A federal court denied a petition filed by construction industry trade groups to review the Environmental Protection’s Agency’s (EPA) amendment to its Renovation, Repair and Painting Rule that would eliminate an “opt-out” provision.
The petitioners argued that the decision to eliminate the provision was arbitrary and capricious and that the EPA violated the Regulatory Flexibility Act (RFA) by failing to convene a panel of small business representatives before issuing the rule, which went into effect in 2010.
The provision would have allowed remodelers and contractors the opportunity to forgo lead-safe renovation practices if the homeowner consented and it was determined that no pregnant women or young children lived there.
For its arbitrary and capricious claims, the group argued that the EPA provided no justification for the elimination, which violates the Administrative Procurement Act (APA). According to the petition, the EPA made the decision based on original information it had used during the original rulemaking process in 2008, thus “under the APA, the agency has to be held to a higher standard.”
In its June 22 decision, the District of Columbia circuit court cited the Supreme Court’s decision in FCC v. Fox Television Stations, Inc., which states there is “no basis in the Administrative Procurement Act or in our opinions for a requirement that all agency change be subjected to more searching review.” The court said Fox allows agencies to reevaluate rules based on would they believe would be best.
The court also ruled that the EPA did not violate the RFA by failing to host a business advocacy review panel because such claims are unreviewable under the act.
The petition was filed in November and was led by the National Association of Home Builders. Fellow petitioners included the National Lumber and Building Material Dealers Association, the Window & Door Manufacturers Association, and the Hearth, Patio & Barbecue Association.
All is not lost for the petitioners, however, as Lead Exposure Amendments Act of 2012 bills were introduced in the Senate and House during the spring by Sen. James Inhofe, R-Okla., and Reps. John Sullivan, R-Okla., and Tim Murphy, R-Pa.