National Ass'n of Home Builders v. EPA, D.C. Cir., No. 10-1183,
Key Holding: A federal appeals court upholds EPA's authority to remove
a provision from its lead-based paint renovation rule that allowed contractors
to opt out of certain protections.
By Robert C. Cook
A federal appeals court June 22 upheld the Environmental Protection Agency's
authority to remove a provision from its lead-based paint renovation rule that
had allowed contractors to opt out of certain protections against lead exposure
(National Ass'n of Home Builders v. EPA, D.C. Cir., No. 10-1183,
The National Association of Home Builders and other groups had argued before
the U.S. Court of Appeals for the District of Columbia Circuit that EPA removed
the opt-out provision from the rule without relying on new data or experience to
indicate stricter lead exposure protections were required during home
The D.C. Circuit denied the petition by NAHB; the Hearth, Patio &
Barbecue Association; the National Lumber & Buildings Material Dealers
Association; and the Window & Door Manufacturers Association.
“We are disappointed with the court's ruling today,” a spokeswoman for NAHB
told BNA June 22 in an email. “We are encouraged, however, by the House and
Senate's recently introduced Lead Exposure Amendments Act of 2012 (H.R. 5911 and
S. 2148), which call for the reinstatement of the opt-out provision.”
The Senate bill was introduced March 1 by Sen. James Inhofe (R-Okla), and the
House bill was introduced June 7 by Reps. John Sullivan (R-Okla.) and Tim Muphy
(R-Pa.) (111 DER A-23, 6/11/12).
The appellate court noted that in 2008, EPA issued the opt-out rule, stating
that renovations at owner-occupied housing were exempt from lead exposure
protections if the homeowner certified that no pregnant women or young children
In 2010, EPA amended the rule to eliminate the opt-out provisions. The home
builders and other groups sought reversal of the May 6, 2010, amendment to the
rule removing it.
The lawsuit was filed in the D.C. Circuit on July 8, 2010.
In its denial of the home builders' petition, the appellate court noted that
the trade groups raised two grounds for reversal of the 2010 rule change.
First, the trade groups claimed that the decision to abandon the opt-out
provision was arbitrary and capricious, in violation of the Administrative
Second, the groups faulted EPA for failing to convene a panel of
representatives of small businesses before issuing the new rule in violation of
the Regulatory Flexibility Act.
The appellate court ruled that EPA's decision was not arbitrary or
capricious, and the court said it lacked jurisdiction to review the second
On the first and primary point, the appellate court wrote, “The essence of
the petitioners' argument is that it was arbitrary and capricious for EPA to
change its mind about the opt-out provision.”
The court wrote that in light of FCC v. Fox Television Stations Inc.,
556 U.S. 502 (2009), “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.' ”
The court explained that EPA found that the opt-out provision was not
sufficiently protective for young children and pregnant women, the most
Additionally, the court said that EPA determined that lead paint dust
exposure can cause adverse health effects in older children and adults.
The court determined that these reconsiderations by EPA promoted “to a
greater extent” the directive of the statute “to promulgate regulations covering
renovation activities in target housing.”
The D.C. Circuit held that it was not arbitrary or capricious for EPA to
issue an amended rule that it reasonably believed would be “more reliable, more
effective, and safer than the original rule.”
“The petitioners find EPA's change of heart largely inexplicable,” the court
However, the court observed that there were two “events of note” that “go a
long way toward explaining why EPA reconsidered the opt-out provision: namely,
the inauguration of a new President and the confirmation of a new EPA
A change in administration after an election is “a perfectly reasonable
basis” for an agency's reappraisal of the costs and benefits of a rule, the
Lead was added as a primary ingredient to oil-based exterior and interior
house paints in the 1940s.
In 1992, Congress found that as many as 3 million children younger than 6
years old were affected by low-level lead poisoning, “most commonly caused by
the ingestion of household dust containing lead from lead-based paint,” EPA
wrote in its appellate brief.
Also in 1992, lead paint hazards were addressed in amendments to the Toxic
Substances Control Act.
EPA said in its brief and at oral argument that the revised rule provides
greater protection for women and young children.
Arguing the case for EPA was Stephanie J. Talbert of the Justice Department.
DOJ did not immediately respond June 22 to a request for comment.
The opinion by the U.S. Court of Appeals for the District of Columbia Circuit
in National Ass'n of Home Builders v. EPA is available at http://op.bna.com/env.nsf/r?Open=jstn-8vhqaz.