The EPA’s Home Court Advantage

There is something to be said for a government agency that makes a rule and then gets sued by groups on both sides of the argument.

That is what happened to the U.S. Environmental Protection Agency in 2012, when it issued updated rules on emissions of various toxic air pollutants, and more specifically on the hexavalent chromium compound used extensively in the electroplating industry.

The EPA limited the amount of hex chrome it allowed to be released into the air, which the National Association for Surface Finishing said was far too stringent, and claimed it was also based on faulty data.

Several environmental groups agreed with the NASF that the EPA was wrong, but only in that the rule wasn’t tough enough. So both groups took the EPA to federal court starting in 2012, wanting the numbers changed; lower or higher, depending on which side of the aisle you stand on. A top EPA official quipped to an NASF gathering several years ago that they must be doing something right if they are getting sued by both sides.

To me, not so much. The legalese that the U.S. Court of Appeals for the District of Columbia Circuit handed down in July was roughly 32 pages of rehash that said the EPA was right … sort of.

“We conclude that EPA’s methodology passes muster,” said Judge Cornelia Thayer Livingston “Nina” Pillard, who wrote the appeals court opinion.

As an untrained lawyer, the “passing muster” reference was really the only thing I could get grasp of in reading the wordy decision by the court, and only because my father used to say things like that when he knew I didn’t try my best in school or sports.

The phrase comes from a long-ago idiom used by military, when regiments would gather soldiers in a line to show the officers that they are acceptably dressed and equipped. Not great, but good enough.

In my father’s world, it meant I was getting by, not excelling. Let’s just say I passed a lot of muster in my early days.

Judge Pillard didn’t go overboard on how “right” the EPA was to make it tougher to plate here in the U.S., but she looked at the regulatory troops and gave a half-hearted thumbs up.

“Keeping in mind the ‘wide latitude’ we afford EPA’s expertise-informed choice of data-gathering methodology, we find that EPA’s data-collection process was reasonable,” Judge Pillard opined.

Reasonable; another nice way of saying “good enough.” If you read the entire decision by the court, you get phrases about reasonable, sufficient and even “presumptive validity,” which we think means “he must be right since he is a professional,” which is also the same thing I say about cab drivers.

The point of contention in this case was how the EPA used data it it gathered from various electroplating operations throughout the country, even though the NASF was able to show that many of those shops and facilities had been closed for years, if not decades.

Ask John Lindstedt at Advanced Plating in Milwaukee. He once drove around much of Wisconsin trying to find many of these plating shops the EPA was using in its statistics, only to find boarded up buildings at many of the addresses the EPA provided.

The EPA did take into account some of the defunct facilities that the NASF’s Christian Richter and Jeff Hannapel showed them as being a part of their flawed statistics, but when they ran the numbers again—the EPA says it used a “Monte Carlo” statistical technique, which we are sure is scientific but sounds like someone rolling the dice—the EPA says it came up with the same conclusion: that the hex chrome numbers need to come down.

The DC court, meanwhile, agreed with the EPA because it actually didn’t know enough about statistics to interpret the numbers any other way.

“We must bear in mind that ‘statistical analysis’ is perhaps the prime example of those areas of technical wilderness into which judicial expeditions are best limited to ascertaining the lay of the land,” the court said. “We uphold EPA’s model as long as the agency explain[s] the assumptions and methodology used in preparing the model.”

So there you have it from the DC court: We don’t understand the “technical wilderness” of how the EPA got to the numbers, but as long as you can explain it to us, we’ll agree with them.

The result of all this will hit electroplaters in the pocketbook, as it always does. Originally, the EPA estimated it cost less than $1,000 for most shops to become compliant, but then revised that number to say it might cost about $65,000 to install any new equipment.

I guess the court decided that $1,000 is close to $65,000, as long as you explain it to them, and it passes muster. 

Originally published in the September 2015 issue.