NASF Report June 2015: PFOS-Based Fume Suppressants

PFOS-Based Fume Suppressants: Phased Out by September

In EPA’s final chromium electroplating NESHAP rule, perfluorooctane sulfonic acid (PFOS)-based fume suppressants can no longer be added to chromium plating tanks after September 21, 2015. Global manufacturers of these compounds have agreed to phase out their sale by December 31, 2015.
Facilities can comply with the chromium electroplating NESHAP by either meeting the surface tension levels or the emission limits. Unfortunately, non-PFOS-based fume suppressants are not a drop-in replacement for all uses. Non-PFOS-based fume suppressants available for chromium plating applications have proven to be effective in lowering surface tension levels, but not in reducing chromium emissions to meet the new limits for existing sources. And due to product quality and performance issues, some chromium operations haven’t been able to use the non-PFOS-based suppressants successfully for certain applications. Chemical suppliers are in development on an effective non-PFOS fume suppressant for reducing chromium emissions.

What's Happening in California?
The State of California has a separate regulation. Although it doesn’t provide for compliance by meeting a surface tension level, the state has approved certain fume suppressants that meet state emission limits. Chromium plating facilities in California can use the state-approved suppressants to comply, but the approved list doesn’t yet include any that aren’t PFOS-based. So until a non-PFOS suppressant is approved, California facilities that rely on an approved suppressant for chromium emission compliance will have to find another way to comply once PFOS-based suppressants can no longer be used or are no longer available.

Opportunity for Extension 
EPA has acknowledged concerns regarding the use of non-PFOS based fume suppressants and stated that it “agrees that some electroplaters of highly specialized products may need to perform additional testing in order to integrate use of non-PFOS fume suppressants and that this testing may require a longer time commitment compared to other products.” It adds that the Clean Air Act allows facilities to apply for an extra year if needed. 

Concluding Thoughts on Compliance Options
After September 21, 2015, facilities can no longer add PFOS-based fume suppressants to chromium plating tanks. That means facilities can use non-PFOS fume suppressants to lower surface tension levels. Companies that can’t demonstrate compliance with use of non-PFOS suppressants, and California shops that don’t have any approved non-PFOS fume suppressants, may have to install control equipment to meet regulatory standards.
While facilities may seek a permit to grant a one-year extension of the PFOS-based fume suppressant phase out, the extension appears to be limited to allow a facility additional time to install controls. In addition, there is a Presidential exemption that appears to be limited to situations in which the technology to meet the standard is not available, and it must also be in the national security interests of the U.S. (which may be applicable to certain chromium electroplating for defense applications). But regardless of whether the standard for the exemptions can be met, PFOS-based fume suppressants may not be commercially available after this year.

The NASF has challenged the final chromium electroplating NESHAP rule in the U.S. Court of Appeals for the DC Circuit. The court could invalidate all, some, or none of the final rule. A final decision is expected before summer. In the meantime, facilities relying on PFOS fume suppressants should explore options to demonstrate compliance with the new provisions. 

For more information, contact Jeff Hannapel at jhannapel@thepolicygroup.com. 

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Metal Finishers of California Meet with Lawmakers
The Metal Finishers of Southern and Northern California have completed their annual “Legislative Day,” allowing for representatives from MFASC and MFANC member companies to travel to Sacramento, California, for top-level meetings with an impressive group of policymakers. More than 50 face-to-face meetings provided a prime opportunity for 30 company representatives to speak directly to lawmakers and share industry's position on how state policies impact their businesses.
The industry would like to especially thank to NASF Chapter Presidents, Bryan Leiker (MFASC) and Terri McGinnis (MFANC), who coordinated the event in conjunction with lobbyist Jerry Desmond, Jr.  
The MFASC & MFANC Legislative Day is open to MFASC & MFANC Chapter member company representatives and NASF members only. The 2016 Legislative Day will be held in the spring of 2016 in Sacramento, California. 

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2015 Washington Forum: EPA Air and Water Rules, Chemicals Reform and Global Challenges 

By Dr. Jim Lindsay, NASF Technical Editor

There were a number of events that coalesced around the second week of April in Washington, DC.  There was the beauty of the cherry blossoms at their peak, the opening of Congressional hearings on TSCA reform on April 14, the 150^th anniversary of Lincoln’s assassination on April 15, the shudder of Tax Day on the same day, and, on an upbeat note, the annual NASF Washington Forum, an essential conference to our industry, where those attending receive the latest information on critical legislative and regulatory matters important to the industry, and have the opportunity to make their voices known in the halls of Congress.  As always, there was plenty of news and information to challenge, as well as help the surface finishing community in their endeavors.

Among the many important issues discussed at the Forum, three stood out: EPA Water Rules, EPA Air Rules and TSCA reform.  Each of these posed new challenges - and a little good news - for the industry.

EPA Water Rules – A New Round of Regulation Ahead for Finishing
Janet Goodwin, Chief of the EPA Office of Water, Technology and Statistics Branch, discussed planning for a preliminary study of metal finishing effluent guidelines of the Clean Water Act and their applicability to current industry practices.  The study would include changes in industry demographics, what new technologies and improvements are practiced, as well as the problems that stakeholders have had with the existing rule.  This is the first step in potential revision of these guidelines.

EPA Air Rules – NASF Precedent Setting Litigation in the Nation’s Second Highest Court
Jerry Stouck, Partner at Greenberg Traurig and NASF’s outside counsel on the EPA’s Chromium Air Rule, discussed the current NASF litigation challenging the regulation, which lowered Cr emission limits to and banned the use of PFOS-based fume suppressants.  The NASF contended that the EPA reduced limits based on good industry performance rather than any new technological development.  The oral arguments took place on December 3, 2014, and the final decision from the U.S. Court of Appeals was imminent at press time.  Mr. Stouck averred that the outcome was difficult to predict. 

Congress – Likely to Reform Key U.S. Chemicals Laws
Over the last few years, the prospect of revising the decades-old Toxic Substances Control Act (TSCA) had not been imminent, owing to blockage of any meaningful action in Congress.  With the advent of a Republican Congress, that picture has changed.  Robert Flagg and Sarah Brozena, of the American Chemistry Council, presented the new outlook for TSCA reform.  Surprisingly, bipartisanship, science-based decision-making, and risk management where cost/benefit analysis is considered, are in the thoughts on the eventual bill that may emerge from both Houses of Congress.  There was an air of optimism in the presenters’ discussion.

Global Trends – Regulation, Competitiveness and Common Challenges
On the global front, concerns over the spread of regulations and the very apt concept of “tyranny of lists,” where one agency’s list becomes gospel for other agencies’ new lists, continue to challenge the industry.  A five-person panel from Europe, Canada and Mexico discussed their own trials and opportunities.  The proliferation of regulations is consuming manpower.  Dave Elliott, President of CETS, the pan-European surface finishing organization and the U.K. Surface Engineering Association, put it best by noting that since 1972, 600+ pieces of legislation had been promulgated in 24 working languages, requiring the hiring of 6000 linguists and interpreters.  Much of that legislation was based on perception rather than reality.  On the other hand, Veronique Steukers, of the Nickel Institute noted that their efforts had injected a measure of realism which had kept at bay the erroneous perception of nickel metal as a toxic substance.

Business Keynote – Andy Friedman on Taxes, the Federal Budget and Legislative Outlook
On the business policies, Washington Forum regular Andy Friedman discussed the impact of the new Republican 114^th Congress on manufacturing.  Noting that the Republicans won because their candidates attracted more independent voters, he foresaw a more moderate Senate, with Republicans remaining in control in the House.  He anticipated that little would get done during the next two years, but there are recent signs of bipartisanship on certain issues.  Mr. Friedman noted that “forcing events,” including issues of the debt ceiling, the Medicare fix and the Highway bill, cannot be ignored, and are likely to be funded by closing other loopholes.

Political Keynote – Commentator Amy Walter on Changing Times
Luncheon Keynoter Amy Walter, of the Cook Political Report discussed the coming 2016 election.  She noted that demographics give the Democrats an electoral vote advantage, with “millennials” growing and numbers of older white voters shrinking.  Yet the Republicans may benefit from the spirit of “time for change.”  After all, retention of the White House by a party into a third term is extremely rare (the last Democrat to do it before FDR was Martin Van Buren in 1840).  She saw that Hillary Clinton’s international experience is not looking as good as it once did.  The outcome of the Republican nomination is uncertain, but it was a given that outside events could change the entire dynamic of the election.

There were plenty of other issues and concerns were brought to the fore at this year’s Washington Forum, beyond the scope of this summary.  On the last day, many of the attendees headed for Capitol Hill for meetings with their own legislators, giving critically needed business and citizen-input to issues facing the surface finishing industry.  It was again clear that the challenges would continue in years to come, and it was confidence building for attendees that the NASF remains an effective voice for the industry.

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House of Representatives Holds Hearing on Toxic Substances Control Act (TSCA)
The House Energy and Commerce Subcommittee on the Environment and the Economy held a hearing on April 14 on the Toxic Substances Control Act (TSCA) Modernization Act of 2015.  The following day, attendees at this year’s Washington Forum received an update on the hearing and legislation from the American Chemistry Council (ACC), which also testified at the hearing.

The House TSCA Modernization Act, which is still in discussion draft form, was introduced by Subcommittee Chairman John Shimkus (R-IL) and has the bipartisan support of the full Committee Chairman Fred Upton (R-MI) and Ranking Member Frank Pallone (D-NJ).  While some differences remain to be resolved, this bill is intended to be a counterpart to the Senate’s “Frank R. Lautenberg Chemical Safety for the 21^st Century Act” (S. 697), which NASF supports.

Testimony by ACC and the Alliance of Automobile Manufacturers (“The Alliance”) underscored the importance of Congress’ passage of TSCA reform to provide clarity and confidence in chemicals regulation, protect the competitive needs of domestic manufacturing, and protect the environment and human health.  Specifically, the Alliance testified, and NASF has also argued to Congress and regulators, that most chemicals that are regulated under TSCA never come into direct contact with people or their environment during use and those that do pose little to no risk to the health and safety of consumers.

NASF members are encouraged to contact your legislators to express your support for TSCA reform.  

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Court of Appeals Hears Emergency Appeal to Immigration Injunctions
On April 17, the 5^th Circuit Court of Appeals heard oral arguments in the Department of Justice’s (DOJ) emergency appeal to the injunction placed on President Obama’s 2014 immigration executive actions.  In February, in response to a lawsuit filed by 26 states, District Court Judge Andrew Hanen of Brownsville, Texas, temporarily blocked all applications for the extended Deferred Action for Childhood Arrivals program (DACA) and the Deferred Action for Parents of U.S. Citizens and Legal Residents program (DAPA)

Lawyers for DOJ argue that the states have no legal standing because they will not suffer direct farm from the executive actions, and have asked that the preliminary injunction be lifted while the legal case is decided.  In a related case, on April 7 a three-judge panel in the 5^th Circuit U.S. Court of Appeals unanimously ruled that a lawsuit brought by the state of Mississippi and immigration agents challenging DACA should be dismissed because the plaintiffs lacked legal standing, stating “Neither Mississippi nor the Agents have alleged a sufficiently concrete and particularized injury that would give Plaintiffs standing to challenge DACA.” 

If the injunction is lifted, the administration could quickly implement DACA and DAPA and provide quasi-legal status and work permits to millions of illegal immigrants.