate to calculate the
impact ratios using annualized costs, because these costs are more
representative of the continuing costs entities face to comply with the
rule.
    Of the approximately 289,000 small entities estimated to incur
costs due to the rule, an estimated 101,000 small residential
contractors are assumed to seek certification as a result of the
removal of the opt-out provision; therefore, they would incur training,
certification, work practice, and recordkeeping costs. The remaining
estimated 189,000 small entities (working in buildings that were not
eligible for the opt-out) are only expected to incur costs due to the
additional recordkeeping provisions in the rule.
    The average cost to a typical small renovation contractor of
removing the opt-out provision ranges from about $1,100 to about
$6,400, depending on the industry sector. This represents 0.8% to 1.7%
of revenues depending on the industry sector. Overall, an estimated
101,000 small businesses could be affected by the removal of the opt-
out provision, with average impacts of 1.10% of revenues.
    This rule's new recordkeeping requirement has an average cost of $1
to $280 for entities not affected by removal of the opt-out provision.
This results in incremental cost impacts ranging from 0.0001% to 0.08%
of revenues. An estimated 189,000 small entities could be affected
solely by the additional recordkeeping requirement, including 165,000
small businesses with average impacts of 0.03% of revenues, 17,000
small non-profits with average impacts of 0.0005%, and 6,000 small
governments with average impacts of 0.0001%.
    Combining the removal of the opt-out provision with the new
recordkeeping requirement, a total of 289,000 small entities could be
affected by the rule, including 266,000 small businesses with average
impacts of 0.4%, 17,000 small non-profits with average impacts of
0.0005%, and 6,000 small governments with average impacts of 0.0001%.
    To the extent that renovators and firms working in housing eligible
for the opt-out provision will already have become trained and
certified because they also work in regulated facilities ineligible for
the opt-out provision, or to the extent that eligible homeowners would
decline to opt out, the average

impacts of this action will be lower than estimated.
    Some of the small entities subject to the rule have employees while
others are non-employers. The non-employers typically perform fewer
jobs than firms with employees, and thus have lower work practice
compliance costs. However, they also have lower average revenues than
entities with employees, so their impacts (measured as costs divided by
revenues) can be higher. Impact estimates for non-employers should be
interpreted with caution, as some non-employers may have significant
issues related to understatement of income, which would tend to
exaggerate the average impact ratio for this class of small entities.
    There are an estimated 75,000 non-employer renovation contractors
that could be affected by the removal of the opt-out provision. The
average cost to such contractors is estimated to be $1,193 apiece. This
represents 1.3% to 4.7% of reported revenues, depending on the industry
sector. The rule's new recordkeeping requirement is estimated to affect
approximately 96,000 additional non-employer renovation contractors not
affected by removal of the opt-out provision. The costs to such
contractors are estimated to be $42 apiece. This represents 0.05% to
0.17% of revenues, depending on the industry sector.
    5. Relevant federal rules. The requirements in this rule will fit
within an existing framework of other Federal regulations that address
lead-based paint. Notably, the Pre-Renovation Education Rule, 40 CFR
745.85, requires renovators to distribute a lead hazard information
pamphlet to owners and occupants before conducting a renovation in
target housing and child-occupied facilities. This rule's requirement
that renovators provide owners and occupants with records documenting
compliance with the program's training and work practice requirements
complements the existing pre-renovation education requirements.
    6. Skills needed for compliance. Under the lead renovation, repair,
and painting program requirements, renovators and dust sampling
technicians working in target housing and child-occupied facilities
have to take a course to learn the proper techniques for accomplishing
the containment, cleaning, cleaning verification, and dust sampling
tasks they will perform during renovations. These courses are intended
to provide them with the information they would need to comply with the
rule based on the skills they already have. Renovators then provide on-
the-job training in work practices to any other renovation workers used
on a particular renovation. Entities are required to apply for
certification to perform renovations; this process does not require any
special skills other than the ability to complete the application. They
also need to document their training and the work practices used during
renovations, which does not require any special skills.
    7. Small business advocacy review panel. EPA has been concerned
with potential small entity impacts since the earliest stages of
planning for the RRP program under section 402(c)(3) of TSCA. EPA
conducted outreach to small entities and, pursuant to section 609 of
RFA, convened a Small Business Advocacy Review Panel (the Panel) in
1999 to obtain advice and recommendations of representatives of the
regulated small entities. Pursuant to the RFA, EPA used the report of
the Panel convened for the closely related RRP rule promulgated in
April 2008. EPA identified eight key elements of a potential renovation
and remodeling regulation for the Panel's consideration. These elements
were: Applicability and scope, firm certification, individual training
and certification, accreditation of training courses, work practice
standards, prohibited practices, exterior clearance, and interior
clearance.
    Details on the Panel and its recommendations are provided in the
Panel Report (Ref. 9). Information on how EPA implemented the Panel's
recommendations in the development of the RRP program is available in
Unit VIII.C. of the preamble to the proposed RRP rule (Ref. 10) and in
Unit V.C. of the preamble to the RRP rule (Ref. 1). This rule is
closely related to the RRP rule and the conclusions made in 2008
regarding the Panel's recommendations are applicable to this final
rule. Although this final rule expands the number of renovation firms
that must comply with the RRP requirements, it does not change the
elements identified by the Panel. For example, this rule does not
change the work practice or certification requirements of the RRP rule.
EPA believes that reconvening the Panel would be procedurally
duplicative and is unnecessary given that the issues here were within
the scope of those considered by the Panel.
    8. Alternatives considered. EPA considered several significant
alternatives to this rule that could affect the economic impacts of the
rule on small entities. These alternatives would have applied to both
small and large entities, but given the number of small entities in the
affected industries, these alternatives would primarily affect small
entities. For the reasons described in this unit, EPA believes these
alternatives are not consistent with the objectives of the rule.
    i. Delayed effective date. EPA considered an option that would
delay the removal of the opt-out provision by 6 months, and another
option that would delay the date by 12 months. These options 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, including exposures to
children under the age of 6 and pregnant women. Therefore, EPA believes
that these options are not consistent with the stated objectives of the
rule.
    ii. Staged approach. EPA considered a staged approach that would
initially remove the opt-out provision in pre-1960 housing, and then
remove it in housing built between 1960 and 1978 a year later. This
would make the RRP program more complex to implement and might lead to
confusion by renovators and homeowners. It would also increase
exposures during the first year of the rule from renovations in houses
built between 1960 and 1978, including exposures to children under the
age of 6 and pregnant women. EPA does not believe that the reduced
burden of a staged approach outweighs the implementation complexity and
additional exposures that it would create. Therefore, EPA believes that
this option is not consistent with the stated objectives of the rule.
    iii. Alternate work practices. EPA also considered different
options for the work practice requirements in housing that was
previously eligible for the opt-out provision. Specifically, EPA
considered options: With the containment requirements specified in 40
CFR 745.85, but without any cleaning or cleaning verification work
practices; with the cleaning and cleaning verification requirements
specified in 40 CFR 745.85, but without any containment work practices;
with the cleaning requirements specified in 40 CFR 745.85, but without
any containment or cleaning verification work practices; and with the
containment, cleaning, and cleaning verification requirements specified
in 40 CFR 745.85, but without the prohibitions or restrictions on paint
removal practices specified in 40 CFR 745.85(a)(3) (i.e., open-flame
burning or torching, the use of machines that remove paint through
high-speed operation without HEPA exhaust control, and heat guns
operating in excess of 1,100 degrees Fahrenheit).

    EPA's Dust Study (Ref. 11) 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. 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. This is discussed in
more detail in the RRP rule (Ref. 1, pp. 21696-21697).
    iv. Conclusion. EPA is concerned that these alternatives to the
rule can create confusion among both contractors and consumers and
could potentially result in non-compliance by renovation firms. EPA
believes that simplifying the applicability of the work practices will
enhance the effectiveness and reliability of the rule.
    EPA is concerned that the alternatives with a delayed or staged
effective date would lead to increased exposures during the delay
period, including exposures to children under the age of 6 and pregnant
women.
    Based on the data available to EPA (e.g., the Dust Study), the
Agency cannot now conclude that the alternatives to the rule with
alternate work practices are safe, reliable or effective because none
of these would sufficiently minimize exposure to lead-based paint
hazards. In sum, when the RRP work practices are not used, residents
and visitors are exposed to the lead hazards created by the renovation,
and therefore these approaches would not protect older children, women
of childbearing age, or other adults currently residing in the home and
can result in exposure to children under the age of 6 and pregnant
women to lead-based paint hazards.
    9. Summary of significant issues raised by public comments. There
were no public comments specifically on the Initial Regulatory
Flexibility Analysis. However, there were public comments that
addressed the Agency's compliance with the Regulatory Flexibility Act,
or which addressed issues that indirectly affect the Initial Regulatory
Flexibility Analysis. The Agency's assessment of these issues is
summarized in the FRFA. EPA did not make any changes to the proposed
rule as a result of these comments.
    10. Small entity compliance guide. As required by section 212 of
Small Business Regulatory Enforcement Fairness Act (SBREFA), EPA issued
a Small Entity Compliance Guide (the Guide) in December 2008 to help
small entities comply with the RRP rule. The Guide is available at:
http://www.epa.gov/lead/pubs/sbcomplianceguide.pdf or from the National
Lead Information Center by calling 1-800-424-LEAD [5323]. EPA will
revise the Guide, as necessary, to reflect this rulemaking activity.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA proposed rules with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
    Under UMRA Title II, EPA has determined that this rule contains a
Federal mandate that may result in expenditures that exceed the
inflation-adjusted UMRA threshold of $100 million by the private sector
in any 1 year, but it will not result in such expenditures by State,
local, and Tribal governments in the aggregate. Accordingly, EPA has
prepared a written statement under section 202 of UMRA which has been
placed in the docket for this rule (Ref. 12) and is summarized here.
    1. Authorizing legislation. This rule is issued under the authority
of TSCA sections 402(c)(3), 404, 406, and 407 (15 U.S.C. 2682(c)(3),
2684, 2686, and 2687).
    2. Cost-benefit analysis. EPA has prepared an analysis of the costs
and benefits associated with this rule, a copy of which is available in
the docket for this rule (Ref. 5). The Economic Analysis presents the
costs of this rule as well as various regulatory options and is
summarized in Unit IV.A. EPA has estimated the total costs of this rule
at approximately $500 million in the first year and $300 million per
year thereafter.
    The benefits of the rule result from the prevention of adverse
health effects attributable to lead exposure from renovations in pre-
1978 buildings. These health effects include impaired cognitive
function in children and several illnesses in children and adults, such
as increased adverse cardiovascular outcomes (including increased blood
pressure, increased incidence of hypertension, cardiovascular
morbidity, and mortality) and decreased kidney function.
    3. State, local, and Tribal government input. EPA has sought input
from State, local, and Tribal government representatives throughout the
development of the renovation, repair, and painting program. EPA's
experience in administering the existing lead-based paint activities
program under TSCA section 402(a) suggests that these governments will
play a critical role in the successful implementation of a national
program to reduce exposures to lead-based paint hazards associated with
renovation, repair, and painting activities. Consequently, as discussed
in Unit III.C.2. of the preamble to the proposed RRP rule (Ref. 10),
the Agency has met with State, local, and Tribal government officials
on numerous occasions to discuss renovation issues.
    4. Least burdensome option. EPA has considered a wide variety of
options for addressing the risks presented by renovation activities
where lead-based paint is present. As part of the development of the
renovation, repair, and painting program, EPA considered different
options for the scope of the rule, various combinations of training and
certification requirements for individuals who perform renovations,
various combinations of work practice requirements, and various methods
for ensuring that no lead-based paint

hazards are left behind by persons performing renovations. The Economic
Analysis for this rule analyzed several additional options for the
phasing, effective date, and work practices required for the additional
owner-occupied housing affected by the removal of the opt-out
provision. As described in Unit IV.C., EPA has concluded that the
options for delaying or phasing the effective date would make the RRP
program more complex to implement, might lead to confusion by
renovators and homeowners, and would lead to increased exposures. EPA
believes that the selected approach is the least burdensome option
available that achieves a central objective of this rule, which is to
minimize exposure to lead-based paint hazards created during
renovation, repair, and painting activities in all target housing and
other buildings frequented by children under age 6.
    This rule does not contain a significant Federal intergovernmental
mandate as described by section 203 of UMRA. Based on the definition of
``small government jurisdiction'' in RFA section 601, no State
governments can be considered small. Small Territorial or Tribal
governments may apply for authorization to administer and enforce this
program, which would entail costs, but these small jurisdictions are
under no obligation to do so.
    EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments operate public housing, and schools that
are child-occupied facilities. If these governments perform renovations
in these facilities, they may incur very small additional costs to
provide residents, parents or guardians with copies of the records
documenting compliance with the training and work practice
requirements. EPA generally measures a significant impact under UMRA as
being expenditures, in the aggregate, of more than 1% of small
government revenues in any 1 year. As explained in Unit IV.C.4., the
rule is expected to result in small government impacts well under 1% of
revenues. So EPA has determined that the rule does not significantly
affect small governments. Nor does the rule uniquely affect small
governments, as the rule is not targeted at small governments, does not
primarily affect small governments, and does not impose a different
burden on small governments than on other entities that operate child-
occupied facilities.

E. Executive Order 13132

    Pursuant to Executive Order 13132, entitled ``Federalism'' (64 FR
43255, August 10, 1999), EPA has determined that this rule does not
have ``federalism implications,'' because it will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. Thus, Executive Order 13132 does not apply to
this rule. States are able to apply for, and receive authorization to
administer the lead renovation, repair, and painting program
requirements, but are under no obligation to do so. In the absence of a
State authorization, EPA will administer the requirements.
Nevertheless, in the spirit of the objectives of this Executive Order,
and consistent with EPA policy to promote communications between the
Agency and State and local governments, EPA consulted with
representatives of State and local governments in developing the
renovation, repair, and painting program. These consultations were
described in the preamble to the proposed RRP rule (Ref. 10).

F. Executive Order 13175

    As required by Executive Order 13175, entitled ``Consultation and
Coordination with Indian Tribal Governments'' (59 FR 22951, November 6,
2000), EPA has determined that this rule does not have Tribal
implications because it will not have substantial direct effects on
Tribal governments, on the relationship between the Federal government
and the Indian Tribes, or on the distribution of power and
responsibilities between the Federal government and Indian Tribes, as
specified in the Order. Tribes are able to apply for and receive
authorization to administer the lead renovation, repair, and painting
program on Tribal lands, but Tribes are under no obligation to do so.
In the absence of a Tribal authorization, EPA will administer these
requirements. While Tribes may operate public housing or child-occupied
facilities covered by the rule such as kindergartens, pre-
kindergartens, and daycare facilities, EPA has determined that this
rule would not have substantial direct effects on the Tribal
governments that operate these facilities.
    Thus, Executive Order 13175 does not apply to this rule. Although
Executive Order 13175 does not apply, EPA consulted with Tribal
officials and others by discussing potential renovation regulatory
options for the renovation, repair, and painting program at several
national lead program meetings hosted by EPA and other interested
Federal agencies.

G. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) applies to this rule because it is an ``economically significant
regulatory action'' as defined by Executive Order 12866, and because
the environmental health or safety risk addressed by this action may
have a disproportionate effect on children.
    A central purpose of this rule is to minimize exposure to lead-
based paint hazards created during renovation, repair, and painting
activities in all housing and other buildings frequented by children
under age 6. In the absence of this regulation, adequate work practices
are not likely to be employed during renovation, repair, and painting
activities in housing eligible for the opt-out provision.
    Removing the opt-out provision will protect children under the age
of 6 who visit a friend, relative, or caregiver's house where a
renovation would have been performed under the opt-out provision;
children who move into such housing when their family purchases it
after such a renovation would have been performed; and children who
live in a property adjacent to owner-occupied housing where renovation
would have been performed under the opt-out provision. Removing the
opt-out provision will also protect children age 6 and older who live
in houses that would have been renovated under the opt-out provision;
who move into such housing; and who live in adjacent properties.

H. Executive Order 13211

    This rule is not a ``significant energy action'' as defined in
Executive Order 13211, entitled ``Actions concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have any adverse
effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note),
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent

with applicable law or otherwise impractical. Voluntary consensus
standards are technical standards (e.g., materials specifications, test
methods, sampling procedures, and business practices) that are
developed or adopted by voluntary consensus standards bodies. The NTTAA
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable voluntary consensus
standards.
    This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898

    Pursuant to Executive Order 12898, entitled ``Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994), EPA has assessed the
potential impact of this rule on minority and low-income populations.
The results of this assessment are presented in the Economic Analysis,
which is available in the public docket for this rulemaking (Ref. 5).
As a result of this assessment, the Agency has determined that this
rule will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations because it
increases the level of environmental protection for all affected
populations without having any disproportionately high and adverse
human health or environmental effects on any population, including any
minority or low-income population.

V. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report to each House of the Congress and
the Comptroller General of the United States. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
This rule is a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 745

    Environmental protection, Lead, Lead-based paint, Renovation,
Reporting and recordkeeping requirements.

    Dated: April 22, 2010.
Lisa P. Jackson,
Administrator.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 745--[AMENDED]

0
1. The authority citation for part 745 continues to read as follows:

    Authority:  15 U.S.C. 2605, 2607, 2681-2692 and 42 U.S.C. 4852d.

0
2. In Sec.  745.81, revise paragraph (a)(4) to read as follows:

Sec.  [emsp14]745.81  Effective dates.

    (a) * * *
    (4) Work practices. (i) On or after April 22, 2010 and before July
6, 2010 all renovations must be performed in accordance with the work
practice standards in Sec.  [emsp14]745.85 and the associated
recordkeeping requirements in Sec.  [emsp14]745.86 (b)(6) in target
housing or child-occupied facilities, unless the renovation qualifies
for one of the exceptions identified in Sec.  745.82(a). This does not
apply to renovations in target housing for which the firm performing
the renovation has obtained a statement signed by the owner that the
renovation will occur in the owner's residence, no child under age 6
resides there, the housing is not a child-occupied facility, and the
owner acknowledges that the work practices to be used during the
renovation will not necessarily include all of the lead-safe work
practices contained in EPA's renovation, repair, and painting rule. For
the purposes of this section, a child resides in the primary residence
of his or her custodial parents, legal guardians, and foster parents. A
child also resides in the primary residence of an informal caretaker if
the child lives and sleeps most of the time at the caretaker's
residence.
    (ii) On or after July 6, 2010, all renovations must be performed in
accordance with the work practice standards in Sec.  [emsp14]745.85 and
the associated recordkeeping requirements in Sec.  [emsp14]745.86(b)(1)
and (b)(6) in target housing or child-occupied facilities, unless the
renovation qualifies for the exception identified in Sec.  745.82(a).
* * * * *

Sec.  [emsp14]745.82  [Amended]

0
3. In Sec.  745.82, remove paragraph (c).

0
4. In Sec.  745.84, revise paragraph (b)(2), the introductory text of
paragraph (c)(2), and paragraph (c)(2)(ii) to read as follows:

Sec.  [emsp14]745.84  Information distribution requirements.

* * * * *
    (b) * * *
    (2) Comply with one of the following. (i) Notify in writing, or
ensure written notification of, each affected unit and make the
pamphlet available upon request prior to the start of renovation. Such
notification shall be accomplished by distributing written notice to
each affected unit. The notice shall describe the general nature and
locations of the planned renovation activities; the expected starting
and ending dates; and a statement of how the occupant can obtain the
pamphlet and a copy of the records required by Sec.  [emsp14]745.86(c)
and (d), at no cost to the occupants, or
    (ii) While the renovation is ongoing, post informational signs
describing the general nature and locations of the renovation and the
anticipated completion date. These signs must be posted in areas where
they are likely to be seen by the occupants of all of the affected
units. The signs must be accompanied by a posted copy of the pamphlet
or information on how interested occupants can review a copy of the
pamphlet or obtain a copy from the renovation firm at no cost to
occupants. The signs must also include information on how interested
occupants can review a copy of the records required by Sec.
[emsp14]745.86(c) and (d) or obtain a copy from the renovation firm at
no cost to the occupants.
* * * * *
    (c) * * *
    (2) Provide the parents and guardians of children using the child-
occupied facility with the pamphlet, information describing the general
nature and locations of the renovation and the anticipated completion
date, and information on how interested parents or guardians of
children frequenting the child-occupied facility can review a copy of
the records required by Sec.  745.86(c) and (d) or obtain a copy from
the renovation firm at no cost to the occupants by complying with one
of the following:
* * * * *
    (ii) While the renovation is ongoing, post informational signs
describing the general nature and locations of the renovation and the
anticipated completion date. These signs must be posted in areas where
they can be seen by the parents or guardians of the children
frequenting the child-occupied facility. The signs must be accompanied
by a posted copy of the pamphlet or information on how interested
parents or guardians of children frequenting the child-occupied
facility can review a copy of the pamphlet or obtain a copy from the
renovation firm at no cost to the parents or guardians. The signs must

also include information on how interested parents or guardians of
children frequenting the child-occupied facility can review a copy of
the records required by Sec.  [emsp14]745.86(c) and (d) or obtain a
copy from the renovation firm at no cost to the parents or guardians.
* * * * *

0
5. In Sec.  745.86, remove paragraph (b)(6) and redesignate paragraph
(b)(7) as paragraph (b)(6) and revise paragraphs (b)(1), (c), and (d)
to read as follows:

Sec.  745.86  Recordkeeping and reporting requirements.

* * * * *
    (b) * * *
    (1) Records or reports certifying that a determination had been
made that lead-based paint was not present on the components affected
by the renovation, as described in Sec.  745.82(a). These records or
reports include:
    (i) Reports prepared by a certified inspector or certified risk