Efforts to reinstate the Environmental Protection Agency’s Lead: Renovation, Repair and Painting Rule’s “opt-out” provision — which allowed remodelers working in homes built before 1978 to disregard more expensive work practices in cases where there were no children living in the home and the owner gave permission — may have to wait for a new Administration.

On Nov. 1, the U.S. Court of Appeals for the District of Columbia Circuit heard arguments from NAHB and the EPA on the agency’s recent removal of the opt-out provision from the lead rule.

A central issue tackled by the court was whether the agency had contradicted the findings of its earlier scientific research by revising the rule.

In taking a look at the issue, one judge appeared to side with the EPA.

The EPA’s decision to remove the opt-out provision was a way of making the existing regulation “safer, more effective and more reliable” and a way to “protect people that would not be protected under the opt-out rule,” said Judge Merrick Garland, one of the appeals court’s three Justices presiding over the oral arguments.

The judge suggested that the Obama Administration had the right to discontinue the opt-out provision even if the previous Administration thought it should be included in the rule.

That would give a future Administration the ability to restore the opt-out provision.

NAHB noted that the law does not cover home owners who elect to do the work themselves — effectively ignoring about half of the nation’s renovation jobs.

“Congress specifically decided to exclude a huge segment of renovation activities: the whole category of do-it-yourselfers,” said Thomas Jackson, the attorney who argued the case on behalf of NAHB.

However, the judges seemed to place little importance on this omission.

The court will discuss the briefs and oral arguments before presenting its decision at a later date.

“I’m glad we got our day in court, but it’s still clear to me that the opt-out provision was removed without carefully considering the consequences,” said NAHB Remodelers Chair Bob Peterson.

“We’ll continue our outreach to help our members comply with the law even as we continue to advocate for a just and equitable regulation,” he said.

For more information, email Amy Chai at NAHB, or call her at 800-368-5242 x8232.

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