292 F.3d 232 (D.C. Cir. 2002), 01-1159, National Multi Housing Council v. U.S. E.P.A.

Docket Nº:01-1159
Citation:292 F.3d 232
Party Name:National Multi Housing Council v. U.S. E.P.A.
Case Date:June 07, 2002
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 232

292 F.3d 232 (D.C. Cir. 2002)

NATIONAL MULTI HOUSING COUNCIL; NATIONAL APARTMENT ASSOCIATION; National Leased Housing Association, Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Battery Council International, Intervenor.

No. 01-1159.

United States Court of Appeals, District of Columbia Circuit

June 7, 2002

Argued March 19, 2002

On Petition for Review of an Order of the Environmental Protection Agency.

J. Marks Moore III argued the cause for the petitioners. Samuel M. Riley was on brief.

Jon M. Lipshultz, Attorney, United States Department of Justice, argued the cause for the respondent. John C. Cruden, Assistant Attorney General, United States Department of Justice, and Alan Carpien, Attorney, United States Environmental Protection Agency, were on brief.

David B. Weinberg and Edward Loring Ferguson, Jr. entered appearances for the intervenor.

Before: HENDERSON, TATEL and GARLAND, Circuit Judges.

Opinion

KAREN LeCRAFT HENDERSON, Circuit Judge:

In 1992 the Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X1 or Act), which, inter alia, amended the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601 et seq., by adding Title IV entitled "Lead Exposure Reduction." In 2001 the Environmental

Page 233

Protection Agency (EPA) issued its final "Lead Rule" pursuant to section 403 of TSCA, 15 U.S.C. § 2683. See Lead; Identification of Dangerous Levels of Lead, 66 Fed.Reg. 1206 (2001). The petitioners, three trade associations representing the multifamily rental housing industry, challenge the Lead Rule's "regardless of source interpretation," which construes the statutory term "lead-based paint hazard" to include "lead-based paint and all residential lead-containing dusts and soils regardless of the source of the lead, which, due to their condition and location, would result in adverse human health effects." Id. at 1207 (emphasis added). The petitioners assert EPA's decision to include all hazardous lead-containing dust and soil, whether or not the source of the lead is lead-based paint, is contrary to the Congress's intent in enacting Title X and is arbitrary and capricious.2 We reject the petitioners' challenge for the reasons set forth below.

I.

Title X directs EPA and the Department of Housing and Urban Development (HUD) to take various actions to protect the public from any lead-based paint hazard by reducing such hazard3 or, of particular relevance here, by requiring disclosure of it. Section 1018(a)(1) of Title X directs HUD and EPA to promulgate regulations for the disclosure of lead-based paint hazards in "target housing," that is, "housing constructed prior to 1978," 42 U.S.C. § 4851b(27), which is offered for sale or lease. See 42 U.S.C. § 4852d(a). Accordingly, in 1996, EPA and HUD jointly promulgated a final "Disclosure Rule" which requires an owner of target housing to disclose "the presence of any known lead-based paint and/or lead-based paint hazards" before a purchaser or lessee "is obligated under a contract to purchase or lease target housing." See 61 Fed.Reg. 9064, 9082 (1996) (codified at 24 C.F.R. § 35.88 (HUD codification); 40 C.F.R. § 745.107 (EPA codification)).

Section 403 of TSCA further requires that EPA "promulgate regulations which shall identify . . . lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil." 15 U.S.C. § 2683. Pursuant to this directive, on January 5, 2001 EPA issued its final Lead Rule, which, as noted above, included EPA's regardless of source interpretation that the term "lead-based paint hazard" is "intended to identify lead-based

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paint and all residential lead-containing dusts and soils regardless of the source of the lead, which, due to their condition and location, would result in adverse human health effects." 66 Fed.Reg. at 1207. The petitioners seek review of this portion of the Lead Rule insofar as it requires them to disclose lead contamination in dust and soil from sources other than lead-based paint.

II.

The petitioners first assert the language of Title X must be construed to refer only to lead hazards from lead-based paint. In construing statutory language we use the familiar Chevron analysis:

If . . . " 'Congress has directly spoken to the precise question at issue,' " we "must give effect to Congress's 'unambiguously expressed intent.' " Secretary of Labor v. F[ed. Mine Safety & Health Review Comm'n], 111 F.3d 913, 917 (D.C. Cir. 1997) (quoting Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, [2781], 81 L.Ed.2d 694 (1984)). "If 'the statute is silent or ambiguous with respect to the specific issue,' we ask whether the agency's position rests on a 'permissible construction of the statute.' " Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778, [2782], 81 L.Ed.2d...

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