Calls benefits of rule exaggerated

Despite the nationwide decline in the number of chromium electroplating businesses and the effectiveness of the existing federal air toxic standard, in September 2012, the EPA decided to tighten requirements for this sector.  According to the National Association for Surface Finishing (NASF), the primary lobbying organization for electroplaters, the major components of the revised standard and the process the EPA used to develop the revisions are riddled with faulty data, poor research, and a lack of understanding of the business and technical aspects of electroplating.

The NASF also asserts that the EPA failed to meet its statutory obligation to give the public the opportunity to comment on information the Agency used as a basis for its revision. 

Accordingly, in November 2012, the NASF took two actions.  First, it submitted a petition for reconsideration and a stay of the rule to the EPA.  Second, it submitted another petition for judicial review of the rule to the U.S. Court of the Appeals for the D.C. Circuit.  Simultaneous submissions of petitions in this manner are the standard practice when industry or environmental groups decide to challenge a final EPA rule.  Two outcomes are possible.  The EPA may decide to revise the standard yet again to the satisfaction of the NASF or its members.   If differences cannot be settled and if the D.C. Circuit accepts the case, the two parties and their supporters will argue their respective positions in court and await the third-party ruling.  

In addition to their importance to electroplaters, NASF’s actions are particularly interesting because they represent one of the few formal actions taken against standards the EPA has developed under the residual risk and technology review (RTR) authorities provided to the Agency by the Clean Air Act (CAA).  The CAA requires that the EPA conduct two reviews of each national emissions standard for hazardous air pollutants (NESHAP) within 8 years following promulgation.  One review assesses any residual risk to human health and requires that the EPA ensures that there is an ample margin of safety to protect the public (CAA Section 112(f)(2)).  The second review focuses on any changes in industry practices, processes, and air pollution control technologies that would also justify a NESHAP amendment (Section 112(d)(6)). 

The EPA has been conducting its RTRs for some years and, in the majority of cases, the Agency concluded that the original NESHAP meets the CAA’s standard of protecting public health with an ample margin of safety.  The EPA has also typically concluded that there have been no technology developments sufficient to warrant a revision in emissions standards.  Only one of those conclusions followed the RTRs of the electroplating NESHAP– the rule protects human health with an adequate margin of safety. The technology review had a different outcome. 

The NESHAP covers about 1,455 facilities engaged in hard chrome electroplating, decorative chrome electroplating, and chromic acid anodizing. 

Emissions limits

The EPA did indeed find that the human risks controlled by the original 1995 NESHAP for the source categories were acceptable, even for minority and low-income communities that are believed to be most exposed to industry chromium emissions.  However, as a result of the technology review, the Agency stated that it identified newer controls, such as composite mesh pads and HEPA filters that could cost effectively lower emissions beyond those required by the existing standards and further reduce health risks.

Even though the existing NESHAP was determined to meet the CAA’s “ample margin of safety” requirement, the Agency decided that the results of the technology review justified the following changes in the chromium emissions limits. 

The revised rule also allows sources to meet their emissions limits by using fume suppressants, which reduce the surface tension of electroplating baths and, hence, the energy with which the droplets from the bath are ejected into the air.  Electroplaters can be in compliance with the rule by using fume suppressants that maintain the surface tension of baths below specified levels of dynes per centimeter.  (A dyne is a unit of force that accelerates a mass of 1 gram at the rate of 1 centimeter per second.)  However, the rule also requires that this alternative be achieved by using fume suppressants without perfluorooctane sulfonic acid (PFOS), which has been shown to be persistent, bioaccumulative, and toxic in the environment.   

The EPA claims that the revisions will lower chromium emissions from affected sources by 30 percent to 50 percent, or about 224 pounds per year.  The Agency also believes that 85 percent of the sources are already meeting the limits, and most of the others will be able to come into compliance at annualized costs of less than $1,000.  A “small subset” of large hard chrome facilities will need to retrofit equipment and conduct emissions testing at annualized costs of $45,000 to $65,000, said the EPA.  Compliance with the emissions limits is required by September 2014 or by September 2015 if the source elects to replace its PFOS fume suppressant with a non-PFOS product.  Facilities may also petition their regulatory authority for an additional year to achieve compliance; in other words, some facilities will have 4 years from the revision’s effective date to meet their requirements.

The NASF raised many of its objections in its comments on EPA’s proposal to amend the 1995 NESHAP.  In the preamble to the final amendments, the Agency said it made multiple changes in response to those objections.  Nonetheless, the NASF views EPA’s final action as wholly unacceptable; the association’s major objections are summarized below. 

Cost analysis

In writing the final rule, the EPA used data that were not available for public comment.  The “unavailable” data included a revised analysis of the costs of the rule; a revised estimate of the emissions reductions the rule would achieve; and new data and analyses purporting to show that non-PFOS fume suppressants could be used as a drop-in replacement for PFOS fume suppressants. 

EPA’s revised cost analysis is high on NASF’s list of concerns.  The association states that this second analysis differed dramatically from EPA’s original analysis and cast significant doubt on the reliability of both analyses. In the proposed rule, says the NASF, the EPA identified 1,116 facilities that would be affected by the revised standards and estimated that baseline emissions would be reduced from 1,136 pounds to 928 pounds, for a reduction of 208 pounds.  In the final rule, the EPA said that only 535 facilities would be affected by the revised standards and estimated that baseline emissions would be reduced from 956 pounds to 732 pounds, for a reduction of 224 pounds.

“EPA’s Revised Cost Analysis reduced the number of affected facilities by more than 50 percent and also reduced baseline emissions by 16 percent,” says the NASF.  “Given these reductions, it is simply inconceivable that EPA’s estimate of emissions reductions attributable to the revised standards could increase by 10 percent. These results defy common sense and are contrary to NASF’s own analyses.”

Fume suppressants

The NASF says it supports EPA’s decision to eliminate PFOS fume suppressants.  But the association had a different view on new data the EPA collected and analyses conducted purporting to show that non-PFOS fume suppressants could be used as a drop-in replacement for PFOS fume suppressants.  The “drop-in replacement” claim made by the EPA is fallacious, says the NASF.  According to the association, the switch to non-PFOS fume suppressants is not an automatic drop-in replacement for all processes, and many facilities will face significant challenges in demonstrating compliance with the revised surface tension levels using non-PFOS fume suppressants.  The NASF also questioned EPA’s claims that facilities can achieve the new emissions limits with non-PFOS fume suppressants, and noted that the EPA has not provided any credible data to support this contention.

“EPA recognizes these challenges, noting that facilities will have 3, or even 4, years to comply with the revised standards,” comments the NASF.   “But this extended compliance period merely underscores the fact that non-PFOS fume suppressants do not meet the standard required by CAA §112(d)(6).  Until facilities have successfully completed the transition from PFOS to non-PFOS fume suppressants, EPA cannot consider this technology in transition to be a cost-effective and technologically feasible development that could justify a downward revision of the NESHAP.”

Dueling surveys

As part of its rulemaking, the EPA conducted a survey of 170 chromium electroplating and anodizing facilities and then extrapolated data obtained in the survey to the remaining facilities in the 1,455-facility database.   According to the Agency, estimated emissions of chromium from the surveyed facilities were substantial and provided the EPA with one of the chief justifications for revising the NESHAP and tightening the emissions standards. 

But the NASF found the survey data unconvincing and conducted its own survey of the same facilities surveyed by the EPA.  The differences were striking.  According to the NASF, of the 182 facilities included in its own survey, 62 had closed (34 percent), 69 no longer used hexavalent chromium in processes subject to the rule (38 percent), and 43 provided revised emissions estimates (24 percent).  Only 8 confirmed EPA’s estimate.  Using EPA’s extrapolation method, these facilities would be expected to emit 354 pounds of chromium per year.  However, based on the data provided to the NASF, these same facilities emitted only 23 pounds of chromium annually. 

During rulemaking, the NASF provided the EPA with this information, and the Agency said it considered the findings in writing the final rule.  However, the EPA also claimed that the NASF survey included only higher-emitting facilities and failed to consider lower-emitting facilities, resulting in biased conclusions; therefore, the Agency said it did not use the NASF survey results.  The association refutes this, and in its petition indicates that it surveyed 130 higher-emitting facilities and 52 lower-emitting facilities. 

“The combined results of the survey demonstrated a 93 percent reduction in estimated baseline emissions and a significant percentage of facilities that are closed and that no longer use hexavalent chromium,” states the NASF.  “Applying this trend across the entire sector would dramatically alter EPA’s conclusions about the need for and effectiveness of the revised standards.”

Out-of-court settlement?

Much of the NASF petition focuses on NASF’s contention that the EPA either did not adequately respond to the association’s comments on the proposed standard or did not give the public the opportunity to comment on data the Agency used in the rulemaking process.  Since the preamble to EPA’s final rule contains explicit responses to NASF’s comments–in fact, the Agency says it reran some of its computer models with NASF’s information–it seems unlikely that the Agency will now agree that its responses were inadequate.  This appears to be a dispute that will need judicial resolution.

Click here for EPA’s revised NESHAP for chromium electroplating and anodizing, which was published in the September 19, 2012, FR.

Click here for NASF’s petition for reconsideration.

William C. Schillaci
BSchillaci@blr.com