NAHB lead paint lawsuit against EPA moves forward

NAHB is pursuing litigation with the EPA over removal of opt-out provision in lead paint rules

May 10, 2011

NAHB has filed its opening brief in what could be a drawn-out legal battle with the Environmental Protection Agency.
NAHB and three other trade associations — the Hearth, Patio and Barbecue Association; the Window and Door Manufacturers Association; and the National Lumber and Building Material Dealers Association — have filed suit against the EPA over the agency’s removal of the opt-out provision from the LRRP rules. The opt-out provision, included in the original LRRP rules EPA issued in 2008, allowed homeowners without children under 6 or pregnant women in the home to “opt out” of the stringent rules for handling pre-1978 homes. EPA removed that provision as part of a settlement with the Sierra Club and other groups.
NAHB is arguing that the removal exceeded the scope of the congressional intent in creating the program in its brief to the U.S. Court of Appeals.
“Congress wanted them to make the renovation and remodeling rule different from the abatement rule, to really focus on children under 6 and pregnant women,” says Amy Chai, senior counsel at NAHB. “The opt-out provision allows the agency to better to do that, which is what the agency itself said in 2008 when it published the rule.”
The EPA didn’t provide sufficient justifcation for the change as required under the Administrative Procedure Act, or properly evaluate the impact on small businesses as required by the Regulatory Flexibility Act, NAHB argued in its opening brief.
“When they made such an about face, there was no new evidence in the record that supported them changing their minds in such a dramatic fashion,” Chai says.
NAHB and its partners are not challenging the LRRP rules in their entirety, just the removal of the opt-out clause. NAHB supports the regulations except for that change, says Therese Crahan, executive director of NAHB Remodelers.
“The litigation is solely over the the opt-out provision, and some people misunderstand that,” she says.
The problem for NAHB members is that many homeowners don’t understand the new rules and many, especially those without children, don’t understand why they have to pay for their projects to meet the requirements, Crahan says.
That’s leading to NAHB members losing business to either DIYers or contractors that aren’t following the rules.
It will probably be sometime in 2012 before the court makes a decision, Chai says.
EPA has until June to file a brief with the court. The National Center for Healthy Housing is also expected to file an amicus brief in June in support of EPA. NAHB will have until July to respond to those briefs. That would be followed by oral arguments in front of a three-judge panel.
In the meantime, NAHB’s lobbyists are also continuing to work on Capitol Hill in an effort to get Congress to address the issue.

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