From: "Christian Richter" < crichter@thepolicygroup.com > To: Phil Mulrine/RTP/USEPA/US@EPA, Chuck French/RTP/USEPA/US@EPA, Steve Fruh/RTP/USEPA/US@EPA Cc: Janet McCabe/DC/USEPA/US@EPA, Peter Tsirigotis /RTP/USEPA/US@EPA, Steve Page/RTP/USEPA/US@EPA, < jhannapel@thepolicygroup.com > Date: 05/02/2012 09:42 AM Subject: Follow Up to Your Request

- Additional Chromium Electroplating Information on Facility Data

Steve, Chuck, Phil:
Per our earlier discussions with Janet and your team on our extension request and your request for additional data and information, we’ve attached summary, brief analysis and facility references showing further closures and/or the absence of hexavalent chromium processes at EPA

- modeled facilities.
Two points in particular are relevant:

• New data confirm the trend we’ve discussed

– New NASF data collected from 52 “lower emission facilities” that you requested confirm the same trend we demonstrated for “higher emission facilities ”

– significant closures and significant percentage of facilities permanently switching from hexavalent chromium; and

• EPA 2005 NEI Cr6 air emission estimates are c onfirmed by industry data

– the total NASF data package more closely reflects the 2005 NEI emission estimate for Cr6 electroplating of approximately 259 pounds per year (or 0.35 percent of total hexavalent chromium emissions from all U.S. industry sources)

. The reduction in emissions from the NASF data correction exercise far exceeds the emission reduction achieved per the revised emission limits in the agency’s proposed rulemaking. We would like to follow up and discuss further as it would be useful to b riefly review these and related items.
While this has been an exceedingly short timeframe to address data issues, we appreciate the opportunity to provide further information to inform the agency’s review. Please feel free to reach me per my contact infor mation below or Jeff Hannapel at (202) 257

- 3756.
Best regards,

Christian Richter
The Policy Group 700 12 th Street NW Suite 700 Washington, DC 20005 (202) 257

- 0250 direct crichter@thepolicygroup.com (See attached file: NASF Comments on Chrome MACT Supplemental Proposal (Additional Information) May 2012.pdf)(See attached file: NASF Chrome MACT Summary of Emissions Corrections

-- Low Emissions Facilities.xlsx)

## May 1 , 2012

Additional Information on the Supplemental Proposal for National Emission Standards for Hazardous Air Pollutant Emissions: Hard and Decorative Chromium Electroplating and Chromium

Anodizing Tanks Docket No. EPA

- HQ

- OAR

- 2010

- 0600

I n response to the United States Environmental Protection Agency (EPA) February 8, 2012 supplemental proposal for National Emission Standards for Hazardous Air Pollutant Emissions: Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks. ( 77 Fed. Reg. 6628 (2012) ) , the National Associatio n for Surface Finishing (NASF) had requested an extension of the comment period in this rulemaking. D ue to its own time constraints and rulemaking schedule, EPA denied the NASFs request for an extension of the comment period. EPA , did, however, agree to consider additional information on the potential impacts these issues may have on the technical basis and conclusions reached by EPA in this rule, provided that NASF submits within a reasonable time perio d after the close of the comment period.

T he discussion provided below includes the response to specific requests from EPA for additional information as well as clarifications on information submitted in the NASF March 26, 2012 comments. NASF would wel come the opportunity to discuss with EPA officials this information, its comments and other issues related to this rulemaking.2

Additional Industry Survey of Low er Emissions Facilities

After reviewing the data submitted by NASF on the number of chromium electroplating facilities in EPA’s database that are closed, no longer have hexavalent chromium processes, submitted revised emissions estimates or confirmed EPA’s estimate, EPA officials asked NASF to survey some additional facilities with lower estimated emissions. NASF was able to get responses from an additional 52 facilities , including: 17 facility closures (33%), 19 facilities that no longer have hexavalent chromium processes or an y plating processes (36%), 32 facilities with revised emissions estimates (21%), and 5 facilities that confirmed EPA’s estimates (10%). The sum of EPA’s estimated emissions for these 52 facilities was 28.346 pounds that was reduced to 4. 160 pounds for a r eduction of 85 percent

. The results of this additional survey are provided in the attachment to this document.

The results from this additional survey of facilities with lower emissions estimates are very similar to the results from the survey of facilit ies with higher emissions estimates that are summarized in the NASF comments. The combined information from the surveys of the facilities with higher emissions estimates and facilities with lower emissions estimates produce a consistent result. Of the 18 2 facility responses NASF had the following results: 62 facility closures (34%) , 69 facilities that no longer have hexavalent chromium processes or any plating
processes (38%), 43 facilities with revised emissions estimates (24%), and 8 facilities that

co nfirmed EPA’s estimates (4%). The sum of EPA’s estimated emissions for these 182 facilities was 353.939 pounds that was reduced to 23.360 pounds for a reduction of 93 percent

.

Based on these results, the trends of facility closures, the number of facilit ies that no longer have hexavalent chromium processes and facilities with lower revised emissions are consistent among facilities with higher emissions estimates and facilities with lower emissions estimates

. Accordingly, EPA should revise its emissions e stimates consistent with these results.3

Documentation of Industry Data from Survey

EPA officials have asked NASF for additional documentation for the results of its survey. As described in the NASF comments , NASF a sked local affiliates of the association across the nation to review the data provided by EPA regarding hexavalent chromium emissions estimates from facilities. T he information collected was provided by facilities directly, persons knowledgeable about the fac ility (such as chemical suppliers) , phone conversations, research of public records, and physical site visits to confirm the information. NASF has specifically identified those facilities that are closed or no longer have hexavalent chromium processes (which inclu ded approximately 70 percent of the responses), so EPA should be able to verify this information easily . The revised emissions estimates were provided based on a variety of sources including stack tests, production data, emissions factors, pollution contr ol efficiencies, and chemical sales. Because this information is based on real

- world data, the results would appear to be more reliable than the emissions estimates that EPA produced based on limited data and questionable models for predicting emissions e stimates. NASF would be happy to discuss these results in more detail with EPA officials as appropriate.

EPA’s 2005 NEI Data for Hexavalent Chromium Emissions from Surface Finishing Supports NASF’s Emissions Estimate

In its comments, NASF estimated that national emissions of hexavalent chromium from chromium electroplating operations were approximately 200 to 300 pounds per year. This conclusion was based primarily on the revised emissions estimate analysis discussed above. The estimate provided by NASF appears to be consistent with the estimate based on data from the 2005 National Emissions Inventory (NEI) that was included in Attachment 2 of the NASF comments. Specifically, the NEI provides data on all sourc es of h exavalent chromium emissi ons , and estimates that total hexavalent chromium emissions from a wide range of sectors and activities are nearly 37 tons per year. Based on this data the contribution of hexavalent chromium emissions from the surface finishing industry is 0.129376 tons per year , or approxi mately 259 pounds per year. This represents only 0.35 percent of the total hexavalent chromium emissions from all sources in the U.S

.4

EPA’s own data provided in the 2005 NEI data appear to support the emissions estimate provided by NASF. Furthermore, based on pa st experience and documented in NASF’s comments on the October 2010 proposal, the NEI data have tended to over

- estimate emissions from chromium electroplating operations. When corrected, the emissions estimate may be even lower. As a result, EPA needs to revise its emissions estimates and risk assessment for this rule consistent with the information provided by NASF and the 2005 NEI data.

EPA Still Has No Data to Support the Use of Non

- PFOS Fume Suppressants to Meet Proposed Emissi ons Limits

NASF continues to a ssert that EPA has not provided any data to support the use of non

- PFOS fume suppressants to meet the proposed emissions limits. In addition, EPA has not identified any new technology or work practices supported by documentation or data to demonstrate tha t the proposed emissions limits are warranted or can be achieved. These deficiencies are fatal flaws in EPA’s proposed rulemaking, including the new emission limits , risk analysis , cost effectiveness, economic impact, and other supporting information. E PA must revise its proposed rule consistent with the Clean Air Act, the Administrative Procedure Act, and the information provided in the administrative record for this rulemaking.

Review of Legal Arguments

EPA Is Not Required to Recalculate the MACT Floor as Part of Its Technology Review

Commenters have argued that EPA must go back and recalculate from scratch the MACT floor as part of its CAA 112(d)(6) technology review. This argument is the underpinning justification for many of the claims made re garding EPA’s technology review , including the claim that EPA must use the California data to calculate new MACT floors.

NASF has addressed this argument in its comments, noting that EP A has already rejected the argument that Section 112(d)(6) is not in t ended to create an one way ratchet for MACT5

standards. In addition, t he D.C. Circuit has already rejected the argument that section 112(d)(6) requires EPA to “completely recalculate the maximum achievable control technology

— in other words, to start from scratch.” NRDC v. EPA , 529 F.3d 1077, 1084 (D.C. Cir. 2008).

The setting of a MACT floor under section 112(d) is a one

- time requirement. While s ection 112(d)(3) explains the process and requirements for “promulgation” of a standard, s ection 112(d)(6), speaks only of “revision” of standards that have already been promulgated. S ection 112(d)(6) establishes its own parameters for such revisions

— they must be “necessary” and must “tak[e] into account developments in practices, processes, a nd control technologies.” Thus,

s ection 112(d)(6) do es not require EPA to redo its s ection 112(d)(3) calculations every eight
years.

EPA’s legal pos ition on the interpretation of s ection 112(d)(6) should be strongly opposed to the argument to constantly recalculate MACT floors. If the Agency had to re

- set eve ry MACT rule every eight years ( creating serious “MACT

- on

- MACT” problems), EPA would be b asing standards on the top 1.44 percent of original performers for the first eight year review (the top 12
pe rcent of the original top 12 percent ) and then at the top 0.17 percent for the second eight year review (the top 12 percent of the top 12 percent of the original top 12 percent ). Such an approach is technologically infeasible and inconsistent with the Cl ean Air Act.

As a reconfirmation of its position , EPA again rebuffed this argument in the oil and gas NSPS/NESHAPs rule that was signed recently . Specifically, EPA stated that o ne commenter argues that EPA has not satisfied sections 112(d)(2) and (3) of the CAA, because the MACT standards set in the 1999 rule have not been re

- calculated using current data. To the extent the commenter is arguing that CAA section 112(d)(6) requires that the EPA recalculate the MACT standards set in 1999, based on current emissions test data, the commenter is incorrect. In NRDC v. EPA , 529 F.3d 1077, 1084 (D.C. Cir. 2008), the District of Columbia Circuit held that it “[did] not think the words ‘review, and revise as necessary’ can be construed reasonably as imposing any such obligation” to recalculate the MACT floors. NRDC v. EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008).6

EPA f urther noted in this case that t he commenter views CAA section 112(d)(6) differently. It appears to argue that CAA section 112(d)(6) requires that the EPA recalculate the MACT based on current data and technology. The same argument was posed to the District of Columb ia Circuit, and the Court “[did] not think that the words ‘review, and revise as necessary’ can be construed reasonably as imposing any such obligation.” NRDC v. EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008). Thus, contrar y to the commenter’s assertion, EPA is not required pursuant to the Clean Air Act section 112(d)(6) to re

- calculate the floors it set in 1999.

Based on this analysis, both EPA and the courts agree that the Agency is not require d to re

calculate MACT floors as part of its technology review.

The Use of Surface Tension as an Alternative Limit

Commenters argued that the Agency cannot set surface tension levels as alternative limits for this MACT standard

. The use of surface tension levels as an option to demonstrate compliance with the chromium electroplating NESHAP has been a critical part of this rule since it was first promulgated. Without this surface tension level provision, the small businesses subj ect to the rule would not have an economically feasible option to comply with the standard.

Regardless of the fact that the argument lacks legal merit, the time to bring such a challenge has clearly passed. The Agency has included alternative surface t ension limits in its MACT standa rd for the industry since 1995. As the DC Circuit has repeatedly made clear, including in the recent HMIWI MACT case, the Clean Air Act requires that any challenge to an action must be brought within sixty days from publica tion in the Federal Register. In the HMIWI case, the c ourt refused to hear the challenge to the pollutant

- by

- pollutant methodology because the same approach had been used to set the 1997 standards for that industry. Medical Waste Institute v. EPA , 645 F. 3d 420, 427 (D.C. Cir. 2011). Similarly, a belated challenge to EPA’s use of alternative surface tension limits cannot be brought 17 years after the Agency first promulgated such standards.7

Conclusion

On behalf of the National Association for Surface Finishing (NASF), we appreciate the opportunity to submit this additional information on EPA’s February 8, 2012 supplemental proposal for National Emission Standards for Hazardous Air Pollutant Emissions: Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks. If you have any questions, would like additional information, or would like to discuss these comments, please
contact Christian Richter ( crichter@thepolicygroup.com ) or Jeff Hannapel ( jhannapel@thepolicygroup.com ) of The Policy Group on behalf of the NASF.

## Summary of Hexavalent Chromium Emissions -- Low Emissions Facilities

Company Location Process EPA Emissions Estimate (lbs/yr) Corrected Emissions

(lbs/yr) Percentage Difference Reason for Correction

A-1 Chrome & Polishing Corp. Newington, CT Hard 0.34 ? ? Facility is very small and buys only a small amount of chromium

Acitronics, Inc. Branford, CT Hard 0.34 ? ? Very small roto-gravure shop

Aerospace Support Agawam, MA Hard 0.35 0 100% Facility has a very small plating operation with a closed loop system with no emissions

AK Steel Corporation Rockport, IN Hard 0.68 0 100% Facility has no hard chromium plating process

Allied Signal South Bend, IN Hard 0.63 0 100% Facility no longer has any plating processes

Amcast (Elkhart) Elkhart, IN Hard 0.81 0 100% Facility has no hexavalent chromium plating

Antonelli Plating Co. Providence, RI Hard 0.27 0 100% Facility is closed

Associated Plating Company New Britain, CT Hard 0.28 0 100% Facility has no hexavalent chromium plating

Astro Inds. Inc. Green Bay, WI Hard 0.28 0.28 0% Facility estimate is confirmed

B & E Metal Finishing, Inc. Woonsocket, RI Hard 0.37 0 100% Facility is closedBales Mold Service Inc. Downers Grove, IL Hard 0.18 0.6 0% Facility provided revised estimate

Bass Plating Co. Bloomfield, CT Hard 0.044 0 100% Facility has no hexavalent chromium plating

Big R Plating & Polishing, Inc. Indianapolis, IN Hard 0.31 ? ? Facility has no hard chromium plating process, a very small decorative chromium process for local restoration work
Bouffard Metal Goods Watertown, CT Hard 0.38 0 100% Facility has no hexavalent chromium plating

BTS Rotary Die Arlington Heights, IL Hard 0.38 0 100% Facility is closed

C & R Barrel plating Corp. Columbia City, IN Hard 0.33 0 100% Facility has no hard chromium plating process

F.M. Callahan & Son Malden, MA Hard 0.4 ? ? Facility has EN and sulfuric anodizing processes, and only a small amount of chromic acid anodizing

Cambridge Plating Co. Belmont, MA Hard 0.38 0 100% Facility has no hexavalent chromium plating

Cannon & Brown, Inc. Providence, RI Hard 0.42 0 100% Facility is closed

Capitol Chrome Corp. Indianapolis, IN Hard 0.057 0 100% Facility is closed

Caval Tool Division Newington, CT Hard 0.39 0 100% Facility is closed

Centra-Met, Inc. Elwood, IN Hard 0.063 0 100% Facility is closedM S Chambers & Son Baltic, CT Hard 0.86 0 100% Facility is closed

Chrome Craft Corp. Highland Park, MI Decorative 3.00 0 100% Facility is closed

Chrometech of Wisconsin Franklin, WI Hard 0.58 0.58 0% Facility estimate is confirmed

Cro-Mat Co. Lincolnwood, IL Hard 0.44 0.20 55% Facility provided revised estimate

CWS Plating Camden, NJ Hard 2.40 0 100% Facility is closed

Eagle Plating Company Providence, RI Hard 0.089 0 100% Facility is closed

Elkhart Products Geneva, IN Hard 0.36 0 100% Facility has no hexavalent chromium plating

Forestville Industrial Plating Southington, CT Hard 0.55 0 100% Facility is closed

Fountain Plating Co., Inc. West Springfield, MA Hard 0.56 0.18 67% Facility has small tank and only buys a small amount of chromium

Franke Plating Works Fort Wayne, IN Hard 0.31 0 100% Facility has no hard chromium plating process

G & A Plating Company Providence, RI Hard 0.11 0 100% Facility is closed

General Dynamics Burlington, VT Hard 0.57 0 100% Facility no longer has any plating processesGuide Corporation Anderson, IN Hard 0.83 0 100% Facility has no hexavalent chromium plating

International Chromium Plating Providence, RI Hard 0.64 0.21 67% Facility has a small hexavalent chromium plating process and buys only a small amount of chromium

J & E Specialty Inc. Dover, NH Hard 0.63 0.21 67% Facility has very small tank and only buys a small amount of chromium

Kem Kote, Inc. Manchester, NH Hard 0.16 0 100% Facility is closed

La Rosee & Sons, Inc. Hudson, MA Hard 0.17 0 100% Facility has no hexavalent chromium plating

Lasalle Steel Co. Fluid Power Ops. Griffith, IN Hard 0.52 0.00 100% Facility has no hard chromium plating process

Lawson Mardon Wheaton, Inc. Millville, NJ Hard 0.85 0.00 100% Facility no longer has any plating processes

National Chromium Co., Inc. Putnam, CT Hard 0.85 0.85 0% Facility estimate appears reasonable

National Metal Finishing Corp. Springfield, MA Hard 0.88 0.29 67% Facility is now owned by Abnar and has only a small chromium plating process

Olin Corp East Alton, IL Hard 0.93 0 100% Facility no longer has any plating processes

Osram Sylvania Watertown, CT Hard 0.94 0 100% Facility has no hexavalent chromium plating

Plainville Plating Co., Inc Plainville, CT Hard 0.98 0.32 67% Facility has no hard chrome plating, only small chromic acid anodizing processPlating Engineering Co. Milwaukee, WI Hard 0.22 0 100% Facility is closed

Sanitary-Dash Manufacturing N. Grosvernordal, CT Hard 0.26 0 100% Facility is closed

Scot Inds. Muscoda, WI Hard 0.13 0.13 0% Facility estimate is confirmed

SL Surface Techs Inc. Camden, NJ Hard 1.50 0 100% Facility is closed

Syndicate Store Fixtures, Inc. Middlebury, IN Hard 0.28 0 100% Facility no longer has any plating processes

U.S. Chrome Corp. of Wisconsin Fond du Lac, WI Hard 0.31 0.31 0% Facility estimate is confirmed

TOTALS 28.593 4.160 85% (24.433 lbs.)