NASF Working for You Today
EPA Proposes Tighter Chromium Emission Standards
EPA published its new air emission standard for chromium electroplating and anodizing in the Federal Register on Feb. 8th. (Click here to download a PDF.) While NASF develops a response to the agency during the 45-day comment period, we need to hear from your company on how your operations may be affected by the new mandate.
Summary of EPA's Newly Proposed Chromium Limits
Provided below is a summary of the proposed surface tension levels and new emission limits.
Lower Surface Tension Levels
EPA has proposed to lower the surface tension levels from 35 dynes to 33 when measuring with a tensiometer and from 45 dynes to 40 when measuring with a stalagmometer.
In the rule, the agency has argued that this level of reduction in surface tension in the bath will achieve further significant reductions in actual emissions. NASF has disputed this claim vigorously on technical grounds, arguing that EPA has not presented scientific data to establish a correspondence between a modest reduction in surface tension and significant reductions in emissions.
Lower Emission Limits
Please see EPA's proposed new limits in the table below, which has been excerpted from the rule:
| Decorative Chromium Plating | Proposed | Current |
| Existing Sources | 0.007 mg/dscm | 0.01 mg/dscm |
| New Sources | 0.006 mg/dscm | 0.01 mg/dscm |
| Chromic Acid Anodizing | ||
| Existing Sources | 0.007 mg/dscm | 0.01 mg/dscm |
| New Sources | 0.006 mg/dscm | 0.01 mg/dscm |
| Hard Chromium Plating | ||
| Existing Sources (small) | 0.015 mg/dscm | 0.030 mg/dscm |
| New Sources (small) | 0.006 mg/dscm | 0.015 mg/dscm |
| Existing Sources (large) | 0.011 mg/dscm | 0.015 mg/dscm |
| New Sources (large) | 0.006 mg/dscm | 0.015 mg/dscm |
EPA Rationale for New Chromium Limits & NASF Response
EPA's argument for mandating tighter limits is that most facilities will already meet and easily comply with the proposed standards, and those that do not can meet the new levels by simply using more fume suppressants. In addition, the use of PFOS fume suppressants is being phased out as part of this rule, so facilities will be expected to meet the proposed standards with non-PFOS alternative fume suppressants.
NASF has been meeting regularly with EPA officials during the past two years and regularly updating NASF members on progress. It is important to note that EPA has retreated on proposing much tighter limits, which will benefit many operations in the industry.
Last Friday, NASF Government & Industry Affairs staff met with White House officials to confirm that the proposed standards - along with EPA's rationale and the technology options selected to meet them - may still remain problematic for large segments of the industry.
In the meantime, NASF has demonstrated to the agency using EPA's own data and information on actual emissions from the industry, that:
- The industry's emissions have been reduced since 1995 by 99.7%;
- The plating and finishing industry's total U.S. emissions are less than 1% of all chromium emissions from various sources;
- The industry does not pose a significant risk to the public; and
- The agency has no data, and no scientific basis, for concluding that greater use of non-PFOS based mist suppressants will substantially reduce chromium emissions.
NASF "Data Call" to Industry Will Inform EPA Decision
Tell Us Whether Your Operation Can Meet the Newly Proposed Standards
NASF is preparing formal comments for submittal to EPA on the proposed rule during the upcoming 45-day comment period, which will be announced in the Federal Register soon. However, NASF will need significant feedback and data from as many companies as possible to ensure the industry's comments accurately reflect current industry practices and performance.
Contact NASF
Your help is needed! In order for NASF to effectively comment on the proposed rule, the association needs input from you on whether your company can meet either the proposed surface tension levels and/or the emission limits and how the proposed rule may impact your facility. Please provide your response by February 15th to NASF through Jeff Hannapel of The Policy Group at jhannapel@thrpolicygroup.com, or contact Jeff at (202) 257-3756.
U.S. Air Emissions from Chromium Plating Reduced by 99.7% since 1995 – EPA Still Looking for More Regulation in 2012
By any measure, the reduction in hexavalent chromium emissions from plating and anodizing nationwide has been a major environmental success in recent years. In fact, the U.S. Environmental Protection Agency’s official estimates show that emissions have dropped by no less than 99.7 percent since 1995. That result is due to a mix of factors. Yet EPA has been in ongoing discussions with NASF on potentially much tighter regulations ahead for 2012. Will the industry be able to meet them?
Over a year ago, NASF’s Government Affairs team in Washington analyzed EPA’s industry data, and successfully demonstrated to officials at the agency and the Obama White House that current air emissions from chromium electroplating and anodizing operations posed a low risk. In response, EPA withdrew its 2010 proposed rule, which had originally been scheduled to be finalized in June 2011.
Based on a court settlement spurred by litigation by the Sierra Club, EPA is now in the process of developing a new standard. At press time, the agency was rushing to issue a proposed a new rule by January 2012 and a final rule by June 2012.
Earlier this year, EPA was considering two ways to tighten its current air rule – a revised emission limit up to 70 percent lower than the existing standard, along with lower surface tension limits for plating baths. While NASF has informed the agency that overly stringent standards could impose closures and job losses on some segments of the industry, EPA officials argued these regulatory changes could be met with little or no cost to the industry.
Since then, NASF has reached out to finishing operations included in EPA’s database in an effort to correct further deficiencies in some of the agency’s emissions and risk data.
EPA in the fall had planned to convene a panel of small businesses in the industry (under the Small Business Regulatory Enforcement Fairness Act, or SBREFA) to examine the potential impacts of the proposed rule on the industry. NASF identified several small business representatives from the surface finishing industry to participate in this review process. The SBREFA panel was expected to begin in December 2011.
EPA abruptly reversed course, however, and now argues that the proposed revisions will have no significant impact on small business, so a formal impact review is not required. Because the small business review process mandated by law takes about 90 days to complete, it would have been difficult for EPA to issue a proposed rule by January 2012. NASF has consulted with the Small Business Administration’s Office of Advocacy to assert that a SBREFA panel is required by statute for this rulemaking.
NASF has been in contact with senior EPA officials and was planning meetings with EPA staff in late December to discuss the proposed rulemaking, the technical data to support the proposed rule and continue to educate EPA officials on the appropriate technical and economic impacts of the proposed rule.
EPA Delays Schedule on Issuing New Nickel Risk Assessment Targeting Plating/Finishing
NASF Links with Nickel Institute, American Chemistry Council to Advocate Science and Reasonable U.S. Policy
The U.S. Environmental Protection Agency has delayed its schedule for revising its human health risk assessment for soluble nickel compounds. The agency’s action appears partially in response to a National Academy of Science report pointing out flaws in EPA’s risk assessment process and urging reforms by the agency. The nickel assessment will now not be finalized until 2013, but EPA will likely issue a scientific literature review in 2012.
In light of the agency’s action on nickel salts and emerging concerns over nickel compounds being listed under the European Union REACH chemicals framework, a new U.S. and North American “nickel users group” was just kicked off in December. NASF and over 20 other U.S. trade associations and global companies participated in the meeting, held at the American Chemistry Council’s headquarters in Washington, DC. In the coming year, the group will focus on ensuring EPA relies on sound science to inform its decisions on nickel, and will educate Congress on the importance of the nickel value chain and finishing’s critical role in the manufacturing of hundreds of thousands of products.
NASF Raising Concerns with DEA on the Manufacture and Sale of Hypophosphite
NASF continues to raise concerns to the U.S. Drug Enforcement Administration (DEA) on the implementation of the agency’s new hypophosphite regulations. A meeting between NASF supplier representatives and DEA is pending to clarify the role of hypophosphite in surface finishing and to demonstrate that illicit drugs cannot be readily manufactured in light of current industry practice and usage.
One of the NASF’s chief concerns is that chemical suppliers are facing more restrictive, costly and disruptive compliance requirements from the regulation, which became effective this past summer. The DEA’s final regulation requires facilities that manufacture or sell mixtures containing more than 30 percent of hypophosphite to register and pay fees with the DEA, as the material has the potential for use in the manufacture of illicit substances. NASF chemical supplier members manufacture, distribute or sell hypophosphite to finishing operations as a component in electroless nickel plating chemistry.
Federal Labor Board Approves Sweeping Rule to Expedite Union Elections
On November 30, 2011, the National Labor Relations Board voted 2-1 to move forward with revisions to its rules that will expedite union-organizing elections. The vote to revise the NLRB's rules--supported by unions and Democrats but opposed by business groups, congressional Republicans, and the Board's only current Republican member--clears the way for a final federal rule to be drafted that would usher in what is likely to be the most sweeping changes to the union-organizing election process since 1947. In particular, the new rules are expected to speed up significantly the timing of elections and to restrict opportunities for employers to challenge various aspects of election proceedings.
A significant concern voiced by many opponents of the proposed changes is that accelerated election schedules will deprive employees of adequate time to develop an informed opinion about the question of workplace representation. Under the new rules, elections could frequently be held in half the time provided under current rules--some have estimated they could occur in certain cases as quickly as ten days after a union files its certification petition. Since unions typically approach organizing efforts on a covert basis, working to protect the secrecy of their efforts until a certification petition is filed, employers already often have only a limited opportunity to respond directly to the union's arguments prior to an election. Many critics of the proposed rules have noted that elections held on an even more expedited basis may effectively prevent employees from having time to ask important questions or fully explore their options and will preclude employers from having a meaningful opportunity to present counter-arguments to the union's clandestine campaigning and promises. Thus, they observe that such expedited elections will largely silence employers and require employees to vote having only heard the union's unchallenged assertions.
Another troubling aspect of the proposed rules is the impact of various provisions that would largely eliminate the opportunity for pre-election Board review of employer challenges to aspects of the election or to union conduct during the campaign. The revisions would additionally limit the rights of employers to pursue certain post-election appeals. By deferring legal challenges surrounding a proposed election until after the vote has taken place and limiting appeal rights, the new rules will reduce the opportunities for employers to raise and resolve issues that may impact the outcome of elections. Moreover, even when objections may still be raised after an election under the new rules, it will often prove difficult to isolate the impact of the objectionable decisions or conduct, much less to undo its effect.
The Board's vote was the latest step in a contentious process that began in June of this year with publication of an even broader set of proposed changes that Democratic Board members characterized as necessary to streamline litigation and limit Board review in representation cases, thereby allowing the Board to conduct representation elections more quickly after the filing of a petition for an election. The proposal generated strong objections from Republican members of the Board and Congress and from the business community, with many characterizing it as an attempt to impose through the regulatory process changes that the administration had been unable to achieve legislatively, including through the failed "Employee Free Choice Act."
The Board received more than 65,000 public comments on the proposed rules, and in July it conducted a contentious two-day public meeting on the proposal. Responding in part to the proposal, Rep. John Kline (R), who chairs the House Education and the Workforce Committee, has introduced legislation that would mandate minimum time periods before NLRB representation case hearings and a 35-day minimum interval before balloting.
Since August of this year, the NLRB has operated with only three of its five seats filled. In an explanatory statement issued with the proposed resolution, NLRB Chairman and Democrat Mark Pearce acknowledged that the Board is likely to lose its quorum and authority to act at the end of the current congressional session in December, when the recess appointment of Democratic member Craig Becker expires. Significantly, the U.S. Supreme Court held last year in New Process Steel LP v. NLRB that the authority of the five-seat Board to issue final decisions could not be delegated to a panel consisting of less than a quorum of three members. According to the Chairman's statement, the "limited nature" of the revised, more narrow proposed rule changes is intended "to make it possible for all members of the Board to consider [the amendments] thoroughly in the time remaining for prompt action on the rule." At the November 30 meeting, NLRB member Brian Hayes, the sole remaining Republican on the Board, called this effort to pass significant rule changes before the Board's quorum is lost a "preemptive and precipitous action by two Board members."
Not withstanding the objections of Hayes, the Board voted on the resolution without having before it a formal draft of the revised proposed rule. Once drafted, the revised rules will still have to be approved by a final Board vote in order to be enacted prior to the expected loss of a quorum later this month.
These changes to union election rules highlight the critical need for employers to be vigilant in watching for the signs of union organizing efforts, maintain open and strong communications with workers, and have a well-developed plan for responding to the first sign of union activity. Given the compressed opportunity to convey their side of the story and limited options for challenging election conduct, employers who are not prepared in advance risk being caught off guard by a request for a union election and hamstrung in their ability to respond by the NLRB's revised rules.
--Article contribution by Gibson Dunn – Washington DC, NASF Labor Counsel
