A federal court of appeals has upheld the EPA's authority to remove the "opt-out" provision from the Renovation, Repair and Painting (RRP) rule, according to Bloomberg BNA.
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A federal court of appeals has upheld the EPA's authority to remove the "opt-out" provision from the Renovation, Repair and Painting (RRP) rule, according to Bloomberg BNA.
The appeal was filed by the National Association of Home Builders (NAHB), along with the Hearth, Patio & Barbecue Association; the National Lumber & Buildings Material Dealers Association; and the Window & Door Manufacturers Association. They argued that the EPA removed the opt-out provision in a capricious manner, without relying on new data that warranted a stricter version of the RRP rule.
In a prepared statement, the NAHB said it was "disappointed with the court's ruling."
The EPA first instituted the opt-out provision in 2008 during the rulemaking process, and then in 2010 it eliminated the provision. In April 2010, the RRP rule took effect, and in July of that year the NAHB filed suit.
The NAHB argued that the EPA removed the provision in a capricious manner and thus violated the Administrative Procedure Act, and that it violated the Regulatory Flexibility Act by not convening small business stakeholders to assess the impact removing the opt-out provision would have. On June 22, the court of appeals in Washington, D.C., concluded that the EPA's actions were not capricious; however, it did not rule on the second argument after the court determined it lacked authority to do so. Even though it didn't rule on the NAHB's second grounds for appeal, the court denied the association's petition to have the RRP rule reviewed.
The RRP rule was enacted in April 2010 and affects contractors disturbing certain amounts of lead-based coatings in homes or child-occupied facilities built before 1978; for wood flooring contractors, these activities include sanding a floor or removing baseboards. While it's commonly referred to as the "lead paint" rule, it encompasses all surface coatings-including wood floor finishes-that contain excess amounts of lead.
Currently, there are two bills being discussed in Congress that would reinstate the opt-out provision, one in the House.