Vol. 58 No. 185 Monday, September 27, 1993 p 50464 (Proposed Rule)
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-4730-3]
Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
SUMMARY: In this action EPA proposes regulations to ban certain
nonessential products containing or manufactured with class
II ozone-depleting substances under section 610(d) of the Clean
Air Act, as amended. This action is being undertaken by EPA
in order to clarify definitions and provide exemptions, as
authorized
under section 610(d). The substances affected by this proposed
rulemaking include certain hydrochlorofluorocarbons (HCFCs).
Today's action will facilitate implementation of the statutory
effective date of this ban of January 1, 1994, and provides
guidance and exceptions to the ban that are outlined in the
statute.
DATES: EPA will hold a public hearing on this action on October
12, 1993 at 9 a.m. The contact person listed below may be called
regarding the hearing. Written comments on this action must
be submitted on or before November 12, 1993.
ADDRESSES: Comments on this proposed rulemaking should be submitted
in duplicate to the attention of Air Docket A-93-20, Environmental
Protection Agency, 401 M Street SW., Washington, DC 20460. Comments
and materials supporting this rulemaking are contained in Public
Docket No. A-93-20 in room M-1500, Waterside Mall (Ground Floor),
at the address listed above. Dockets may be inspected from 8:30
a.m. until 12 noon, and from 1:30 p.m. until 3 p.m., Monday
through Friday. A reasonable fee may be charged for copying
docket materials. The public hearing will be held at 501 3rd
Street, NW., Washington, DC, in the first floor conference room.
FOR FURTHER INFORMATION CONTACT: Cynthia Newberg, Program
Implementation
Branch, Stratospheric Protection Division, Office of Atmospheric
Programs, Office of Air and Radiation (6205-J), 401 M Street
SW., Washington, DC 20460. (202) 233-9729. The Stratospheric
Ozone Information Hotline at 1-800-296-1996 can also be contacted
for further information.
SUPPLEMENTARY INFORMATION: The contents of today's preamble
are listed in the following outline:
I. Background
A. Overview of the Problem of Ozone Depletion
B. Aerosol Ban in 1978
C. Montreal Protocol
D. Excise Tax
E. London Amendments to the Montreal Protocol
F. Clean Air Act Amendments of 1990, Title VI
G. Accelerated Phaseout of Ozone-Depleting Substances
1. New Scientific Data Regarding Ozone Depletion
2. Copenhagen Revisions to the Montreal Protocol
3. The Proposed Accelerated Phaseout Regulation
4. Effect of Accelerated Phaseout on Class II Ban
5. Effect of Labeling Rule on the Class II Ban
H. Meetings with Industry and Environmental Organizations
II. Requirements under Section 610
A. Ban of Nonessential Products Releasing Class I Substances
B. Ban of Nonessential Products Containing or Manufactured
with Class II Substances
C. Medical Products
III. Proposed Rule
A. Ban on Sale or Distribution in Interstate Commerce
1. Grandfathering
a. Existing Inventories
b. Products Requiring Federal Approval Prior to Reformulation
2. Scope of Interstate Commerce
3. Resale of Used Products
4. Imports and Exports
5. The Use of Affected Products Purchased Before the Effective
Date of the Ban
B. Products Affected By The Class II Ban On Nonessential Products
1. Aerosol Products and Pressurized Dispensers Containing
HCFCs
a. Previous Regulations Affecting the Use of HCFCs in Aerosol
Products
b. Current Use of HCFCs in Aerosol Products
c. Alternatives to CFC and HCFC use in Aerosol Products
d. Exceptions for Aerosol Products and Pressurized Dispensers
i. Medical devices listed in 21 CFR . 2.125(e)
ii. Lubricants for pharmaceutical and tablet manufacture
iii. Gauze bandage adhesives and adhesive removers
iv. Topical anesthetic and vapocoolant products
v. Solvent uses in lubricants, coatings or cleaning fluids
for electrical or electronic equipment
vi. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance
vii. Solvent uses in mold release agents
viii. Solvent uses in spinnerette lubricant/cleaning sprays
ix. Plasma etching
x. Solvent uses in document preservation sprays
xi. Solvent uses in red pepper bear repellent sprays
e. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment
2. Plastic Foam Products Produced With HCFCs
a. Ban on Nonessential Products Containing CFCs
b. Current Use of HCFCs in Plastic Foam Production
c. Plastic Foam Products Exempt from the Ban Under Section
610(d)
i. Foam Insulation Products
ii. Specific Applications of Both Insulating and Noninsulating
Foams
iii. Foam Used to Meet Federal Motor Vehicle Safety Standards
iv. Foam Used in Medical Devices
IV. Proposed Effective Date
V. Summary of Supporting Analyses
A. Executive Order 12291
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
VI. References
I. Background
A. Overview of the Problem of Ozone Depletion
The stratospheric ozone layer protects the earth from the
penetration of harmful ultraviolet (UV-B) radiation. On the
basis of substantial scientific evidence, a national and
international
consensus exists that certain man-made halocarbons, including
chlorofluorocarbons (CFCs), halons, carbon tetrachloride, and
methyl chloroform (MCF), must be restricted because of the risk
of depletion of the stratospheric ozone layer through the release
of chlorine and bromine (WMO/UNEP Science Assessment). To the
extent depletion occurs, penetration of UV-B radiation increases,
resulting in potential health and environmental harm including
increased incidence of certain skin cancers and cataracts,
suppression
of the immune system, damage to plants including crops and aquatic
organisms, increased formation of ground-level ozone and increased
weathering of outdoor plastics. (See 53 FR 30566 for more
information
on the effects of ozone depletion.)
The original theory linking CFCs to ozone depletion was first
proposed in 1974. Since then, the scientific community has made
considerable advances in measuring and understanding the
atmospheric
processes affecting stratospheric ozone science. Repeatedly,
these scientific advances have indicated that the impact of
man-made ozone-depleting substances on the stratosphere was
more severe than previously thought. As discussed below, the
U.S. and the international community have adopted increasingly
stringent policies regarding the manufacture and use of ozone-
depleting substances in response to this evolving scientific
understanding.
B. Aerosol Ban in 1978
Following initial concerns raised by research scientists
Molina and Rowland in 1974 regarding possible ozone depletion
from CFCs, EPA and the Food and Drug Administration (FDA) acted
on March 17, 1978 (43 FR 11301; 43 FR 11318) to ban the use
of CFCs as aerosol propellants in all but ``essential
applications.''
During the mid-1970s, use as aerosol propellants constituted
over 50 percent of total CFC consumption in the United States.
The 1978 ban reduced aerosol use of CFCs in this country by
approximately 95 percent, eliminating nearly half of the total
U.S consumption of these chemicals.
Some CFC aerosol products were specifically exempted from
the ban based on a determination of ``essentiality.'' (See
reference
Essential Use Determinations-Revised, 1978.) Other pressurized
dispensers containing CFCs were excluded from the ban because
they did not fit the narrow definition of ``aerosol propellant.''
In the years following the aerosol ban, CFC use increased
significantly in the refrigeration, foam and solvent-using
industries.
By 1985, CFC use in the United States had surpassed pre-1974
levels and represented 29 percent of total global CFC consumption.
C. Montreal Protocol
In response to the discovery of the ozone hole over Antarctica
and to growing evidence that chlorine and bromine could destroy
stratospheric ozone on a global basis, many members of the
international
community came to the conclusion that an international agreement
to reduce global production of ozone-depleting substances was
needed. Because releases of CFCs from all areas mix in the
atmosphere
to affect stratospheric ozone globally, efforts to reduce emissions
from specific products by only a few nations could quickly be
offset by increases in emissions from other nations, leaving
the risks to the ozone layer unchanged. EPA evaluated the risks
of ozone depletion in Assessing the Risks of Trace Gases That
Can Modify the Stratosphere (1987) and concluded that an
international
approach was necessary to effectively safeguard the ozone layer.
In September 1987, the United States and 22 other countries
signed the Montreal Protocol on Substances that Deplete the
Ozone Layer (the Protocol). As originally drafted, the Protocol
called for production and consumption of certain CFCs (CFC-11,
12, 113, 114, 115) and halons (Halon-1211, 1301 and -2402) to
be frozen at 1986 levels beginning July 1, 1989, and January
1, 1992, respectively, and for the CFCs to be reduced to 50
percent of 1986 levels by 1998. To date, over 100 nations
representing
approximately 95% of the world's production capacity for CFCs
and halons have signed the Montreal Protocol. EPA promulgated
regulations implementing the requirements of the 1987 Protocol
through a system of tradeable allowances. EPA apportioned the
allowances to producers and importers of ozone-depleting substances
(controlled substances) based on their 1986 level of production
and importation. It then reduced the allowances for the controlled
substances according to the schedule specified in the Protocol.
(See 56 FR 49548 (September 30, 1991) for a more detailed
discussion
of the Protocol and EPA's regulations to implement the phaseout
of ozone-depleting substances.) To monitor industry's compliance
with the production and consumption limits, EPA required
recordkeeping
and quarterly reporting and conducted periodic compliance reviews
and inspections.
D. Excise Tax
As part of the Omnibus Budget Reconciliation Act of 1989,
Internal Revenue Code of Ozone-Depleting Substances, section
506A of Public Law 101-239, the United States Congress levied
an excise tax on the sale of CFCs and other chemicals which
deplete the ozone layer, with specific exemptions for exports
and recycling. The tax went into effect on January 1, 1990,
and increases annually. The original excise tax was amended
by the Omnibus Budget Reconciliation Act of 1991 to include
methyl chloroform, carbon tetrachloride and the other CFCs
regulated
by the amended Montreal Protocol and Title VI of the Clean Air
Act, as amended in 1990. The Energy Policy Act of 1992, section
1931 of Public Law 102-486, revised and further increased the
excise tax, effective January 1, 1993. By raising the cost of
virgin controlled substances, the tax has created an additional
incentive for industry to shift out of these substances and
increase recycling activities, and it has encouraged the
development
of a market for alternative chemicals and processes.
E. London Amendments to the Montreal Protocol
Under Article 6 of the Montreal Protocol, the Parties are
required to assess the science, economics and alternative
technologies
related to protection of the ozone layer every two years. In
response to this requirement, the Parties issued their first
scientific assessment in 1989 (Scientific Assessment of Ozone
Depletion, which has been placed in the docket for this
rulemaking.)
During this assessment, scientists examined the data from land-
based monitoring stations and the total ozone mapping spectrometer
(TOMS) satellite and found that there had been global ozone
depletion over the northern hemisphere as well as over the southern
hemisphere. The scientific assessment also reported that a three
to five percent decrease in stratospheric ozone levels had occurred
between 1969-1986 in the northern hemisphere in the winter months
that could not be attributed to known natural processes.
At the Second Meeting of the Protocol Parties, held in London
on June 29, 1990, the Parties responded to this new evidence
by tightening the restrictions placed on these chemicals. The
Parties to the Protocol passed amendments and adjustments which
called for a full phaseout of the already regulated CFCs and
halons by 2000, a phaseout of carbon tetrachloride and ``other
CFCs'' by 2000 and a phaseout of methyl chloroform by 2004.
The Parties also passed a non-binding resolution regarding the
use of hydrochlorofluorocarbons (HCFCs) as interim substitutes
for CFCs. Partially halogenated HCFCs add much less chlorine
to the stratosphere than the fully halogenated CFCs, but still
pose a significant longer term threat to the ozone layer. (See
56 FR 2420 January 22, 1991 for more information on the relative
effects of different ozone-depleting substances.)
F. Clean Air Act Amendments of 1990, Title VI
On November 15, 1990, the Clean Air Act Amendments of 1990
(CAAA) were signed into law. The requirements in Title VI of
the Clean Air Act as amended (the Act) include phaseout controls
similar to those in the London Amendments, although the interim
targets are more stringent and the phaseout date of methyl
chloroform
is earlier (section 604). Other Title VI provisions require
EPA to promulgate additional controls pertaining to the protection
of the stratospheric ozone. These provisions (1) restrict
production
and consumption of HCFCs (section 605); (2) restrict the uses
of controlled ozone-depleting substances, including provisions
to reduce emissions of controlled substances to the ``lowest
achievable level'' in all use sectors (section 608); (3) require
the recovery and recycling of refrigerant when servicing motor
vehicle air conditioners (section 609); (4) ban nonessential
products (section 610); (5) mandate warning labels (section
611); (6) establish a safe alternatives program (section 612);
and (7) require revision of federal procurement policies to
minimize government use of ozone-depleting substances (section
613). EPA has already promulgated regulations implementing the
phaseout provisions contained in section 604 of the Act (57
FR 33754), the motor vehicle air conditioner recovery and recycling
provisions (57 FR 31241), the section 608 recycling provisions
(58 FR 28660), the section 610 ban on class I nonessential uses
(58 FR 4767), and the section 611 labeling requirement (58 FR
8135). EPA is currently in the process of promulgating regulations
under several other sections of Title VI.
The Act divides ozone-depleting chemicals into two distinct
classes based on their ability to destroy ozone in the
stratosphere.
Class I substances are those substances listed in section 602(a),
as well as any substance that the Administrator finds ``causes
or contributes significantly to harmful effects on the
stratospheric
ozone layer.'' In addition, the Administrator is to add any
substance to the list of class I substances determined to have
an ozone depletion potential (ODP) of 0.2 or greater (ozone
depletion potential reflects the destructiveness of an ozone-
depleting substance relative to CFC-11). Class I substances
include CFCs, halons, carbon tetrachloride and methyl chloroform.
Class II substances have ODPs lower than 0.2. Class II consists
exclusively of HCFCs (see listing notice, January 22, 1991,
56 FR 2420). EPA is currently evaluating other substances to
determine whether they meet the criteria for Class I or Class
II substances.
One of the provisions of the Act that complements the ban
on nonessential products is the Significant New Alternatives
Program (SNAP) established under section 612. The Notice of
Proposed Rulemaking (NPRM) for this program was published in
the Federal Register on May 12, 1994 (58 FR 28094). The SNAP
program has been established to evaluate the overall effects
on human health and the environment of the potential substitutes
for ozone-depleting substances. Rules promulgated under SNAP
will render it unlawful to replace an ozone-depleting substance
with a substitute chemical or technology that may present adverse
effects to human health and the environment if the Administrator
determines that some other alternative is commercially available
and that this alternative poses a lower overall threat to human
health and the environment. The SNAP program is a powerful tool
for ensuring that ``acceptable'' alternatives are developed.
G. Accelerated Phaseout of Ozone-Depleting Substances
Based on new scientific evidence developed since the passage
of the Clean Air Act Amendments and the issuance of implementing
regulations, the international community, led by the United
States, has agreed in November of 1992, to accelerate further
the phaseout of already regulated ozone-depleting substances
and control additional substances pursuant to this agreement.
Production of virtually all class I substances will be phased
out in less than three years (by January 1, 1996) and halons
will be phased out by January 1, 1994. EPA published a Notice
of Proposed Rulemaking on the accelerated phaseout in the Federal
Register on March 18, 1993, (58 FR 15013) that sets out specific
phaseout schedules for ozone depleters.
EPA believes that its decision in this rulemaking on the
class II nonessential products ban should take into account
the significantly shortened life span of ozone-depleting substances
resulting from the accelerated phaseout and the correspondingly
diminished impact a ban on the sale and distribution of certain
products containing or manufactured with class II substances
would be expected to have. The following section describes the
most recent scientific and international developments regarding
ozone depletion.
1. New Scientific Data Regarding Ozone Depletion
Significant scientific advances have occurred since the initial
Protocol assessments in 1989. Several subsequent reports since
that time have indicated a more rapid rate of ozone depletion
than previously believed. The most recent Montreal Protocol
Scientific Assessment, issued December 17, 1991, contains
information
from ground-based monitoring instruments, as well as from satellite
instruments, from the years 1979-1991. The data indicate
significant
decreases in total-column ozone have occurred in winter, and
for the first time, also show decreases in spring and summer,
in both the northern and southern hemispheres at middle and
high latitudes. The data further show no significant depletion
has occurred in the tropics. TOMS data indicate that for the
period 1979 to 1991, decreases in total ozone at 45 degrees
south latitude ranged between 4.4 percent in the fall to as
much as 6.2 percent in the summer, while depletion at 45 degrees
north latitude ranged between 1.7 percent in the fall to 5.6
percent in the winter. Data from the ground-based Dobson network
confirm these losses in total column ozone during the thirteen-
year period; those trends were statistically significant for
all four seasons. The comparable ozone depletion measured by
the Dobson network shows a decrease of 2.7 percent per decade
in winter, 1.3 percent per decade in summer, and 1.0 percent
per decade in fall for North America, Europe and the Far East.
These findings show almost twice as much depletion as the seasonal
average rates measured by the ground-based network over a twenty-
year period. Based on this new data, scientists have concluded
that the ozone in the stratosphere during the 1980s disappeared
at a much faster rate than experienced in the previous decade.
The recent UNEP Science Assessment also includes new data
on the estimated ozone depletion potentials (ODPs) of ozone-
depleting substances. The assessment placed the ODP of methyl
bromide, a chemical previously thought to have an insignificant
effect on stratospheric ozone, at 0.6, with a range of uncertainty
between 0.44-0.69. On November 25, 1992, the Parties to the
Montreal Protocol agreed to assign methyl bromide an ODP of
0.7 (based on an update of the science assessment).
On February 3, 1992, NASA released preliminary data acquired
by the ongoing Arctic Airborne Stratospheric Experiment-II (AASE-
II), a series of high-altitude instrument-laden plane flights
over the northern hemisphere (see Interim Findings: Second Airborne
Arctic Stratospheric Expedition). Additional data were also
obtained from the initial observations by NASA's Upper Atmosphere
Research Satellite (UARS), launched in September 1991. The
measurements
show higher levels of chlorine monoxide (ClO) (the key agent
responsible for stratospheric ozone depletion) over Canada and
New England than were observed during any previous series of
aircraft flights. In fact, the ClO levels over the United States
and Canada and as far south as the Caribbean were many times
greater than gas phase models had predicted. These levels are
only partially explainable by enhanced aerosol surface reactions
due to emissions from the volcanic eruptions of Mount Pinatubo.
The expedition also found that the levels of hydrogen chloride
(HCl), a chemical species that stores atmospheric chlorine in
a less reactive state, to be low, providing new evidence for
the existence of chemical processes that convert stable forms
of chlorine into ozone-destroying species.
In addition, the levels of nitrogen oxides (NOX) were also
observed to be low, providing evidence of reactions that take
place on the surface of aerosols that diminish the ability of
the atmosphere to control the buildup of chlorine radicals.
New observations of HCl and nitrogen oxide (NO) imply that chlorine
and bromine are more effective in destroying ozone than previously
believed.
The NASA findings indicate that in late January of 1992,
the Arctic air was chemically ``primed'' for the potential
formation
of a springtime ozone ``hole'' similar to that formed each spring
over Antarctica. These findings also are consistent with theories
that ozone depletion may occur at an accelerated rate on aerosol
surfaces in the stratosphere anywhere around the globe, and
not only on polar stratospheric clouds as was previously believed.
After collecting more data, NASA released an April 30, 1992
``End of Mission Statement,'' which indicated that while a rise
in stratospheric temperatures in late January prevented severe
ozone depletion from occurring in the Arctic this year, observed
ozone levels were nonetheless lower than had previously been
recorded for this time of year. This information has further
increased the Agency's concern that significant ozone loss may
occur over populated regions of the earth, thus exposing humans,
plants and animals to harmful levels of UV-B radiation, and
adds support to the need for further efforts to limit emissions
of anthropogenic chlorine and bromine.
In April of 1993, NASA released additional data for the second
half of 1992. NASA found that ozone levels were 2 percent lower
than any previous year and 3 percent lower than normal. The
1992 low ozone levels were especially low in the mid-latitudes
of the northern hemisphere. The December 1992 mid-latitude ozone
levels were 9 percent below normal. The January 1993 ozone levels
were 13-14 percent below normal. The low mid-latitude ozone
values continue into 1993, and have continued through the spring
and early summer. Scientists can only speculate on the cause
of the low ozone levels, but the low ozone may be related to
the continuing presence of particles from the Mt. Pinatubo eruption
in the Philippines in June 1991.
2. Copenhagen Revisions to the Montreal Protocol
On November 25, 1992, the Fourth Meeting of the Montreal
Protocol was convened. In this meeting, the Parties took a number
of actions, including accelerating the phaseout schedule of
CFCs, halons, carbon tetrachloride, and methyl chloroform and
added HCFCs and methyl bromide to the list of chemicals to be
controlled under the Montreal Protocol.
The following adjustments to the phaseout schedules of
previously-
controlled substances were adopted at the Copenhagen meeting:
(a) Accelerating the phaseout schedule for the originally-
controlled CFCs (class I, group I substances) to require a 75%
reduction in production and consumption (production plus imports
minus exports) from 1986 baseline levels for 1994 and 1995,
and a complete phaseout by 1996;
(b) Accelerating the phaseout schedule for halons (class
I, group II substances) to require a complete phaseout in
production
and consumption by 1994;
(c) Accelerating the phaseout schedule for other fully
halogenated
CFCs (class I, group III substances) to require a reduction
from 1989 levels, 75% in 1994 and 1995, and a complete phaseout
of production and consumption by 1996;
(d) Accelerating the reduction schedules for carbon
tetrachloride
(class I, group IV) by requiring a reduction from 1989 levels
of 85% in 1995, and a complete phaseout in 1996;
(e) Accelerating the phaseout schedule for methyl chloroform
(class I, group V) by reducing production and consumption to
50% of 1989 levels in 1994, and phasing out completely by 1996;
and
(f) Establishing criteria for identifying essential uses
and a process for excepting limited production and consumption
of the above chemicals following their phaseout dates (see below).
These adjustments are to go into effect six months after
the United Nations Depositary circulates the adjustments to
the Protocol Parties.
In addition, the Parties adopted the following amendments
to the Protocol:
(a) Freezing consumption of HCFCs (class II substances)
beginning
in 1996 at a baseline level of 100% of 1989 the ozone depletion
potential (ODP) weighted level of HCFC consumption, plus 3.1%
of the ODP-weighted 1989 CFC consumption, followed by reductions
in the baseline to 65% of the baseline level by January 1, 2004,
to 35% of the baseline by 2010, to 10% of the baseline by 2015,
to 0.5% of the baseline by 2020; and completely phasing out
consumption by 2030;
(b) Adding hydrobromoflourocarbons (HBFCs) to the list of
controlled substances, specifying their ozone depletion potential,
and phasing their production and consumption out completely
by 1996;
(c) Listing methyl bromide as a controlled substance with
an ozone depletion potential of 0.7, and freezing its production
and consumption beginning in 1995 at 1991 consumption levels;
(not including amounts used for quarantine and preshipment uses);
(d) Establishing a procedure for the approval by the Parties
for continued production and consumption after phaseout to meet
essential use requirements; essential uses are defined as those
necessary for health or safety, or critical to the functioning
of society, and where there are no available alternatives or
existing stocks of banked or recycled material;
(e) Establishing reporting requirements for HCFCs, HBFCs,
and methyl bromide;
(f) Establishing reporting requirements for imports and exports
of recycled halons and HCFCs; and
(g) Amending the Article 4 restriction on imports and exports
of controlled substances to and from foreign states not party
to the Protocol.
The Amendments will enter into force under the Protocol
following
their ratification by at least twenty Parties. This is projected
to be accomplished by January 1, 1994.
The Parties also made a number of decisions regarding procedures
and definitions that affect implementation of the Protocol and
that are addressed in the proposal concerning the accelerated
phaseout (58 FR 15013). The decisions include:
(a) The approval of certain destruction technologies and
the requirement that Parties that plan to operate destruction
facilities do so in accordance with Good Housekeeping Procedures
developed by the Parties or with their equivalent;
(b) Clarification of the definition of controlled substances
to exclude insignificant quantities under defined circumstances,
and to encourage Parties to minimize emissions of such excluded
substances;
(c) Clarification of the reporting requirements and treatment
of international transshipment; and
(d) Clarification of the definition of controlled substance
to exclude the import and export of recycled and used controlled
substances from the calculation of consumption, but to require
reporting of data concerning these imports and exports.
3. The Proposed Accelerated Phaseout Regulation
In July 1992, EPA issued its final rule and regulatory program
implementing section 604 of the Clean Air Act Amendments. Section
604 limits the production and consumption of ozone-depleting
chemicals. EPA controls production and consumption by issuing
allowances that are expended in the production or importation
of these chemicals. Trading of these allowances is permitted.
The regulation requires producers of class I substances to
gradually reduce their production of these chemicals and to
phase them out completely as of January 1, 2000 (2002 for methyl
chloroform). In addition to the production limits, the rule
requires a similar reduction in consumption.
In February 1992, President Bush requested that U.S. producers
voluntarily reduce their production of CFCs by half of the baseline
year levels and phase out CFCs, carbon tetrachloride, methyl
chloroform and halons by January 1, 1996. He also announced
that the U.S. would revisit the phaseout schedule for HCFCs.
Prior to that announcement, EPA had received a petition from
the Natural Resources Defense Council (NRDC), the Environmental
Defense Fund (EDF) and Friends of the Earth (FOE), requesting
earlier phaseouts of ozone-depleting substances and that EPA
add methyl bromide to the list of class I substances and also
phase out its production. Another petition was subsequently
submitted by the Alliance for Responsible CFC Policy that also
supported earlier phaseouts of CFCs and certain HCFCs.
Based on these developments, and the agreements reached by
the Parties to the Protocol in November of 1992, EPA recently
published a Notice of Proposed Rulemaking (58 FR 15013) on March
18, 1993, in which the Agency proposed accelerating the phaseout
of CFCs, methyl chloroform, carbon tetrachloride, halons, HCFC-
141b, HCFC-142b, and HCFC-22. The Agency also proposed adding
methyl bromide and HBFCs to the list of class I substances and
phasing out their production and consumption. In addition, the
proposed regulations would implement various trade provisions
required by the Montreal Protocol by prohibiting the trade of
bulk substances and products containing controlled substances
with non-Parties.
4. Effect of the Accelerated Phaseout on the Class II Ban
The accelerated phaseout will affect businesses that manufacture
aerosol products, pressurized dispensers, and foam with class
II substances in several ways. First, the impending phaseout
of class I substances such as CFCs and methyl chloroform will
compel manufacturers to adopt replacements for them in their
products. HCFCs are substitutes for class I substances in many
applications, including the manufacture of some aerosols and
foam products. Second, the restrictions placed on HCFCs in the
accelerated phaseout, particularly the new phaseout dates for
HCFC-141b, HCFC-142b, and HCFC-22 will limit the amount of time
that these HCFCs would be available as substitutes for class
I substances. Although HCFCs will be available as substitutes
for only a limited period of time, there are conceivably certain
product sectors where no other satisfactory alternative substance
is currently available; in these sectors, HCFCs may provide
important interim substitutes. However, the costs associated
with reformulating aerosol products and foams, and of modifying
manufacturing processes, are not insignificant; it generally
takes a number of years to recoup the investment involved with
such activity. Moreover, use of HCFCs as interim substitutes
would require making these expenditures twice. In addition,
many manufacturers have expressed the belief that Congress may
in the future expand the excise tax on ozone-depleting substances
to include HCFCs; such an action would increase the time necessary
to recover such an investment. Under the accelerated phaseout
schedule, the period of availability of HCFC-22, HCFC-141b and
HCFC-142b may not be long enough for companies to consider them
as economically viable substitutes. Consequently, the treatment
of some HCFCs in the accelerated phaseout discourages the adoption
of HCFCs as substitutes for class I products. Thus, EPA concludes
that manufacturers will have significant incentive to limit
uses of HCFCs independent of the ban on nonessential uses of
class II substances.
5. Effect of the Labeling Rule on the Class II Ban
Regulations regarding the labeling of containers of class
I and class II substances and products using class I substances
or manufactured with class I substances that are introduced
into interstate commerce after May 15, 1993, were promulgated
under section 611 of the Act and published in the Federal Register
on February 11, 1993 (58 FR 8135). In addition, under the labeling
rule, products containing or manufactured with a class II substance
must be labeled if EPA determines, ``after notice and opportunity
for public comment, that there are substitute products or
manufacturing
processes (A) that do not rely on the use of such class II
substances,
(B) that reduce the overall risk to human health and the
environment,
and (C) that are currently or potentially available.'' In addition,
all such products must be labeled, regardless of whether the
criteria outlined above are met, if they are introduced into
interstate commerce on or after January 1, 2015. EPA believes
that some products exempted from the Class II Nonessential Products
Ban may be required at some point in the future, to bear warning
labels. Under general principles of administrative procedure,
EPA is bound to respond to requests from the public to require
labeling of products containing or manufactured with class II
substances.
H. Meetings With Industry and Environmental Organizations
In the development of this proposed regulation, EPA met with
representatives from various environmental organizations and
industries. The Agency also conducted two advisory meetings
held in the EPA auditorium, on February 19, 1993 and March 29,
1993, in order to allow the public to review draft background
documents on products releasing class II substances and to offer
comments and technical expertise on the development of today's
proposed rule. Minutes of these meetings and copies of the
background
documents are contained in Docket A-93-20. The Agency used these
forums as appropriate venues for hearing the concerns of various
stakeholders affected by this NPRM.
II. Requirements Under Section 610
A. Ban of Nonessential Products Releasing Class I Substances
Title VI of the Clean Air Act, as amended in 1990, divides
ozone-depleting chemicals into two distinct classes. Class I
is comprised of chlorofluorocarbons (CFCs), halons, carbon
tetrachloride
and methyl chloroform. Class II is comprised of
hydrochlorofluorocarbons
(HCFCs). (See listing notice January 22, 1991; 56 FR 2420.)
Section 610(b) of the Act, as amended, requires EPA to promulgate
regulations banning nonessential products releasing class I
substances. EPA published its final rule for the Class I
Nonessential
Products Ban in the January 15, 1993 (58 FR 4768).
In the final rule EPA banned, among other products, flexible
and packaging foam, and aerosols and other pressurized dispensers
using CFCs. In developing regulations to implement the class
I ban, EPA took into consideration the statutory prohibition
required by section 610(d) on products containing or manufactured
with class II substances. EPA was concerned about the potential
environmentally adverse incentive of banning the use of class
II substances in certain products in 1994 while permitting the
use of the more harmful class I substances in the same products.
Thus, the statutory prohibition in section 610(d) provided
direction
in choosing products on which to focus under section 610(b).
B. Ban of Nonessential Products Containing or Manufactured with
Class II Substances
Section 610(d)(1) states that after January 1, 1994, ``it
shall be unlawful for any person to sell or distribute, or offer
for sale or distribution, in interstate commerce-(A) any aerosol
product or other pressurized dispenser which contains a class
II substance; or (B) any plastic foam product which contains,
or is manufactured with, a class II substance.'' Section 610(d)(2)
authorizes EPA to grant exceptions and section 610(d)(3) creates
exclusions from the class II ban in certain circumstances.
Section 610(d)(2) authorizes the Administrator to grant
exceptions
from the ban of class II substances in aerosols and other
pressurized
dispensers where ``the use of the aerosol product or pressurized
dispenser is determined by the Administrator to be essential
as a result of flammability or worker safety concerns,'' and
where ``the only available alternative to use of a class II
substance is use of a class I substance.''
Section 610(d)(3) states that the ban of class II substances
in plastic foam products shall not apply to ``foam insulation
products'' or ``an integral skin, rigid, or semi-rigid foam
utilized to provide for motor vehicle safety in accordance with
Federal Motor Vehicle Safety Standards where no adequate substitute
substance (other than a class I or class II substance) is
practicable
for effectively meeting such Standards.''
EPA believes that, unlike the class I ban, the class II ban
is self-executing.{1} Section 610(d) bans the sale of the specified
class II products by its own terms, without any reference to
required regulations. Consequently, EPA was not required to
promulgate regulations within one year of enactment under section
610(a) to implement the class II ban.{2} EPA is today proposing
regulations to implement the class II ban in order to better
define the products banned under section 610(d) and to grant
authorized exceptions under 610(d)(2). Section 301(a) gives
EPA the authority to promulgate such regulations as are necessary
to carry out its functions under the Act. EPA believes that
it is necessary within the meaning of section 301 to promulgate
regulations defining the products subject to the class II ban
and granting exceptions to the ban under section 610(d)(2).
³ {1} Moreover, the Congressional Record statement by
³Representative Ralph Hall (D-Texas) regarding the
Congressional
³intent of the legislation as passed states ``Any
failure
³of the Administrator to promulgate regulations as
required
³by this title, or any court order delaying the
effective
³date of such regulations, shall not alter the effective
³dates of the statutory requirements and prohibitions
³that are set forth in this title (October 26, 1990, 136
³Congressional Record H12907).'' Thus, EPA has no
authority
³to alter the effective date of the statutory ban.
³ {2} Although the legislative history of section 610
³is unclear on this point, the Senate Statement of
Managers
³specifically states that the section 608 ban on the
venting
³of refrigerants, which like the class II ban is an
outright
³prohibition, is self-executing and will take effect on
³the stated date even if that date is in advance of EPA
³regulations implementing the ban. EPA believes that
this
³analysis applies similarly to the class II ban. See
Congressional
³Record, page S16948, October 27, 1990.
C. Medical Products
Section 610(e) states that ``nothing in this section shall
apply to any medical devices as defined in section 601(8).''
Section 601(8) defines ``medical device'' as ``any device (as
defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
321)), diagnostic product, drug (as defined in the Federal Food,
Drug, and Cosmetic Act), and drug delivery system-(A) if such
device, product, drug, or drug delivery system utilizes a class
I or class II substance for which no safe and effective alternative
has been developed, and where necessary, approved by the
Commissioner
of the Food and Drug Administration; and (B) if such device,
product, drug, or drug delivery system, has, after notice and
opportunity for public comment, been approved and determined
to be essential by the Commissioner in consultation with the
Administrator.''
No medical products as defined above are prohibited by the
provisions of today's proposal.
III. Proposed Rule
EPA today proposes to implement the prohibition required
by section 610(d) on the sale or distribution in interstate
commerce of specified class II products. Many aspects of the
proposed regulation are similar in structure to the section
610(b) final rule on class I substances published on January
15, 1993. Therefore, EPA is proposing to revise the regulations
promulgated under 40 CFR part 82, subpart C to incorporate today's
proposed regulations. EPA wishes to clarify that while today's
proposal would revise these regulations, EPA is only requesting
comment on the revisions, not on subpart C in its entirety.
The following section discusses the provisions of the proposed
regulation in greater detail.
A. Ban on Sale or Distribution in Interstate Commerce
EPA believes that the term ``interstate commerce'' in section
610(d) refers to the product's entire distribution chain up
to and including the point of sale to the ultimate consumer.
As such, all sales and distribution of banned products, including
retail sales, would be prohibited as of January 1, 1994, as
required by the Act, unless specified. EPA wishes to clear up
any possible confusion about this provision by observing that
the statutory language in section 610 is markedly different
from that in section 611, the labeling provision. The Act banned
the ``introduction into'' interstate commerce of certain products
unless they were in compliance with the labeling requirements
in section 611. Consequently, the restriction was essentially
limited to the first sale of the affected product. Under section
610, the statute prohibits all sale, distribution, or offer
of sale or distribution in interstate commerce after the January
1, 1994 effective date.
1. Grandfathering
EPA believes that there generally should be sufficient time
before the prohibition goes into effect on January 1, 1994 for
manufacturers to alter production and for retailers to liquidate
any remaining stocks of prohibited products. The Agency believes
that the effect of this prohibition was quite clear to the affected
businesses prior to today's action; the statutory language clearly
sets forth the universe of products potentially affected by
this prohibition. EPA's rules establishing exemptions will serve
only to limit the universe of products potentially subject to
the class II ban, not to add any product to those specified
in the statute. The publication of the Class I Nonessential
Products Ban on January 15, 1993, definitively identified the
remaining legal uses of CFCs in aerosol products (which were
not significantly different from those contained in the January
16, 1992 proposed rule). In addition, while the determinations
made by EPA in the class I ban regarding foam products were
not in any way binding on the section 610(d) rulemaking, the
treatment of foam products in the class I ban clearly indicated
the Agency's likely treatment of these products in the class
II ban.{3} Businesses will have had over three years' lead time
between enactment of the statute and the January 1, 1994 effective
date of the class II ban in which to make changes in their
manufacturing
processes and to liquidate existing inventories of banned products.
In general, EPA believes that this period of time constitutes
adequate notice for the affected businesses; however, the Agency
has been contacted by manufacturers and suppliers concerned
with the treatment of existing inventories, especially where
the breadth of the statutory ban was arguably ambiguous.
Furthermore,
EPA realizes that in some limited cases, manufacturers have
been unable to obtain federal approval to reformulate products,
due to regulatory delays based on limited administrative
feasibility.
Therefore, EPA proposes to provide two narrow exemptions from
the class II ban for specific categories of products, based
on equitable grounds. These proposed exemptions apply to existing
inventories and to products for which federal approval is required
prior to reformulation.
³ {3} One of the reasons EPA cited for banning aerosol
³and foam products containing CFCs was the concern that
³banning certain products under the class II ban that
³were not covered by the class I ban could, in certain
³circumstances, create incentives for manufacturers to
³use class I substances rather than class II substances,
³which would result in greater damage to the
stratospheric
³ozone layer. Because EPA wanted to avoid such
situations
³(and because the Agency shared Congress' belief that
³satisfactory substitutes existed for ozone-depleting
³substances in these products), it banned many of the
³foam products in the class I ban that would be
prohibited
³by the statute under the class II ban.
Without these exemptions, all existing inventories would
need to be liquidated by January 1, 1994. EPA believes that
in certain instances this liquidation might constitute an onerous
burden on small businesses that may have purchased all or part
of their inventory in advance of the Act or without adequate
knowledge about the class II ban. EPA believes that little
environmental
benefit can be gained by compelling these entities to liquidate
their existing inventories.
Administrative creation of exemptions from statutory
requirements
are authorized in only limited circumstances, outlined in Alabama
Power Co., et al. v. Costle, et al., 636 F. 2d 323 (D.C. Cir
1979). Agencies can create such exemptions only where necessary
based on administrative feasibility or the de minimis nature
of the exemption. The exemption EPA is proposing for existing
inventories is based on the de minimis rationale, while that
proposed for products requiring federal approval for reformulation
is based on administrative feasibility.
Existing Inventories. EPA proposes to exempt existing
inventories
of products otherwise subject to the class II ban based on the
de minimis environmental impact of such an exemption. Many of
the products covered by the class II ban, particularly many
of the foam products, release class II substances either during
manufacture or disposal, rather than during use. While there
are also cases where the class II substance is released in the
use of the product, especially with the aerosol products, emissions
to the environment from these products, once manufactured, will
be little or no different from the releases from these products
if removed from commerce and subsequently disposed of. There
are no proven destruction technologies for these products. Thus,
where inventories already exist, subjecting products to the
ban will have little environmental impact; the class II substances
have already been released or would be released during disposal,
if not released during use. In these circumstances, EPA believes
it is appropriate to allow such products to be used for their
intended purpose prior to disposal.
In addition, products otherwise subject to the class II ban
have ozone-depleting potentials significantly lower than those
of products subject to the class I ban, and EPA anticipates
that smaller quantities of inventories should be on stock given
the amount of time since the passage of the 1990 amendments
to the Act.
EPA proposes that this exemption apply to all products placed
into initial inventory as of ninety days from the date of
publication
of this proposed rule. This would allow any product affected
by this rule placed into initial inventory by the manufacturer
(effectively manufactured) by December 27, 1993 to be sold and
distributed, or offered for sale or distribution in interstate
commerce after January 1, 1994. Manufactured means that the
product is completed and placed into initial inventory. Any
product placed into initial inventory after that date cannot
be sold or distributed, or offered for sale or distribution
in interstate commerce after January 1, 1994. EPA understands
that prior to the publication of this NPRM, many manufacturers
believed that their products would be entitled to an exemption
and thus would not be covered by the ban, and such manufacturers
therefore continued to manufacture new products. In addition,
some producers believed that they could be granted exemptions
based on worker safety or flammability concerns even though
these products do not maintain a legal use of a class I substance.
Under this proposal, the January 1, 1994 sales or distribution
prohibition would not apply to any new products manufactured
prior to December 27, 1993. However, the January 1, 1994 sales
or distribution prohibition would apply to any new products
manufactured after December 27, 1993. EPA believes that ninety
days is an appropriate period to allow manufacturers to alter
production capabilities. The legal authority for this type of
exemption does not require or compel the Agency to include any
time for the conversion of production capabilities; however,
EPA is providing this time frame for the benefit of the
manufacturers.
EPA requests comment on the feasibility for affected industries
to switch over production capabilities within ninety days.
To continue selling products after January 1, 1994, the
manufacturer
or distributor would need to show, upon request by EPA, that
the product was in fact manufactured, and thus placed into initial
inventory by December 27, 1993. Shipping forms, lot numbers,
manufacturer date stamps or codes, invoices, or the like, may
be used to identify the date the product was placed into initial
inventory. EPA believes these types of records are normally
kept by manufacturers and distributors of products affected
by this proposed rule.
EPA believes that neither section 610(d) nor general principles
of administrative law give the Agency the authority to consider
any additional grandfathering options for existing inventories.
However, EPA requests comment on its ability to grandfather
under . 610(d). In addition, EPA requests comment identifying
any barriers that might prevent retailers from liquidating stocks
before the effective date.
b. Products Requiring Federal Approval Prior to Reformulation.
EPA proposes to exempt from the class II ban those products
requiring federal approval prior to reformulation, provided
that manufacturers of such products have made a request of the
appropriate federal agency for such federal approval prior to
January 1, 1994.
EPA understands that it is sometimes a very time-consuming
process to obtain federal approval for product reformulation.
For instance, EPA approval for pesticide reformulations under
the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
may take up to a year, and for example, Food and Drug
Administration
approval for medical product reformulations may take several
years. Where a manufacturer has made a timely request for the
required federal approval, the timing of receipt of such approval
is no longer in the control of the manufacturer. EPA does not
believe it is appropriate for the federal government to effectively
deny manufacturers the ability to continue using current
formulations
by subjecting them to the class II ban, while at the same time
preventing them from reformulating pending receipt of any required
federal approvals.
Alabama Power authorizes creation of administrative exemptions
where necessary based on administrative feasibility. For example,
EPA's FIFRA office and FDA have established administrative
procedures
for processing FIFRA registrations and drug approvals,
respectively.
The time frames associated with these processes represent the
amount of time necessary for the federal agency to conduct a
responsible review of the formulations and determine the
acceptability
of the formulation under applicable statutes and regulations.
The federal agencies cannot expedite their internal processing
procedures simply because a formulation would otherwise be subject
to the class II ban without compromising the integrity of their
own program reviews.
EPA proposes allowing manufacturers that require federal
approval for reformulations of a product or approval of a specific
substitute product to continue to sell or distribute, or offer
for sale or distribution in interstate commerce, their existing
formulations until ninety days after receiving all appropriate
federal agency approvals, providing the request for approval
from the federal agency had been submitted by January 1, 1994.
Therefore, for example, pesticides using class II substances
could be sold or distributed after January 1, 1994, providing
the product was manufactured before ninety days after the effective
date allowing FIFRA registration for the reformulated pesticide.
Similar to the exemption provided above for existing inventories,
EPA is proposing to allow the continued sale of existing
inventories
of products manufactured through ninety days after the effective
date of all appropriate federal approvals in order to allow
sufficient time for the manufacturer to convert essential
facilities
to the needs of the newly approved formulation.
EPA proposes allowing manufacturers that are denied federal
approval for reformulations of a product or approval of a specific
substitute product to continue to sell or distribute, or offer
for sale or distribution in interstate commerce, their existing
formulations until thirty days after receiving notice of denial
from the federal agency. Consistent with the other temporary
exemptions discussed in this section, products put into initial
inventory by the manufacturer before thirty days after receipt
of denial by the appropriate federal agency would be grandfathered.
Therefore, for example, if a pesticide using a class II substance
is denied approval for reformulation from FIFRA, the product
formulation containing the class II substance could be sold
or distributed after January 1, 1994, providing the product
was manufactured before thirty days after the receipt of denial.
Based on the time required to process federal approvals,
EPA believes that it is necessary within the meaning of Alabama
Power to provide a temporary exemption from the class II ban
for products awaiting federal approval for reformulation, where
manufacturers have applied for such approval prior to the effective
date of the final class II ban.
As discussed above, to continue selling after January 1,
1994, the manufacturer or distributor would need to show that
the pertinent federal approvals were applied for prior to January
1, 1994 and that the product was in fact manufactured by ninety
days following the receipt of all appropriate federal approvals.
2. Scope of Interstate Commerce
EPA's interpretation of interstate commerce does not cover
the sale, distribution, or offer of sale or distribution, of
nonessential products within the boundaries of a single state.
Thus, EPA believes that the Act does not ban the sale,
distribution,
or offer of sale or distribution of a product otherwise affected
by this rulemaking that is manufactured, distributed, and sold
without ever crossing state lines. However, the Agency wishes
to clearly state its position that to avoid coverage by this
proposed rulemaking, an affected party must provide adequate
documentation that not only was the product manufactured,
distributed,
and/or sold exclusively within a particular state, but also
that all of the components, equipment, and labor that went into
manufacturing, distributing, selling, and/or offering to sell
or distribute such a product originated within that state as
well. The Agency wishes to further clarify that the sale of
the product includes every sale up to and including the sale
to the ultimate consumer, and that all these sales must take
place without ever crossing a state line. Only in such
circumstances
would a sale not be in interstate commerce.
3. Resale of Used Products
EPA's interpretation of sale, distribution, or offer of sale
or distribution in interstate commerce does not cover the resale
of used products. Resale of used products means a sale, by a
person after a period of use. The Agency recognizes that more
than one consumer often derives utility from owning and using
certain durable goods affected by this rulemaking, such as
automobiles
and boats. Many of these products contain components manufactured
out of integral skin foam, rigid foam, or semi-rigid foam.
Restricting
the resale of such used durable goods before the end of their
productive lifetimes would provide little, if any, environmental
benefit, because the HCFCs used to blow foam for these products
were effectively released into the environment during their
manufacture or soon thereafter. Because restricting the resale
of such used durable goods would impose significant economic
hardship on a great many consumers without providing any associated
environmental benefits, EPA does not believe that Congress intended
to ban their resale. Consequently, while EPA's interpretation
of ``interstate commerce'' is such that interstate commerce
includes the entire chain of sale and distribution from the
manufacturer of a new product to its ultimate consumer, the
Agency recognizes that in the case of durable consumer goods
such as boats and motor vehicles, resale of the product to
additional
consumers may occur after the original sale of the new product
to the ultimate consumer after some period of use. In such cases,
EPA does not consider the resale of these banned products to
constitute sale, distribution, or offer of sale or distribution,
of a new product in interstate commerce for the purposes of
this rulemaking.
4. Imports and Exports
EPA believes that both the import of any product for sale
or distribution within the United States, or the sale or
distribution
of any product intended for ultimate export from the United
States, are acts of interstate commerce within the meaning of
section 610 and would, accordingly, be affected by this regulation.
The import or export of products affected by today's rulemaking
would be subject to the same restrictions as the sale,
distribution,
or offer of sale or distribution of these products in the United
States. EPA will work in close cooperation with the U.S. Customs
Service to enforce this restriction. Because today's proposed
rulemaking would prohibit the sale, distribution, or offer of
sale or distribution in interstate commerce of products banned
pursuant to section 610(d), effective January 1, 1994, these
products may continue to be imported, or sold or distributed
for export, on or before January 1, 1994, the effective date
of section 610(d).
5. The Use of Affected Products Purchased Before the Effective
Date of the Ban
During the rulemaking for the Class I Nonessential Products
Ban, there was some confusion over the use of nonessential products
after the effective date(s) of the prohibition(s) on their sale,
distribution, or offer of sale or distribution in interstate
commerce. Consequently, in the final rulemaking for the class
I ban, EPA confirmed that nonessential products purchased before
the effective date may still be used, and that the Agency is
not regulating the use of nonessential products, merely their
sale and distribution as authorized by the statutory language
(58 FR 4782). Section 610 of the Act does not address the use
of products which are determined to be nonessential; the use
of nonessential products purchased prior to the effective dates
for the nonessential products ban is not subject to any
restrictions
under section 610, although other laws and regulations regarding
the release of ozone-depleting substances may apply to such
use.
B. Products Affected by the Class II Ban on Nonessential Products
The prohibition on the sale and distribution of nonessential
products containing or manufactured with class II substances
required by section 610(d)(1) is limited to those products
specified
by the statute. Unlike the section 610(b) ban on products releasing
chlorofluorocarbons, the statute does not authorize EPA to identify
additional products that meet statutory criteria for
nonessentiality.
Consequently, the products affected by this rulemaking are clearly
specified in the statute.
The statute bans any aerosol product or pressurized dispenser
that contains a class II substance and any plastic foam product
which contains, or is manufactured with, a class II substance.
As stated above, the statute exempts ``foam insulation products''
and ``integral skin, rigid, and semi-rigid foam utilized to
provide for motor vehicle safety in accordance with Federal
Motor Vehicle Safety Standards where no adequate substitute
substance (other than a class I or class II substance) is
practicable
for effectively meeting such Standards.'' In addition, EPA is
authorized to grant exceptions for aerosol products and pressurized
dispensers that it determines to be essential as a result of
flammability or worker safety concerns and where the ``only
available alternative to [the] use of a class II substance is
[the] use of a class I substance which legally could be substituted
for such class II substance.'' Consequently, EPA's role in this
rulemaking is limited to identifying foam insulating products,
determining whether adequate substitute substances are available
for HCFCs in the production of integral skin, rigid, and semi-
rigid foams in motor vehicles, and granting exceptions for aerosol
products which meet the criteria set out in the statute. The
following sections discuss the affected products.
1. Aerosol Products and Pressurized Dispensers Containing HCFCs
Section 610(d) bans the sale of all aerosol products and
pressurized dispensers containing class II substances not
specifically
excepted by the EPA under section 610(d)(2). The following section
discusses the products affected by this provision.
In the course of the rulemaking to establish the Class I
Nonessential Products Ban, questions were raised about the scope
of the phrase ``aerosol product or other pressurized dispenser.''
This phrase could be interpreted as applying to pressurized
containers (``bulk containers'') used to distribute materials
for use in other products because these materials generally
are self-pressurized when so contained. Such an interpretation
would have had a devastating and unintended impact on the air-
conditioning and refrigeration industry.
The final rulemaking for the Class I Nonessential Products
Ban clarified EPA's interpretation of this language (58 FR 4790).
EPA believes that the phrase ``aerosol product or other pressurized
dispenser'' was meant to include non-aerosol products such as
CFC-12 dusters and freeze sprays. However, the Agency does not
believe that the term ``other pressured dispenser'' applies
to pressurized containment vessels such as small containers
of motor vehicle refrigerant or containment vessels for recycled,
recovered or reclaimed refrigerant. Under EPA's interpretation,
the phrase ``aerosol products or pressurized dispenser'' does
not include bulk containers which are used solely for the
transportation
or storage of controlled substances. As described in 40 CFR
82.3(i) and the July 30, 1992 final rule implementing section
604 and related provisions of sections 603, 607, and 616 of
the Act (57 FR 33754), a ``controlled substance means any substance
listed in appendix A or appendix B to [subpart A] whether existing
alone or in a mixture, but excluding any such substance or mixture
that is in a manufactured product other than a container used
for transportation or storage of the substance or mixture''
(57 FR 33788). A bulk container, also described in 40 CFR 82.3(i),
means a container in which ``a listed substance or mixture must
first be transferred [from, and then transferred] to another
container, vessel, or piece of equipment in order to realize
[the controlled substance's] intended use'' (57 FR 33788).
The products that EPA proposes to exempt in this NPRM are
actually product categories rather than particular products
manufactured and marketed by individual companies. In this
rulemaking,
EPA is relying upon the definition of ``product'' developed
in the Class I Nonessential Products Ban rulemaking. EPA reiterates
its belief that in section 610 of the statute, Congress applied
this term to any type or category of merchandise or commodity
offered for sale, as well as any use of an ozone-depleting
substance
in the manufacture or packaging of any such merchandise or
commodity.
Consequently, when granting exceptions, EPA intends to take
action with regard to entire product categories rather than
individual products in this rulemaking (EPA recognizes that
in the case of certain niche markets, there may be only one
individual product that falls within a particular category;
in such a case, EPA will consider an exception for that specific
product if it receives comments to that effect).
EPA believes that such an approach is appropriate, and that
it is justified by the statutory treatment of certain groups
of products manufactured with or containing class II substances
in section 610(d). Congress banned entire categories of products
in section 610(d)(2) when it banned aerosols, pressurized
dispensers,
and plastic foam products containing class II substances, and
exempted a category in section 610(d)(3)(A) when it exempted
foam insulation products. EPA believes that the statutory language
of section 610(d) indicates Congressional intent to address
products and the use of ozone-depleting substances by broad
use categories, provided that some mechanism exists for addressing
particular applications within those categories which may meet
the statutory criteria for exceptions or exemptions. EPA will
carefully consider requests for exceptions and exemptions received
during the public comment period in order to address additional
foam or aerosol products which may meet the criteria for exceptions
and exemptions set out in the statute. EPA believes that this
approach is equitable and comprehensive, and that it represents
the most effective use of the Agency's resources.
a. Previous Regulation Affecting the Use of HCFCs in Aerosol
Products. In the past, CFCs were used extensively in aerosol
products worldwide, mainly as propellants, but also as solvents
and diluents, and as the active ingredients in some products.
In the mid-1970s, the use of CFC-11 and -12 in aerosols accounted
for 60 percent of the total use of these chemicals worldwide.
As a result, on March 17, 1978, the EPA promulgated regulations
under the Toxic Substances Control Act to ban the use of CFCs
as aerosol propellants in most products (43 FR 11318).
The 1978 aerosol ban prohibited the manufacture or sale of
aerosol products using CFCs as propellants. Other uses of CFCs
in aerosols, such as solvents, active ingredients, or sole
ingredients,
were not included in the ban. In addition, certain ``essential
uses'' of CFCs as aerosol propellants were exempted from the
ban because no adequate substitutes were available at the time.
Consequently, although the use of CFCs in aerosols was reduced
dramatically by the 1978 ban, the production of a number of
specific aerosol products containing CFCs remained legal.{4}
³ {4} Those uses exempted or excluded from the 1978
³ban included: metered dose inhalant drugs;
contraceptive
³vaginal foam; lubricants for the production of
pharmaceutical
³tablets; medical solvents such as bandage adhesives and
³adhesive removers; skin chillers for medical purposes;
³aerosol tire inflators; mold release agents;
lubricants,
³coatings, and cleaning fluids for
industrial/institutional
³applications to electronic or electrical equipment;
special-
³use pesticides; aerosols for the maintenance and
operation
³of aircraft; aerosols necessary for the military
preparedness
³of the United States of America (primarily pesticides,
³aircraft and electronics maintenance products, and
specialty
³lubricants); diamond grit spray; single ingredient
dusters,
³freeze sprays, and noise horns; mercaptan stench
warning
³devices; pressurized drain openers; aerosol
polyurethane
³foam dispensers; and whipped topping stabilizers. Many
³of these exemptions were subsequently included in the
³Class I Nonessential Products Ban.
Due to the 1978 ban on the use of CFCs as aerosol propellants
in most products, consumption of CFCs by the aerosol industry
in the United States decreased dramatically; in 1988, for example,
only 9870 metric tons of CFCs were used in aerosols (primarily
those products exempted or excluded from the 1978 ban),
representing
approximately 2.5 percent of all class I substances (weighted
by ozone-depletion potential) that year. U.S. formulators of
aerosol products responded to the ban by switching to alternatives
to CFCs, especially hydrocarbons and compressed gases such as
CO2. However, in a number of applications, especially those
where flammability is a concern, manufacturers have turned to
HCFCs as substitute propellants and solvents.
In its Class I Nonessential Products Ban rulemaking, EPA
re-examined all of the products excluded from the 1978 ban,
as well as those specifically exempted from the 1978 ban. EPA
also examined products identified by commenters to the proposed
rule. A great deal of information was available to EPA in
promulgating
the class I ban, including the Agency's 1989 report Alternative
Formulations to Reduce CFC Use in U.S. Exempted and Excluded
Aerosol Products, and the UNEP Technical Options Committee report
on aerosols, sterilants and miscellaneous uses of CFCs.
EPA determined that a number of alternative propellants and
delivery systems have been developed and adopted since the original
aerosol exemptions were granted. As a result, many previously
exempted or excluded products no longer used CFCs. Consequently,
EPA concluded that satisfactory substitutes were available for
most uses of CFCs in aerosols and pressurized dispensers. As
a result of its research and the public comments received in
response to its January 16, 1992 NPRM, EPA banned both propellant
and non-propellant uses of CFCs in most aerosol products, exempting
only eleven specific applications for which it determined that
no adequate substitutes for CFCs were available at that time.{5}
³ {5} The exempted products consisted of: medical
devices
³listed in 21 CFR 2.125(e); lubricants for
pharmaceutical
³and tablet manufacture; gauze bandage adhesives and
adhesive
³removers; topical anesthetic and vapocoolant products;
³lubricants, coatings or cleaning fluids for electrical
³or electronic equipment, which contain CFC-11, CFC-12,
³or CFC-113 for solvent purposes, but which contain no
³other CFCs; lubricants, coatings or cleaning fluids
used
³for aircraft maintenance, which contain CFC-11 or CFC-
³113 but which contain no other CFCs; mold release
agents
³used in the production of plastic and elastomeric
materials,
³which contain CFC-11 or CFC-113 but which contain no
³other CFCs; spinnerette lubricant/cleaning sprays used
³in the production of synthetic fibers, which contain
³CFC-114 but which contain no other CFCs; containers of
³class II substances used as halogen ion sources in
plasma
³etching; document preservation sprays which contain
CFC-
³113 but which contain no other CFCs; and red pepper
bear
³repellent sprays which contain CFC-113 but which
contain
³no other CFCs. The majority of these applications were
³for solvent applications of CFC-11 or CFC-113.
b. Current Use of HCFCs in Aerosol Products. Today, aerosols
and pressurized dispensers containing HCFCs make up only a small
percentage of existing aerosol products. HCFCs have been available
for industrial applications since the 1940s. However, until
recently, they have not been used in large quantities in aerosol
applications, primarily because in the past the cost of HCFCs
was significantly higher than that of the most widely used
alternatives,
CFCs and hydrocarbons. In recent years, with the imposition
of an excise tax on CFCs and the establishment of an international
agreement to phase out CFC production, HCFC use in aerosol products
and pressurized dispensers has increased. According to EPA
research,
about 12 million pounds of HCFCs were used in 1991 in aerosol
products and pressurized dispensers (mostly HCFC-22 used as
propellant).
There are several possible reasons that manufacturers of
aerosol products and pressurized dispensers have refrained from
using HCFCs in their formulations. Many industry representatives
have informed EPA that manufacturers have been reluctant to
convert to HCFCs because they believed that as ozone-depleting
substances, these chemicals would be subject to additional
regulation
in the future. In fact, the accelerated phaseout of the production
proposed for HCFC-141b, HCFC-142b, and HCFC-22 would effectively
limit the amount of time that manufacturers could use those
HCFCs. In addition, awareness of the section 610(d) ban on the
use of HCFCs in aerosol products and pressurized dispensers
has encouraged formulators to explore other alternatives to
HCFCs. As a result, EPA anticipates minimal future economic
impact resulting from the statutory limitations on producers
of aerosols and other pressurized dispensers containing HCFCs
under section 610(d).
EPA believes that a diverse group of companies are affected
by this ban, including both small and large businesses. The
small businesses may include manufacturers of products containing
class II substances and retailers that sell these products.
Based on numerous discussions, EPA believes these affected products
often represent a small fraction of the businesses' overall
product line. EPA believes that larger companies also produce
products containing HCFCs, especially foam products. EPA believes
that many of these large businesses produce a wide assortment
of other products not affected by the class II ban. EPA requests
comment on the numbers and types of firms affected by this ban,
and whether these companies have product lines that contain
other products not affected by the ban.
c. Alternatives to CFC and HCFC Use in Aerosol Products.
EPA believes that manufacturers have been working to identify
substitutes for HCFCs in all of their product areas. Currently
available substitutes for aerosols and other pressurized dispensers
containing HCFCs include: hydrocarbons (predominantly propane
and butane); other higher priced/special use flammable gases
(dimethyl ether and HFC-152a); nonflammable compressed gases
(such as carbon dioxide, nitrogen, nitrous oxide, and HFC-134a);
solvent substitutes (methylene chloride and dimethyl ether/water
mixtures); non-aerosol spray dispensers (finger pumps, trigger
pumps, and mechanical pressure dispensers); and non-spray
dispensers
(solid sticks, roll-ons, brushes, pads, shakers, and powders).
The background document on aerosol products and pressurized
dispensers containing class II substances, prepared in support
of this rulemaking, discusses alternatives to HCFCs in aerosol
applications in greater detail.
EPA does not necessarily advocate all of the substitutes
currently being used by manufacturers in place of HCFCs. There
are a number of safety and health issues associated with some
of the possible substitutes for HCFCs in aerosol products and
other pressurized dispensers; however, EPA believes that with
the proper precautions, each of these alternatives could be
used safely. EPA intends to carefully examine the issue of safe
alternatives under its regulations to implement section 612.
d. Exceptions for Aerosol Products and Pressurized Dispensers.
Under section 610(d)(2), a particular aerosol or pressurized
dispenser product containing a class II substance may be granted
an exception from the ban by EPA if the Agency makes two
determinations:
first, that it is essential as a result of worker safety or
flammability concerns; and, second, that the only available
alternative is a class I substance. Unless EPA determines that
the product meets both these criteria and grants an exception,
the aerosol or pressurized dispenser product is banned by section
610(d). EPA has made an extensive survey of aerosol products
and pressurized dispensers, and has identified the products
that it believes qualify for exceptions under section 610(d)(2).
EPA will carefully consider requests for additional exceptions
received during the public comment period for aerosol products
and pressurized dispensers to determine whether they meet the
criteria laid out in section 610(d)(2).
Section 610(d)(2)(A) requires that, in order to grant an
exception to the ban, the Agency must determine that the aerosol
product or pressurized dispenser is essential as a result of
flammability or worker safety concerns. EPA interprets this
requirement to mean that if the product is important (i.e.,
if it is not ``nonessential''), and if no substitute product
or manufacturing process adequately (i.e., effectively) addresses
issues of flammability and worker safety, then for the purposes
of section 610(d)(2)(A), the use of a class II substance in
that product is worthy of being considered essential.
A second criterion must also be satisfied for granting an
exception. Section 610(d)(2)(B) requires that, in order to grant
an exception to the ban, the Agency must also determine that
``the only available alternative to [the] use of a class II
substance [in the product in question] is [the] use of a class
I substance which legally could be substituted for such class
II substance.'' Consequently, under section 610(d)(2), the Agency
cannot grant an exception unless a class I substance could still
be legally substituted for the class II substance that the product
contains, even if EPA determines that an aerosol product or
pressurized dispenser is otherwise worthy of being considered
essential in accordance with section 610(d)(2)(A). The statute
is clear in this regard. Both criteria must be met; the economic
importance of a certain product or the health and environmental
impacts associated with banning it are not by themselves sufficient
grounds for granting an exception. EPA believes that this situation
effectively limits the universe of products eligible for exceptions
to the class II statutory ban to those aerosol products and
pressurized dispensers exempted from the Class I Nonessential
Products Ban, and possibly products containing methyl chloroform,
carbon tetrachloride, and halons, that is, those products still
legally able to use class I substances. Research conducted for
the Class I Nonessential Products Ban has led EPA to believe
that adequate substitutes for all other aerosol products and
pressurized dispensers containing HCFCs do, in fact, exist.{6}
Eleven products (or solvent uses of CFCs in these products)
were exempted under the Class I Nonessential Products Ban (58
FR 4767). These products are listed below:
³ {6} EPA has not at this time identified satisfactory
³substitutes for the products which, in its January 15,
³1993 rulemaking, the Agency exempted from the ban on
³aerosols and other pressurized dispensers containing
³CFCs; however, EPA believes that due to recent
technological
³advances, adequate substitutes for some of the
applications
³exempted in the class I ban may soon be available.
These
³same aerosol products and pressurized dispensers are
³being considered for class II exceptions under this
proposal.
³EPA may reconsider class I and class II exemptions for
³these products, if at some time in the future, EPA
determines
³that adequate substitutes are available.
i. Medical devices listed in 21 CFR 2.125(e)
ii. Lubricants for pharmaceutical and tablet manufacture
iii. Gauze bandage adhesives and adhesive removers
iv. Topical anesthetic and vapocoolant products
v. Solvent uses in lubricants, coatings or cleaning fluids for
electrical or electronic equipment
vi. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance
vii. Solvent uses in mold release agents
viii. Solvent uses in spinnerette lubricant/cleaning sprays
ix. Plasma etching
x. Solvent uses in document preservation sprays
xi. Solvent uses in red pepper bear repellent sprays
Therefore, in order to grant an exception to the ban, the
only available alterative to the use of the class II substance
must be a legal use of a class I substance (as listed above)
and the Agency must determine that the aerosol product or
pressurized
dispenser is essential as a result of flammability or worker
safety concerns. Consequently, EPA believes it is limited to
considering granting exceptions under section 610(d)(2) only
to the eleven products (or solvent uses of HCFCs in these products)
exempted under the Class I Nonessential Products Ban (58 FR
4767).
EPA realizes that the class II exemptions are integrally
linked to the Class I Nonessential Products Ban. EPA believes
the class I ban and the Act gave fair and ample notice to the
public, and through the class I rulemaking process, addressed
all of the comments received by the Agency. EPA realizes that
there are a number of products that do not use class I substances,
but do use class II substances. Some of the manufacturers of
these products may not have commented on the need for a class
I exemption, because they were not aware of the integral nature
of the two bans (e.g. that class II exemptions could only be
obtained where class I use was legal). As stated above, without
a legal class I use, the Agency does not have authority under
. 610(d) to grant exemptions under the class II ban. For the
most part, aerosol products were only given exemptions under
the class I ban for solvent uses. The Agency believes that
substitutes
for all propellent uses of class I and class II products are
currently available. If EPA were to determine, based on comments
submitted under today's action, that there is a need to revise
the Class I Nonessential Products Ban, EPA would likely consider
only products for which the availability of substitutes was
not sufficiently considered in the earlier rulemaking. The Agency
requests comment on the need to revisit the Class I Nonessential
Products Ban through this rulemaking with respect to any product
for which there is no substitute for class II use other than
a class I use which is no longer legal.
Recently, EPA has been approached by the manufacturers of
a product that may not have been sufficiently considered during
the class I rulemaking, that being pesticides used in aircraft.
Aircraft entering the United States from certain locations are
required to eliminate foreign insects that might pose a threat
to domestic agriculture or the population's health. In order
to prevent accidentally transporting these insects, pesticide
sprays are often used thirty minutes prior to landing in the
United States. The unique need to apply this product during
flight requires that formulations meet stringent specifications,
including those regarding flammability, established by the
Department
of Transportation and the Department of Agriculture. Pesticides
used to disinfect aircraft may be using class I or class II
substances. Currently, the Agency does not have enough information
to determine whether EPA needs to revise the class I ban to
provide an exception for this product. However, EPA requests
comment on the need to revise the Class I Nonessential Products
Ban to provide an exception for pesticides used on aircraft,
with the intent that the class I substances not actually be
used. The class I exception would merely provide the basis upon
which to grant a class II exception, where no other acceptable
alternatives are available. In addition, EPA is requesting comment
on worker safety or flammability concerns regarding the use
of substitutes for class II substances that may be used or
considered
for use in aircraft pesticides.
EPA has also recently received information about a second
product that may not have been sufficiently considered during
the class I rulemaking. This information concerns the manufacturing
and use of antispatter products used by welders. Either CFC-
113 or HCFC-141b may be used in antispatter products that are
used as coatings to prevent the adhesion of weld spatter to
metal surfaces. While methylene chloride may be a substitute
for the class I and class II substances in this product, because
welders often work in small work areas, with welding curtains
that may interfere with ventilation systems surrounding their
welding operation, welders could be exposed to high concentrations
of methylene chloride. The particular formulations of the
antispatter
products that contain class I and class II substances are the
same formulations as some lubricants used for aircraft maintenance,
electronic and electrical equipment, and the same formulation
as mold release agents. EPA granted a class I exception and
is proposing to grant exceptions to the class II ban for the
solvent uses of HCFCs in mold release agents and solvent uses
in lubricants, coatings and cleaning fluids used for electronic
and electrical equipment and aircraft maintenance. Currently,
the Agency does not have enough information to determine whether
EPA needs to revise the class I ban to provide an exception
for antispatter products used by welders. However, EPA requests
comment on the need to revise the Class I Nonessential Products
Ban to provide a potential exception for antispatter products
used by welders, with the intent that the class I substances
not actually be used. The class I exception would merely provide
the basis upon which to grant a class II exception, where no
other acceptable alternatives are available. In addition, EPA
is requesting comment on worker safety or flammability concerns
regarding the use of substitutes for class II substances that
may be used or considered for use as an antispatter product
used by welders.
Several manufacturers concerned about the availability and
economic feasibility of using alternatives in other circumstances
have also contacted EPA. In particular, manufacturers of dusters
and safety sprays have commented on the possible need for a
class I exception based on the unavailability of alternatives.
EPA requests comment on the need to revise the Class I Nonessential
Products Ban to provide a potential exception for these products.
In addition, EPA is requesting comment on worker safety or
flammability
concerns regarding the use of substitutes for class II substances
that may be used or considered for use in dusters and safety
sprays.
The Agency believes it also has the authority to consider
granting exceptions for products containing one or more class
II substances and to respond to requests for exceptions to the
ban based on the grounds that the only available alternative
for the class II substance(s) is methyl chloroform or carbon
tetrachloride (legally available class I substances). A
manufacturer,
distributor, or retailer of a product containing one or more
class II substances could request, during the comment period,
an exception from EPA, citing methyl chloroform or carbon
tetrachloride
as the only alternative(s). EPA would consider such a request,
but the Agency would require significant proof that such claims
were not attempts to circumvent the intent of the ban. Moreover,
given that methyl chloroform and carbon tetrachloride are not
suitable for use as propellants in aerosol products, EPA would
be concerned about a request for an exception in which the
applicant
claimed that the only available substitute for a propellant
in its product was methyl chloroform or carbon tetrachloride,
or that the HCFC-22 (generally used as a propellant) in its
product served as a solvent.
The Agency recently learned of a product, a pesticide used
to kill wasps and hornets nesting near high-voltage power lines,
that may require an exception based on the solvent use of HCFC-
141b in a new formulation, replacing the current formulation
that uses methyl chloroform. EPA currently does not have enough
information to determine if worker safety or flammability concerns
relate to the use of alternatives to the class II substances,
other than methyl chloroform, in wasp and hornet sprays.
Furthermore,
EPA does not yet have confirmation that an application for new
formulations has been submitted under the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA) for these HCFC-formulations.
Therefore, the Agency is not proposing to exempt the use of
class II substances in wasp and hornet sprays used near high-
voltage power lines under today's proposed rulemaking. However,
EPA requests comment on worker safety or flammability concerns
regarding the manufacturing and use of these products, as well
as comment on current and potential uses of class II substances
in these products. In addition, EPA requests comment on whether
the only available alternative to the use of a class II substance
in wasp and hornet pesticides used near high-voltage power lines
is the use of a class I substance.
EPA also recently learned of another product in which
manufacturers
may be using or considering using class II substances to replace
the use of methyl chloroform. This aerosol product is used to
clean hydraulic and electronic parts in aircraft, automotive
and marine maintenance. In the class I rulemaking, EPA exempted
the solvent uses of CFCs in lubricants, coating and cleaning
fluids for electrical or electronic equipment and aircraft
maintenance.
As discussed below, EPA is proposing to exempt the solvent uses
of class II substances for these same products. However, this
exemption does not apply to products used for hydraulic parts
maintenance. EPA does not have enough information to determine
if products used to clean hydraulic equipment meet all of the
criteria for granting an exemption under section 610(d); therefore,
EPA is not proposing to exempt these products. However, EPA
requests comment on worker safety or flammability concerns
regarding
the manufacturing and use of these products, as well as comment
on current and potential uses of class II substances in these
products. In addition, EPA requests comment on whether the only
available alternative to the use of a class II substance in
hydraulic parts cleaners is the use of a class I substance.
EPA is unaware of any other products for which manufacturers,
distributors or retailers are substituting or planning to
substitute
class II substances, because the only legal substitute for the
class II substance is methyl chloroform or carbon tetrachloride;
however, EPA is requesting comment on the need to grant exceptions
based on worker safety or flammability considerations associated
with such substitutes for class II substances.
EPA notes that a number of the exemptions for aerosol products
contained in the Class I Nonessential Products Ban final rule
(58 FR 4767) were only for the use of particular CFCs as solvents
in those products. The reason EPA specifically exempted those
CFCs in the affected products is because EPA research indicated
that while substitutes were available for CFCs as propellants
in those products, the Agency had not determined that there
were adequate substitutes available for the solvent uses of
the specified CFCs in those products. CFC-11 and CFC-113 are
used as solvents in a number of aerosol applications. CFC-12
and CFC-114 are used primarily as propellants in aerosol
applications,
but EPA granted requests for exemptions for several products
containing CFC-12 and CFC-114 as solvents in the class I ban
after receiving information indicating that no adequate substitutes
were currently available for the solvent, diluent, or carrier
function that these CFCs served in these products. Consequently,
EPA granted exemptions for the use of these CFCs in the specified
products in the belief that this limited CFC use in these products
represents the only legitimate solvent applications. Consequently,
the Agency believes that there are no remaining legal propellant
applications of CFCs in these products. As a result, EPA believes
that it now only has the authority to exempt solvent applications
of HCFCs in the products exempted in the class I ban final rule,
since it is only for those applications that a class I substance
could legally be used, one of the criteria for an exemption
under the class II ban. The language in today's proposed regulation
reflects that belief.
These products, as well as other products that may contain
class II substances, are discussed below and at greater length
in the background document accompanying this NPRM. EPA will
carefully consider requests for additional exceptions received
during the public comment period for aerosol products and
pressurized
dispensers to determine whether they meet the criteria laid
out in section 610(d)(2).{7}
³ {7} The Agency will also consider removing
particular
³aerosol products from the list of exempted products in
³40 CFR 82.66(d)(2), as part of the final rule, if it
³receives any such requests during the public comment
³period for this rulemaking, documenting that such
products
³do not meet the criteria for exemptions in section
610(d)(2).
i. Medical devices listed in 21 CFR 2.125(e). Section 610(e)
of the Act states ``nothing in this section shall apply to any
medical device as defined in section 601(8).'' Section 601(8)
defines ``medical device'' as any device (as defined in the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321)), diagnostic
drug product (as defined in the Federal Food, Drug, and Cosmetic
Act), and drug delivery system-(A) if such device, product,
drug, or drug delivery system utilizes a Class I or Class II
substance for which no safe and effective alternative has been
developed and, where necessary, approved by the Commissioner
of the Food and Drug Administration (FDA); and (B) if such device,
product, drug, or drug delivery system, has, after notice and
opportunity for public comment, been approved and determined
to be essential by the Commissioner in consultation with the
Administrator.
FDA currently lists 12 medical devices for human use as
essential
uses of CFCs in 21 CFR 2.125. These devices consist of certain
metered dose inhalers (MDIs), contraceptive vaginal foams,
intrarectal
hydrocortisone acetate, polymyxin B sulfate-bacitracin-zinc-
neomycin sulfate soluble antibiotic powder without excipients
for topical use, and anesthetic drugs for topical use on accessible
mucous membranes where a cannula is used for application.
FDA is currently reviewing medical devices using class II
substances and if necessary, will revise 21 CFR 2.125 to reflect
the class II ban. FDA plans to complete its review prior to
the effective date of 610(d). EPA proposes, in accordance with
section 610(e), exempting only medical devices identified as
essential by FDA in 21 CFR 2.125 or otherwise identified as
essential by FDA in accordance with section 601(8). These FDA
``essential'' determinations are for the purposes of the class
II ban only, and are not necessarily reflective of any other
essential use determinations for other Title VI rulemakings.
ii. Lubricants for pharmaceutical and tablet manufacture.
Aerosol lubricants are used to coat mold chambers and punch
presses used in the production of pharmaceutical pills and tablets.
These products typically contain class I substances. Because
these products are used in the production of tablets and pills
for human ingestion, they must be nonflammable and nontoxic.
Since lubricants in the manufacture of tablets and pills are
applied continuously in the manufacturing process, flammable
or toxic alternatives present a greater risk to workers of exposure
to toxic fumes or explosion. Heat may build up on the pill presses
and the continual use of the product may lead to appreciable
vapor concentrations.
Currently, the Agency is unaware of any class II users; however,
EPA believes that HCFC-22, and a blend containing HCFC-22 and
HCFC-142b, are possible substitutes for the CFC-12 used in these
lubricants. The Agency has no information on the use, planned
use, or testing of HCFCs as substitutes for the use of CFC-113
as a solvent. Therefore, EPA is not proposing to exempt the
use of a class II substance in an aerosol lubricant for
pharmaceutical
and tablet manufacturing under today's proposed rulemaking.
However, EPA requests comment on worker safety or flammability
concerns regarding the lubricants for pharmaceutical and tablet
manufacture, and current and potential uses of class II substances
in these lubricants.
iii. Gauze bandage adhesives and adhesive removers. Adhesives
are used by medical professionals to affix gauze bandages to
the skin. Adhesive removers are used to facilitate removal of
gauze bandages affixed with adhesive. EPA does not know of any
manufacturers currently using HCFCs in these products. EPA is
aware that alternative formulations of products used in medical
applications require FDA approval. However, alternative products
such as tincture of benzoin, that can be applied with sponge
or cotton applicators, are available. These products help make
the skin tacky and an adhesive remover is not generally required
for bandage removal. However, they may be volatile and have
an unpleasant odor.
EPA currently does not have enough information to determine
if worker safety or flammability concerns relating to the use
of alternatives to class II substances in gauze bandage adhesives
and adhesive removers exist. Therefore, the Agency is not proposing
to exempt the use of class II substances in gauze bandage adhesives
and adhesive removers under today's proposed rulemaking. However,
EPA requests comment on worker safety or flammability concerns
regarding the manufacturing and use of these products, as well
as comment on current and potential uses of class II substances
in these products.
iv. Topical anesthetic and vapocoolant. Topical anesthetic
and vapocoolant products are used by medical personnel to
temporarily
deaden the response of nerves in the skin prior to minor topical
operations. These products have also been used on fingers to
facilitate the removal of tight rings. While the Agency is unaware
of any manufacturers using class II substances in these products,
EPA believes some formulations including HCFC-22 and HCFC-142b
are possible. Preliminary research also points to HFC-134a as
a potential substitute. In addition, nonpressurized substitutes,
such as Novocaine administered by injection, are currently
available.
EPA is currently unaware of any worker safety or flammability
concerns relating to the manufacture or use of topical anesthetic
and vapocoolant products. Therefore, the Agency is not proposing
to exempt the use of class II substances in topical anesthetic
and vapocoolant products in today's proposed rulemaking. However,
EPA requests comment on worker safety or flammability concerns
regarding the manufacturing and use of these products with
alternatives
to class II substances, as well as comment on current and potential
uses of class II substances and HFC-134a in these products.
v. Solvent uses in lubricants, coatings or cleaning fluids
for electrical or electronic equipment. Lubricants help reduce
friction and abrasion at points of contact between materials.
Aerosol lubricants, which can be applied in a variety of forms,
afford efficient, accurate application of the lubricant. Lubricants
include a wide range of products used in various applications,
including cleaner-lubricants that provides a thin protective
layer of lubrication while removing moisture, dust, dirt and
oxidative products. Methyl chloroform, CFC-11, CFC-113, and
to a lesser degree CFC-12, have traditionally been used as solvents
in aerosol lubricants, especially in applications where
flammability
is a concern. Recently, there has been some replacement of the
class I substances with HCFC-141b. However, EPA has not been
able to determine the extent of this replacement, or determine
any variations in effectiveness. The use of CFC-11, CFC-12 and
CFC-113 as solvents in commercial aerosol lubricants for electronic
equipment was exempted from the ban on nonessential products
containing class I substances.
The use of lubricants in confined spaces or around sources
of ignition could result in explosion if the product were
flammable.
Although increased ventilation could help reduce the risk of
flammability, failure of ventilation systems could pose an
immediate
threat of fire or explosion. Therefore, the Agency believes
flammability is a concern associated with the use of aerosol
lubricants for electrical or electronic equipment.
The aerosol solvent cleaners referred to here are primarily
used in the manufacture, maintenance, and repair of electronic
components and equipment. Aerosol solvent cleaners are typically
used in hand cleaning or on-site maintenance operations that
do not lend themselves to automated processes. In the electronics
industry, aerosol solvent cleaners are often used for the manual
defluxing of soldered electronic components.
The active solvent ingredient in aerosol cleaning sprays
is typically CFC-113. Other substances, including methyl chloroform
and CFC-11 are also used in solvents. The use of CFC-11 and
CFC-113 in solvent cleaning fluids for electrical and electronic
equipment is exempted from the class I ban on nonessential
products.
Since HCFC-141b has properties similar to CFC-113, it has already
found limited uses as a replacement for CFC-113.
Aerosol solvent cleaners are often used at work benches in
industrial situations. Flammability is a concern in such
environments.
In addition, aerosol solvent cleaners may be used on electronic
or electrical equipment that must be serviced while electrical
current is turned on. Therefore, the Agency believes flammability
is a concern associated with the use of aerosol cleaners for
electrical or electronic equipment.
EPA proposes exempting from today's proposed rulemaking the
class II solvent uses in lubricants, coatings or cleaning fluids
used for electrical or electronic equipment. However, the Agency
requests comment on worker safety or flammability concerns
regarding
the use of substitutes for class II substances as solvents in
lubricants, coatings, aerosol cleaners for electrical or electronic
equipment, as well as comment on current and potential uses
of class II substances. In addition, EPA requests comment on
the need to exempt class II substances used in lubricants,
coatings,
aerosol cleaners for electrical or electronic equipment that
can only substitute a class II substance with methyl chloroform
or carbon tetrachloride.
vi. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance. Aerosol lubricants are used on
motors, wheel bearings, flight control cables, and other parts
in the aircraft that are difficult to access and therefore
difficult
to lubricate without a spray product. Class I substances are
typically used as the solvents in these products.
Aerosol cleaners are used to remove dirt, dust, and oxidative
products from electronics components, such as contact switches,
gears, and gauges in repair work or during aircraft operations.
Typically, electric current will be running through these devices,
or the power will be turned off and on to identify the faulty
components. CFC-113 is frequently used as the solvent in these
products. EPA believes HCFC-141b is being used as a substitute
for CFC-113, to a limited degree. (More detailed information
can be found in the Background Document on Aerosol Products
and Pressurized Dispensers Containing Class II Substances.)
There are safety concerns regarding the use of aerosol products
for aircraft maintenance, primarily associated with the risk
of flammability. The use of flammable or toxic products in the
fuselage could prove hazardous because of the lack of ventilation.
The use of cleaners or lubricants in this confined space could
lead to an accumulation of flammable fumes and an increased
risk of explosion. Therefore, the Agency believes flammability
is a concern associated with solvent uses of class II substances
in lubricants, coatings or cleaning fluids used for aircraft
maintenance.
EPA proposes exempting from the class II ban solvent uses
in lubricants, coatings or cleaning fluids used for aircraft
maintenance. However, the Agency requests comment on worker
safety or flammability concerns regarding the use of substitutes
for class II substances as solvents in lubricants, coatings,
aerosol cleaners for aircraft maintenance, as well as comment
on current and potential uses of class II substances.
vii. Solvent uses in mold release agents. Aerosol mold release
agents are sprayed onto industrial molds to facilitate the removal
of molded products. Molded products can be made from metals,
plastics, or rubber materials. For almost all applications,
the release agent must be highly pure to prevent product
contamination
and must be compatible with the substance being molded.
Manufactures of mold releases traditionally used CFC-11,
CFC-12 and CFC-113. EPA exempted the use of CFC-11 and CFC-113
from the ban on class I nonessential products due to the lack
of available alternatives. Research to date indicates that there
has been some substitution and extensive testing of HCFC-141b
for CFC-113 as a solvent in mold release agents. HCFC-141b is
believed to be an adequate substitute in this application, and
thus, may be under consideration for more widespread substitution
by manufacturers.
In general, mold release agents are applied to molds during
the manufacture of plastics, medical products, rubber products,
metals, and other products. Periods between application can
be as short as 10 to 15 seconds. As a result, the build-up of
flammable gases can become explosive in an industrial setting.
Due to the nature of the product and its application, EPA believes
worker safety and flammability concerns exist. Therefore, EPA
proposes exempting from today's proposed rulemaking the class
II solvent uses of in mold release agents. However, EPA requests
comment on worker safety or flammability concerns regarding
the use of a substitute for class II substances as solvents
in mold release agents, as well as comment on current and potential
uses of class II substances.
viii. Solvent uses in spinnerette lubricant/cleaning sprays.
During the production of certain synthetic fibers such as acrylic,
a silicone product is sprayed onto spinning blocks called
spinnerettes
to both clean and lubricate the machine. Traditionally, CFC-
114 has been the preferred solvent because it is nonflammable,
nontoxic, and provides adequate dispersion of the active
ingredient.
HCFC-22 and HCFC-142b are currently being used and are being
considered for more extensive future use in this product. EPA
is aware that alternatives to class I and class II substances,
such as compressed air sprays, are being tested; however, EPA
is not aware of any successful results stemming from these tests.
Flammability is a concern for alternative formulations of this
product because of the high surface temperature of the spinnerettes
(approximately 280c). The operator is usually no more than a
few feet away while the lubricant is being sprayed. Due to the
nature of the product and its application, EPA believes worker
safety and flammability concerns exist. Therefore, EPA proposes
exempting from today's proposed rulemaking the solvent uses
of class II substances in spinnerette lubricants and cleaning
sprays. However, EPA requests comment on worker safety or
flammability
concerns regarding the use of a substitute for class II substances
as solvents in spinnerette lubricants and cleaning sprays, as
well as comment on current and potential uses of class II
substances.
ix. Plasma etching. During the manufacture of semiconductors,
one step in the process requires the ``sub-micron etching''
of circuit lines on a thin slice of silicon crystal. This process
technology, referred to as plasma or dry etching, uses various
chlorine and fluorine-containing chemicals within a sealed chamber.
Radio frequency energy is supplied to the chamber and excites
the chemicals, breaking them down into their component parts
to create a chemical ``ion-plasma.'' This plasma (containing
chlorine/or fluorine) is used to remove or etch parts of the
silicon wafer. The ozone-depleting chemicals in this case are
the vehicles which supply the halogen ions to the plasma. EPA
is not aware of any manufacturers currently using class II
substances
in plasma etching devices. Furthermore, the Agency is unaware
of any worker safety or flammability concerns relating to the
possible use of a substitute for a class II substance in a plasma
etching device. Therefore, the Agency is not proposing to exempt
plasma etching. However, the Agency requests comment on worker
safety or flammability concerns regarding the use of a substitute
for class II substances in plasma etching devices, as well as
comment on current and potential uses of class II substances.
In addition, the Agency has received comments about whether
plasma etching devices should be considered pressurized dispensers.
While EPA currently does not have enough information to make
this determination, EPA believes that it is likely that plasma
etching devices do not meet the definition of pressurized
dispensers.
The language in section 610 did not restrict EPA to considering
only aerosol products and pressurized dispensers in determining
the essential nature of the products using class I substances.
However, EPA did limit the types of products considered, in
part to be consistent with the class II ban. During the development
and promulgation of the class I ban, EPA believed that plasma
etching devices were pressurized dispensers. However, EPA has
subsequently received additional information as to the nature
of plasma etching devices. Consequently, the Agency requests
comment on whether plasma etching devices should be considered
pressurized dispensers.
x. Solvent uses in document preservation sprays. Books,
documents,
and works of art on paper can be preserved through the application
of a nonaqueous deacidification technology. There are several
technologies currently being used. EPA is aware of several
formulations
which include the use of a class II substance as a propellant.
However, non-HCFC propellants, such as carbon dioxide and nitrogen,
are currently being used in aerosol document preservation sprays,
and thus, constitute alternatives to HCFC-22 used in this
application.
In addition, pump sprays bottles are available alternatives.
Moreover, EPA is limited to only considering the exempted uses
of a class I substance in granting exceptions to the class II
ban. Therefore, EPA can only consider the solvent use of a class
I substance. EPA does not have enough information to determine
if worker safety or flammability concerns relating to the solvent
use of class II alternatives in document preservation sprays
exist. Therefore, the Agency proposes not exempting solvent
uses of class II substances in document preservation sprays
under today's rulemaking. However, the Agency requests comment
on worker safety or flammability concerns regarding the use
of a substitute for a class II substances as solvents in document
preservation sprays, as well as comment on current and potential
uses of class II substances.
xi. Solvent uses in red pepper bear repellent sprays. The
nature of red pepper bear repellent sprays makes an aerosol
formulation particularly useful as the user of a bear repellent
needs the product to deliver the repellant instantaneously without
perfect aim. CFC-113 use in red pepper bear repellant sprays
was exempted under the class I ban. During the development of
the class I ban, one manufacturer specifically indicated that
HCFC-141b, as well as any other potential substitute, would
not be adequate in its formulation, because the CFC imparts
characteristics to the defensive spray that are critical to
its effectiveness against bears.{8} EPA is unaware of any
manufacturers
using a class II substance as a solvent in the formulation of
red pepper bear repellent sprays. Furthermore, EPA does not
have enough information to determine if worker safety or
flammability
concerns relating to the solvent use of an alternative to a
class II substance in red pepper bear repellent sprays exist.
Therefore, the Agency is not proposing to exempt solvent uses
of class II substances in red pepper bear repellent sprays in
today's rulemaking. However, the Agency requests comment on
worker safety or flammability concerns regarding the use of
a substitute for class II substances as solvents in red pepper
bear repellents, as well as comment on current and potential
uses of class II substances.
³ {8} Bushwacker Backpack and Supply Company, 1992.
³Further information concerning safety sprays and animal
³repellents can be found in the Background Document on
³Aerosol Products and Pressurized Dispensers Containing
³Class II Substances.
e. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment.
Section 610(b)(2) required EPA to ban the sale of
chlorofluorocarbon-
containing cleaning fluids for electronic and photographic
equipment
to non-commercial users. EPA estimates that non-commercial sales
of such fluids represent a small fraction of the total use of
these products. Nevertheless, the statute specifically required
EPA to ban the sale of these products containing CFCs for non-
commercial use. Consequently, EPA proposed, and the final rule
included, a ban on the sale, distribution, or offer of sale
or distribution of these products to non-commercial users. As
a result of this statutory mandate, there is no remaining
chlorofluorocarbon
which legally could be substituted for class II substances in
non-commercial cleaning fluids for electronic and photographic
equipment.
Aerosol cleaning fluids for electronic and photographic
equipment
sold to commercial users are often used at work benches in
industrial
situations. Flammability is a concern in such environments.
In addition, these cleaning fluids may be used on electronic
or electrical equipment that must be serviced while electrical
current is turned on. Therefore, the Agency believes flammability
is a concern associated with the use of aerosol cleaning fluids
for electronic and photographic equipment.
Accordingly, today's proposed rule would ban the sale of
aerosol cleaning fluids for electronic and photographic equipment
containing class II substances to non-commercial users. The
Agency wishes to clarify that under section 610(d), unlike under
section 610(b), EPA is restricted to considering only aerosol
cleaning fluids.
It is possible that certain cleaning fluids for electronic
and photographic equipment may contain methyl chloroform or
carbon tetrachloride. The use of either of these ozone-depleting
substances in aerosol products was not prohibited under the
class I ban; consequently, such cleaning fluid products containing
methyl chloroform or carbon tetrachloride are not restricted
under the class I ban. A manufacturer, distributor, or retailer
of a cleaning fluid product containing one or more class II
substances could request an exception by EPA through this
rulemaking,
by indicating during the comment period that the only available
alternative for the class II substance(s) contained in its product
was methyl chloroform or carbon tetrachloride. EPA would consider
such a request if the situation arose, but the Agency would
require documentation that such claims were not attempts to
circumvent the intent of the ban. Moreover, methyl chloroform
and carbon tetrachloride are not suitable for use as propellants
in aerosol products.
In the Class I Nonessential Products Ban, EPA eliminated
specific recordkeeping requirements proposed in the NPRM. The
Agency agreed with the commenters that such requirements would
be too burdensome when compared to the limited associated
environmental
benefits. Instead of requiring distributors to maintain detailed
records of transactions involving CFC-containing cleaning fluids,
the final rule merely required sellers and distributors to post
signs stating that sale, distribution, or offer of sale or
distribution,
in interstate commerce of these products to non-commercial users
is prohibited and that purchasers of these products must provide
verification that they are commercial users. In addition, sellers
and distributors were required to verify that purchasers of
these products are commercial users. In order to purchase these
products, commercial users would have to prove that they are
indeed commercial entities. Purchasers could fulfill this
requirement
by presenting any number of existing documents generally issued
to commercial entities as a condition for conducting business.
Sellers and distributors would have to have a reasonable basis
for believing that the information presented by the purchaser
is accurate and thus that the purchaser is in fact a commercial
user. These documents could include a federal employer
identification
number, a state tax exemption number, a local business license
number and a government contract number. EPA believes that these
requirements impose the least burden while still meeting the
statutory requirement to prevent non-commercial users from
purchasing
CFC-containing cleaning fluids.
EPA believes that the statutory language in section 610(d)
compels the Agency to adopt similar verification provisions
with regard to cleaning fluids containing class II substances.
Consequently, today's proposed rule contains verification and
public notice requirements similar to those in the class I ban
final rule. EPA has already been informed by one distributor
of such cleaning fluids for which it intends to extend its
verification
procedures to products containing class II substances as of
January 1, 1994.
2. Plastic Foam Products Produced With HCFCs
Section 610(d) prohibits the sale, distribution, or offer
of sale or distribution in interstate commerce of all plastic
foam products which contain, or are manufactured with, class
II substances, and which are not specifically excluded from
the ban under section 610(d)(3), as of January 1, 1994. Certain
types of plastic foam products, specifically foam insulation
products and integral skin, rigid, or semi-rigid foams necessary
to meet the Federal Motor Vehicle Safety Standards, are excluded
from the ban by the statute. However, in this rulemaking, EPA
must determine which plastic foam products qualify as ``foam
insulation products,'' and whether adequate substitutes for
certain HCFC-blown foams are practicable for effectively meeting
the Federal Motor Vehicle Safety Standards. The following section
discusses the products affected by this provision.
For the purposes of this rulemaking, EPA interprets the term
``plastic foam product'' to mean any product (as defined in
40 CFR 82.62) composed in whole or in part of material that
can be described as ``foam plastic'' or ``plastic foam.'' EPA
interprets ``foam plastic'' or ``plastic foam'' to mean a type
of plastic such as polyurethane or polystyrene which has been
produced using blowing agents to create bubbles or ``cells''
in the material's structure.
The foam plastics manufacturing industries, the markets their
products serve, and their uses of CFCs and HCFCs are extremely
varied. CFC-11, CFC-12, CFC-113, CFC-114, HCFC-22, HCFC-141b,
and HCFC-142b have all been used to some extent as blowing agents
in the manufacture of plastic foam products, which include building
and appliance insulation, cushioning foams, packaging materials,
floatation devices and shoe soles.
There are two basic types of foam produced with halocarbons:
thermosetting foams and thermoplastic foams. In the production
of thermosetting foams, a blowing agent is mixed with chemicals
which react to form the plastic foam product. With thermoplastic
foams, the blowing agent is injected into a molten plastic resin
which hardens upon cooling.
An important distinction exists between foam plastics where
the cells are closed, trapping the blowing agent inside, and
those with open cells which release the blowing agent during
the manufacturing process. The gas trapped in closed cell foams
can, if it possesses a low thermal conductivity, provide
significant
thermal insulation. All of the foam products used as thermal
insulation are closed cell foams. Open cell foams are not good
thermal insulators.
CFCs had been commonly used as blowing agents in the
manufacturing
process of many foam products because they have suitable boiling
points and vapor pressures, low toxicity, and very low thermal
conductivity. In addition, they are non-flammable, non-reactive,
and, until the imposition of the excise tax on ozone-depleting
substances, they had been very cost-effective. The excise tax
levied by Congress in 1989 significantly raised the cost of
CFCs to foam manufacturers (except for the manufacture of rigid
insulating foam, which was exempt from the tax in 1990 and is
subject to a greatly reduced tax of approximately $0.25 per
pound until 1994). As a result, foam manufacturers have switched
to non-CFC substitutes in many areas. Among the many commonly
used substitutes for CFCs in foam production are HCFCs, CO2,
hydrocarbons and methylene chloride. In addition, HFCs and
fluorinated
ethers may offer long-term substitutes for plastic foam production.
According to the 1991 UNEP Flexible and Rigid Foams Technical
Options Report, global CFC consumption in foam production decreased
by roughly 35 percent between 1986 and 1990. EPA believes that
the level of CFC use in the U.S. for many foam types has
experienced
a similar dramatic decrease since 1986. For some foam products,
the use of CFCs has already been completely phased out. In many
applications, especially foam thermal insulation products, HCFCs
have replaced CFCs as blowing agents.
EPA examined the use of class I and class II substances in
foam products for its section 610 rulemaking activity. In preparing
today's proposed rule, EPA relied heavily upon the research
conducted for the 1991 UNEP Flexible and Rigid Foams Technical
Options Report. Foam affected by today's rulemaking has been
categorized in accordance with the methodology used in the UNEP
reports on foams produced with ozone-depleting substances.{9}
EPA's Class I Nonessential Products Ban rulemaking also relied
heavily upon UNEP research.
³ {9} EPA participated in the development of the
definitions
³of product categories utilized in the UNEP technical
³options reports as part of the Montreal Protocol
process,
³and the Agency routinely employs these categories in
³its own reports, internal documents, and rulemakings.
³Copies of this and other appropriate UNEP reports are
³contained in the Air Docket A-93-20.
As part of the Montreal Protocol process, the United Nations
Environment Programme Montreal Protocol Flexible and Rigid Foam
Technical Options Committee was formed. This committee is comprised
of internationally respected experts nominated by national
governments
to determine the technical and economic feasibility of halting
the use of chemicals that destroy the ozone layer. The twenty
members are selected primarily from industry and government
research laboratories and represent Belgium, Canada, Germany,
Japan, Switzerland, United Kingdom, and the United States. Members
are employed by every major supplier of foaming chemicals and
many high volume, sophisticated foam users, as well as by the
associations representing suppliers and users. Reports are peer
reviewed internationally and the conclusions are reached by
consensus.
The 1989 and 1991 reports of the Foams Technical Options
Committee were so credible and respected that they have been
republished and relied upon extensively by various Parties.
The UNEP report identifies foam products that have significant
thermal insulating properties (and which are used primarily
in insulating applications) and those that do not (these foams
are used mostly in packaging and cushioning applications, but
some of them have incidental insulation applications as well).
EPA refers to this latter category as ``flexible and packaging
foams.'' EPA used the same categories in the section 610(b)
rulemaking.
a. Ban on Nonessential Products Containing CFCs. Based on
its research, the Agency prohibited the use of CFCs in flexible
and packaging foams in the Class I Nonessential Products Ban.
The Agency focused on these foam sectors due to the clear
availability
of substitutes such as water-blown foam, reformulated foams,
and alternative chemicals such as HCFC-22 and methylene chloride.
EPA did not prohibit the use of CFCs in insulating foam, expanded
polystyrene foam, polyvinyl chloride foam, or integral skin
foam. The reasons for this decision are described below.
EPA did not include insulating foams manufactured with CFCs
in the Class I Nonessential Products Ban. Although flexible
and packaging foams have currently available substitutes, the
UNEP technical options report estimated that the elimination
of CFCs in insulating foams would not be technologically feasible
until 1995 in developed countries. Moreover, Congress indicated
its intent to facilitate the transition from CFC-blown insulation
foam to alternatives. For example, rigid insulating foams using
CFCs were exempt from the excise tax in 1990, and they are subject
to a reduced tax until 1994.{10} In addition, the statutory
ban on the use of class II substances in foam products in section
610(d) specifically exempts insulating foams. Congress exempted
foam insulation products from the section 610(d) ban without
qualification, rather than exempting these products until adequate
substitutes were available. EPA believes that research and
development
currently underway will eventually result in the widespread
use of alternatives to HCFCs as blowing agents in the manufacture
of foam insulation products.
³ {10} The use of CFCs in insulating foams after 1995
³is not an issue of concern to EPA in light of the
accelerated
³phaseout schedule and the January 1, 1994 increases in
³the excise tax on insulating foams produced with CFCs.
EPA also considered including integral skin foam in the Class
I Nonessential Products Ban. Integral skin foam is used in a
number of applications, including motor vehicle safety
applications,
as indicated by section 610(d)(3)(B). EPA was not able to
conclusively
determine in the time available for the class I ban rulemaking
that adequate substitutes for integral skin foam, or for the
use of CFCs in the production of integral skin foam, were
available.
As a result, EPA did not include them in the class I nonessential
products ban; however, the Agency reserved the right to take
action under section 610 to prohibit the use of CFCs in integral
skin foams at some future time, if necessary.
b. Current Use of HCFCs in Plastic Foam Production. EPA research
has identified seven types of plastic foam products that are
currently being produced with HCFCs, and which consequently
are affected by today's proposed rule:
i. Closed cell rigid polyurethane foam
ii. Open cell flexible polyurethane foam
iii. Integral skin polyurethane foam
iv. Closed cell extruded polystyrene sheet foam
v. Closed cell extruded polystyrene boardstock foam
vi. Closed cell polyethylene foam
vii. Closed cell polypropylene foam
EPA is not aware of any other types of plastic foam being
produced with HCFCs; however, if other types of foam (such as
polyvinyl chloride foam, expanded polystyrene foam, open cell
rigid polyurethane foam, or open cell flexible polyurethane
molded foam) are being produced with HCFCs, the sale, distribution,
or offer of sale or distribution in interstate commerce of such
plastic foam products will also be illegal after January 1,
1994, unless EPA determines that they meet the conditions for
exemption from this rulemaking under section 610(d)(3)(A) or
610(d)(3)(B). EPA requests comment on any other types of foam
that are being produced with HCFCs.
c. Plastic Foam Products Exempt from the Ban Under Section
610(d). Section 610(d)(3) exempts ``foam insulation products''
and ``integral skin, rigid, and semi-rigid foam utilized to
provide for motor vehicle safety in accordance with Federal
Motor Vehicle Safety Standards where no adequate substitute
substance (other than a class I or class II substance) is
practicable
for effectively meeting such Standards.'' The following sections
discuss the treatment of these products in EPA's proposed rule.
i. Foam Insulation Products. Section 610(d)(3) states that
the ban on plastic foam products containing or manufactured
with HCFCs shall not apply to ``foam insulation products.''
EPA identified two possible interpretations of this phrase.
``Foam insulation products'' could be interpreted to mean products
containing foam that are used for insulating some object. This
phrase could also mean products containing ``insulating foam.''
In addition, EPA considered different possible interpretations
of the word ``insulation.'' The largest use of plastic foams
produced with CFCs and HCFCs is in products that provide thermal
insulation for buildings, equipment, and a host of different
objects, but commenters suggested that the word ``insulation''
could also conceivably refer to a product or material that protects
or ``insulates'' some object from other phenomena, such as noise,
shock, or electromagnetic radiation. Several private sources
have suggested to EPA that the word ``insulation'' should be
interpreted to mean a product or material that protects some
object from physical impacts or vibration. EPA examined each
of these options in preparing today's proposed rulemaking.
For the purposes of this rule, EPA proposes defining ``foam
insulation product'' as any product containing the following
materials:
(1) Closed cell rigid polyurethane foam,
(2) Closed cell rigid polystyrene boardstock foam, and
(3) Closed cell rigid phenolic foam.
In addition, EPA proposes to define pipe insulation made
out of closed cell rigid polyethylene foam as a foam insulation
product.
EPA believes that the word ``insulation'' should be interpreted
to mean thermal insulation exclusively. The primary uses of
plastic foam products consist of thermal insulation, cushioning,
and packaging applications. As mentioned above, most CFCs and
HCFCs currently used in foam production are used in the production
of thermal insulation products. The remainder of foam products
produced with CFCs and HCFCs are used primarily in the packaging
of high-value products. The Montreal Protocol process, the work
done by the UNEP Flexible and Rigid Foam Technical Options
Committee,
and much of the technical literature about the foam industry
reflects a distinction between foam thermal insulation products
and foam products used primarily for producing cushioning and
packaging material. Consequently, it seems likely that Congress
adopted the same convention when drafting this legislation.
Because the statutory language is ambiguous, EPA has the
authority to reach a reasonable interpretation of the definition
of foam insulation. (See Chevron v. NRDC, 467 U.S. 837 (1984)).
Reviewing the provisions of section 610 as a whole, EPA is
proposing
that the exemption in section 610(d)(3)(A) should apply only
to thermal insulation products. In section 610(d)(3), Congress
provided two statutory exemptions, one for foam insulation and
one for certain types of motor vehicle safety foam under specified
circumstances. Under a broad interpretation of foam insulation
including all insulating uses, such as physical shock or impact
insulation, motor vehicle safety foams would be included in
the definition of foam insulation, since motor vehicle safety
foams serve to insulate vehicle occupants from crash impact.
Therefore, the second exemption provided by Congress would be
entirely unnecessary if the first exemption were broad enough
to include the products covered by the second exemption.
Furthermore,
it would not be necessary for Congress to limit motor vehicle
safety foams to specific circumstances where substitutes were
unavailable. A broad interpretation of the definition of foam
insulation would exempt motor vehicle safety foams from the
class II ban even where substitutes were easily available, contrary
to the explicit provisions of the second exemption.
Moreover, if EPA were to interpret the word ``insulation''
to include protection from noise, electromagnetic radiation,
impact, or physical shock, this regulation would not in any
way restrict the use of HCFCs in plastic foam production. The
entire ban would be nullified by the exemption, since all foams
insulate products from something. It is unlikely that Congress
enacted a legislative provision intended to have no effect.
EPA believes that it is complying with the intent of the statute
in limiting the exemption for ``foam insulation products'' to
foams that provide thermal insulation. The legislative intent
of this language is discussed below.
EPA believes that Congress intended to exempt only foams
used for thermal insulation in section 610(d)(3)(A), although
Congressional intent with regard to the insulation products
to be exempted is somewhat unclear. The Joint Explanatory Statement
of the Committee of Conference accompanying the Clean Air Act
Amendments of 1990 provides no additional discussion of the
scope of the word ``insulation'' in section 610(d); the only
supplemental information regarding Congressional intent bearing
directly on the definition of insulation of which EPA is aware
is contained in the floor statement of Representative Ralph
Hall (136 CR H12899). Other statements such as that of
Representative
Walgren 136 CR H12938, the report of the Senate Committee on
Environment and Public Works, Senate Report Number 101-228,
101st Congress, 1st Session, page 397, and statements of Senate
managers Baucus and Chafee (136 CR S16948), shed no additional
light on Congressional intent.
EPA believes that additional support for interpreting foam
insulation product as thermal insulation only can be found in
the regulations published by the Internal Revenue Service (52
FR 56303 and 26 CFR 52.4682) to implement the excise tax on
ozone-depleting substances first established by Congress in
the Omnibus Budget Reconciliation Act of 1989. In these
regulations,
IRS defined ``rigid foam insulation'' as ``any rigid foam that
is designed for use as thermal insulation.'' IRS defined ``rigid
foam'' as any closed cell polymeric foam (whether or not rigid)
in which chlorofluorocarbons are used to fill voids within the
polymer.'' While the IRS definition of foam insulation is markedly
different from the one proposed by EPA in today's rulemaking
(as they were written with different statutory mandates and
different implementation goals in mind), the IRS definition
indicates that Congress intended to single out foam products
on the basis of their thermal insulation properties, in
establishing
the excise tax, and thus by analogy also in drafting 610(d).{11}
As a result of its consideration of the legislative record and
regulatory precedent, EPA believes that its interpretation of
insulation as thermal insulation is appropriate.
³ {11} Some might suggest that EPA adopt the IRS
definition
³of foam insulation product for this rulemaking. EPA
wishes
³to point out that the IRS definition of rigid foam
insulation
³only considers foam blown with CFCs and would result
³in no exemption for any foam insulation product
containing
³HCFCs unless they contained CFCs as well.
According to EPA research, and research conducted under the
auspices of the United Nations Environment Programme, closed
cell rigid polyurethane foam, closed cell rigid polystyrene
boardstock foam, and closed cell rigid phenolic foam are the
only types of plastic foam used primarily for their low thermal
conductivity. One of the reasons that CFCs and HCFCs are used
almost exclusively as blowing agents in thermal insulation
products,
and the reason that EPA has not proposed including any open-
cell plastic foam products in the exemption for foam insulation
products, is that foam thermal insulation products rely upon
the low thermal conductivity of the gasses trapped within the
foam cells to provide their thermal ``insulating'' properties.
Closed cell rigid polyurethane foam, closed cell rigid polystyrene
boardstock foam, and closed cell rigid phenolic foam are widely
used in a great many thermal insulation applications. In addition,
closed cell rigid polyethylene foam, although not used primarily
for its thermal insulating properties, is widely used to provide
thermal insulation around pipes in heating, plumbing,
refrigeration,
and industrial process systems (this closed cell rigid polyethylene
foam insulation product is often referred to as ``pipe wrap'').
Consequently, the Agency proposes defining these four categories
of foam and foam products as ``foam insulation products'' for
the purposes of the section 610(d) rulemaking because its research
to date indicates that only these product categories constitute
legitimate uses of HCFC-blown foam for thermal insulation
applications.
Webster's Dictionary defines to insulate as ``to separate
from conducting bodies by means of nonconductors so as to prevent
transfer of electricity, heat, or sound.'' EPA reviewed this
definition, and considered defining a ``foam insulation product''
as any product made out of HCFC-blown foam that could meet the
above definition by providing any degree of insulation, regardless
of the type of HCFC-blown foam that it contained. However, in
order to accurately determine which products could meet the
definition, EPA would need to examine the ``end-use'' of every
single product containing plastic foam produced with HCFCs in
order to determine whether the HCFC-blown foam in that product
served as an insulator against heat, electricity or sound. Products
that did not meet this definition would automatically be subject
to the ban. This approach could complicate the rulemaking process
and significantly increase cost for ensuring compliance with
the class II ban, both for the affected businesses and the Agency.
In light of the significant burden this would impose on both
the industry and the administrative agency, and the Agency's
interpretation of Congressional intent, EPA opted for proposing
the definition of ``foam insulation product'' based on the research
conducted under the auspices of the United Nations Environmental
Programme and described above. However, EPA requests comment
on the use of this alternative definitions based on the end-
use of the product.
EPA recognizes that other interpretations of Congressional
intent may exist. The conference substitute cited by Representative
Ralph Hall (136 CR H12899) in discussions of the Clean Act
Amendments
on the House Floor includes the following discussion of section
610(d): ``the conference substitute also does not prohibit
insulating
foams made with class II compounds (which could include foams
that are necessary for energy efficient building construction,
appliances, or for the insulation of sensitive medical supplies
and sensitive electronic components.)'' EPA notes that the
statement
uses the words could include, not does include, indicating that
not every foam used in these products should be exempted from
the ban. Since certain medical supplies and electronic components
are sensitive to extreme temperatures, as well as variations
in temperature, EPA believes its interpretation of foam insulation
as thermal is appropriate. However, as discussed above, EPA
recognizes that it is possible to interpret the conference
substitute,
and the definition of insulating foam differently. Other possible
interpretations may require EPA to review the end-use of each
foam product in order to determine if its use is consistent
with Congressional intent. EPA requests comment on the use of
alternative definition of insulating foams.
EPA recognizes that minor non-insulating uses exist for the
foams that it proposes to exempt under section 610(d)(3)(A).
However, EPA believes that by adopting the definition based
on UNEP's work, the Agency will exempt all of the appropriate
thermal insulation applications of plastic foam products produced
with HCFCs, while at the same time, it will allow relatively
few non-insulating uses of HCFCs in foam production to continue.
While section 610(d) gives the Agency the authority to exempt
``a foam insulating product,'' EPA does not believe the Agency
has authority to regulate how products categorized as foam
insulating
products are actually used. Moreover, the environmental impact
of allowing the continued use of HCFCs in the exempted foam
types for non-insulating end-use applications will be
insignificant,
while additional restrictions on the sale, distribution, or
offer of sale or distribution in interstate commerce of non-
insulation products containing these foam types would impose
additional unnecessary burdens on businesses and the federal
government without providing any appreciable environmental
benefit.{12}
³ {12} Should the use of HCFCs in the production of
³exempted foam products for non-insulating applications
³increase significantly, the Agency might at some future
³date revise its definition as necessary to limit such
³use.
EPA requests comment on its proposed definition of ``foam
insulation product,'' and on other products or foam types that
should be included in this definition based on their thermal
insulating qualities.
EPA wishes to note that individuals or businesses that introduce
``foam insulation products'' containing or manufactured with
class II substances into interstate commerce may be required
to comply with labeling requirements of the Act if the
Administrator
determines that adequate substitutes exist for those class II
substances, and issues class II warning label regulations
accordingly.
ii. Specific Applications of Both Insulating and Noninsulating
Foams. To help clarify how foam products would be treated under
the proposed regulation, the following section provides specific
examples.
Closed Cell Polyurethane Foam Used as Flotation Foam
Closed cell polyurethane foam is used as a thermal insulating
foam. However, it is also used for a number of non-insulation
purposes. The largest non-insulation application of closed cell
polyurethane foam is as flotation foam in the manufacture of
certain boats. Coast Guard regulations (33 CFR subpart F 183.101)
require that boats less than 26 feet in length meet certain
flotation standards. Many small boat manufacturers use CFC-
or HCFC-blown foam as both structural and flotation material
in the manufacture of their boats in order to comply with these
regulations. In the case of flotation foam, the thermal insulating
properties of closed cell polyurethane foam are incidental to
its use in this application. However, consistent with the Agency's
proposed definition of a ``foam insulation product,'' EPA does
not believe it has the authority to ban the use of a foam
insulation
product, whether or not used for a non-insulating purpose.
Flotation foam serves as an important safety feature of many
small watercraft. In addition, in at least one product line,
closed cell polyurethane foam serves as a structural element
as well. Several manufacturers of closed cell polyurethane
flotation
foam have indicated that they have developed, and are marketing,
foam-blowing systems that are CFC- and HCFC-free, and a number
of boat manufacturers are already using halocarbon-free foam
in their production lines. Other boat companies have indicated
their intention to convert from CFCs and HCFCs to alternatives
such as CO2 and HFC-134a in the near future.
EPA is proposing to define all products made out of closed
cell rigid polyurethane foam, closed cell rigid polystyrene
boardstock foam, and closed cell rigid phenolic foam, as well
as pipe insulation made out of closed cell rigid polyethylene
foam, as foam insulation products for the purposes of this
rulemaking.
Consequently, closed cell rigid polyurethane foam used as flotation
foam, rather than as insulation, is exempt from the class II
ban. EPA wishes to note, however, that the use of closed cell
rigid polyurethane insulation foam as flotation foam may still
be subject to the section 611 labeling requirement in the future.
EPA requests comments on the incidental inclusion of products
not using insulating foam for its thermal qualities in the
exemption
to the class II ban.
Aerosol Polyurethane Foam
Aerosol polyurethane foam or rigid polyurethane foam dispensed
from a pressurized packaging, also known as one-component foam,
is used by both the building industry and by do-it-yourselfers
in a variety of applications. These applications include draft-
proofing around pipes, cable runs, doors and windows; sealing
doors and window frames; and joining together insulating panels,
roofing boards, and pipe insulation.
CFC-12 has traditionally been the blowing agent of choice
for aerosol foams because of its relatively low boiling point.
CFC-12 in this product acts both as a propellant and as a blowing
agent yielding ``frothed foam'' that does not flow away from
the site of its application. In recent years, there has been
widespread conversion away from CFC-12 and toward such alternatives
as HCFC-22 and hydrocarbons.
For the purposes of this rulemaking, aerosol foams will be
treated as foams and not as aerosols. EPA believes that this
approach is consistent with regulations published by the Internal
Revenue Service (52 FR 56303) that treat spray foam as an
insulating
foam product for tax purposes. In addition, the UNEP technical
options report categorizes spray foam as foams not aerosols.
Furthermore, this approach is consistent with EPA's treatment
of aerosol foams in the Class I Nonessential Products Ban (58
FR 4789).
While many manufacturers have converted from ozone-depleting
substances to alternatives such as hydrocarbons, it is not clear
that these substitutes are adequate for all applications at
the present time. Hydrocarbons may pose flammability risks both
at the point of manufacture and at the point of use.
Hydrocarbons, because of their flammability, may pose
significant
risks to safety and health when used as propellants and blowing
agents in aerosol foams. However, EPA is also concerned about
the risks to human health and the environment posed by continued
use of ozone-depleting substances in aerosol foams. The Agency's
proposed definition of insulating foam does not consider the
end use of the product. As a result, while the Agency believes
alternatives that do not use class II substances can be used,
the Agency does not have the authority under the proposed
definition
to limit the end use of closed cell polyurethane.
EPA requests comments on the incidental inclusion in the
exemption of products not using insulating foam for its thermal
qualities.
Closed Cell Extruded Polystyrene Sheet Foam
Closed cell extruded polystyrene sheet foam has been used
extensively in the past in packaging for food products in grocery
stores and fast food chains. Representatives of the food service
and packaging industry have commented to EPA in the past that
the primary function of polystyrene packaging such as cups,
trays, ``clamshell'' containers, and plates in this application
was one of containing food, not keeping the food hot or cold.
Consequently, EPA does not consider closed cell extruded
polystyrene
sheet foam an insulating foam.{13} EPA is not aware that any
claims have ever been made about the thermal conductivity of
extruded polystyrene sheet foam (such as the R-value of products
manufactured with this foam).
³ {13} In fact, EPA defined polystyrene sheet foam as
³a ``flexible and packaging foam'' and banned the sale,
³distribution, or offer of sale or distribution in
interstate
³commerce of polystyrene sheet foam containing or
manufactured
³with CFCs in its Class I Nonessential Products Ban.
EPA notes that most producers of closed cell extruded
polystyrene
sheet foam have converted their facilities to use hydrocarbons
as the blowing agents in the production of this foam, and the
Agency has been informed that the largest remaining user of
HCFCs in closed cell extruded polystyrene sheet foam production
plans to end its use of HCFCs in this process before the January
1, 1994 deadline. Consequently, EPA believes that prohibiting
the sale, distribution, or offer of sale or distribution in
interstate commerce of closed cell extruded polystyrene sheet
foam products containing or manufactured with HCFCs effective
January 1, 1994 as required by . 610(d) will have little economic
impact.
Closed Cell Polyethylene Foam and Closed Cell Polypropylene
Foam Sheet
EPA has received information about the use of closed cell
polyethylene foam for the production of ``backer rods'' for
the construction of buildings that employ a curtainwall and
panel system for their outer shells. Joints between panels in
these systems are closed with elastomeric sealants which are
injected into the joints. ``Backer rods'' are used to limit
the depth to which the sealants penetrate these joints. Outside
sources have indicated that backer rods also provide an important
insulation function in buildings constructed in this fashion.
However, EPA research indicates that the primary ``insulating''
function of backer rods consists of protecting the building
against moisture, e.g. condensation and leaking. EPA believes
that this secondary function of backer rods, while important,
does not require the use of ozone-depleting substances in foam
production in this product. Moreover, EPA does not believe that
backer rods provide significant thermal insulation for buildings
constructed in this fashion. Consequently, EPA has not included
closed cell polyethylene backer rods in its definition of foam
insulation product in today's rulemaking, in light of its
interpretation
that only thermal insulation is exempt from the class II ban,
and because the use of class II substances to provide non-thermal
insulation is not necessary.
One company in the U.S. makes extruded polypropylene foam.
This company is in the process of converting its products to
non-HCFC formulation, but it has expressed concern about the
treatment of its existing inventory of products produced under
the old process in this regulation. Most of this foam is used
in packaging applications; however, some extruded polypropylene
foam is ostensibly used as insulation in such applications as
concrete curing and shrubbery covers. EPA believes that the
``insulating'' function that this product provides in these
applications consists of protecting the concrete or plants from
a number of environmental phenomena, such as moisture and wind.
EPA believes that any thermal insulation that the product provides
in these applications is incidental and does not constitute
thermal insulation within the intent of . 610(d). Consequently,
EPA has not included any closed cell polypropylene foam products
in its definition of foam insulation product in today's rulemaking.
EPA requests comment on the use of these products solely for
their thermal capability. Furthermore, EPA requests comments
on its treatment of all of the above foam products in today's
proposed rule.
iii. Foam Used to Meet Federal Motor Vehicle Safety Standards.
Section 610(d)(3) states that the ban on class II substances
in plastic foam products shall not apply to any ``foam insulation
product'' or ``an integral skin, rigid, or semi-rigid foam utilized
to provide for motor vehicle safety in accordance with Federal
Motor Vehicle Safety Standards where no adequate substitute
substance (other than a class I or class II substance) is
practicable
for effectively meeting such Standards.''
Section 103 of the National Traffic and Motor Vehicle Safety
Act of 1966 authorized the National Highway Traffic Safety
Administration
(NHTSA) to promulgate Federal Motor Vehicle Safety Standards,
which have subsequently been published in 49 CFR part 571. The
Federal Motor Vehicle Safety Standards are, for the most part,
performance standards. The use of particular materials is generally
not specified in the standards in 49 CFR part 571 affected by
this rulemaking. Consequently, to the best of the EPA's knowledge,
no HCFC-blown foams are specifically required by the NHTSA
regulations.
However, since the enactment of the laws requiring these standards
beginning in the late 1960s, the motor vehicle manufacturing
industry has relied almost exclusively on foams to meet the
section 571 impact protection standards (the only exception
EPA is aware of consists of leather-wrapped steering wheels
and leather-covered dash boards, and the Agency understands
that even these products have foam underneath).
After conducting its own research and consulting with officials
at the NHTSA, the EPA believes that the use of HCFC-blown foams
is not, or shortly will not, be necessary to meet the Federal
Motor Vehicle Safety Standards. According to an industry source,
all foams used in automotive applications except integral skin
foams are currently produced without CFCs or HCFCs (these products
are ``water-blown'' foams which use CO2 as the blowing agent).
Consequently, in today's NPRM, EPA proposes exempting only the
use of integral skin foam from the class II ban on plastic foam
products.
Industry sources have indicated that the most difficult Federal
Motor Vehicle Safety Standard for the automobile industry to
meet without using CFCs or HCFCs involves impact protection
padding on steering wheels. In addition, these sources have
indicated that producing air bag module covers which meet the
relevant standards without the use of CFCs or HCFCs is still
a technological challenge. At this time, both products are usually
made with integral skin foam produced with CFCs or HCFCs. Water-
blown foams are currently being tested, and EPA believes that
in the near future water-blown integral skin foam will be
``practicable
for effectively meeting'' the Federal Motor Vehicle Safety
Standards
as specified under the statute. Industry sources indicate that
HFC-134a is also being tested for use in this application, and
that integral skin foam produced with HFC-134a should be available
within three to four years.
EPA believes that testing to ensure that the substitutes
for HCFC-blown integral skin foam meet the Federal Motor Vehicle
Safety Standards must be complete before the Agency can determine
that an adequate substitute for the use of an ozone-depleting
substance is available that is practicable for effectively meeting
these standards, as is required by section 610(d) before the
class II ban will apply to these products. Industry sources
are in some disagreement with regard to the time-frame in which
substitutes for HCFC-blown foams will be available.{14} Information
from the NHTSA indicates that NHTSA believes that the necessary
lead time for designing, testing, and producing new components
to meet Federal Motor Vehicle Safety Standard regulations is
typically 14 to 18 months, but may be up to 36 months when the
changes are major. EPA anticipates that an adequate substitute
substance, water-blown integral skin foam, will be available
by January 1, 1996, that will be practicable for effectively
meeting the relevant Federal Motor Vehicle Safety Standards
for impact protection. EPA anticipates that another adequate
substitute (HFC-134a) will be available before that date.
³ {14} Several industry representatives claimed that
³several more years of testing are necessary to ensure
³that the re-formulated components meet the Federal
Motor
³Vehicle Safety Standards, and one U.S. company recently
³indicated that water-blown integral skin foam would be
³available for these applications by model year 1995 or
³1996. However, according to one source, a number of
European
³auto manufacturers have adopted water-blown foam
already,
³although EPA does not know whether the vehicles
produced
³with this foam have been tested to determine whether
³they meet the Federal Motor Vehicle Safety Standards.
Consequently, in today's rulemaking, EPA proposes applying
the statutory ban on the sale, distribution, or offer of sale
or distribution in interstate commerce to all foam components
used in motor vehicles except those made out of integral skin
foam and those which qualify as foam insulation products as
defined in section 82.62(h) of today's NPRM, effective January
1, 1994. EPA proposes exempting integral skin foam made with
HCFCs under the provisions of section 610(d)(3)(B) from the
class II ban on plastic foam products until January 1, 1996.
At that time, the exemption for HCFC-blown integral skin foam
will expire (or ``sunset''). In addition, EPA proposes to exempt
existing inventories of integral skin products manufactured
prior to January 1, 1996.
EPA recognizes that integral skin products necessary to meet
Federal Motor Vehicle Safety Standards regulations may have
been installed in automobiles prior to January 1, 1996; however,
the automobiles may not have been sold prior to January 1, 1996.
Automobile dealerships often use cars as demonstration models,
offering the automobile for sale at a later date. Therefore,
EPA does not believe it is practical to require these cars to
be sold prior to January 1, 1996. Furthermore, there are no
proven destruction technologies for integral skin foam products.
Thus, where inventories already exist, subjecting products to
the ban will have little environmental impact, as the class
II substances have already been released or will be released
during disposal, if not released during use. In these
circumstances,
EPA believes it is appropriate to allow such products to be
put to their intended purpose prior to disposal.
EPA will revisit the sunset provision for this exemption
at a future date if the Agency receives a request from the public
for extending the exemption. If upon subsequent investigation
EPA determines that adequate substitutes will not be available
by the January 1, 1996 date, the Agency will consider extending
the exemption for an additional period of time as appropriate
to allow development of adequate substitutes.
Because of the lead time necessary to design, test, and build
automobile components, EPA has selected the sunset provision
for integral skin foam in motor vehicles to include a January
1, 1996 expiration date for this exemption. However, EPA wishes
to note that individuals or businesses that introduce motor
vehicles containing or manufactured with class II substances
into interstate commerce may be required to comply with labeling
requirements if the Administrator determines that there are
substitutes for such substances and issues applicable class
II warning label regulations in accordance with the provisions
of 40 CFR part 82 subpart E until the sunset of this exemption.
iv. Foam Used in Medical Devices. Section 610(e) states that
section 610 does not apply to any medical device as defined
in section 601(8). In the Class I Nonessential Products Ban,
all of the products identified that fit the definition of medical
devices were aerosol products or other pressurized dispensers.
It is conceivable, however, that certain foam products containing,
or produced with, class II substances might qualify as medical
devices. EPA is currently unaware of any such products, but
recently the Agency has been contacted by businesses that produce
foam cushions and wheelchair seats for disabled individuals
from foam blown with HCFCs. According to these firms, these
products are necessary to prevent disabled individuals from
developing painful bedsores, and water-blown foams that have
been tested have not proved satisfactory.
Under section 601(8), the Commissioner of the Food and Drug
Administration, in consultation with the Administrator of the
EPA, must determine that no safe and effective alternatives
to the use of class I or class II substances in this product
exist, and that such a product is essential before EPA can exclude
it from coverage under section 610 as a medical device. If,
at some time in the future, the products described above, or
some other foam product is determined by the FDA to be essential,
EPA will take appropriate action to exclude it from the class
II ban.
IV. Proposed Effective Dates
This proposed rule would make it unlawful to sell, distribute,
or offer to sell or distribute, in interstate commerce the products
specifically mentioned in 40 CFR 82.70(a), 40 CFR 82.70(b) and
40 CFR 82.70(c)(i) effective January 1, 1994. In addition, the
proposed rule would ban the sale, distribution, or offer of
sale or distribution, in interstate commerce of the products
identified in 40 CFR 82.70(c)(ii) effective January 1, 1996.
V. Summary of Supporting Analyses
A. Executive Order 12291
Executive Order (E.O.) 12291 requires the preparation of
a regulatory impact analysis for major rules, defined by the
order as those likely to result in:
(1) An annual effect on the economy of $100 million or more;
(2) A major increase in costs or prices for consumers,
individual
industries, Federal, State or local government agencies, or
geographic industries; or
(3) Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises
in domestic or export markets.
EPA has determined that this proposed regulation does not
meet the definition of a major rule under E.O. 12291 and has
therefore not prepared a formal regulatory impact analysis.
EPA has instead prepared two background documents (see references
Background Document on Foam Products Made With Class II Substances
and Background Document on Aerosol Products and Pressurized
Dispensers Containing Class II Substances in Docket A-93-20)
which include a qualitative study of the economic impact of
this proposed regulation for each product identified as
nonessential
and prohibited from sale or distribution.
EPA believes that most foam is produced by large businesses.
This is due to high entry barriers, including the need for large
capital investments. However, the class II ban affects all the
groups involved in the sale and distribution of the foam products;
therefore, other entities besides the producers, including small
businesses, are involved. In many cases, foam represents one
component of a finished product that is produced by a small
business. In addition, the finished products are often sold
by small retail business operations. EPA has done initial research
on the numbers and types of firms that manufacture and sell
foam products affected by the class II ban, and on the potential
economic impact the class II ban may have on these entities.
EPA believes that the class II ban will have no economic
impact for the manufacturers of open cell rigid polyurethane
foam, because EPA is not aware of any manufacturers of this
product that use HCFCs. The class II ban is likely to have minimal
impact on the manufacturers of flexible molded foam since EPA
believes that most have moved directly from CFCs to methylene
chloride and water formulations. Most of the production of semi-
rigid integral skin foam still relies on the use of halocarbon
blowing agents. However, the exemption for foams used to meet
automotive safety standards will significantly alleviate the
impact the ban will have on these products. EPA believes that
most other types of polyurethane foams are made with HCFCs.
EPA believes that approximately 85 to 90 percent of extruded
polystyrene sheet foam does not rely on HCFCs. Companies that
use HCFCs will be required to switch blowing agents; thus, these
companies will be impacted by the ban. EPA does not believe
the ban will have any impact on polyethylene bead foam, since
EPA believes the manufacturers of this product have already
switched to hydrocarbons. EPA is aware of at least six extruded
polyethylene manufacturers that have converted to hydrocarbons;
however, some of the other producers of extruded polyethylene
foam, not used as pipe wrap, will be significantly impacted.
EPA believes the ban will have no impact on expanded polypropylene
bead manufacturers since these manufacturers have converted
to hydrocarbons. However, the sole American producer of extruded
polypropylene may incur significant costs. Further details
concerning
the preliminary qualitative results of this research appear
in the Background Document on Foam Products Made With Class
Substances.
Many manufacturers of aerosol products could be characterized
as small businesses. EPA believes that few companies that primarily
manufacture aerosol products have more than 100 employees. However,
several facilities are actually part of larger companies that
produce a range of other products. In both cases, the entire
product line produced by the manufacturers may not consist of
products containing class II substances. Distributors and retailers
may vary considerably in size and product line. EPA has done
initial research on the numbers and types of firms that manufacture
and sell aerosol products and pressurized dispensers affected
by the class II ban, and on the potential economic impact the
class II ban may have on these entities.
EPA has examined a number of aerosol products affected by
the class II ban. This research included both products that
could meet the narrow criteria for receiving exceptions,
established
by Congress in section 610(d), and those that do not meet the
criteria. Much of the information collected by EPA is qualitative
and anecdotal in nature. Examples of these findings are discussed
below.
EPA is aware of formulations for document preservation sprays
that do not use class I or class II substances. However, at
least one major manufacturer is testing formulations using class
II substances. Therefore, the class II ban may significantly
impact this product. Many pesticide products using class II
substances will be affected by the class II ban. However, the
impacts will be reduced because of EPA's proposal to allow
manufacturers
that require federal approval for reformulation for a product
or approval of a specific substitute product to continue to
sell or distribute, or offer for sale or distribution in interstate
commerce, their existing formulations until ninety days after
receiving all appropriate federal agency approvals. The provision
will also provide relief for other products requiring approval
prior to reformulation. Manufacturers of dusters and freezants
that have continued to use HCFC formulations will be affected
by the class II ban; however, companies that have already moved
to alternatives such as carbon dioxide or HFCs will not be
affected.
Many manufacturers of defensive sprays also will be significantly
impacted by the class II ban. Further details concerning
preliminary
qualitative results of this research appears in the Background
Document on Aerosol Products and Pressurized Dispensers Containing
Class II Substances.
EPA has considered the benefits that can be attributed to
the class II ban. In order to calculate the benefits, EPA
considered
the total annual consumption of HCFCs in products that will
be banned. EPA estimates that the annual HCFC consumption in
foam products that will be banned is approximately 27.31 million
pounds. The annual HCFC consumption in aerosol products that
will be banned is approximately 11.8 million pounds. EPA attributes
all of the avoided emissions and corresponding benefits to the
class II ban. EPA believes that if the self-executing ban was
not included in the Clean Air Act Amendments the current amount
of HCFCs used in the foam and aerosol sectors would have been
greater. Furthermore, without the ban these annual emissions
actually would continue to increase, especially during the next
several years. These increases would have leveled off and only
begun to decrease as the phaseout dates for HCFCs approached
(2003-2030). EPA believes the benefits for this rule range between
$148 million and $604 million when using a 2 percent discount
rate, and between $107 million and $438 million when using a
7 percent discount rate.
EPA requests comment on the overall benefits of the class
II ban and the costs the class II ban will have on affected
businesses. In particular, EPA requests comment on the size
and diversity of the companies affected by the ban, the potential
costs associated with the class II ban, and the impact the class
II ban will have on small entities. In addition, EPA requests
comment on the cost and benefits associated with these proposed
regulations. Specifically, EPA requests comment on the offsetting
beneficial effects that the proposed exceptions, grandfathering
of existing inventories, and grandfathering for products waiting
for required federal approvals, will have on affected businesses.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires
that Federal agencies examine the impacts of their regulations
on small entities. Under 5 U.S.C. 604(a), whenever an agency
is required to publish a general notice of proposed rulemaking,
it must prepare and make available for public comment an initial
regulatory flexibility analysis (RFA). Such an analysis is not
required if the head of an agency certifies that a rule will
not have a significant economic impact on a substantial number
of small entities, pursuant to 5 U.S.C. 605(b).
EPA believes that any impact that this regulation will have
on certain small entities is unavoidable given the straightforward
nature of the statutory provision this regulation implements.
A preliminary examination of the impacts on small entities is
discussed in the background document accompanying this proposed
regulation. The background document assesses the impact this
regulation may have on small entities and provides examples
of such impacts. In general, such impacts were found to be minimal.
C. Paperwork Reduction Act
Any information collection requirements in a proposed rule
must be submitted for approval to the Office of Management and
Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501
et seq. Because no informational collection requirements are
proposed in today's action, EPA has determined that the Paperwork
Reduction Act does not apply to this proposed rulemaking and
no Information Collection Request document has been prepared.
VI. References
United Nations Environment Programme. Report of the Aerosol
Products, Sterilants, Miscellaneous Uses and Carbon Tetrachloride
Technical Options Committee (December 1991).
United Nations Environment Programme. Report of the Fourth
Meeting of the Parties to the Montreal Protocol on Substances
that Deplete the Ozone Layer (November 25, 1992).
United Nations Environment Programme. Scientific Assessment
of Ozone Depletion: 1991 (December 17, 1991).
United Nations Environment Programme. Solvents, Coatings
and Adhesives: Technical Options Committee Report (December,
1991).
United Nations Environment Programme. Third Meetings of the
Parties to the Montreal Protocol on Substances that Deplete
the Ozone Layer: UNEP/OzL.Pro.3/L.4/Add.4 (Nairobi, 19-21 June,
1991).
United Nations Environment Programme. 1991 UNEP Flexible
and Rigid Foams Technical Options Report (December 20, 1991).
United States Environmental Protection Agency. Alternative
Formulations to Reduce CFC Use in U.S. Exempted and Excluded
Aerosol Products (November 1989).
United States Environmental Protection Agency. Background
Document on Aerosol and Pressurized Dispenser Products Containing
Class II Substances (March 1993).
United States Environmental Protection Agency. Background
Document on Identification of Nonessential Products that Release
Class I Substances (November 1992).
United States Environmental Protection Agency. Essential
Use Determination-Revised: Support Document Fully Halogenated
Chlorofluoroalkanes (March 17, 1978).
United States Environmental Protection Agency. Handbook for
Reducing and Eliminating Chlorofluorocarbons in Flexible
Polyurethane
Foams (April 1991).
United States Environmental Protection Agency. Manual of
Practices to Reduce and Eliminate CFC-113 Use in the Electronics
Industry (March, 1990).
United States Environmental Protection Agency. Response to
Comments for Proposed Rule on Nonessential Products Made with
Class I Substances (October 30, 1992).
List of Subjects in 40 CFR Part 82
Administrative practice and procedure, Air pollution control,
Chemicals, Chlorofluorocarbons, Exports, Hydrochlorofluorocarbons,
Imports, Interstate commerce, Nonessential products, Reporting
and recordkeeping requirements, Stratospheric ozone layer.
Dated: September 9, 1993.
Carol M. Browner,
Administrator.
40 CFR part 82 is proposed to be amended as follows:
PART 82-PROTECTION OF STRATOSPHERIC OZONE
1. The authority citation for part 82 continues to read as
follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671(q).
2. Subpart C is revised to read as follows:
Subpart C-Ban on Nonessential Products Containing Class I
Substances
and Ban on Nonessential Products Containing or Manufactured
With Class II Substances
Sec.
82.60 Purpose.
82.62 Definitions.
82.64 Prohibitions.
82.65 Temporary exemptions.
82.66 Nonessential Class I products and exceptions.
82.68 Verification and public notice requirements.
82.70 Nonessential Class II products and exceptions.
Subpart C-Ban on Nonessential Products Containing Class I
Substances
and Ban on Nonessential Products Containing or Manufactured
With Class II Substances
. 82.60 Purpose.
The purpose of this subpart is to implement the requirements
of sections 608 and 610 of the Clean Air Act Amendments of 1990
on emission reductions and nonessential products.
. 82.62 Definitions.
For purposes of this subpart:
(a) Chlorofluorocarbon means any substance listed as Class
I group I or Class I group III in part 82, appendix A to subpart
A.
(b) Commercial, when used to describe the purchaser of a
product, means a person that has one of the following
identification
numbers:
(1) A federal employer identification number;
(2) A state sales tax exemption number;
(3) A local business license number; and
(4) A government contract number;
and that uses the product in the purchaser's business or sells
it to another person.
(c) Consumer, when used to describe a person taking action
with regard to a product, means the ultimate purchaser, recipient
or user of a product.
(d) Distributor, when used to describe a person taking action
with regard to a product means:
(1) The seller of a product to a consumer or another
distributor;
or
(2) A person who sells or distributes that product in commerce
for export from the United States.
(e) Product means an item or category of items manufactured
from raw or recycled materials which is used to perform a function
or task.
(f) Release means to emit into the environment during the
manufacture, use, storage or disposal of a product.
(g) Class II Substance means any substance designated as
class II in part 82, appendix A to subpart A.
(h) Foam Insulation Product, when used to describe a product
containing or consisting of plastic foam, means a product
containing
or consisting of the following types of foam:
(1) Closed cell rigid polyurethane foam;
(2) Closed cell rigid polystyrene boardstock foam;
(3) Closed cell rigid phenolic foam; and
(4) Closed cell rigid polyethylene foam when such foam is
used in a product that provides thermal insulation around pipes
used in heating, plumbing, refrigeration, or industrial process
systems.
(i) Hydrochlorofluorocarbon means any substance listed as
Class II in part 82, appendix A to subpart A.
. 82.64 Prohibitions.
(a) Effective February 16, 1993, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products identified as being nonessential in . 82.66(a).
(b) Effective February 16, 1993, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products specified in . 82.66(b) to a person who does not
provide proof of being a commercial purchaser, as defined under
. 82.62.
(c) Effective January 17, 1994, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products identified as being nonessential in . 82.66(c)
or . 82.66(d).
(d) Except as allowed under . 82.65, effective January 1,
1994 no person may sell or distribute, or offer for sale or
distribution, in interstate commerce any product identified
as being nonessential in . 82.70(a) or . 82.70(c).
(e) Except as allowed under . 82.65, effective January 1,
1994, no person may sell or distribute, or offer to sell or
distribute, in interstate commerce any of the products specified
in . 82.70(b) to a person who does not provide proof of being
a commercial purchaser, as defined under . 82.62.
(f) Effective January 1, 1996, no person may sell or distribute,
or offer for sale or distribution, in interstate commerce any
product identified as being nonessential in . 82.70(c)(ii).
. 82.65 Temporary exemptions.
(a) Notwithstanding . 82.64 (d) and (e), any person may sell
or distribute, or offer to sell or distribute, in interstate
commerce, at any time, any products specified in . 82.70 which
are manufactured and placed into initial inventory by December
27, 1993.
(b) Notwithstanding . 82.64 (d) and (e) and . 82.65(c), any
person may sell or distribute, or offer to sell or distribute,
in interstate commerce, at any time, any products specified
in . 82.70 which are manufactured and placed into initial inventory
by the date 90 days after the effective date of any federal
approvals required for product reformulation, where application
for the required approval was properly submitted to the approving
federal agency prior to January 1, 1994.
(c) Notwithstanding . 82.64 (d) and (e), any person may sell
or distribute or offer to sell or distribute, in interstate
commerce, at any time, any products specified in . 82.70 which
are manufactured and placed into initial inventory by the date
30 days after the receipt of denial by any federal agency to
which application for reformulation was made in accordance with
. 82.65(b).
(d) Notwithstanding . 82.64 (d) and (e), any person may sell
or distribute, or offer to sell or distribute, in interstate
commerce, at any time, any integral skin foam utilized to provide
for motor vehicle safety in accordance with Federal Motor Vehicle
Safety Standards, in accordance with . 82.70(c)(2)(ii) which
are manufactured and placed into initial inventory prior to
January 1, 1996.
(e) Any person selling or distributing, or offering to sell
or distribute, any product specified in this section after January
1, 1994, must retain proof that such product was manufactured
and placed into initial inventory before the relevant date
specified
in this section. Such proof may take the form of shipping forms,
lot numbers, manufacturer date stamps, invoices or equivalent
business records.
. 82.66 Nonessential Class I products and exceptions.
The following products which release a Class I substance
(as defined in part 82, appendix A to subpart A) are identified
as being nonessential, and subject to the prohibitions specified
under . 82.64-
(a) Any plastic party streamer or noise horn which is propelled
by a chlorofluorocarbon, including but not limited to-
(1) String confetti;
(2) Marine safety horns;
(3) Sporting event horns;
(4) Personal safety horns;
(5) Wall-mounted alarms used in factories or other work areas;
and
(6) Intruder alarms used in homes or cars.
(b) Any cleaning fluid for electronic and photographic equipment
which contains a chlorofluorocarbon:
(1) Including but not limited to liquid packaging, solvent
wipes, solvent sprays, and gas sprays; and
(2) Except for those sold or distributed to a commercial
purchaser.
(c) Any plastic flexible or packaging foam product which
is manufactured with or contains a chlorofluorocarbon;
(1) Including but not limited to:
(i) Open cell polyurethane flexible slabstock foam;
(ii) Open cell polyurethane flexible molded foam;
(iii) Open cell rigid polyurethane poured foam;
(iv) Closed cell extruded polystyrene sheet foam;
(v) Closed cell polyethylene foam; and
(vi) Closed cell polypropylene foam.
(2) Except-flexible or packaging foam used in coaxial cable.
(d) Any aerosol product or other pressurized dispenser, other
than those banned in . 82.64(a) or . 82.64(b), which contains
a chlorofluorocarbon,
(1) including but not limited to household, industrial,
automotive
and pesticide uses,
(2) except-
(i) Medical devices listed in 21 CFR 2.125(e);
(ii) Lubricants for pharmaceutical and tablet manufacture;
(iii) Gauze bandage adhesives and adhesive removers;
(iv) Topical anesthetic and vapocoolant products;
(v) Lubricants, coatings or cleaning fluids for electrical
or electronic equipment, which contain CFC-11, CFC-12, or CFC-
113 for solvent purposes, but which contain no other CFCs;
(vi) Lubricants, coatings or cleaning fluids used for aircraft
maintenance, which contain CFC-11 or CFC-113, but which contain
no other CFCs;
(vii) Mold release agents used in the production of plastic
and elastomeric materials, which contain CFC-11 or CFC-113,
but which contain no other CFCs;
(viii) Spinnerette lubricant/cleaning sprays used in the
production of synthetic fibers, which contain CFC-114, but which
contain no other CFCs;
(ix) Containers of CFCs used as halogen ion sources in plasma
etching; (x) Document preservation sprays which contain CFC-
113, but which contain no other CFCs; and
(xi) Red pepper bear repellent sprays which contain CFC-113,
but which contain no other CFCs.
. 82.68 Verification and public notice requirements.
(a) Effective February 16, 1993, any person who sells or
distributes any cleaning fluid for electronic and photographic
equipment which contains a chlorofluorocarbon must verify that
the purchaser is a commercial entity as defined in . 82.62.
In order to verify that the purchaser is a commercial entity,
the person who sells or distributes this product must be presented
with documentation that proves the purchaser's commercial status
by containing one or more of the commercial identification numbers
specified in . 82.62. The seller or distributor must have a
reasonable basis for believing that the information presented
by the purchaser is accurate.
(b) Effective February 16, 1993, any person who sells or
distributes any cleaning fluid for electronic and photographic
equipment which contains a chlorofluorocarbon must prominently
display a sign where sales of such product occur which states:
``It is a violation of federal law to sell, distribute, or offer
to sell or distribute, any chlorofluorocarbon-containing cleaning
fluid for electronic and photographic equipment to anyone who
is not a commercial user of this product. The penalty for violating
this prohibition can be up to $25,000 per sale. Individuals
purchasing such products must present proof of their commercial
status in accordance with . 82.68(a).''
(c) Effective January 1, 1994, any person who sells or
distributes
any aerosol or pressurized dispenser cleaning fluid for electronic
and photographic equipment which contains a class II substance
must verify that the purchaser is a commercial entity as defined
in . 82.62(b). In order to verify that the purchaser is a
commercial
entity, the person who sells or distributes this product must
be presented with documentation that proves the purchaser's
commercial status by containing one or more of the commercial
identification numbers specified in . 82.62(b). The seller or
distributor must have a reasonable basis for believing that
the information presented by the purchaser is accurate.
(d) Effective January 1, 1994, any person who sells or
distributes
any aerosol or other pressurized dispenser cleaning fluid for
electronic and photographic equipment which contains a class
II substance must prominently display a sign where sales of
such product occur which states: ``It is a violation of federal
law to sell, distribute, or offer to sell or distribute, any
aerosol hydrochlorofluorocarbon-containing cleaning fluid for
electronic and photographic equipment to anyone who is not a
commercial user of this product. The penalty for violating this
prohibition can be up to $25,000 per sale. Individuals purchasing
such products must present proof of their commercial status
in accordance with . 82.68(c).''
(e) Effective January 1, 1994, in order to satisfy the
requirements
under . 82.68 (b) and (d), any person who sells or distributes
cleaning fluids for electronic and photographic equipment which
contain a class I substance and those aerosol cleaning fluids
which contain a class II substance, may prominently display
one sign where sales of such products occur which states: ``It
is a violation of federal law to sell, distribute, or offer
to sell or distribute, any chlorofluorocarbon-containing or
aerosol hydrochlorofluorocarbon-containing cleaning fluid for
electronic and photographic equipment to anyone who is not a
commercial user of this product. The penalty for violating this
prohibition can be up to $25,000 per sale. Individuals purchasing
such products must present proof of their commercial status
in accordance with 40 CFR 82.68(a) or 82.68(c).''
. 82.70 Nonessential Class II products and exceptions.
The following products which release a class II substance
(as designated as class II in part 82, appendix A to subpart
A) are identified as being nonessential and the sale or
distribution
of such products is prohibited under section 82.64(b)-
(a) Any aerosol product or other pressurized dispenser which
contains a class II substance:
(1) Including but not limited to household, industrial,
automotive
and pesticide uses;
(2) Except-
(i) Medical devices listed in 21 CFR 2.125(e);
(ii) Lubricants, coatings or cleaning fluids for electrical
or electronic equipment, which contain class II substances for
solvent purposes, but which contain no other class II substances;
(iii) Lubricants, coatings or cleaning fluids used for aircraft
maintenance, which contain class II substances for solvent purposes
but which contain no other class II substances;
(iv) Mold release agents used in the production of plastic
and elastomeric materials, which contain class II substances
for solvent purposes but which contain no other class II
substances;
and
(v) Spinnerette lubricants/cleaning sprays used in the
production
of synthetic fibers, which contain class II substances for solvent
purposes but which contain no other class II substances.
(b) Any aerosol or pressurized dispenser cleaning fluid for
electronic and photographic equipment which contains a class
II substance, except for those sold or distributed to a commercial
purchaser for solvent purposes only.
(c) Any plastic foam product which contains, or is manufactured
with, a class II substance, (1) including but not limited to
household, industrial, automotive and pesticide uses, (2) except-
(i) Any foam insulation product, as defined in . 82.62(h);
and
(ii) Integral skin foam utilized to provide for motor vehicle
safety in accordance with Federal Motor Vehicle Safety Standards
which exception shall sunset January 1, 1996.
[FR Doc. 93-23395 Filed 9-22-93; 8:49 am]
BILLING CODE 6560-50-P
The Contents entry for this article reads as follows:
Air programs:
Stratospheric ozone protection-
Class II ozone-depleting substances; nonessential products ban,
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