Sean McLernon – June 22, 2012
The D.C. Circuit on Friday upheld a U.S. Environmental Protection Agency decision to tighten a rule governing repairs in older homes that may have lead paint, finding the EPA was within its authority to remove an opt-out provision from the rule.
The National Association of Home Builders and three other housing industry groups argued that the EPA acted arbitrarily when it removed the provision, in which consumers could let contractors skip the extra preparation, cleanup and record-keeping requirements in homes where there were no pregnant women or children younger than age 6.
Upholding the EPA action, the appeals court said the agency “provided a reasonable explanation” for its decision and did not violate the Administrative Procedure Act.
The EPA showed that the opt-out provision did not sufficiently protect vulnerable populations – including families with young children who may have moved into recently renovated housing – and did not properly consider the effects of lead exposure on older children and adults, according to the ruling.
“Because the act directs EPA to promulgate regulations that ‘contain standards for performing lead-based paint activities, taking into account reliability, effectiveness and safety,’ it was hardly arbitrary or capricious for EPA to issue an amended rule it reasonably believed would be more reliable, more effective and safer than the original rule,” the appeals panel said.
The NAHB and fellow petitioners the National Lumber and Building Material Dealers Association, the Window and Door Manufacturers Association, and the Hearth, Patio and Barbecue Association claimed the EPA provided “a reasoned basis for its approach consistent with congressional intent” when the agency established the opt-out provision in 2008.
Two years later, however, the agency gave no justification for its decision to change course and remove the provision, merely revisiting old arguments that had already been addressed as part of the rulemaking process, the housing industry organizations said.
The D.C. Circuit said the groups were correct, but found that the EPA has the discretion to re-evaluate its policy and noted that the petitioners failed to point to any contradictory findings upon which the EPA relied in deciding to remove the opt-out provision.
EPA first issued its Lead: Renovation, Repair and Painting rule in April 2008 to require contractors to conduct lead-safe work procedures when making repairs to homes built before 1978, the year lead paint was banned in the U.S. The agency expanded the rules to cover all contractors in July 2010 as a part of a settlement resolving litigation brought by the Sierra Club, the New York City Coalition to End Lead Poisoning and other groups.
Lead exposure can lead to lower intelligence, learning disabilities and behavior issues in children, and adults exposed to lead hazards can suffer from high blood pressure and headaches, according to the EPA.
Representatives from the EPA and the NAHB were not immediately available for comment Friday.
Judges Judith W. Rogers, Merrick B. Garland and Stephen F. Williams sat on the panel for the D.C. Circuit.
The housing industry groups are represented by Thomas C. Jackson of Baker Botts LLP.
The case is National Association of Home Builders et al. v. EPA, case number 10-1183, in the U.S. Court of Appeals for the District of Columbia Circuit.