This month, NASF has been closely engaged with federal regulators on a full slate of policy challenges emerging in 2023. Among the immediate advocacy priorities for the industry are the US Environmental Protection Agency’s first-of-its kind PFAS rule for the finishing industry, the agency’s soon-to-be-released nationwide mandatory survey for finishers on PFAS in facilities’ wastewater, new Superfund liability-forcing federal chemicals regulations and California’s proposed hexavalent chromium ban for both decorative and functional applications.

In the divided Congress, lawmakers are challenged to find common ground on enacting even “must pass” legislation this year. However, key congressional committees are now organized and are exercising a wide-ranging set of oversight hearings on the difficulties faced by manufacturers as the Congress and the White House press to re-shore US industry and implement ambitious “Buy American” initiatives. In the meantime, the Biden Administration is accelerating its ambitious regulatory agenda through new rules and other executive actions.

A summary of pertinent current topics for the industry is below:

Federal Issues:

·     EPA Pushes Back Timeline for Proposing Metal Finishing PFAS Effluent Limits – The proposed new metal finishing standards to address PFAS is now being pushed back from August 2024 to December 2024. NASF is discussing with EPA staff the agency’s pending survey of the industry, which will likely be sent to finishing companies by April 2023.

·     OSHA, DOT and EPA Civil Penalties are Increasing in 2023 – The Department of Labor recently revised civil penalty amounts for OSHA violations by employers, per an earlier authorization by Congress. The Department of Transportation has also increased civil penalties for all modes of transportation, including highway, by 7.745 percent. EPA’s new maximum penalties are now highest for Clean Air Act violations at $117,468 per day

·     EPA Releases Draft IRIS Assessment for Cobalt – EPA recently released its draft plan to assess the cancer potential from inhalation of cobalt that takes a “no safe-level” approach inconsistent with other available science.

State Issues:

·     NASF Highlights Finishing Industry’s Accomplishments in Response to California Air Board’s Proposed Ban on Hexavalent Chromium – Industry leaders in a recent hearing in California highlighted key reasons for state air authorities to chart a different path than phasing out all hexavalent chromium electroplating and anodizing.

·     New York State Enacts Law that Requires Environmental Justice Cumulative Impact Analysis – A new law will require a thorough review of the cumulative impacts of pollution on certain disadvantaged communities before an environmental permit is issued or renewed.

For more details on each of these topics, see the expanded discussion below.

EPA Pushes Back Timeline for Developing PFAS Effluent Limits

EPA’s Office of Water has just announced it will delay its proposed PFAS discharge rule for the finishing industry by several months, from its initial August 2024 target to December 2024.

As NASF has continued to discuss key aspects of the rule with EPA, a coalition of 17 environmental groups that includes Environmental Working Group (EWG), Sierra Club and Natural Resources Defense Council had earlier urged EPA to quickly promulgate new controls for the entire metal finishing industry, not only chrome plating operations.

NASF most recently provided input to EPA officials on pending industry data collection efforts. The agency’s mandatory survey associated the rule is still expected to be sent out the chromium plating facilities shortly, likely by April 2023. If you have any questions or would like additional information regarding this issue, please contact Christian Richter or Jeff Hannapel with NASF at crichter@thepolicygroup.com or jhannapel@thepolicygroup.com.

Reminder: OSHA, DOT and EPA Penalties Recently Increased Penalties

As a reminder, the Department of Labor has revised civil penalty amounts for OSHA violations by employers, per an earlier authorization by Congress to keep up with inflation. Maximum penalties for serious and other-than-serious violations have increased from $14,502 to $15, 625 per violation. For willful or repeated violations, maximum penalties have increased from $145,027 to $156,259.

The Department of Transportation has also increased civil penalties for all modes of transportation, including highway, by 7.745 percent. The increases apply to dozens of Federal Motor Carrier Safety Regulations and Hazardous Materials Regulations violations, including violations related to:

·      Out-of-service orders

·      Recordkeeping

·      Non-recordkeeping

·      Hazardous materials regulations

·      Commercial regulations

·      Operating authority requirement

·      Tariffs

·      Loading and unloading

·      Evasion of U. S. Codes

·      Reporting and recordkeeping

Finally, the EPA has increased maximum civil penalties for environmental violations as follows:

The agency recently released its draft plan for an extensive new health evaluation for cobalt inhalation and will focus its assessment on water-soluble and water-insoluble cobalt compounds.

EPA officials indicated that it plans to carry out a cancer assessment that will likely be more stringent and generate new risk values that could drive additional future restrictions on cobalt use, much like the current hexavalent chromium evaluation under review by the agency.

The agency also recently announced a public meeting in January to discuss several matters related to its approach on inhalation risks from cobalt, including scientific complexities associated with the effort.

If you have any questions or would like additional information regarding this issue, please contact Christian Richter or Jeff Hannapel with NASF at crichter@thepolicygroup.com or jhannapel@thepolicygroup.com.

NASF Highlights Finishing Industry’s Accomplishments in Response to California Air Board’s Proposed Ban on Hexavalent Chromium

On January 27, 2023 the California Air Resources Board (CARB) held a public meeting in Riverside, California on its rule to phase out hexavalent chromium plating.

The industry noted the rule is unnecessary based on:

·     the industry’s exemplary achievement in reducing air emissions by 99.7 percent since 1995 and its commitment to continued stewardship and environmental excellence;

·     the miniscule contribution of the industry to Cr6 emissions vs the total of all other industry-based sources;

·     the already strict state air emission requirements in place for the industry and new controls contemplated by the rule;

·     the continued industrial customer demand and specifications for Cr6 applications into the future;

·     the industry’s interest in pursuing a less onerous path to transition away from Cr6.

The new rule would impose the following new requirements.

·     January 1, 2024 — The new rule would prohibit any new permits for chromic acid anodizing and hard or decorative chromium electroplating facilities.

·     January 1, 2026 — Hard chromium and chromic acid anodizing facilities would have to implement control requirements to meet stringent air emissions limits.

·     January 1, 2027 – All existing decorative hexavalent chromium would be prohibited.

·     January 1, 2039 – All existing hexavalent chromium functional plating and chromic acid anodizing would be prohibited.

Industry Testimony

Nearly 70 industry representatives and company employees testified at the public meeting urging CARB members to rescind or revise the rule to avoid job losses and negative economic impacts on surface finishing facilities in California. NASF participated in the public meeting and provided testimony on behalf of California company members.

Many from industry cited the near zero level of hexavalent chromium emissions from chromium plating and anodizing operations – particularly for decorative chromium applications – compared to other sources of hexavalent chromium. Others noted that decorative hexavalent chromium plating remains an important tool to meet customers’ corrosion and other product performance demands and specifications.

An additional theme of the varied testimony highlighted the fact that surface finishing facilities in California are subject to the most stringent hexavalent chromium emissions regulations in the country. NASF members urged CARB to implement new, even more stringent emissions-based limits rather than banning hexavalent chromium plating and anodizing.

Board Response

Based on the arguments raised in the testimony, several individual CARB members expressed concerns about the smallest facilities with the smallest emissions profile facing the earliest ban, the extremely low emission profile of decorative plating, the necessity for more time for decorative plating to transition to alternatives, and the need for emission-based limits for plating facilities.

The Board requested that industry provide staff with additional information on products, such as medical equipment, that still require decorative hexavalent chromium plating to meet customer specifications and product demands.

Industry Follow-Up and Rulemaking Schedule

In response to CARB staff’s request for additional information, the NASF California Chapters and NASF submitted a letter to Board staff on February 10, 2023. The industry continues to engage CARB members and staff on these issues. Board staff is expected to respond to the letter and/or prepare new rule language for the full Board to consider by mid-March. A final vote on the rule language is scheduled for May 2023. A final rule is expected to be completed and issued by summer 2023 and become effective January 1, 2024.

If you have any questions or would like additional information about the CARB rule and the public meeting, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.

In the States: New York Becomes Second State to Require Environmental Justice-Focused Cumulative Impact Analysis

New York Governor Kathy Hochul signed New York’s “Cumulative Impacts” bill into law in December, making New York the second state in the nation to require assessment of “cumulative impacts” affecting certain communities before an environmental permit is issued or renewed.

This is approximately two years after New Jersey passed similar “cumulative impact” legislation. The New York law appears to have a blanket prohibition on issuance or renewal of environmental permits to all facilities which might contribute to further impact on “disadvantaged communities.”

Environmental Justice and Cumulative Impact Analysis 

The new law requires analysis of “cumulative impacts” on “disadvantaged communities” before a permit is approved or renewed.  “Disadvantaged communities” are defined as “communities that bear burdens of negative public health effects, environmental pollution, impacts of climate change, and possess certain socioeconomic criteria, or comprise high-concentrations of low- and moderate- income households.”

Facilities operating in these “disadvantaged communities” would be required to prepare “existing burden reports” containing baseline environmental monitoring data collected within the past two years and information identifying the following:

·     each existing pollution source or categories of sources affecting the community;

·     the potential routes of human exposure to pollution from each source or categories of sources;”

·     ambient concentration of regulated air pollutants and regulated or unregulated toxic air pollutants;

·     traffic volume;

·     noise and odor levels;

·     exposure or potential exposure to lead paint;

·     exposure or potential exposure to contaminated drinking water supplies;

·     proximity to sources like solid or hazardous waste management facilities, wastewater treatment plants, hazardous waste sites, incinerators, recycling facilities, waste transfer facilities and petroleum or chemical manufacturing, storage, treatment or disposal facilities;

·     the potential or documented cumulative human health effects of the pollution sources; and

·     the potential or projected contribution of the proposed action to existing pollution burdens in the community and potential health effects of such contribution.

Notably, “[n]o permit shall be approved or renewed by the department if it may cause or contribute to, either directly or indirectly, a disproportionate or inequitable or both disproportionate and inequitable pollution burden on a disadvantaged community.” New York state regulators would make this determination as part of a rulemaking and public participation process to be established later this year.

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 jhannapel@thepolicygroup.com.

NASF Public Policy Update

Recent Developments

November 1, 2021

Federal actions this fall have placed historic regulatory attention on the finishing industry and its practices. This update highlights several topics, including:

·    Calls intensify to regulate the entire surface finishing industry,

·    EPA expands its regulatory authority over articles containing chemicals substances,

·    NASF comments on PFAS reporting requirements,

·    OSHA awaits final COVID vaccine rule review from White House reiview, and

·    a NASF/US Department of Defense Workshop on chromium plating to be held at SUR/FIN.

Major Regulatory Milestones

Activist Groups in October Called out the Entire Finishing Industry for New Water Rules – In recent weeks, more than a dozen of the top U.S. activist groups – including the Sierra Club and the Natural Resources Defense Council – issued a joint statement to EPA and the public and included a call to regulate the entire surface finishing industry with new PFAS effluent requirements, arguing:

The EPA should develop [new discharge requirements] for ALL metal finishers, not just chrome platers.”

Congress and EPA are Targeting Surface Finishing – Congress has introduced new legislation that is gaining more attention – and EPA announced the launch of a first-of-its-kind regulation – specifically targeting the surface finishing industry for nationwide testing, monitoring and enforcement of new wastewater discharge requirements for PFAS chemicals.

Rare Media Coverage of the Finishing Industry on Capitol Hill – The Hill, one of the most widely read political news sites read by Congress, recently highlighted metal finishing and electroplating for the first time in recent memory after the industry was named explicitly in legislation to impose new requirements and potential liability on industry for PFAS use.

EPA Expands Chemical Regulatory Authority Under TSCA

EPA announced on September 28, 2021 that it is reversing its decades-old practice of exempting finished articles from regulation under the federal Toxic Substances Control Act (TSCA). Under the authority of TSCA, EPA evaluates potential risks from new and existing chemicals and takes actions to address any unreasonable risks that chemicals may pose to human health and the environment.

In the past, EPA’s practice has been to target the manufacture or import of individual chemicals or chemical mixtures, their use in industrial processes, and products where a regulated substance is the active ingredient, rather than finished articles. Pursuant to the recent change in statutory authority, articles of finished products containing chemicals that EPA is evaluating for risk will now be subject to regulation under TSCA.

EPA Says it’s Obligated to Regulate Articles

EPA officials have indicated that the agency is obligated to regulate articles containing chemicals because products often “break down” and chemicals in the articles are released into the environment and can result in harmful exposures.

Critics of this expanded authority claim that in many cases it is difficult for manufacturers and importers to know what levels of chemicals are in a product and whether the chemicals can be released from the product. This is particularly true now that levels of concern for some chemicals are measured in parts per trillion.

EPA has responded that manufacturers are already required to know what is in their products to comply with European Union regulations as well as U.S. federal and state regulations, that require reporting and labeling product that may contain chemicals identified as a substance of very high concern or whose use may pose an unreasonable risk.

Expansion of Authority has Implications for the Supply Chain

By expanding its regulatory authority under TSCA to essentially all manufactured products, manufacturers, importers, and customers will need to know more about the chemical substances contained in their products and the likelihood of any potential release of that chemical substance.

For example, surface finishers and their customers will have to know all of the chemical substances that may end up in the finished product, the likelihood that those chemical substance may be released from the typical use of the product, and the potential exposure routes and risks associated with any such release.

Increased Regulatory Burdens Ahead

This new approach will likely increase the regulatory burdens and stewardship efforts for many manufacturers beyond the raw materials and processes used to make those products. EPA has already begun to expand its regulatory authority under TSCA to articles containing chemical substances (e.g., see proposed reporting rule for PFAS discussed below).

NASF continues to work with the U.S. Chamber of Commerce and other industry trade groups to engage EPA officials on this new approach to regulating articles or finished products under TSCA. If you have any questions or would like additional information regarding this expansion of EPA’s chemical regulatory authority, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.

NASF Submits Comments on PFAS Reporting Requirements

On June 28, 2021, EPA proposed Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) pursuant to TSCA Section 8(a)(7). NASF submitted comments indicated that the proposed rule did not consider the significant impact on small business, was overly broad, and would be unduly burdensome to the surface finishing industry. A summary of the NASF comments is provided below.

EPA Failed to Account for the Impact on Small Business – The proposed rule would require manufacturers and importers of PFAS (including importers of articles containing PFAS) to report information from the past ten years for each substance and mixture related to:

•           chemical identity and molecular structure;

•           categories of use;

•           volumes manufactured and processed;

•           byproducts resulting from the manufacture, processing, use and disposal;

•           environmental and health effects;

•           worker exposure; and

•           method of disposal.

This includes information on all PFAS without any exemptions for de minimis amounts, small businesses or articles containing PFAS. EPA failed to account for the substantial impacts that this rule will have on small business and the surface finishing industry.

Before finalizing the rule, EPA must comply with its statutory requirements to gather input from small businesses potentially impacted by this proposal and consider options to minimize the burdens of the proposed rule on small businesses.

EPA Should Limit the Substances Subject to Reporting – EPA identified 1,346 PFAS on the TSCA Inventory, but in the preamble to the proposed rule EPA stated that this was not a comprehensive list of all PFAS subject to the rule.

Manufacturers would be required to determine whether additional substances are subject to reporting, thereby significantly increasing the burden of reporting and adding to the uncertainty of the proposal.

NASF requested that EPA limit reporting requirements to those PFAS known to be in commerce or a subset of those known to pose public health and environmental concerns.

EPA Should Provide Typical Exemptions for Reporting Requirements – The proposed rule does not include exemptions for reporting requirements that are typically provided for EPA reporting rules such as exemptions for de minimis levels, small businesses, and articles. To minimize the unnecessary burdens of this rule, NASF made several requests:

•           EPA should limit reporting to those substances manufactured or imported in excess of threshold based on sound science policy and risk and appropriate policy considerations

•           EPA should exclude small businesses from reporting based on the number of employees and revenues, consistent with other TSCA reporting requirements.

•           Despite no mandate to include articles, EPA has determined that articles containing PFAS should be included in the scope of reportable chemical substances, even while acknowledging that some article manufacturers, including article importers, may not have such information.  Manufacturers and importers of articles containing PFAS should not be subject to the reporting requirements.

For some metal plating applications, fume suppressants containing very small amounts of PFAS are used in the finishing process. To demonstrate that no amount of any PFAS is on the plated part or article, companies could be subject to expensive testing requirements to confirm that reporting is not necessary.

Reporting Expands to a Much Larger Universe

Requiring reporting by manufacturers and importers of articles that contain PFAS will increase the number of entities subject to this reporting rule by thousands, particularly if all large and small businesses must report any amount of any PFAS in articles.

Given the burdens associated with subjecting articles containing PFAS to reporting requirements and EPA’s failure to include the costs associated with reporting imported articles containing PFAS, EPA should delete the requirement for reporting of articles containing PFAS from the proposed rule.

The Ten-Year Reporting Period is Unduly Burdensome – EPA proposed that persons who have manufactured or imported PFAS over the past ten years would report to EPA for each PFAS.

Given the broad scope of chemistries covered by the definition of PFAS, gathering all the available requested data for ten years would represent an overwhelming burden to many companies subject to reporting.

Phased Approach to Reporting Is Appropriate – The proposed rule requires reporting that can impose a significant burden on a large number of entities. NASF requested that EPA consider requesting this data in a phased approach, whereby only the largest manufacturers and importers of PFAS are subject to the reporting requirements.

If the exemptions, clarifications, and revisions that NASF requested were implemented, EPA could significantly reduce these burdens on a large number of small businesses, without substantially reducing the amount of critical information it collects on the manufacture and import of PFAS.

By streamlining the reporting to the most useful and scientifically valid information in the first place, EPA can better fulfill the mandate to estimate the rulemaking’s economic impacts and burden.

EPA must complete the final reporting and recordkeeping requirements by January 1, 2023. NASF will continue to work cooperatively with EPA and other industry trade groups on this proposal. If you have any questions, would like additional information, or would like to discuss these comments, please contact Jeff Hannapel (jhannapel@thepolicygroup.com) of The Policy Group on behalf of the NASF.

COVID Emergency Temporary Standard May Be Extended Beyond Healthcare 

OSHA has recently reconsidered the need for a broader COVID-19 emergency temporary standard (ETS) applicable beyond just the healthcare sector. President Biden’s recent decision to use a new COVID ETS focused on vaccinations and testing as a central element of his newly unveiled COVID-19 Action Plan raises a host of challenges for employers across the country. OSHA has moved quickly and the agency’s ETS was sent to the White House for rule review, hearing from outside industry and other groups, and for final regulatory approval.

OSHA has been expected to receive the ETS rulemaking package for release any time, and issuance in the coming days – early November – is anticipated.

Unlike the Executive Orders for federal employees and contractors and the expanded scope to healthcare workers (which included a fair amount of detail about how they would be implemented), the President’s announcement and new Action Plan about the OSHA ETS for general industry were essentially bare bones, with almost no detail about what will be in the ETS and how it will operate.

Critical Questions Need Answers

For example, the announcement did not provide specific direction or information to answer several critical questions regarding the scope and implementation of the ETS for general industry, including the following.

·    How do employers count the 100-worker threshold (by establishment or company-wide, how do you count temp, part-time, and seasonal workers, does it count remote/telework staff, etc.)?

·    Who pays for the testing program (employers or employees)?

·    If employers have to pay for testing, is it just for the test kits, or also employees’ time getting tested?

·    Under a work-required vaccine program, will days away for adverse effects of the vaccine have to be recorded on employers’ 300 Logs?

·    If the FDA approves booster shots for the general population, will a booster shot be required to consider an employee fully vaccinated?

·    Does the rule account in any way for natural antibody immunity for employees who have been infected and recovered from COVID-19?

·    Assuming employers have to pay for time to get vaccinated and recover from ill effects of the vaccine, is there a limit to how much time?

·    What type of test will be acceptable for the testing program?

·    What documentation will be required to verify vaccination and testing status, and will employers have to keep those records, as employee medical records, for the life of employment + 30 years?

·    Will there be time for the ETS to go into effect, or will testing be required for employees who are willing to get vaccinated until they can get vaccinated?

·    Will there be conditions that could result in the ETS being shelved?

·    If we achieve a 100% fully vaccinated workforce, can we dispense with all of the other COVID-19 protocols (i.e., distancing, masks, pre-work screening, etc.)?

·    How will the rule intersect with the ADA/Title VII requests for medical and religious exemptions?

Industry needs these answers to determine how it may be impacted by the ETS. For several reasons, industry may have a great opportunity to provide meaningful and impactful comments on the ETS rulemaking.

First, the career staff at OSHA did not have advanced notice of the President’s announcement, so there was no foundational work on a draft rule and staff may not be as personally invested on any particular provisions or issues.

Second, this ETS would provide cover to employers who have wanted to set vaccine mandates, but were reluctant to do it unless or until others did the same (i.e., to help alleviate concerns about losing workers to neighboring businesses that had more relaxed COVID-19 policies).

Accordingly, the White House and OSHA have been viewed as open to specific input from industry about how best to implement the ETS for general industry.

NASF has continued to work closely with industry trade groups and coalitions to help shape the Administration’s COVID policies and ETS and the potential impacts on the surface finishing industry.

If you have any questions or would like additional information on these developments regarding COVID in the workplace, please contact Christian Richter or Jeff Hannapel with NASF at crichter@thepolicygroup.com or jhannapel@thepolicygroup.com.

NASF / Defense Workshop on Chromium Plating at SURFIN

The California Air Resources Board (CARB) continues to advance a new rulemaking to transition hexavalent chromium plating to trivalent chromium for decorative chromium plating, functional chromium plating and chromic acid anodizing.

In response to this rulemaking effort, NASF has scheduled a DoD Workshop on Hexavalent Chromium: Emerging California Restrictions & Implications for the U.S. Defense Supply Chain to be held at SUR/FIN in Detroit on November 3, 2021 from 1:15 to 4:00 PM eastern time.

The workshop will include the following presentations.

•           Jeff Hannapel (NASF) – Summary of CARB Plan for Phase-Out

•           Keith Legg (Corrdesa) – DOD Supply Chain Implications & SERDP/ESTCP Hexavalent Chromium Replacement Projects

•           Steve Gaydos (NASF Technical Fellow) – Aerospace Applications and Alternatives

•           Scot Bryant (Noblis) – Adoption of hexavalent Chromium-Free Surface treatment Technologies by DOD Organizations

•           Tim Hall (Faraday Technology) & Doug Hughes (Macdermid Enthone) – Aqueous Trivalent Chromium Technology

•           Doug Morrison (Trion Coatings) – Ionic Liquid Hard Chromium Process

The aim of workshop is to educate people on California’s efforts to phase-out hexavalent chromium processes, identify some of technologies to replace hexavalent chromium processes, and discuss the potential impacts on the surface finishing and defense industries and supply chain. It is intended to be an interactive session where audience contributions and participation are welcome.

We look forward to SUR/FIN in Detroit on November 3rd for this critical and informative workshop. If you have any questions or would like more information, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.

Support the NASF 1000 Today!

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 jhannapel@thepolicygroup.com or Christian Richter at crichter@thepolicygroup.com.

___________________________________________

If you have any questions or would like additional information on this matter, please contact Christian Richter at crichter@thepolicygroup.com, Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.

To join NASF or find out more about membership, please contact Matt Martz at mmartz@nasf.org.

EPA to Set New Federal Wastewater Discharge Standards

for PFAS in Surface Finishing Operations

September 9, 2021

The U.S. Environmental Protection Agency (EPA) has released its Preliminary Effluent Guidelines Program Plan 15 (Preliminary Plan 15), announcing that it will commence a rulemaking process to set first-time ever wastewater discharges for PFAS from key industries.

The agency’s announcement was not unexpected, and its effort will focus on chromium plating and related processes in the surface finishing industry as well as certain chemical manufacturers and formulators of PFAS.

The announcement follows extensive discussions between NASF and senior EPA officials since the Trump administration released its PFAS Action Plan in 2019. The plan prioritized surface finishing and other industries for potential water regulation under the Clean Water Act’s effluent guidelines program.

Industries Impacted Under New PFAS Rulemaking Process

After concluding several studies that EPA launched in 2018, the agency has determined that revised effluent limitations guidelines (ELGs) and pretreatment standards are warranted for:

Organic Chemicals, Plastics and Synthetic Fibers (OCPSF) — EPA listed this category to address per- and polyfluoroalkyl substances (PFAS) discharges from facilities manufacturing PFAS (which includes chemical formulators in this source category). EPA identified six OCPSF facilities that currently manufacture PFAS in the US.

EPA also identified eight additional OCPSF facilities that use PFAS feedstocks to formulate other products. EPA has not developed a comprehensive list of all PFAS manufacturers and formulators in the U.S. and considers it probable that there are many more OCPSF facilities using PFAS that EPA has not yet identified.

Metal Finishing — The agency plans to revise the existing Metal Finishing Effluent Guidelines (40 CFR Part 433) to address PFAS discharges primarily from chromium electroplating facilities, based on the information collected through earlier studies.

NASF has been working closely with EPA officials on various aspects of PFAS use in the industry and will continue to do so through the next stages in the rulemaking development process. To inform the discussion with EPA and various state agencies, NASF has created a web-based PFAS Resource Center, which can be accessed here. Watch for new updates to the site soon.

The EPA Preliminary Effluent Guidelines Program Plan 15 is available here.

Launching the Rulemaking Process, Collecting Industry Data

EPA will initiate a multi-year rulemaking process of collecting data on existing PFAS discharges levels, identifying available treatment technologies for PFAS discharges, and conduct a formal assessment of technical and economic feasibility for available treatment technologies to determine what pretreatment standards may be appropriate.

EPA’s action to advance a rulemaking for the metal finishing category could allow the agency to proceed without an accelerated legislative mandated schedule prescribed by Congress. The House has passed language in the recent infrastructure bill targeting metal finishing and several other sectors for urgent action on PFAS, but the Senate’s measure did not include these provisions.

EPA has not yet announced a timetable for the rulemaking process, and has invited NASF to provide information and further input on the rulemaking development process.

Further Review of Other Industries

As part of Preliminary Plan 15, EPA also announced that it would be conducting further research and studies regarding discharges of PFAS to determine if a rulemaking is warranted for the other industry categories, including:

·     landfills,

·     pulp, paper, and paperboard facilities,

·     textile and carpet manufacturers, and

·     commercial airports.

NASF Meetings Ahead with EPA

NASF will be meeting again shortly with EPA officials and will provide NASF members with updates on the rulemaking process.

If you have any questions regarding EPA’s action, please reach NASF by contacting Christian Richter at crichter@thepolicygroup.com or Jeff Hannapel at jhannapel@thepolicygroup.com.