The D.C. Circuit Court of Appeals has upheld the U.S. Environmental Protection Agency’s (EPA’s) authority to remove a lead-based-paint renovation rule provision that allowed contractors to opt out of certain protections against lead exposure. Nat’l Ass’n of Home Builders v. EPA, No. 10-1183 (D.C. Cir. 6/22/12). Petitioners had argued that EPA removed the opt-out provision from the rule without relying on new data or experience to indicate that strict lead exposure protections were required during home renovations.
Issued in 2008, the opt-out rule exempted renovation at owner-occupied housing from lead exposure protection if the homeowner certified that no pregnant women or young children lived there. In 2010, EPA amended the rule to eliminate the opt-out provision. Petitioners sought an order reversing the 2010 amendment. They argued that the decision to abandon the opt-out rule was arbitrary and capricious in violation of the Administrative Procedure Act and that EPA failed to convene a panel of small business representatives before issuing the amended rule, in violation of the Regulatory Flexibility Act.
The court held that it was not arbitrary and capricious for EPA to issue an amended rule that it reasonably believed would be “more reliable, more effective, and safer than the original rule.” Specifically, the court found that the opt-out provision was not sufficiently protective of young children and pregnant women. As to the second argument, the court said that the Regulatory Flexibility Act does not give the court jurisdiction to review the agency’s compliance with the statute.