U.S. EPA was forced to play a complicated defense today in federal court as environmental groups, two states and a trade association challenged its air standards for chrome plating facilities.
The 2012 standards apply to about 1,300 facilities that dip products as large as airplane components and bumpers and as small as gardening tools in chromium baths, adding a coating that prevents corrosion.
EPA tightened the limits on chromium emissions from those baths after determining that many facilities were already releasing far less of the carcinogenic air pollutant than the previous 1995 standard required.
In unusually long arguments at the U.S. Court of Appeals for the District of Columbia Circuit, EPA's justification for the new standard as well as how it went about setting it came under criticism from the National Association for Surface Finishing -- which prefers that the 1995 standard be left in place -- and groups including the Sierra Club -- which said EPA should have gone further in limiting the emissions.
Attorney Jerry Stouck of Greenberg Traurig, representing the surface finishers, boiled down their argument to two contentions. First, he said the Clean Air Act allows EPA to make an air standard revision only when there has been a significant development, such as a cost-effective control technology, that would allow emissions to be curtailed.
"Nothing in the record shows a development," he said.
That contention appeared to gain little traction with the three-judge panel, however. Each judge indicated the fact that a majority of facilities were emitting less qualified as such a development.
Shouldn't "additional information about what is actually happening" be a "development"? asked Senior Judge Stephen Williams, a Republican appointee.
Judge Thomas Griffith, another Republican appointee, added, "Are they not allowed to do this when there has been progress?"
The judges were more receptive to Stouck's second argument against EPA's decision to ban the use of perfluorooctyl sulfonate, or PFOS, in the chromium baths.
PFOS is a toxic chemical that has been used as a fume suppressant in the baths, manipulating the surface tension and reducing the emissions released when bubbles reach the surface and explode.
Stouck said EPA relied on faulty studies to conclude other chemicals could be as effective as PFOS in reducing emissions. That seemed to strike a chord with Williams, who questioned Justice Department attorney T. Monique Peoples sharply on the issue.
EPA, he said, seemed to be relying on studies that showed non-PFOS suppressants were equally effective at manipulating surface tension but not necessarily as good at reducing emission rates.
Environmental groups, with the backing of New York and California, also made their case that EPA's procedure for setting the chromium standards was flawed.
Specifically, they contend that the Clean Air Act requires EPA to recalculate the base-line emissions on which the standards are based every time it reconsiders them.
That base line, commonly referred to as the maximum achievable control technology, or MACT, floor, is calculated by averaging the emissions from the least-emitting 12 percent of sources.
The groups were supported by Rep. Henry Waxman (D-Calif.), who once led the House Energy and Commerce Committee. They said EPA should have undergone that process here, which would have resulted in tighter standards.
Earthjustice attorney Emma Cheuse ran into a major problem with the panel, however: the D.C. Circuit's precedent. On two occasions, once last year in Association of Battery Recyclers Inc. v. EPA and in 2008's Natural Resources Defense Council v. EPA, the D.C. Circuit held that EPA did not have to revise the MACT floor.
Griffith told Cheuse that presented a "considerable hurdle in that we have already decided this issue."
Cheuse countered that in both previous cases, the merits of the MACT floor issue were not addressed. She also argued that the "clear intent of Congress," a reference to Waxman's support, was for the law to require a new analysis.
But that, too, didn't seem to persuade the panel.
"That's not enough to overturn precedent," Williams said.
Peoples, EPA's attorney, didn't fare much better, however, with the judges expressing concerns about EPA's procedures.
In particular, Judge Cornelia Pillard, a Democratic appointee, wondered why EPA did not consider data from chrome plating facilities in California. The state has implemented more stringent standards, so its facilities emit less than others across the country.
"Why [wasn't] the California data considered by EPA?" Pillard asked. "I don't understand why you wouldn't say, 'Let's look.'"
Peoples countered that California's facilities were initially taken into account. But their regulations require those plants to use high-efficiency particulate air filters, which she said are "not economically feasible everywhere else."
Williams added that he found "lots of flaws" with EPA's statistical analysis, regarding data both from existing sources and for PFOS.
A ruling in National Association for Surface Finishing v. EPA is expected by next summer.
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