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National Ass'n for Surface Finishing v. Environmental Protection Agency

ELR Citation: 45 ELR 20139
Nos. 12-1459, (D.C. Cir., 07/21/2015)

The D.C. Circuit denied petitions challenging an EPA regulation that revised the NESHAP for hexavalent chromium, a carcinogenic compound that gets emitted into the air during the chrome-finishing process. The new rule, issued in 2012, imposes more stringent emissions limitations than its predecessor and mandates the phaseout of a category of fume suppressants containing the toxic compound perfluorooctyl sulfonate (PFOS). Various environmental organizations and an industry association filed petitions challenging EPA's revised rule. The environmental petitioners argued that the rule is too lax because EPA failed to recalculate a technology-based emissions stringency floor that is independent of cost considerations. But the court disagreed, citing court precedent in support of EPA's decision. The environmental petitioners also argued that EPA ignored emissions data from California in calculating revised standards decisions. But EPA did not ignore California's emissions data; it omitted it only from the dataset from which the Agency extrapolated other states' emissions. Extrapolating California's nationally unrepresentative data to the rest of the country would have distorted the emissions figures that EPA uses in its cost-effectiveness and risk analyses, whereas reliance on that data for California-specific estimates had no such distorting effect. EPA's approach, therefore, was reasonable. Meanwhile, the industry petitioner argued that the rule is too stringent. It claimed that EPA failed to make a determination of developments in practices, processes, or control technologies prior to revising the rule; that EPA lacked adequate support in the record for phasing out the PFOS-based fume suppressants; and that EPA unreasonably assessed public health risk. Again, the court disagreed. EPA's data-gathering and analysis was adequate and its decisions were reasonable and supported by the record.