Protection of Stratospheric Ozone; Listing of Substitutes for
Ozone-Depleting Substances
Related Material
[Federal Register: July 11, 2000 (Volume 65, Number 133)]
[Proposed Rules]
[Page 42653-42662]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy00-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-6729-5]
RIN 2060-AG12
Protection of Stratospheric Ozone; Listing of Substitutes for
Ozone-Depleting Substances
AGENCY: Environmental Protection Agency.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This action proposes to impose restrictions or prohibitions on
substitutes for ozone-depleting substances (ODSs) under the
Environmental Protection Agency's (EPA) Significant New Alternatives
Policy (SNAP) program. SNAP implements section 612 of the Clean Air
Act, as amended in 1990, which requires EPA to evaluate substitutes for
ODSs to reduce overall risk to human health and the environment.
Through these evaluations, SNAP generates lists of acceptable and
unacceptable substitutes for each of the major industrial use sectors.
The intended effect of the SNAP program is to expedite movement away
from ozone-depleting compounds while avoiding a shift into substitutes
posing other environmental problems.
DATES: Written comments or data provided in response to this document
must be submitted by September 11, 2000. A public hearing will be held
if requested in writing. If a public hearing is requested, EPA will
provide notice of the date, time and location of the hearing in a
subsequent Federal Register document.
ADDRESSES: Written comments and data should be sent to Docket A-2000-
18, U.S. Environmental Protection Agency, OAR Docket and Information
Center, 401 M Street, SW, Room M-1500, Mail Code 6102, Washington, DC
20460. The docket may be inspected between 8 a.m. and 5:30 p.m. on
weekdays. Telephone (202) 260-7548; fax (202) 260-4400. As provided in
40 CFR part 2, a reasonable fee may be charged for photocopying. To
expedite review, a second copy of the comments should be sent to Anhar
Karimjee at the address listed below under FOR FURTHER INFORMATION.
Information designated as Confidential Business Information (CBI) under
40 CFR part 2, subpart 2, must be sent directly to the contact person
for this notice. However, the Agency is requesting that all respondents
submit a non-confidential version of their comments to the docket as
well.
FOR FURTHER INFORMATION CONTACT: Anhar Karimjee at phone: (202) 564-
2683, fax: (202) 565-2095 or e-mail: karimjee.anhar@epa.gov, U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Mail
Code 6205J, Washington, DC 20460. Overnight or courier deliveries
should be sent to the office location at 501 3rd Street, NW,
Washington, DC, 20001. The Stratospheric Protection Hotline can be
reached at (800) 296-1996 and additional information can be found at
EPA's Ozone Depletion World Wide Web site at ``http://www.epa.gov/
ozone/title6/snap/''.
SUPPLEMENTARY INFORMATION: On March 18, 1994, EPA promulgated a
rulemaking setting forth its plan for administering the SNAP program
(59 FR 13044), and has since issued decisions on the acceptability and
unacceptability of a number of substitutes. Today's proposal presents
EPA's response to a SNAP submission received in February 1999,
requesting review of the following foam blowing agents as substitutes
for HCFC-141b: HFC-134a; HCFC-22; HCFC-142b; HCFC-124; and a HCFC-22/
142b blend. This proposal also addresses use of HCFC-22 and HCFC-142b
as foam blowing agents. In this Notice of Proposed Rulemaking, EPA is
proposing the following decisions on the acceptability of substitutes
in the foams sector:
To list HCFC-141b and blends thereof as unacceptable as substitutes
in all foam end-uses. Current HCFC-141b use would be grandfathered
(i.e., allowed to continue) until January 1, 2005. To list HCFC-22,
HCFC-142b, and blends thereof as unacceptable as substitutes in all
foam end-uses. Current HCFC-22/-142b use would be grandfathered until
January 1, 2005.
To list HCFC-124 as unacceptable as a substitute in all foam end-
uses. EPA is not proposing to grandfather the use of HCFC-124 because
it has not been previously listed as an acceptable foam blowing agent.
No further action is proposed on the SNAP submission request for review
of HFC-134a. EPA previously listed HFC-134a as an acceptable substitute
for HCFC 141b (64 FR 63558).
[[Page 42654]]
Outline
I. Background
A. Significant New Alternatives Policy (SNAP) Program
B. SNAP Submissions and Listing Decisions
C. Hydrochlorofluorocarbon (HCFC) Phase-out
D. HCFC-141b Phase-out
E. Significant New Alternatives Policy (SNAP) Foams Sector
F. Submission Addressed in Today's Proposal
II. Proposed Significant New Alternatives Policy (SNAP) Listing
Decisions
III. Q's and A's on Today's Proposed Listing Decisions
IV. Economic Impact
V. Administrative Requirements
I. Background
A. Significant New Alternatives Policy (SNAP) Program
On March 18, 1994, EPA published a rulemaking (59 FR 13044) that
described the process for administering the SNAP program and issued
EPA's first lists of acceptable and unacceptable substitutes for end-
uses that historically had been dominated by ozone-depleting substances
(ODSs). The Agency defines a ``substitute'' as any chemical, product
substitute, or alternative manufacturing process, whether existing or
new, intended for use as a replacement for a class I or class II
substance (40 CFR 82.172). EPA's SNAP regulations define ``use'' as any
use of a substitute for a class I or class II ozone-depleting compound,
including but not limited to use in a manufacturing process or product,
in consumption by the end-user, or in intermediate uses, such as
formulation or packaging for other subsequent uses (40 CFR 82.172). The
requirements of the SNAP program include:
Rulemaking--Section 612 of the CAA requires EPA to
promulgate rules making it unlawful to replace any class I
(chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform,
methyl bromide, and hydrobromofluorocarbon) or class II
(hydrochlorofluorocarbon) substance with any substitute that the
Administrator determines may present adverse effects to human health or
the environment where the Administrator has identified an alternative
that (1) Reduces the overall risk to human health and the environment,
and (2) is currently or potentially available.
Listing of Unacceptable/Acceptable Substitutes--EPA must
publish a list of the substitutes unacceptable for specific uses and a
corresponding list of acceptable alternatives for specific uses.
Petition Process--Any person has the right to petition EPA
to add a substitute or delete a substitute from the lists published
under SNAP. The Agency has 90 days to grant or deny a petition. Where
the Agency grants the petition, EPA must publish the revised lists
within an additional six months.
90-day Notification--EPA requires any person who produces
a new chemical substitute to notify the Agency at least 90 days before
new or existing chemicals are introduced into interstate commerce for
significant new uses as substitutes. The producer must also provide the
Agency with the producer's health and safety studies on such
substitutes.
Outreach--EPA must seek to maximize the use of federal
research facilities and resources to assist users of class I and II
substances in identifying and developing alternatives to the use of
such substances in key commercial applications.
Clearinghouse--The Agency has set up a public
clearinghouse (Docket A-91-42) of alternative chemicals, product
substitutes, and alternative manufacturing processes that are available
for products and manufacturing processes which use class I and II
substances. For more information on how to contact this clearinghouse,
please contact the Air Docket with the information in the ADDRESSES
section of this document.
SNAP sectors include: Refrigeration and air conditioning; foam
blowing; solvents cleaning; fire suppression and explosion protection;
sterilants; aerosols; adhesives, coatings, and inks; and tobacco
expansion. These sectors comprise the principal industrial sectors that
historically consumed large volumes of ozone-depleting substances.
Anyone who produces a new substitute must provide the Agency with
health and safety studies on the substitute at least 90 days before
introducing it into interstate commerce for significant new use as an
alternative. This requirement applies to chemical manufacturers of
substitutes, but may also include importers, formulators, or end-users
when they are responsible for introducing a substitute into commerce.
Any individual who uses a substitute in end-uses within any of the
major industrial sectors listed above is subject to SNAP lists.
For copies of all of the current SNAP lists or additional
information on SNAP, contact the Stratospheric Protection Hotline at
(800) 296-1996, Monday-Friday, between the hours of 10 a.m. and 4 p.m.
(EST). You may also contact the Air Docket and Information Center, 401
M Street, SW, Room M-1500, Mail Code 6102, Washington, DC 20460. The
docket, which is the administrative record for EPA's SNAP regulations,
may be inspected between 8 a.m. and 5:30 p.m. on weekdays. Telephone
(202) 260-7548; fax (202) 260-4400. As provided in 40 CFR part 2, a
reasonable fee may be charged for photocopying. For more information on
the Agency's process for administering the SNAP program or criteria for
evaluation of substitutes, refer to the rulemaking published in the
Federal Register on March 18, 1994 (59 FR 13044). This, and subsequent
notices and rulemakings under the SNAP program, as well as EPA
publications on protection of stratospheric ozone, are available from
EPA's Ozone Depletion World Wide Web site at ``http://www.epa.gov/
ozone/title6/snap/'' and from the Stratospheric Protection Hotline
number listed above.
B. SNAP Submissions and Listing Decisions
The SNAP program receives submissions requesting EPA to review
alternatives to CFCs and HCFCs for use in various applications. The 90-
day review period begins when EPA receives a submission and determines
that it includes all of the necessary information. As outlined in 40
CFR 82.180(a)(7), EPA considers the following factors when reviewing a
submission:
(1) Atmospheric effects and related health and environmental
impacts;
(2) General population risks from ambient exposure to compounds
with direct toxicity and to increased ground level ozone;
(3) Ecosystem risks;
(4) Occupational risks;
(5) Consumer risks;
(6) Flammability; and
(7) Cost and availability of the substitute.
At the conclusion of the 90-day period, EPA makes a determination
on the acceptability of the alternative. Under Section 612 of the CAA,
the Agency has considerable discretion in the risk management decisions
it can make in SNAP. In the SNAP rule, the Agency identified the
following possible decision categories (40 CFR 82.180(b); see also 59
FR 13062 Decision-Making Framework):
1. Acceptable: Fully acceptable substitutes, i.e., those with no
restrictions, can be used for all applications within the relevant
sector end-use;
2. Unacceptable: It is illegal to replace an ozone depleting
substance with a substitute within an end-use for which the substitute
is listed by SNAP as unacceptable;
3. Acceptable subject to use conditions: To minimize risk to human
[[Page 42655]]
health and/or the environment, the Agency may make a determination that
a substitute is acceptable only if certain conditions of use are met.
Use of such substitutes without meeting specified use conditions
renders these substitutes unacceptable and subjects the user to
enforcement for violation of section 612 of the CAA;
4. Acceptable subject to narrowed use limits: Applied when the
Agency determines a need to restrict the use of a substitute based on
the potential for adverse effects, while permitting a narrowed range of
use because of the lack of alternatives for specialized applications.
Users intending to adopt a substitute that is acceptable with narrowed
use limits must ascertain that other acceptable alternatives are not
technically feasible. Companies must document the results of their
evaluation, and retain the results on file for the purpose of
demonstrating compliance. This documentation shall include descriptions
of substitutes examined and rejected, processes or products in which
the substitute is needed, reason for rejection of other alternatives
(e.g., performance, technical or safety standards), and the anticipated
date other substitutes will be available and projected time for
switching to other available substitutes. Use of such substitutes
without meeting specific narrowed use limits subjects the user to
enforcement for violation of section 612 of the CAA;
5. Pending: Used for substitutes for which the Agency has not
received complete data or has not completed its review of the data.
As described in the final rule for the SNAP program, EPA believes
that notice-and-comment rulemaking is required to place any alternative
on the list of prohibited substitutes, to list a substitute as
acceptable only under certain use conditions or narrowed use limits, or
to remove an alternative from either the list of prohibited or
acceptable substitutes (50 FR 13044, 13047). EPA does not believe that
notice-and-comment rulemaking procedures are required to list
alternatives as acceptable with no restrictions. Such listings do not
impose any sanction, nor do they remove any prior license to use a
substitute. Consequently, EPA adds substitutes to the list of
acceptable alternatives without first requesting comment on new
listings. Updates to the acceptable lists are published as separate
Notices of Acceptability in the Federal Register.
If EPA does not make a decision within 90 days of receipt of a
complete submission, the substitute(s) can be legally used in the end-
use for which they were submitted. EPA can subsequently list the
substitute(s) as unacceptable making them illegal for use in specific
end-uses. If EPA ultimately determines that the substitute is
unacceptable, any company that switched to the alternative after the
90-day period expired must stop using that alternative at the time
EPA's unacceptability decision takes effect.
C. Hydrochlorofluorocarbon (HCFC) Phase-Out
The Montreal Protocol on Substances that Deplete the Ozone Layer
(``the Montreal Protocol'' or ``the Protocol'') is an international
treaty established in 1987 which aims to reduce the harmful effects of
man-made ozone-depleting substances. The Protocol has been signed by
more than 160 countries, all of whom have agreed to limit or eliminate
their production and/or consumption of ozone-depleting substances in a
stepwise fashion over time, according to the terms of the treaty and
its amendments. The U.S. has adopted the Montreal Protocol and must at
a minimum comply with its phase-out schedules and other requirements.
During their second meeting in London in 1990, the countries that
are Parties to the Montreal Protocol identified HCFCs as transitional
substitutes for chlorofluorocarbons (CFCs) and other more destructive
ozone-depleting substances, but agreed to phase out HCFCs because of
their significant potential to destroy stratospheric ozone as well.
Recognizing the impact this phase-out would have on manufacturers and
users of HCFCs, the Protocol provides for a gradual reduction in the
consumption of HCFCs and eventual phase-out in developed countries by
2030. (A more extended schedule was agreed upon for developing
countries, with a complete HCFC consumption phase-out by 2040.)
Beginning in 1996, production of HCFCs in developed countries was
capped at the 1989 HCFC production level, plus 2.8% of the 1989 CFC
production level. Using the cap as a baseline, the U.S. consumption of
HCFCs must be reduced by the following amounts and dates:
-35% by 2004
-65% by 2010
-90% by 2015
-99.5% by 2020
-100% by 2030
The phase-out of HCFCs in the U.S. is implemented through
regulations published under the authority of the Clean Air Act (CAA)
(40 CFR 82 Subpart A). The CAA, as amended in 1990, established a U.S.
consumption phase-out schedule for HCFCs and required EPA to promulgate
regulations to implement, and if necessary, accelerate the phase-out to
conform to the Montreal Protocol requirements. The phase-out schedule
for HCFCs, established in rulemaking promulgated on December 16, 1993,
is on a chemical-by-chemical basis, beginning with those with the
highest ozone depletion potential (ODP), as outlined below. [Note:
Consumption means the amount of a substance produced in the U.S., plus
the amount imported, minus the amount exported (CAA, Title VI,
Sec. 601)].
(1) In light of the 35% reduction in HCFC consumption required by
the Montreal Protocol by 2004, production and import of HCFC-141b will
be banned in the U.S. as of January 1, 2003. Under the U.S. consumption
phase-out schedule, HCFC-141b is being phased out first because it has
the highest ODP of any commonly used HCFC. Petitions received from a
number of environmental organizations and industry groups prior to the
EPA's December 10, 1993 rulemaking (58 FR 65018) supported the decision
to make ODP the key factor in establishing this phase-out schedule. In
addition, the formula established by the Montreal Protocol to determine
the cap on HCFC consumption weights HCFCs according to their ODP.
Phasing out the HCFCs with the highest ODPs yields the greatest
environmental benefit, while helping the U.S. meet the phase-out
schedule and still allowing the use of other HCFCs in areas where
suitable ozone-safe alternatives are not yet available.
(2) Effective January 1, 2010, in light of the 65% reduction in
HCFC consumption required by the Montreal Protocol that year,
production and import of HCFC-142b and HCFC-22 will be prohibited,
except for use in equipment manufactured prior to January 1, 2010.
HCFC-142b and HCFC-22 are being phased out before other HCFCs because
they have high ODPs relative to other HCFCs (other than HCFC-141b).
Together with HCFC-141b, these are the HCFCs that cause the most damage
to the stratospheric ozone layer.
(3) Beginning in 2015, in light of the 90% reduction in HCFC
consumption required by the Montreal Protocol that year, production and
import of the remaining HCFCs will be prohibited beginning January 1,
2015, except for feedstocks or for use as a refrigerant in equipment
manufactured before January 1, 2020.
(4) Beginning in 2020, in light of the 99.5% reduction in HCFC
consumption required by the Montreal Protocol that year, the exemption
for use of HCFC-
[[Page 42656]]
142b and HCFC-22 in equipment produced prior to 2010 will end, and all
production and consumption of these two HCFCs will be phased out.
(5) All HCFCs will be completely phased out by January 1, 2030. The
Montreal Protocol and CAA allow limited production of HCFCs after the
January 1, 2030 phase-out for export to developing countries to meet
their basic domestic needs.
In addition to a cap on HCFC consumption, the Parties to the
Montreal Protocol agreed at their 1999 meeting in Beijing, China to
require a cap on HCFC production. According to the formula established
in the Beijing amendment to the Protocol, the annual cap on production
in the U.S. will be the average of: the sum of 2.8% of our 1989 CFC
consumption plus 100% of our 1989 HCFC consumption, and the sum of 2.8%
of our 1989 CFC production plus 100% of our 1989 HCFC production.
According to this formula, annual production of HCFCs in the U.S. will
be capped at 15,537 metric tons beginning in 2004. Pursuant to Section
614 (b) of the CAA, on April 5, 1999, EPA published an Advance Notice
of Proposed Rulemaking (64 FR 16373) regarding a proposed system of
transferable allowances to produce and consume HCFCs. This system would
supplement the chemical-specific phase-out and ensure that the U.S.
does not exceed its consumption cap.
D. HCFC-141b Phase-Out
As noted above, production and import of HCFC-141b will be banned
in the U.S. as of January 1, 2003. The phase-out related restrictions
on HCFC-141b in the U.S. focus on consumption and do not include use.
The Montreal Protocol does not restrict the use of HCFCs. Section 605
of the CAA does contain use restrictions on HCFCs, but they are not
effective until 2015. Therefore, neither the international nor domestic
phase-out requirements would limit the use of HCFC-141b stockpiles
between 2003 and 2015. Both manufacturers and users can stockpile for
future use, to the extent use will be permitted under the CAA and its
implementing regulations. It is important to note, however, that EPA
previously determined that HCFC-141b is not acceptable as a substitute
cleaning solvent for CFC-113 or methyl chloroform. These determinations
were based on the availability of zero-ODP alternatives in these
applications. In today's action, EPA is proposing that the use of HCFC-
141b as a foam blowing agent in any end-use would be illegal after
January 1, 2005. See below for current information on HCFC-141b and the
limits or conditions on its use.
As stated above, the HCFC-141b phase-out refers to consumption of
HCFC-141b only. The phase-out does not affect imports of products
containing HCFC-141b. Under Section 610 of the CAA, EPA has the
authority to prevent interstate sale and distribution of certain
products containing or manufactured with ozone-depleting substances.
However, insulating foams, as defined in 40 CFR 82 subpart C, are
specifically exempt from regulation under Section 610. Title VI of the
Act thus does not provide EPA with the authority to prevent imports of
products containing these foams.
E. Significant New Alternatives Policy (SNAP) Foams Sector
Class I substances, such as chlorofluorocarbon (CFC) -11, -12, -
113, -114 and methyl chloroform, were the substances most widely used
in foam sector end-uses at the time of the CAA Amendments of 1990 and
EPA's original SNAP rule in March 1994. CFC-11 and -113, liquids at
room temperature, were historically used in polyurethane and phenolic
foams. CFC-12 and -114, gases at room temperature, were historically
used in polyolefin and polystyrene foams. Methyl chloroform was used in
some flexible polyurethane foams.
A major goal of the SNAP program is to facilitate the transition
away from ozone-depleting substances. To encourage this transition, EPA
has taken a stepwise approach to approving CFC and HCFC substitutes. In
the original SNAP ruling, EPA created a list of acceptable substitutes
for CFCs, which were common foam blowing agents at that time. The list
of acceptable substitutes for CFCs includes: Hydrochlorofluorocarbon
(HCFC) -123, -141b,--142b, -22; formic acid; saturated light
hydrocarbons C3-C6; hydrofluorocarbon (HFC) -134a,--152a, -143a; 2-
chloropropane; Electroset Technology; carbon dioxide; vacuum panels;
methylene chloride; acetone; AB Technology; and various blends.
EPA listed HCFCs as acceptable replacements for CFCs because the
Agency felt that HCFCs provided a bridge to ozone-friendly
alternatives. Since then, HCFC-141b, -22 and -142b have become the most
common foam blowing agents and consequently, the Agency has identified
several new alternatives as substitutes for HCFCs in a second list.
SNAP acceptable alternatives to HCFCs include: water; carbon dioxide;
HFC-134a, -152a, -245fa; saturated light hydrocarbons C3-C6; formic
acid; and acetone. All of these alternatives have no ozone depleting
potential and are available and several companies are using them or
plan to use them in the near future (before 2003) in various end-uses
such as polyurethane boardstock and appliance foam.
Because CFCs are no longer used as foam blowing agents in the U.S.,
EPA plans to evaluate the current list of acceptable substitutes for
CFC foam blowing agents to determine if there are alternatives on that
list that are also acceptable HCFC substitutes. This re-evaluation
would eventually result in one list of acceptable substitutes in the
foam sector which all users would be subject to. EPA believes that a
unified list would minimize confusion and economic disparities among
regulated entities. Current users may switch from one acceptable
substitute to another without notifying EPA. If, however, a user would
like to use something that is not currently listed to replace an ODS,
even if this new substance is a non-ODS, the manufacturer must notify
EPA. This allows EPA to evaluate the risks of new substitutes and
assists in our responsibility to maintain a clearinghouse of current
information on environmentally superior alternatives to ozone-depleting
compounds.
Lists of the substitutes along with their approval dates and
Federal Register citations can be obtained through the Air Docket (A-
2000-18). EPA has placed a complete list of acceptable alternatives for
specific end-uses in the foams sector on the internet at http://
www.epa.gov/ozone/title6/snap.
F. Submission Addressed in Today's Proposal
The submission addressed in today's proposal was sent to EPA on
February 17, 1999 and requests review of the following foam blowing
agents as substitutes for HCFC-141b: (1) HFC-134a; (2) HCFC-22; (3)
HCFC-142b; (4) HCFC-124; and (5) a HCFC-22/142b blend. HFC-134a was
approved as a substitute for HCFC-141b in a Federal Register Notice
published on June 8, 1999 (64 FR 63558). Therefore, HFC-134a is not
discussed in this proposal. The Agency is also proposing SNAP listing
decisions for HCFC-141b, -22, and -142b as foam blowing agents. These
decisions are based on the availability of zero-ODP alternatives. EPA
believes that including them in this proposal would effect a balanced
and smooth transition across the entire insulating foams sector. EPA
previously reviewed all of the chemicals in the submission, either as
CFC substitutes in the foam sector or in other SNAP
[[Page 42657]]
sectors. Therefore, the submitter was not required to re-submit
information on these chemicals. Instead, they sent a letter to EPA
outlining their request along with a Material Safety Data Sheet for a
142b/22 blend and a technical data sheet discussing flammability of the
blend. The submission provided EPA with sufficient information to
consider the request. You can obtain a copy of the submission (A-2000-
18) from EPA's Air Docket located at 401 M Street, SW, Room M-1500,
Washington, DC 20460. The docket may be inspected between 8 a.m. and
5:30 p.m. on weekdays. Telephone (202) 260-7548; fax (202) 260-4400. A
reasonable fee may be charged for photocopying.
II. Proposed Significant New Alternatives Policy (SNAP) Listing
Decisions
A. Unacceptable Substitutes
(1) HCFC-141b and Blends Thereof
HCFC-141b and blends thereof are proposed as unacceptable as
substitutes in all foam end-uses. This listing would be effective 30
days following publication of a final action in the Federal Register.
However, EPA is proposing that existing users would be grandfathered
(i.e., allowed to continue their use) until January 1, 2005. In this
context, existing users are those using HCFC-141b in foam applications
on the date of publication of a final action in the Federal Register.
EPA is proposing to grandfather existing uses of HCFC-141b from
prohibition under the four-part test established in Sierra Club v. EPA
(719 F.2d 436 (DC Cir. 1983)) and discussed in Section VI.B. of EPA's
original SNAP rule (59 FR 13044) published on March 18, 1994. As
discussed in Section III, below, the Agency reviewed the considerations
outlined in Sierra Club v. EPA and believes that this grandfathering
period is appropriate.
The basis for EPA's proposed determination to list HCFC-141b as
unacceptable is that HCFC-141b, with an atmospheric lifetime of
approximately 9 years, has a comparatively high ozone depletion
potential (ODP) of 0.11. When HCFC-141b was listed as an acceptable
substitute for chlorofluorocarbons (CFCs), there were fewer
alternatives available than there are today. Since 1994, EPA has listed
alternatives as acceptable in more foam end-uses, and they are being
used in a greater number of applications. Non-ozone-depleting
substitutes are now available for all foam end-uses. The 1998 report of
the United Nations Environment Programme (UNEP) Foams Technical Options
Committee (TOC) concluded that zero-ODP alternatives are the
substitutes of choice in many applications, including certain rigid
thermal applications (UNEP, 1998). Also, research and development has
improved the technical viability of some alternatives that have been
available for years. The 1998 UNEP Foams TOC report presents several
zero-ODP foam blowing agents that are viable alternatives and states
that ``there are several significant developments in blowing agents,
many of which are applicable to more than one foam sector''; for
example, the report states that cost and technical performance of
hydrocarbons have been improved and that certain hydrofluorocarbons,
which are acceptable under SNAP, are ``near drop-in replacements for
HCFC-141b'' (UNEP, 1998). The available alternatives, including
hydrofluorocarbons, hydrocarbons, and carbon dioxide, provide clear
paths to the transition away from ozone-depleting substances.
EPA is not proposing to allow for an extension of the
grandfathering period beyond January 1, 2005 in today's action, because
the Agency is unaware of any situation where it would be necessary. The
Agency also believes that the declining availability of HCFC-141b, due
to the HCFC-141b production phaseout effective January 1, 2003, makes
it unlikely that users will want to pursue an extension of the
grandfathering period. However, EPA is interested in comments on
whether such extensions may be appropriate, on a case-by-case basis,
for those uses where technically feasible alternatives are not
available. In order for EPA to extend the grandfathering period, the
Agency would need to be convinced that there are no technically
feasible alternatives available.
(2) HCFC-22, -142b and Blends Thereof
HCFC-22, -142b, and blends thereof are proposed as unacceptable as
substitutes in all foam end-uses. This listing would be effective 30
days following publication of a final action in the Federal Register.
However, EPA is proposing that existing users would be grandfathered
until January 1, 2005. In this context, existing users are those using
HCFC-22, -142b, or blends thereof in foam applications on the date of
publication of a final action in the Federal Register. As discussed in
Section VI.B. of EPA's original SNAP rule (59 FR 13044) published on
March 18, 1994, EPA is authorized to grandfather existing uses from
prohibition where appropriate under the four-part test established in
Sierra Club v. EPA (719 F.2d 436 (DC Cir. 1983)). As discussed in
Section III, below, the Agency reviewed the considerations outlined in
Sierra Club v. EPA and believes that this grandfathering period is
appropriate.
EPA believes that there are technically feasible zero-ODP
substitutes available to replace HCFC-22 and -142b and it is,
therefore, appropriate to list these substitutes as unacceptable. The
basis for EPA's proposed determination to list HCFC-22 and -142b as
unacceptable is that these substances have comparatively high ODPs
(0.055 for HCFC-22 and 0.065 for HCFC-142b). The approximate
atmospheric lifetimes of HCFC-22 and -142b are 12 years and 18 years,
respectively. When HCFC-22 and -142b were listed as acceptable
substitutes for CFCs, there were fewer alternatives available than
there are today. Since 1994, EPA has listed alternatives as acceptable
in more foam end-uses, and they are being used in a greater number of
applications. Non-ozone-depleting substitutes are now available for all
foam end-uses. The 1998 report of the United Nations Environment
Programme (UNEP) Foams Technical Options Committee (TOC) concluded that
zero-ODP alternatives are the substitutes of choice in many
applications, including certain rigid thermal applications (UNEP,
1998). Also, research and development has improved the technical
viability of some alternatives that have been available for years. The
1998 UNEP Foams TOC report presents several zero-ODP foam blowing
agents that are viable alternatives and states that ``there are several
significant developments in blowing agents, many of which are
applicable to more than one foam sector''; for example, the report
states that cost and technical performance of hydrocarbons have been
improved and that certain hydrofluorocarbons, which are acceptable
under SNAP, are ``near drop-in replacements for HCFC-141b'' (UNEP,
1998). The available alternatives, including hydrofluorocarbons,
hydrocarbons, and carbon dioxide, provide clear paths to the transition
away from ozone-depleting substances.
EPA is not proposing to allow for an extension of the
grandfathering period beyond January 1, 2005 in today's action, because
the Agency is unaware of any situation where it would be necessary.
However, EPA is seeking comment on whether such extensions may be
appropriate, on a case-by-case basis, for those uses where technically
feasible alternatives are not available. In order for EPA to extend the
[[Page 42658]]
grandfathering period, the Agency would need to be convinced that there
are no technically feasible alternatives available.
(3) HCFC-124
HCFC-124 is proposed as unacceptable as a substitute in all foam
end-uses. HCFC-124 is a low pressure gas with an ODP of 0.02, an
atmospheric lifetime of approximately 6 years, and a 100-year global
warming potential of approximately 600. Other alternatives exist with
lower or no ODP. These alternatives are identified above in Section
I.C.
EPA is not proposing to grandfather the use of HCFC-124 because it
has not been previously listed as an acceptable foam blowing agent.
III. Q's and A's on Today's Proposed Listing Decisions
Who Is Affected by Today's Proposal?
This proposal would affect anyone who uses HCFC-141b, HCFC-22,
HCFC-142b, or HCFC-124 as a foam blowing agent. Affected parties
include, but are not limited to, manufacturers of the following
products: polyurethane and polyisocyanurate boardstock, appliance foam,
spray foam, and sandwich panels; polystyrene boardstock; phenolic
foams; and polyolefin foams.
What Is EPA Proposing?
EPA believes that there are sufficient alternatives with zero ozone
depletion potential (ODP) currently or potentially available to make
these listings. EPA proposes the following:
(1) To list HCFC-141b and blends thereof as unacceptable as
substitutes in all foam end-uses. Current HCFC-141b use would be
grandfathered until January 1, 2005.
(2) To list HCFC-22, HCFC-142b, and blends thereof as unacceptable
as substitutes in all foam end-uses. Current HCFC-22/-142b use would be
grandfathered until January 1, 2005.
(3) To list HCFC-124 as unacceptable as a substitute in all foam
end-uses. EPA proposes these listings after reviewing a SNAP submission
that requested review of several HCFC foam blowing agents (the
submission is discussed below) and conducting a comprehensive
evaluation of substitutes for both chlorofluorocarbons (CFCs) and
hydrochlorofluorocarbons (HCFCs) in the Significant New Alternatives
Policy (SNAP) foam sector.
What Did EPA Base This Proposed Decision On?
EPA is basing this proposed listing decision on the potential
atmospheric effects, including the ODP and atmospheric lifetimes
associated with the various foam blowing substitutes. According to the
Scientific Assessment of Ozone Depletion: 1998 (World Meteorological
Organization, 1999), HCFC-141b has an ODP of 0.1, HCFC-142 has an ODP
of 0.065, HCFC-22 has an ODP of 0.055, and HCFC-124 has an ODP of 0.02.
The atmospheric lifetimes for these chemicals range from 6-18 years.
Regarding the other health and environmental factors typically included
in SNAP review (40 CFR 82.180(a)(7)), EPA finds no substantive
distinction between the HCFCs and other available alternatives listed
as acceptable foam blowing agents.
Why Is EPA Proposing To List HCFC-141b, -22, -142b, and -124 as
Unacceptable?
In 1994, under the SNAP program, EPA approved the use of HCFCs as
transitional foam blowing agents, despite their ozone depletion
potential, because technically feasible alternatives were limited at
that time. Manufacturers of the class I CFC blowing agents had worked
in collaboration to develop transitional substances--HCFCs--for the use
in all sectors, as a bridge to the time when ozone-safe alternatives
would be technically feasible. Since then, previously available zero-
ODP alternatives have been tested, developed, and optimized for a
broader range of foam applications, and additional zero-ODP
alternatives have become available (59 FR 13083). A major objective of
the SNAP program is to promote the use of substitutes which present a
lower risk to human health and the environment (40 CFR 82.170). EPA
believes that sufficient non-ozone-depleting foam blowing agents are
available. EPA is proposing to list HCFC-141b, -22, -142b, and -124 as
unacceptable because zero-ODP alternatives are available that will
reduce the overall risk to public health and the environment.
EPA Listed HCFC-141b as an Acceptable Replacement for CFCs. Why Is EPA
Revisiting the Acceptability of HCFC-141b in Today's Proposal?
As stated above, EPA believes that zero-ODP alternatives are
available as substitutes for HCFC-141b in all foam end-uses. EPA is
addressing the use of HCFC-141b in this proposal in order to maintain a
consistent policy on the use of HCFCs in the foam sector and to ensure
that the use of HCFC-141b does not continue in applications where zero-
ODP alternatives exist. This decision is consistent with a previous EPA
determination, based on the availability of alternatives with zero-ODP,
that HCFC-141b is not acceptable as a substitute cleaning solvent for
CFC-113 or methyl chloroform. Because EPA has provided an effective
means for HCFC-141b users to transition to zero-ODP alternatives,
today's proposal on HCFC-141b would have little or no negative effect
on the foam industry.
Why Is EPA Proposing To List HCFC-22, -142b, and -124 as Unacceptable
Replacements for HCFC-141b, Even Though Their ODPs Are Lower Compared
to HCFC-141b?
EPA has concluded that listing these substances as unacceptable
substitutes is consistent with the goals of the SNAP program. A major
goal of the SNAP program is to facilitate the transition away from
ozone-depleting substances (ODSs) by encouraging the use of
environmentally safe alternatives. Congress intended to encourage and
support research and development of non-ozone-depleting chemicals to
replace HCFCs by giving EPA the authority to review potentially
available alternatives (see also Section 612(a), (b), and (c) of the
CAA). The use of HCFCs was initially considered acceptable as a bridge
to zero-ODP foam blowing agents. Many HCFC-141b users and manufacturers
have been researching alternatives for several years and are currently
transitioning to zero-ODP foam blowing agents. Today's proposal does
not disrupt their transition. Even though HCFC-22, -142b and -124 have
lower ODPs compared to HCFC-141b, EPA does not believe that the new use
of these ODSs as substitutes for HCFC-141b, even for a short period of
time, is necessary in light of available zero-ODP foam blowing agents.
Switching from HCFC-141b to HCFC-22, -142b or -124 would result in
continued damage to the ozone layer and would delay the transition to
zero-ODP foam blowing agents which are available.
Although HCFC-141b, -22 and -142b Are Being Proposed as Unacceptable in
Today's Action, EPA is Proposing To Grandfather Existing Users of These
Substances Until 2005. What Is Grandfathering?
In the original SNAP rulemaking, EPA recognized that, where
appropriate, EPA can grandfather the use of a substitute by setting the
effective date of its unacceptability listing for one or more specific
parties in the future (59 FR 13057-58). EPA is authorized to allow the
continuation of activities otherwise restricted where the balance of
equities supports such grandfathering. Setting future effective dates
allows the Agency to avoid penalizing those who in
[[Page 42659]]
specific applications may have already invested in good faith in
alternatives that the SNAP program now determines to be unacceptable.
Grandfathering also allows EPA to balance the desire not to penalize
those who switched early in good faith with the need to avoid creating
an incentive for continued investment in alternatives the Agency wishes
to discourage.
What Criteria Are Used in Deciding Whether To Grandfather Continued Use
of Unacceptable Substitutes?
In Sierra Club v. EPA (719 F.2d 436 (DC Cir. 1983)), the court
established a four-part test to judge the appropriateness of Agency
grandfathering. EPA considers the following when making a
grandfathering determination:
(1) if the new rule represents an abrupt departure from previously
established practice;
(2) the extent to which a party relied on the previous rule;
(3) the degree of burden which the application of the new rule
would impose on the party; and
(4) The statutory interest in applying the new rule immediately.
Why Does EPA Believe That HCFC-141b, -22 and -142b Users Meet the
Grandfathering Criteria?
The Agency recognizes that some foam manufacturers may have
switched to HCFC-141b, -22 or -142b in good faith, expecting that these
substitutes would sufficiently lower the risk of ozone depletion
relative to other foam blowing agents available at the time. To avoid
unfairly penalizing these existing users, the Agency is proposing to
extend the effective date of the unacceptability listing until January
1, 2005, based on EPA's belief that existing users of HCFC-141b, -22
and -142b meet the grandfathering criteria outlined in Sierra Club v.
EPA. EPA listed these substances as acceptable substitutes for class I
substances in 1994. Prohibiting the use of these chemicals immediately
represents an abrupt departure from that established practice for the
many foam manufacturers that rely on HCFC-141b, -22 and -142b. These
HCFCs were previously listed as acceptable substitutes for CFC foam
blowing agents in various end-uses and were not scheduled for phase-out
until future years. Additionally, if the proposal was to become
effective immediately, it could create a burden on existing users if
they currently do not have the means to make a sudden change to their
operations. These factors outweigh EPA's statutory interest in applying
the new rule immediately to existing users. EPA believes its goal of
encouraging the transition away from ODSs is still satisfied as new use
of these substances will not be permitted in the foam sector and
existing users will begin transitioning to zero-ODP alternatives.
How Did EPA Determine the Length of the Proposed Grandfathering Period?
EPA believes that it could take foam manufacturers up to four years
to transition to alternatives. EPA considered that companies might need
to conduct several activities during that time period, including:
(1) Obtain permits or make modifications to existing permits;
(2) Make changes to equipment in order to optimize production and
ensure worker safety;
(3) Establish raw material suppliers;
(4) Develop formulations;
(5) Test final products; and
(6) Obtain final product review and approval by relevant boards or
agencies.
I Currently Use HCFC-22 and/or HCFC-142b as a Foam Blowing Agent. How
Long Could I Continue To Use Them?
In today's action, EPA proposes that all current users of HCFC-22
or -142b in foam applications must transition to an acceptable
substitute by January 1, 2005. EPA strongly encourages foam end-users
to transition away from these substitutes as their existing stocks are
used and/or they recoup their investment in equipment unique to these
substitutes.
Why Is EPA Not Proposing To Grandfather the Use of HCFC-124 as Well?
Grandfathering would not apply to HCFC-124 as a foam blowing agent
since it has not been previously listed as an acceptable foam blowing
agent. Grandfathering allows limited continuation of previously
acceptable use which is subsequently determined to be unacceptable.
Why Would I Have To Stop Using HCFC-22 or -142b Before Its Production
Phase-Put in 2010?
The production phase-out, which is described in more detail above,
does not govern use of HCFCs. As mentioned above, the role of the SNAP
program is to promote the use of substitutes believed to present a
lower risk to human health and the environment (40 CFR 82.170). EPA
believes that sufficient non-ozone-depleting foam blowing agents are
available to replace HCFC-22 and -142b. The Agency has listed other
ozone-depleting chemicals as unacceptable for specific uses before the
production phase-out date specified in the Montreal Protocol and Clean
Air Act (e.g. HCFC-141b was listed unacceptable as a cleaning solvent
in the original 1994 SNAP rulemaking (59 FR 13044)).
Does EPA Need To Be Petitioned in Order To List a Substitute as
Unacceptable?
No. EPA has the authority to amend its regulations to initiate
changes to SNAP determinations independent of any petitions or
notifications received.
What if Some Alternatives Are Not Available in Time for Me To Meet the
2005 Deadline?
Some of the alternatives in the SNAP foam sector were only recently
listed as acceptable (64 FR 65037). One alternative, HFC-245fa, is not
yet commercially available in large quantities. If some alternatives
prove to be technically infeasible or do not become available on a
large scale, EPA has the ability to re-consider the proposed deadline.
What if There Is a Technical Constraint That Makes It Extremely
Difficult for Me To Meet the SNAP Requirements?
You may be able to continue using HCFC-22 or -142b if you determine
that there are no alternatives that can replace them in your specific
application. In situations where companies have no technically feasible
alternatives, EPA may extend the grandfathering of HCFC-22 or -142b for
specific users or end-uses. EPA is not considering specific extensions
at this time because the Agency feels that the grandfathering period
provides everyone sufficient time to further develop and transition to
alternatives. At some time prior to the expiration of the proposed
grandfathering period, EPA will consider extending the grandfathering
period for those applications where the use of alternatives is
infeasible.
What Criteria Would I Need To Meet in Order for EPA To Extend the
Grandfathering Period?
In order for EPA to extend the proposed grandfathering period, the
Agency would need to be convinced that no technically feasible
alternatives would be available. Users who believed they needed to use
HCFC-22 or -142b past January 1, 2005, might be subject to the criteria
laid out in 40 CFR 82.180 (b)(3). EPA might also require descriptions
of the following:
(1) The process or product in which HCFC-22 or -142b is needed;
(2) Substitutes examined and rejected;
(3) Reason for rejection; and
[[Page 42660]]
(4) Anticipated date other substitutes will be available and
projected time for switching to them.
Although the user is not required to submit all of the
documentation to EPA, the Agency may request some of this information
in order to determine whether continued use of HCFC-141b, -22 or -142b
is warranted.
Can I Comment on This Proposed Rule?
Yes. EPA is soliciting comments on this proposal. The Agency
welcomes any feedback on this proposal and urges commenters to provide
data in support of their views. EPA also requests that commenters be as
specific as possible. For example, if you believe that in a certain
end-use there are no alternatives to HCFC-22 or blends thereof, you
should provide information on that particular application and why the
available alternatives are not technically feasible. Information on
where to send comments is provided at the beginning of this notice
under Addresses.
IV. Economic Impact
At the request of the Office of Management and Budget, EPA
evaluated the potential cost impacts of today's proposal. EPA
considered the implications of appliance manufacturers' obligations to
comply with the Department of Energy's (DOE) 1997 Refrigerator
Efficiency Standards. These standards require energy consumption of
refrigerators, refrigerator-freezers, and freezers to be reduced by 30%
by July 2001. Specifically, EPA examined the potential costs associated
with complying with the DOE standards while meeting EPA's SNAP
requirements. EPA believes that today's proposal will not result in a
significant cost to appliance manufacturers or consumers. In fact, when
costs associated with manufacturing refrigerators that will meet DOE
energy efficiency requirements are considered, EPA estimates that use
of non-HCFC foam blowing agents can result in cost savings.
Based in part on confidential information collected from chemical
and appliance manufacturers pertaining to various foam blowing agents
and their thermal insulation value, price, and equipment and material
requirements, EPA estimates that the cost today to convert to zero-ODP
blowing agents would range from approximately $3 to $10 for a mid-size
refrigerator (24 cubic feet with a retail price of approximately $900).
Accounting for the fact that refrigerators will have to be re-designed
to meet the DOE energy efficiency standards when they become effective
in July 2001 (e.g., reduced motor power in condenser and/or evaporator
motor, reduced gasket heat leak rates, increased insulation, etc.), and
because different blowing agents provide different thermal insulation
values, EPA estimated the cost impacts associated with different
blowing agents after the DOE standards become effective, assuming
today's proposal becomes a final rule. For a mid-size refrigerator (24
cubic feet, approximately $900 retail), we estimate the impacts of this
proposal would be a cost savings ranging between approximately $2.30
and $3.40 per refrigerator, which in aggregate, would total between
approximately $23 million and $34 million per year.
V. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735; October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlement, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, OMB notified EPA
that it considers this a ``significant regulatory action'' within the
meaning of the Executive Order and EPA submitted this action to OMB for
review. Changes made in response to OMB suggestions or recommendations
will be documented in the public record.
B. Unfunded Mandates Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
Agency prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
state, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the Agency to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule. Section 204 requires the Agency to
develop a process to allow elected state, local, and tribal government
officials to provide input in the development of any action containing
a significant Federal intergovernmental mandate. Under section 205 of
the Unfunded Mandates Act, the Agency must identify and consider a
reasonable number of regulatory alternatives before promulgating a rule
for which a budgetary impact statement is prepared. The Agency must
select from those alternatives the least costly, most cost-effective,
or least burdensome alternative that achieves the objectives of the
rule, unless the Agency explains why this alternative is not selected
or the selection of this alternative is inconsistent with law.
Because EPA estimates that this proposed rule will not result in
the expenditure by State, local, and tribal governments or the private
sector of less than $100 million in any one year, the Agency has not
prepared a budgetary impact statement or specifically addressed the
selection of the least costly, most cost-effective, or least burdensome
alternative. Because small governments will not be significantly or
uniquely affected by this rule, the Agency is not required to develop a
plan with regard to small governments. Finally, because this NPRM does
not contain a significant intergovernmental mandate, the Agency is not
required to develop a process to obtain input from elected state,
local, and tribal officials.
C. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This rule would not have a significant impact on a
substantial number of small entities because the costs of the SNAP
requirements as a whole are expected to be minor. There are numerous
alternatives available and some users have independently begun to
transition away from the substances listed as unacceptable because of
the HCFC
[[Page 42661]]
production phase-out. The actions herein may well provide benefits to
businesses who have transitioned to HCFC alternatives. EPA has
determined that it is not necessary to prepare a regulatory flexibility
analysis in connection with this proposal. Therefore, I certify that
this action will not have a significant economic impact on a
substantial number of small entities.
D. Paperwork Reduction Act
EPA has determined that this proposed rule contains no information
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq., that are not already approved by the Office of Management and
Budget (OMB). OMB has reviewed and approved two Information Collection
Requests (ICRs) by EPA which are described in the March 18, 1994
rulemaking (59 FR 13044, at 13121, 13146-13147) and in the October 16,
1996 rulemaking (61 FR 54030, at 54038-54039). These ICRs included five
types of respondent reporting and record-keeping activities pursuant to
SNAP regulations: submission of a SNAP petition, filing a SNAP/TSCA
Addendum, notification for test marketing activity, record-keeping for
substitutes acceptable subject to narrowed use limits, and record-
keeping for small volume uses. The OMB Control Numbers are 2060-0226
and 2060-0350.
E. Executive Order 13045: ``Protection of Children From Environmental
Health Risks and Safety Risks''
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866,
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children, as the exposure limits and
acceptability listings in this proposed rule primarily apply to the
workplace.
F. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This NPRM will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132. Thus, the
requirements of section 6 of the Executive Order do not apply to this
proposal.
G. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments, because this regulation
applies directly to facilities that use these substances and not to
governmental entities. Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply to this proposal.
H. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995
(NTTAA), section 12(d), Public Law 104-113, requires federal agencies
and departments to use technical standards that are developed or
adopted by voluntary consensus standards bodies, using such technical
standards as a means to carry out policy objectives or activities
determined by the agencies and departments. If use of such technical
standards is inconsistent with applicable law or otherwise impractical,
a federal agency or department may elect to use technical standards
that are not developed or adopted by voluntary consensus standards
bodies if the head of the agency or department transmits to the Office
of Management and Budget an explanation of the reasons for using such
standards. This proposed rule does not mandate the use of any technical
standards; accordingly, the NTTAA does not apply to this proposal.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.
Dated: June 27, 2000.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 82 is proposed
to be amended as follows:
[[Page 42662]]
PART 82--PROTECTION OF STRATOSPHERIC OZONE
1. The authority citation for Part 82 continues to read as follows:
Authority: 42 U.S.C. Sec. 7414, 7601, 7671-7671q.
Subpart G--Significant New Alternatives Policy Program
2. Subpart G is amended by adding the following Appendix J to read
as follows:
Appendix J to Subpart G--Substitutes Subject to Use Restrictions and
Unacceptable Substitutes Listed in the [FR publication date] of the
final rule.
Foam Blowing Unacceptable Substitutes
----------------------------------------------------------------------------------------------------------------
End-use Substitute Decision Comments
----------------------------------------------------------------------------------------------------------------
All foam end-uses................. HCFC-141b and blends Unacceptable................... Existing HCFC-141b
thereof. users are
grandfathered until
January 1, 2005.
All foam end-uses................. HCFC-22, HCFC-142b Unacceptable................... Existing HCFC-22/-
and blends thereof. 142b users are
grandfathered until
January 1, 2005.
All foam end-uses................. HCFC-124............. Unacceptable................... Alternatives exist
with lower or zero-
ODP.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 00-16966 Filed 7-10-00; 8:45 am]
BILLING CODE 6560-50-P
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