November 16, 2009
U.S. and Canadian Air Regulations Are Advancing
Finishing industry representatives in Canada are meeting this week with the Ontario Ministry of Environment to address proposed regulations that, literally, could be the most stringent air regulations for surface finishing in the world if finalized. As we predicted would emerge, pending proposals will target chromium, nickel, zinc, copper and other compounds. We will have a new update as soon as we assess how much flexibility the provincial government will allow.
In the meantime, the U.S. Environmental Protection Agency’s new chromium air regulation will be proposed in 2010. If you hadn’t heard, it could spell major trouble for many in the American finishing industry at a time when companies can least afford it. Read below for a brief snapshot of what’s underway, what the industry’s doing about it, and how you can help support the industry’s effort…
Are U.S. Finishing Operations Ready for EPA’s New Chromium Air Standard?
Nearly fifteen years ago, EPA issued new air emission standards for hexavalent chromium electroplating and anodizing operations. Through the efforts of the industry’s Government Relations program, EPA later issued technical amendments to the standard that provided facilities with some additional flexibility to achieve compliance. Now the agency is rewriting the standards against the backdrop of a significantly more aggressive regulatory posture under the Obama Administration.
Question: Why is EPA rewriting the Chromium air emissions rule in the first place?
Answer: The agency has been given a mandate to review the rule under a court decision in response to lawsuits from environmental groups. The Clean Air Act requires EPA to review its technology-based air rules after 8 years of promulgation. Environmentalists have successfully argued in a federal appeals court that EPA must review and revise the rule, as it’s been more than eight years since the issuance of the original 1995 chromium air standard.
Question: What is EPA planning to do?
Answer: In going forward with a new rule, EPA must conduct a so-called “risk and technology review” or RTR. The RTR is a formal effort to evaluate whether the current Maximum Achievable Control Technology (MACT) requirements are adequately protective of health and the environment. EPA looks several issues, including whether, after the application of the current MACT, there is still a “residual risk” to the public. If there is, the Agency must tighten the standard.
Question: What if, based on EPA data and risk modeling, the modeled “residual” risk of chromium operations exceeds a certain cancer risk threshold?
Answer: If this occurs, then most finishing operations will face potentially major new cost and compliance challenges. One notable issue that’s already come up in NASF Government Relations’ discussions with EPA is whether the agency will use a 100 in a million threshold for cancer risk, or a more stringent 1 in a million threshold. There has been much debate inside and outside the agency as well as recent litigation on which threshold is appropriate for EPA to use in meeting its residual risk mandate in the Clean Air Act.
The risk threshold issue is not entirely settled, and environmental groups have been pressing for the much tighter threshold. Again, this aspect of the rule could have major implications for U.S. job shop and captive finishing operations. At this point, EPA does not have a definitive picture yet on where the industry will come out on the risk threshold in the proposed rule, but the agency will still be advancing with drafting a proposal in the coming months.
A New Regulatory Approach
Another emerging issue is that, regardless of the level at which the risk threshold is set, there’s a new regulatory impulse in Washington that aims to move the nation’s regulatory framework to a new level. Senior agency officials, including EPA chief Lisa Jackson, have been explicit on the administration’s priorities, including the fact that regulatory actions and policy decisions will be more attuned to the needs of sensitive subpopulations near industrial facilities, including children.
The Obama White House underscored this recently by issuing Executive Order 13045: Protection of Children from Environmental Risks and Safety Risks. This directive to EPA and other federal agencies changes the agency’s decision making approach, and EPA in turn is significantly expanding the formal role of its Office of Children’s Health in standard setting. In addition, EPA is retooling its policy on environmental justice, and is taking a harder look at standard setting for industrial facilities in low-income and minority communities across the nation.
With respect to compliance strategies under the existing MACT rule, most affected finishing operations have typically employed a combination of fume suppressants to reduce bath surface tension and/or mechanical pollution controls to comply with the applicable regulatory requirements.
EPA will soon determine what levels of control are necessary to minimize chromium air concentrations and reduce potential risks even further. At the same time, the use of traditional PFOS-based fume suppressants are getting more regulatory pressure than ever, and substitutes will play a greater role in chromium baths in the future.
The Outlook for 2010
We will continue to work closely with agency air officials on facility data needs, health risk issues, emissions modeling, and the identification of appropriate management practices as the proposed rule goes forward. No final decisions have been made yet, and the industry will be heavily engaged in the months to come.
This a transformative period in the regulation of manufacturing and chemicals, and many things are uncertain. One thing is certain, however, and it’s that the NASF Government and Industry Affairs program can only be effective with your help. Your financial support is crucial to advance a sustained, technically credible and effective effort for surface finishing on the chrome rule and a wide range of other pressing issues.
For questions, reach Christian Richter (crichter@thepolicygroup.com) or Jeff Hannapel (jhannapel@thepolicygroup.com).