NASF Public Policy Update
September 2022
The November midterm elections are less than two months away, Congress has returned from August recess and the Supreme Court has reopened oral arguments to the public this fall for the first time since the pandemic. On the regulatory front, there is much activity underway with an impact on the finishing industry.
There are several notable decisions in the regulatory pipeline. Below is a brief summary of only a few of the wide range of issues NASF is focused on in September:
- EPA Prepares to Release Major Hexavalent Chromium Health Assessment by End of Year – EPA is scheduled to issue a draft scientific health evaluation for hexavalent chromium by the end of 2022 for public comment and review. The assessment has been underway for more than a decade, and an updated assessment could lead to significantly tighter rules and restrictions nationwide.
- What Facilities Will Be Covered by EPA’s PFAS Rulemaking for Surface Finishing Industry – It is still too early to tell whether the proposed rule scheduled for release later next year will apply only to those facilities with certain chromium-based processes or more broadly to all metal finishing and electroplating operations.
- EPA Will Send Nationwide PFAS Survey to Finishing Operations by October — EPA is preparing a formal survey to send to finishing operations nationwide as early as October to inform the agency’s analysis of the industry’s PFAS use and discharges. The survey is a significant undertaking and will be executed under the federal Clean Water Act’s authority, similar to the last major discharge survey of the industry over 20 years ago.
- EPA’s Proposal to Designate PFOS and PFOA as CERCLA Hazardous Substances Could Have Major Implications – EPA has for the first time proposed to designate PFOS and PFOA as hazardous substances under the authority of CERCLA or Superfund. The rule will trigger some reporting requirements and potentially significant cleanup costs.
A more detailed summary of these issues is provided below.
EPA Plans to Release Major New Health Assessment for Hexavalent Chromium By End of Year
Officials at the U.S. Environmental Protection Agency are scheduled to issue a draft scientific health evaluation for hexavalent chromium by the end of 2022 for public comment and review. The assessment has been underway for more than a decade, and an updated assessment could lead to significantly tighter rules and restrictions nationwide.
Why It’s Relevant: The document, developed under EPA’s Integrated Risk Information System (IRIS) by agency scientists in the Office of Research and Development, will likely be extensive – possibly nearing 1000 pages in length – and serve as the scientific basis for the next stage of regulation for hexavalent chromium under existing federal chemicals management, air, water, hazardous waste and Superfund cleanup laws.
The IRIS assessment is considered an essential source of toxicity information that is used by EPA, state and local health agencies, other federal agencies such as the Department of Defense, and international health organizations.
Why the Particulars Matter to the Finishing Industry: In the near term, the assessment will include new toxicity values for hexavalent chromium and would affect several things:
- Air Rules – it would inform standards EPA will consider as part of its air toxics rulemaking that will be launched shortly.
- Chemicals Uses – it would serve as the basis for potential restriction on the use of hexavalent chromium under the federal Toxic Substances Control Act (TSCA) as EPA begins considering metals for prioritization.
- Drinking Water and Remediation Standards – it could drive drinking water standards significantly lower under the federal Safe Drinking Water Act (SDWA) and pose much tighter standards for clean ups under the nation’s Superfund program.
A Deeper Dive into What the Assessment Includes: An IRIS assessment typically includes the first two steps of the agency’s risk assessment process:
- Hazard Identification, which identifies credible health hazards associated with exposure to a chemical, and
- Dose-Response Assessment, which characterizes the quantitative relationship between chemical exposure and each credible health hazard. These quantitative relationships are then used to derive toxicity values.
From these two steps, EPA’s water, waste and air programs perform the next steps in the risk assessment:
- Exposure Assessment, which identifies human exposure pathways and estimates the amount of human exposure under different exposure scenarios, and
- Risk Characterization, which combines their exposure assessment with the hazard information and toxicity values from IRIS to characterize potential public health risks.
Concerns Raised Over EPA’s Peer Review Panel: As anticipated, EPA recently published a list of candidates to review the draft chromium IRIS assessment as a special agency Science Advisory Board panel (SAB).
In response, the American Water Works Association, the nation’s leading organization representing drinking water utilities, cautioned the agency that its slate of scientific candidates as a whole lacks the credentials and relevant research experience to provide a proper review, and also fails to bring a balanced view to the IRIS assessment process in general. The AWWA’s letter is here.
The SAB took comment on potential peer reviewers for the chromium assessment in early August.
NASF is following the IRIS review process very closely as it poses substantial potential for future adverse impacts on the finishing industry.
PFAS Regulatory Alert: What Facilities Will Be Covered by EPA’s PFAS Rulemaking for Surface Finishing Industry?
EPA is moving through the early stages of its proposed rule to address PFAS wastewater discharges for the finishing industry.
EPA is Collecting Industry Data: This stage involves analyzing current data available on the industry from the states and wastewater utilities (e.g., Michigan and California), scheduling site visits to do sampling and evaluation of individual facilities and sending out a major survey questionnaire in the fall that could be sent to as many as 2000 finishing companies nationwide. More on the survey below.
NASF has discussed these and additional activities with EPA to ensure that the industry data collection and evaluation process properly characterizes the industry and its significant progress in reducing and eliminating PFAS over time.
Who Will Be Covered By the Proposed Rule: Among a long list of issues to be clarified in the coming year will be what type of facilities the rule will cover in the industry and what requirements will proposed for monitoring, sampling, control technology and other regulatory objectives.
It is still too early to tell whether the proposed rule scheduled for release later next year will apply ONLY to those facilities with certain chromium-based processes OR more broadly to ALL metal finishing and electroplating operations that operate under the 413 and 433 requirements in the Clean Water Act effluent guidelines program.
NASF’s advocacy team and association leaders will continue to closely engage with EPA headquarters and regions, key state and municipal wastewater treatment officials, Congress and industry allies.
EPA Will Send Nationwide PFAS Survey to Surface Finishing Operations by October
EPA is preparing a formal survey to send to finishing operations nationwide as early as October to inform the agency’s analysis of the industry’s PFAS use and discharges. The survey is a significant undertaking and will be executed under the federal Clean Water Act’s authority, similar to the last major discharge survey of the industry over 20 years ago.
What questions will the survey include for companies? The questionnaire will cover two major areas – current wastewater treatment technology and performance for facilities, and an economic and financial profile of companies to determine affordability of new discharge standards for the industry that EPA would formally propose next year.
NASF will be reviewing the details of the survey with industry leaders to provide feedback to EPA before it is sent out.
NASF Discussions with EPA on Industry Profile: As EPA finalizes its list of finishing companies who will receive the survey, agency officials have asked the NASF advocacy team for additional input. In recent weeks, we’ve reached out to NASF chapter leaders and key committees to coordinate review of the list.
Conflicting Facility Estimates for EPA’s Evaluation: Thus far, of the more than 2000 companies EPA has slated to receive the survey, over 300 have been identified as no longer operating or as never having chromium-based processes. NASF’s position is that there is a much smaller universe of U.S.-based facilities associated with PFAS use.
This informed view is in stark contrast to an estimate last year from the Environmental Working Group of 4700 plating and finishing facilities that are “suspected dischargers” of PFAS.
NASF will continue to provide feedback to the agency to ensure it has a sufficient understanding of the profile of the finishing industry as the rulemaking analysis proceeds.
EPA’s Proposed Rule to Designate PFOS and PFOA as CERCLA Hazardous Substance Could Have Major Implications for U.S. Industry
On September 6, 2022 EPA issued a proposed rule to designate PFOS and PFOA as hazardous substances under CERCLA (commonly referred to as “Superfund”). Chromium electroplating, anodizing and etching were specifically listed in the rule as potentially affected industrial services.
This designation will allow EPA to respond to and clean up releases of PFOS and PFOA more quickly without having to make an imminent and substantial danger finding that is currently required for such releases. In addition, private parties that cleanup releases of PFOS and PFOA could now recover cleanup costs from potentially responsible parties.
Reporting Requirements: With this designation, facilities that have knowledge of any release of PFOS or PFOA above the reportable quantity (RQ) of one pound must report the release to federal, state and local authorities. For most surface finishing operations, a single release of one pound of PFOS or PFOA would be unlikely. Legal responsibility for cleanup costs of even small releases of PFOS or PFOA could, however, be substantial.
Economic Impact Analysis: The White House Office of Management and Budget (OMB) identified this rule as an economically significant regulatory action, thereby triggering the requirement for EPA to conduct a cost and benefit analysis for the proposed rule. In the administrative record for the rule, EPA specifically requested comments on the potential cost and benefit impacts of the proposal. Accordingly, EPA is still in the process of developing its required economic impact analysis for this rule.
Even though it is not required by statute to consider costs in designating a chemical as a hazardous substance under CERCLA, EPA did evaluate some of the costs associated with the proposed rule. EPA did conclude that the proposed rule would not have a significant economic impact on a substantial number of small entities.
In reaching this conclusion, EPA only considered the direct costs of the rule – the burden associated with reporting RQs of PFOS and PFOA to federal, state, and local authorities. The direct costs were estimated to be only $560 per release of $370,000 annually for all impacted entities nationwide.
Estimated Cleanup Costs: EPA noted that it was unable to quantify the indirect costs associated with the proposal, such as potential cleanup costs for releases of PFOS and PFOA. These costs can be substantial, because the treatment and destruction technology for addressing releases of PFOS and PFOA are expensive and unproven to meet cleanup levels in many cases.
The U.S. Chamber of Commerce has estimated that cleanup costs for private parties (i.e., non-federal sites) resulting from this designation could be over 17 billion dollars and between 700 and 800 million dollars annually. The Department of Defense has estimated that its cleanup costs could be as much as two billion dollars annually.
Equity Issues: While the PFOS and PFOA hazardous substance designation could also raise potential environmental justice concerns, EPA indicated that it was unable to determine if the proposal would have a disproportionately high and adverse human health or environmental impacts on minority and low-income populations.
EPA does, however, plan to issue an enforcement discretion guidance to address equity issues and minimize the potential impacts on small entities (e.g., small businesses and local agencies). At this time the scope and timing for the enforcement discretion guidance is not clear.
Should Other PFAS Be Designated as Hazardous Substances: In the preamble to the proposed rule, EPA stated that it intends to issue an advanced notice of proposed rulemaking (ANPRM) to request comments on whether additional PFAS should also be designated as CERCLA hazardous substances. This action could substantially expand the scope of CERCLA authority and increase cleanup costs for private parties. EPA plans to issue the ANPRM in late 2022 or early 2023.
Rulemaking Timeline: The comment deadline for the proposed rule is December 7, 2022. EPA has targeted August 2023 for issuing a final rule. Several large industry trade associations have requested a 60-day extension of the comment deadline, citing the novelty (this is the first time that any chemical has been designated as a hazardous substance under CERCLA) and significance of the rule, and the need for additional time to review, evaluate, and respond to EPA’s economic impact analysis that is still being developed.
The Policy Group will continue to review and analyze the rule, and work with other industry trade associations to minimize the adverse impacts of this rule on the surface finishing industry. If you have any questions or would like additional information on this rule, contact Jeff Hannapel or Christian Richter with NASF at [email protected] or [email protected].
The NASF 1000
The NASF 1000 program was established to ensure that the surface finishing industry would have resources to effectively address regulatory, legislative and legal actions impacting the industry, NASF members and their workplaces.
All funds from the NASF 1000 program are used exclusively to support specific projects and initiatives that fall outside the association’s day-to-day public policy activities.
The commitment to this program is one of the most vital contributions made in support of surface finishing and directly shapes the future of the industry.
The sustained commitment from industry leaders has helped the NASF remain strong and credible in informing regulatory decisions across the nation.
Specific projects funded through the NASF 1000 make a measurable difference in how the industry navigates emerging challenges, communicates credibly with policy makers, and advocates for a strong science base for rules or standards that affect surface finishing.
Please consider supporting the NASF 1000 program. If you have any questions or would like additional information regarding the NASF 1000 program or the broad array of NASF public policy activities, please contact Jeff Hannapel with NASF at [email protected].
If you have any questions or would like additional information on this or membership matters, please contact Christian Richter at [email protected], Jeff Hannapel with NASF at [email protected]