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April 30, 2013
All claims in electroplating petition denied

A petition to the EPA to reconsider and stay the Agency’s September 2012 supplemental final rule that revised air toxic limits for chromium electroplating and chromium anodizing tanks was denied by the Agency. In its November 2012 petition, the National Association of Surface Finishers (NASF) claimed that the rule should be withdrawn for about a dozen reasons. 

The final supplemental amendments tightened limits for hexavalent chromium emissions from hard and decorative chromium electroplating and chromium anodizing tanks by 30 percent to 50 percent.  The EPA estimated that more than 85 percent of affected facilities are already achieving these new emissions limits.  The amendments also require phasing out use of bioaccumulating perfluorooctane sulfonic acid (PFOS) fume suppressants. Facilities must switch to non-PFOS fume suppressants within 3 years.

Opportunity to comment

Major NASF claims and the main thrust of the Agency’s responses are summarized here

  • The EPA failed to give the public an opportunity to comment on information the Agency used to design the amendments.  The NASF referred specifically to EPA’s revised cost analysis, which was based on a reduced number of affected facilities and which was not available for public comment when the supplemental rule was proposed.  The Agency explained that it revised the cost analysis based on comments received from the public, including comments from the NASF.  The EPA also said the NASF confused the “number of non-California facilities in the source category” with the number of “affected facilities,” i.e., the number of facilities subject to the revised standards.
  • The EPA used inadequate information to assert that the rule’s chromium limits could be achieved by use of fume suppressants in the electroplating tanks.  According to the NASF, the EPA collected additional information after the comment period closed; these data were not made available for public review and comment, said the NASF.  The EPA responded that the NASF overstated the amount of “new” information the EPA made use of after the comment period closed.  Moreover, the new data the Agency did obtain simply supported the conclusions the EPA had already made in the published proposal. 
  • The EPA misused its legal discretion when deciding to revise the standards.  According to the NASF, the EPA claimed it had no choice under the legal requirements of the Clean Air Act (CAA) but to revise the standard.  The NASF argued that just because some facilities had obtained the standards the EPA proposed, the Agency was not obligated to issue revised standards that provided a very large compliance margin.  The Agency responded that the CAA provides it with the discretion to determine when it is “necessary” to revise a standard; moreover, the CAA does not provide a definition of “necessary” in these circumstances.
  • The EPA failed to respond appropriately to NASF’s comments on the supplemental proposal.  The NASF stated that the EPA justified changes to the final rule by extrapolating data from a small number of facilities to conclude that lower limits could be achieved in a cost-effective manner and that the EPA failed to adequately respond to NASF’s comments that criticized this methodology.  The EPA agreed that the data were taken from a relatively small number of facilities but added the data were still representative of all affected facilities and could be used to support a final rule.  The Agency said it presented this viewpoint in its response to comments and does not agree that it failed to respond to NASF’s opposing view. 

In response to other claims, the EPA stated that NASF’s contention that the EPA could not draw equivalency between revised emissions limits and revised surface tension in electroplating baths was not raised as required during the comment period and that the economic impact of the rule was not sufficient to convene a Small Business Regulatory Enforcement Fairness Act panel. 

NASF’s petition and EPA’s response are in rulemaking docket EPA–HQ–OAR–2010–0600 at www.regulations.gov.