Published 11/28/2012

NASF Sues EPA Over Hex Chromium Rules

Sierra Club also sues the EPA over the same National Emission Standards for Hazardous Air Pollutants rules for plating industry; NASF's two court actions include a petition for judicial review of the ruling in the D.C. Circuit Court of Appeals, and a request for reconsideration of the rule with EPA.

Edited by: PF Editorial Team

"The NASF is arguing that the EPA should reconsider the final NESHAP for chromium electroplating and anodizing facilities because the agency's final decision is not supported by sound science, does not have a rational basis in the record, relies on data and methodologies that are a departure from and not a logical outgrowth of the proposal, and is otherwise arbitrary," Richter and Hanapel said in a statement.

The NASF provided is a brief summary of the issues NASF raised in its challenge. In its petition for reconsideration, Specifically, NASF questioned:

--EPA's revised cost analysis and underlying data and the Agency's failure to submit the revisions for public notice and comment;

--EPA's justification of new emission limits based on the use of non-PFOS fume suppressants without any scientific data;

--EPA's interpretation of provisions of the Clean Air Act and its claim that the revisions to final rule were justified as "developments in practices, processes, and control technologies" that require new, more stringent emission limits;

--EPA's inadequate response to comments regarding EPA's emissions and risk modeling results, and specifically the information provided by NASF's survey of chromium electroplating facilities; and

--EPA's failure to comply with the requirements of Regulatory Flexibility Act by declining to convene a Small Business Regulatory Enforcement Fairness Act ("SBREFA") panel to consider the impacts of the proposal on small businesses within the chromium electroplating and anodizing sector.

In addition to the NASF's filing, the environmental group Earthjustice also filed a legal challenge on behalf of Sierra Club claiming that the final rule was not stringent enough. Richter and Hanapel say these actions will prompt NASF to argue that not only should EPA revise the final rule to more reasonable levels based on scientific data, but that EPA should not make the rule even more stringent pursuant to the claims of the Sierra Club.

"For now, NASF must wait until EPA responds to the petitions for reconsideration of the final rule from both parties," Richter and Hanapel's statement said. "If EPA grants reconsideration of the rule, then it would initiate a new rulemaking process. If EPA denies reconsideration of the rule, the parties would argue before the federal appeals court over whether the rule should be overturned"

They say that if the court upholds the final rule, then it would be effective, but if it overturns the rule or portions of the rule, then EPA would be required to vacate the final rule and initiate a wholly new rulemaking process.

"The NASF will continue to pursue this issue aggressively and will be seeking the full support of the surface finishing industry, as the agency's actions here create a precedent for future finishing regulations that have little to no scientific basis," they said.