Critics of the EPA’s lead-paint Renovation, Repair and Painting (RRP) rule are “disappointed” following a recent federal appeals court decision affirming the agency’s authority to remove the so-called “opt out” provision from the rule.
A spokesperson for the National Association of Home Builders (NAHB), a petitioner in the case, told D+D News that while last week’s court decision was a disappointment, the association is “encouraged” by the introduction in the U.S. House and Senate of the Lead Exposure Amendments Act of 2012 (H.R. 5911 and S.2148). The legislation calls for the reinstatement of the opt-out provision.
See D+D News coverage of the House and Senate bills: Senate Bill Would Reinstate RRP Rule’s ‘Opt Out,’ Force Other Changes and Legislation in U.S. House Adds Volume to Clamor for RRP Rule Revisions.
The opt-out provision, originally included in the 2008 RRP rule, allowed homeowners without small children or pregnant women residing in the home to waive compliance, or “opt out” of the rule’s requirements. But the opt-out portion of the rule was eliminated by the EPA in 2010, shortly after the rule took effect, in response to a court challenge by environmental and children’s-health advocacy groups.
NAHB and other industry organizations have criticized the EPA’s action, saying it adds massive regulatory-compliance costs to remodelers and other contractors while taking away homeowners’ right to make decisions on renovations of their own residences.
The NAHB and other trade associations argued before the U.S. Court of Appeals for the D.C. Circuit that the EPA’s decision to remove the opt-out provision from the RRP rule was “arbitrary and capricious,” in contravention of the Administrative Procedure Act.
The groups said that in 2008, EPA provided a reasoned basis for its approach consistent with “congressional intent” and provided no “new data” or justification for its decision to reverse course in 2010.
But the appeals court said that “The fact that the original opt-out provision was consistent with congressional intent is irrelevant as long as the amended rule is also ‘permissible under the statute.’”
Further, the court said EPA did not rely on “new data” to support its decision, but rather reevaluated the policy in light of the facts, which is within an agency’s discretion. The agency said the amended rule would “go farther” to protect children under age 6 and pregnant women, the court noted.
The court also said changes in agency leadership also played a role in explaining “why EPA reconsidered the opt-out provision.”
The court said it lacked jurisdiction to review the plaintiffs’ argument that EPA failed to convene a panel of representatives of small businesses before issuing the new rule in violation of the Regulatory Flexibility Act.
Asked about any further possible legal action, the NAHB spokesperson told D+D News, “In terms of appeal, we’re considering all our options.”
Other petitioners in the case included the Hearth, Patio & Barbecue Association, the National Lumber & Buildings Material Dealers Association, and the Window & Door Manufacturers Association.
More information: National Association of Home Builders v. EPA.