National Multi Housing Council v. United States Environmental Protection Agency
Opinion of the Court
Opinion for the court filed by Circuit Judge HENDERSON.
In 1992 the Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X
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 hazard
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-
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 694).
Cyprus Emerald Resources Corp. v. Fed. Mine Safety & Health Review Comm’n, 195 F.3d 42, 45 (D.C.Cir. 1999).
The petitioners maintain that EPA’-s regardless of source interpretation contravenes the Congress’s unambiguously expressed intent to target contamination from lead-based paint only. In support, they point to the repeated references to lead-based paint and to “lead-based paint hazards” throughout Title X, including, notably, both in section 1018(a)(1), which authorized EPA and HUD to promulgate their joint disclosure rule, and in the legislation’s title; the definition of “target housing” to include only “housing constructed prior to 1978,” the year the Consumer Product Safety Commission banned residential use of lead-based paint, see 61 Fed.Reg. § 9066; and the focus of the pre-enactment congressional hearings on the dangers posed by lead-based paint.
By contrast, EPA maintains that the regardless of source interpretation is consistent with the statutory language and, in particular, with the statutory definition of “lead-based paint hazard” as “any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects as established by the appropriate Federal agency.” 42 U.S.C. § 4851b(15); 15 U.S.C. § 2681(1). EPA contends that because the three lead sources — dust, soil and deteriorated paint — are enumerated separately, and neither “lead-contaminated dust” nor “lead-contaminated soil” is anywhere defined to require that the lead contamination derive from paint, the Act permits regulation of lead contaminated dust and soils regardless of the source of the lead.
We agree with EPA that the Act’s definition does not represent the Congress’s “ ‘unambiguously expressed’ ” intent in view of the statutory definition which broadens the term beyond its literal meaning by including lead-contaminated dust and soil without expressly limiting the source of the contamination to lead-based paint. This being so, we apply the second step of Chevron and conclude that EPA’s interpretation reflects “a permissible construction of the statute.” Cyprus Emerald, 195 F.3d at 45.
For the foregoing reasons, the petition for review is
Denied.
. The legislation was enacted as Title X of the Housing and Community Development Act of 1992, Pub.L. No. 102-550, 106 Stat. 3672 (1992).
. The petitioners also assert the regardless of source interpretation violates the equal protection clause of the Fourteenth Amendment to the United States Constitution but this argument is waived because it was not raised before EPA. See National Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C.Cir. 2002) ("It is well established that issues not raised in comments before the agency are waived and this Court will not consider them.”) (citing Nat’l Elec. Mfrs. Ass’n v. EPA, 99 F.3d 1170, 1171 n. 1 (D.C.Cir. 1997); Washington Ass’n for Television & Children v. FCC, 712 F.2d 677, 681 (D.C.Cir. 1983)).
. See, e.g., 42 U.S.C. § 4822 (HUD "shall establish procedures to eliminate as far as practicable the hazards of lead based paint poisoning” and "shall provide for appropriate measures to conduct risk assessments, inspections, interim controls, and abatement of lead-based paint hazards” with respect to target housing covered by HUD mortgage insurance or assistance payments); id. § 4852 (HUD "is authorized to provide grants to eligible applicants to evaluate and reduce lead-based paint hazards in nonpublic housing”); id. § 4852a (HUD and EPA "shall establish a task force to make recommendations on expanding resources and efforts to evaluate and reduce lead-based paint hazards in private housing”); id. § 4852c (HUD, "in consultation with the [EPA, DOL and HHS], shall issue guidelines for the conduct of federally supported work involving risk assessments, inspections, interim controls, and abatement of lead-based paint hazards").
. It is not clear that EPA's regardless of source interpretation even imposes any additional disclosure obligation on the petitioners. At oral argument their counsel all but acknowledged that in the absence of EPA's interpretation a seller would nevertheless be obligated to disclose lead contamination.
Reference
- Full Case Name
- NATIONAL MULTI HOUSING COUNCIL NATIONAL APARTMENT ASSOCIATION National Leased Housing Association v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Battery Council International, Intervenor
- Cited By
- 1 case
- Status
- Published