Federal Appeals Court also hears views from California, Congress and Environmental Groups
On December 3, 2014, the U.S. Court of Appeals for the D.C. Circuit heard oral argument on NASF’s legal challenge of EPA’s Chromium Electroplating NEHAP regulation to control chromium emissions. Lawyers representing NASF, the Sierra Club, the State of California and the Environmental Protection Agency (EPA) made their final arguments in this case before the three-judge panel of Judge Thomas Griffith, Judge Cornelia Pillard, and Judge Stephen Williams. In addition, the judges asked each attorney clarifying questions on a variety of topics.
NASF Highlights Low Risk, Flawed EPA Data & Bungled Mist Suppressants Analysis
As the industry petitioner in this case, NASF presented its argument first. The industry noted EPA had concluded that any “residual risk” to public health left over from the agency’s 1995 chromium electroplating standard was acceptable and, as a consequence, no additional controls are necessary to provide an ample margin of safety to protect human health and the environment.
Despite this finding, EPA had issued new emissions standards – including new surface tension levels – based on “new developments” in processes, practices and control technologies. NASF pointed out that EPA failed to identify any specific developments, but only inferred them from industry’s performance data, which showed many companies controlling emissions to levels below the 1995 standard. NASF argued that improved compliance with the 1995 standard should not be considered a development or improvement to trigger revised standards.
Two issues raised by NASF before the judges were: (1) the lack of any data on the effectiveness of non-PFOS fume suppressants to reduce chromium emissions; and (2) EPA’s flawed data and model for estimating chromium emissions in order to assess the level of “residual” or leftover risk from the earlier standards. In a detailed line of questioning, the judges asked EPA why it did not revise its estimates on chromium emissions based on the evidence that NASF submitted in the rulemaking, as well as how EPA could set tighter emission limits based on the use of fume suppressants without any data for the use of non-PFOS fume suppressants.
EPA Claims Mist Suppressant Alternatives Reduce Chromium Emissions Equal to PFOS Performance
EPA countered that it had revised its analysis by incorporating some of the data provided by NASF, but that this revision did not affect the agency’s analysis on residual risk to public health. Furthermore, EPA argued that because non-PFOS fume suppressants can reduce surface tension levels just as well as PFOS fume suppressants, then non-PFOS fume suppressants would reduce chromium emissions equally as effectively compared to PFOS fume suppressants.
Sierra Club, Earth Justice Ask Court to Overturn Established Precedent
The environmental petitioners, Sierra Club, argued that the Clean Air Act required EPA to conduct another MACT air rulemaking process based on the emissions achieved by the top performers in the industry, despite well-established legal precedent from the D.C. Circuit Court that had already rejected this argument. Sierra Club persisted and requested the court to reverse these decisions and reconsider this issue in this case. EPA objected to the position taken by Sierra Club, and the court appeared to be unmoved by Sierra Club’s argument.
This case raised critical issues on how to interpret the Clean Air Act that could impact a broad range of industries beyond chromium electroplating. Accordingly, a large coalition of industry trade associations – including the American Chemistry Council, the American Petroleum Institute and the Rubber Manufacturers Association – supported NASF as interveners in this case. Similarly, the State of California and Congressman Henry Waxman (D-CA) supported the Sierra Club as interveners.
Outlook for 2015
The three-judge panel will now assess all of the information in the rulemaking record, the briefs filed by legal counsel for the parties, and the issues raised at oral argument to determine if EPA’s rule should be upheld or vacated and sent back to EPA to reissue the rule pursuant to the court’s guidance. A final decision could be issued as early as February 2015. For more information regarding developments in this case, contact Jeff Hannapel at firstname.lastname@example.org, or Christian Richter at email@example.com