On June 22, 2012, the US Court of Appeals for the DC Circuit
upheld the US Environmental Protection Agency's (EPA)
removal of the opt-out provision for work that disturbs lead-based
paint in pre-1978 housing.
The opt-out provision would have allowed those homeowners who
certified that there were no children younger than six or pregnant
women residing in the home to "opt out" of the
EPA's Renovation, Repair and Painting Rule (RRP Rule). The
opt-out provision was in the original RRP Rule promulgated by EPA
in 2008, but was removed in 2010 as part of a settlement between
EPA and several environmental and health advocacy groups.
The National Association of Home Builders and other trade
associations petitioned the US Court of Appeals for the DC Circuit
for review of EPA's change of heart. The court ruled
against petitioners, holding that it was not arbitrary and
capricious for EPA to change its mind and that the court had no
jurisdiction to review EPA's failure to convene a small
business advocacy review.
The court noted that two events, in addition to settling with
environmental and other groups, explained the EPA's
decision: the inauguration of a new President and the appointment
of a new EPA administrator. According to the court, and quoting
then-Justice Rehnquist, "[a] change in administration ... is a
perfectly reasonable basis for an executive agency's
reappraisal of the costs and benefits of its programs and
So the story is not over. Not only is there an upcoming
Presidential election, but legislation introduced in the US House
and Senate earlier this year would, among other things, reinstate
the opt-out provision. But in the meantime, EPA is enforcing the
RRP Rule and announced earlier this year its first known
enforcement actions against three violators.
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