Protection of Stratospheric Ozone; Listing of Substitutes in the
Foam Sector
[Federal Register: July 22, 2002 (Volume 67, Number 140)]
[Rules and Regulations]
[Page 47703-47721]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jy02-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7247-5]
RIN 2060-AG12
Protection of Stratospheric Ozone; Listing of Substitutes in the
Foam Sector
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: This action lists acceptable and unacceptable substitutes for
ozone-depleting substances (ODSs) in the foam blowing sector under the
U.S. Environmental Protection Agency's (EPA) Significant New
Alternatives Policy (SNAP) program. Today's action: Withdraws the
proposed decision to list HCFC-22 and HCFC-142b as unacceptable
substitutes for existing users; lists HCFC-22 and HCFC-142b as
unacceptable substitutes for HCFC-141b in rigid polyurethane/
polyisocyanurate laminated boardstock, rigid polyurethane appliance
foam, and rigid polyurethane spray foam applications; lists HCFC-22 and
HCFC-142b as acceptable substitutes for HCFC-141b, with narrowed use
limits (users must ascertain and document that other acceptable
alternatives are not technically feasible) in commercial refrigeration
and sandwich panel applications and in the rigid polyurethane slabstock
and other foams end-use; and lists HCFC-124 as an unacceptable
substitute in all foam end-uses. At this time, EPA is deferring final
action on its proposed decision to list HCFC-141b as an unacceptable
foam blowing agent.
EFFECTIVE DATE: August 21, 2002.
ADDRESSES: Information relevant to this rulemaking is available in
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.
FOR FURTHER INFORMATION CONTACT: Jeff Cohen at phone: (202) 564-0135,
fax
[[Page 47704]]
(202) 565-2155 or e-mail: cohen.jeff@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 contacted at (800) 296-1996.
Additional information can also be obtained through EPA's Ozone
Depletion World Wide Web site at ``http://www.epa.gov/ozone/snap/
index.html''.
SUPPLEMENTARY INFORMATION: SNAP implements section 612 of the Clean Air
Act which requires EPA to evaluate substitutes for ODSs to reduce
overall risk to human health and the environment. 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. On March 18, 1994, EPA promulgated the initial
SNAP rule establishing the program for evaluating and regulating
substitutes for ozone depleting chemicals (59 FR 13044), and has since
issued decisions on the acceptability and unacceptability of a number
of substitutes.
In February 1999, EPA received a submission requesting review of
the following foam blowing agents as substitutes for HCFC-141b: HFC-
134a, HCFC-22, HCFC-142b, HCFC-124, and an HCFC-22/142b blend. In
response, EPA proposed the following two determinations: (1) listing
HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b in all
foam end-uses; and (2) listing HCFC-124 as unacceptable in all foam
end-uses (65 FR 42653). EPA did not address the use of HFC-134a in the
proposal because HFC-134a was already listed as an acceptable
substitute for HCFC-141b (64 FR 30410). In addition, EPA proposed to
list HCFC-141b, -22, and -142b as unacceptable in all foam end-uses
with existing users grandfathered until 2005.
During the official comment period for the proposal, EPA received
approximately 45 comments on the proposal (Docket A-2000-18). After the
comment period closed, EPA acquired additional information pertaining
to the availability and technical viability of alternatives, and the
market size and potential economic impact of the proposal on various
sub-sectors of the foam industry. This information was obtained through
meetings held at the request of industry representatives, letters sent
from members of Congress, letters sent directly to the Agency, and
through EPA's own efforts to obtain additional information in order to
fully address comments received during the comment period. On May 23,
2001, the Agency published a Notice of Data Availability (NODA) making
this new information available for public review and comment (66 FR
28408). The comment period for the NODA ended on June 22, 2001.
Table of Contents
This action is divided into six sections:
I. Section 612 Program
A. Statutory Requirements
B. Regulatory History
C. Listing Decisions
II. Listing Decisions on Foam Sector Substitutes
A. HCFC-141b
B. HCFC-22, HCFC-142b and Blends Thereof
C. HCFC-124
III. Response to Comments
A. HCFC-141b
B. Existing Use of HCFC-22 and HCFC-142b
C. New Use of HCFC-22 and HCFC-142b
D. HCFC-124
IV. Summary
V. Administrative Requirements
VI. Additional Information
I. Section 612 Program
A. Statutory Requirements
Section 612 of the Clean Air Act (CAA) requires EPA to develop a
program for evaluating alternatives to ozone-depleting substances. EPA
refers to this program as the Significant New Alternatives Policy
(SNAP) program. The major provisions of section 612 are:
Rulemaking--Section 612(c) 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--Section
612(c) also requires EPA to publish a list of the substitutes
unacceptable for specific uses. EPA must publish a corresponding list
of acceptable alternatives for specific uses.
Petition Process--Section 612(d) grants the right to any
person to petition EPA to add a substitute to or delete a substitute
from the lists published in accordance with section 612(c). 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--Section 612(e) directs EPA to require
any person who produces a chemical substitute for a class I substance
to notify the Agency not less than 90 days before new or existing
chemicals are introduced into interstate commerce for significant new
uses as substitutes for a class I substance. The producer must also
provide the Agency with the producer's health and safety studies on
such substitutes.
Outreach--Section 612(b)(1) states that the Administrator
shall 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--Section 612(b)(4) requires the Agency to
set up a public clearinghouse of alternative chemicals, product
substitutes, and alternative manufacturing processes that are available
for products and manufacturing processes which use class I and II
substances.
B. Regulatory History
On March 18, 1994, EPA published a rule (59 FR 13044) which
described the process for administering the SNAP program and issued
EPA's first acceptability lists for substitutes in the major industrial
use sectors. These sectors include: refrigeration and air conditioning;
foam manufacturing; 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
compounds.
The Agency defines a ``substitute'' as any chemical, product
substitute, or alternative manufacturing process, whether existing or
new, that could replace a class I or class II substance. Anyone who
produces a 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, but may include
importers, formulators, or end-users when they are responsible for
introducing a substitute into commerce.
C. Listing Decisions
Under section 612, the Agency has considerable discretion in the
risk management decisions it can make
[[Page 47705]]
under the SNAP program. In the SNAP rule, the Agency identified four
possible decision categories: acceptable; acceptable subject to use
conditions; acceptable subject to narrowed use limits; and
unacceptable. Fully acceptable substitutes, i.e., those with no
restrictions, can be used for all applications within the relevant
sector end-use. Conversely, it is illegal to replace an ODS with a
substitute listed by SNAP as unacceptable.
After reviewing a substitute, the Agency may make a determination
that a substitute is acceptable only if certain conditions of use are
met to minimize risk to human health and the environment. Such
substitutes are described as ``acceptable subject to use conditions.''
Use of such substitutes without meeting associated use conditions
renders these substitutes unacceptable and subjects the user to
enforcement for violation of section 612 of the Clean Air Act and the
SNAP regulations.
Even though the Agency can restrict the use of a substitute based
on the potential for adverse effects, it may be necessary to permit a
narrowed range of use within a sector end-use because of the lack of
alternatives for specialized applications. Users intending to adopt a
substitute 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
must 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. The
use of such substitutes in applications and end-uses which are not
specified as acceptable in the narrowed use limit is unacceptable and
violates section 612 of the CAA and the SNAP regulations.
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 (59 FR 13044). Updates to the acceptable lists are published
as separate Notices of Acceptability in the Federal Register.
As described in the original March 18, 1994 rule for the SNAP
program (59 FR 13044), 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. In this final
rule, EPA is issuing its decision on the acceptability of certain
substitutes in the foams blowing sector. Today's rule finalizes and
incorporates decisions that were proposed on July 11, 2000 at 65 FR
42653 (referred to hereinafter as ``the proposal''). The section below
presents a detailed discussion of the determinations that are made
final in today's Final Rule.
II. Listing Decisions on Foam Sector Substitutes
A major goal of the SNAP program is to facilitate the transition
away from ozone-depleting substances. In 1994, EPA listed
hydrochlorofluorocarbons (HCFCs), such as HCFC-141b, -22, and -142b, as
acceptable replacements for CFCs because the Agency believed that HCFCs
provided a temporary bridge to alternatives that do not deplete
stratospheric ozone (``ozone-friendly''). At that time, EPA believed
that HCFCs were necessary transitional alternatives to CFC blowing
agents in thermal insulating foam (59 FR 13083). Since then, HCFC-141b,
-22, and -142b have become the most common foam blowing agents. HCFCs
are slated for phaseout under the Clean Air Act and Montreal Protocol
on Substances that Deplete the Ozone Layer,\1\ and the Agency has
identified several alternatives to HCFC blowing agents, including
hydrofluorocarbons (HFCs), hydrocarbons, carbon dioxide, and other
compounds as acceptable substitutes in the foam blowing sector. In some
foam end-uses, these alternatives have been tested and implemented in
finished products that are on the market. In others, foam manufacturers
are still working to formulate, test, and implement the alternatives to
HCFCs in manufacturing processes.
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\1\ The phaseout schedule was established on December 10, 1993
(58 FR 65018) as authorized under section 606 of the Clean Air Act.
The phaseout for HCFCs currently used as foam blowing agents range
from January 1, 2003 to January 1, 2010.
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On July 11, 2000, EPA proposed action regarding the acceptability
of certain HCFCs in the foam sector. EPA subsequently solicited
additional comment in a Notice of Data Availability issued on May 23,
2001. Today, EPA is making final decisions regarding the acceptability
of those substitutes. EPA's decisions are based on the technical
viability of alternatives, timing and availability of alternatives, the
need for products that maintain thermal efficiency, structural
integrity, and safety, and the potential economic implications. Table A
summarizes today's final actions by foam sector end-use.
Table A.--Today's Final Action by Foam End-Use
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HCFC blowing
Foam end-use agent in use Today's final action
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Rigid Polyurethane/ HCFC-141b........ (1) HCFC-141b: No
Polyisocyanurate Laminated Action.
Boardstock. (2) HCFC-22, -142b, -
124: Unacceptable
Substitutes for HCFC-
141b.
Rigid Polyurethane Appliance HCFC-141b (some (1) HCFC-141b: No
Foam. HCFC-22 and HCFC- Action.
142b). (2) HCFC-22: Remains
an Acceptable
Substitute for CFCs.
(3) HCFC-22, -142b, -
124: Unacceptable
Substitutes for HCFC-
141b.
Rigid Polyurethane Spray Foam. HCFC-141b........ (1) HCFC-141b: No
Action.
(2) HCFC-22, -142b:
Unacceptable
Substitutes for HCFC-
141b.
(3) HCFC-124:
Unacceptable
Substitute.
[[Page 47706]]
Rigid Polyurethane Commercial HCFC-141b, -22, (1) HCFC-141b: No
Refrigeration and Sandwich and HCFC-142b. Action.
Panels. (2) HCFC-22, -142b:
Remain Acceptable
Substitutes for
CFCs.
(3) HCFC-22, -142b:
Acceptable
Substitutes for HCFC-
141b Subject to
Narrowed Use
Limits.*
(4) HCFC-124:
Unacceptable
Substitute.
Rigid Polyurethane Slabstock HCFC-141b (some (1) HCFC-141b: No
and Other Foams. HCFC-22). Action.
(2) HCFC-22, -142b:
Acceptable
Substitutes for HCFC-
141b Subject to
Narrowed Use
Limits*.
(3) HCFC-124:
Unacceptable
Substitute.
Extruded Polystyrene.......... HCFC-142b (some (1) HCFC-142b, -22:
HCFC-22). Remain Acceptable
Substitutes for
CFCs.
(2) HCFC-124:
Unacceptable
Substitute.
Polyolefin.................... HCFC-142b........ (1) HCFC-142b:
Remains an
Acceptable
Substitute for CFCs.
(2) HCFC-124:
Unacceptable
Substitute.
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*Users must maintain records outlining technical/economic constraints
that prevent switching from HCFC-141b to non-ozone-depleting
alternatives.
A. HCFC-141b
Summary of Proposal
On March 18, 1994, EPA listed HCFC-141b as an acceptable substitute
for CFCs in various foam end-uses. A number of foam manufacturers
switched from CFC-11 and CFC-113 to HCFC-141b. Since that time, EPA has
listed several non-ozone-depleting alternatives as acceptable
replacements for HCFC-141b. In the July 11, 2000 proposal, EPA proposed
to change its previous decision of acceptability such that use of HCFC-
141b would be unacceptable for foam manufacture (65 FR 42653). However,
for existing users, such use would be grandfathered until January 2005
(i.e., existing users could continue to use HCFC-141b as a foam blowing
agent until January 2005). The Agency believed that this time period
was sufficient for these end-users to transition to non-ozone-depleting
alternative foam blowing agents, taking into consideration the
impending production phaseout of HCFC-141b effective January 1, 2003.
Summary of Final Action
EPA is deferring its decision on whether to list HCFC-141b as an
unacceptable substitute for CFCs in foam blowing end uses. This
decision does not in any way affect the January 1, 2003 phaseout
deadline for the production and import of HCFC-141b, previously
established on December 10, 1993 (58 FR 65018), to reduce U.S. HCFC
consumption in accordance with section 606 of the Clean Air Act and the
Montreal Protocol.
After the comment period for the July 11, 2000 proposal closed
September 11, 2000, EPA acquired additional information pertaining to
the availability and technical viability of alternatives and the market
size and economic impact of the proposal on various industries. This
information was obtained through meetings held at the request of
industry representatives, letters sent through congressional
representatives, letters sent directly to the Agency, and through EPA's
own efforts to obtain additional information in order to fully address
comments received during the comment period. The Agency published a
Notice of Data Availability (NODA) on May 23, 2001 making the
additional information pertaining to the foam industry available for
public comment (66 FR 28408). As part of the proposed HCFC allowance
allocation rulemaking, the Agency has also received comments and
information pertaining to the use and availability of HCFCs and
alternatives in the foam industry (66 FR 38064). The proposed HCFC
allowance system is intended to control the U.S. production and
consumption of class II controlled substances, the
hydrochlorofluorocarbons (HCFCs) in accordance with U.S. obligations
under the Montreal Protocol.
Several commenters on the proposed SNAP rule suggested that EPA
should not list HCFC-141b as unacceptable for existing users because of
a lack of feasible alternatives. In fact, these commenters, as well as
commenters on the proposed HCFC allocation rule, requested that the
Agency extend the January 1, 2003 phaseout deadline for production of
HCFC-141b for use in specific applications such as spray foam. As part
of the separate regulatory program governing HCFC production and
allocations under sections 605 and 606 of the Clean Air Act (66 FR
38081), the Agency will address the comments pertaining to limited,
continued production of HCFC-141b for use in applications where
feasible alternatives are not yet fully developed and available. A
final HCFC allocation rule is expected to be published by the fall of
2002. More detailed and up-to-date information on this issue can be
found on EPA's Ozone Depletion World Wide Web site at http://
www.epa.gov/ozone/title6/phaseout/hcfc141b.html.
Because a decision on exempted HCFC-141b production will have
implications for continued use of HCFC-141b in the foam industry, we
are deferring a final decision on the use of HCFC-141b. By deferring,
EPA is allowing continued use of stockpiled HCFC-141b (produced prior
to January 1, 2003) and use of limited amounts of HCFC-141b that may be
produced after January 1, 2003 to address technical constraints of some
existing HCFC-141b users.
B. HCFC-22, HCFC-142b and Blends Thereof
Summary of Proposal
In the July 11, 2000 proposal, EPA proposed to list HCFC-22, HCFC-
142b and blends thereof as unacceptable in all foam end-uses; existing
use of HCFC-22/HCFC-142b would have been grandfathered until January 1,
2005. On
[[Page 47707]]
March 18, 1994, EPA listed these HCFCs as acceptable substitutes for
CFC-11, -12, -113, and -114 in various foam end-uses. A number of foam
manufacturers switched from those CFCs to HCFC-22 and HCFC-142b as
transitional blowing agents. Since that time, EPA has listed several
non-ozone-depleting substitutes as acceptable replacements for HCFCs.
Under the proposal, companies not currently using HCFC-22 or HCFC-142b
would be prohibited from switching to HCFC-22 or HCFC-142b while
existing users of HCFC-22 and HCFC-142b could continue to use HCFC-22
and HCFC-142b as foam blowing agents, but only until January 1, 2005.
The Agency believed that time period was sufficient time for existing
users to transition from HCFC-22 and HCFC-142b to non-ozone depleting
alternative foam blowing agents.
Summary of Final Action
Based on comments received on the proposal and NODA, the Agency is
taking the following final actions today: (1) Withdrawing its proposed
decision to list HCFC-22 and HCFC-142b as unacceptable substitutes for
CFCs (i.e., existing users of these chemicals can continue use); (2)
listing HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b
in rigid polyurethane/ polyisocyanurate laminated boardstock, rigid
polyurethane appliance, and rigid polyurethane spray foam applications;
and (3) listing HCFC-22 and HCFC-142b as acceptable substitutes, with
narrowed use limits, for HCFC-141b in commercial refrigeration,
sandwich panels, and rigid polyurethane slabstock and other foams
applications.
EPA is withdrawing the proposal to restrict existing use of HCFC-22
and HCFC-142b as substitutes for CFCs because the Agency believes there
are technical and economic constraints in switching to ozone-friendly
alternatives for these users within the next several years. Foam
manufacturers who are existing users of HCFC-22 and HCFC-142b can
continue to use these HCFCs but only under the conditions described
here. Existing use is defined as current use of HCFC-22 and/or HCFC-
142b to manufacture actual foam products that are sold into commercial
markets and meet all relevant code approvals, where required, prior to
the date of publication of this final rulemaking. Manufacturers who
have conducted trials or limited production runs are not considered
existing users. Foam manufacturers who use HCFC-141b in blends with
HCFC-22 or HCFC-142b may continue to use the current percentage by
weight of HCFC-22 and HCFC-142b based on the overall formulation.
However, in those end-uses identified in today's action where
substitution of HCFC-141b with HCFC-22 or HCFC-142b is unacceptable
(rigid polyurethane/polyisocyanurate laminated boardstock, rigid
polyurethane appliance, and rigid polyurethane spray foam
applications), foam manufacturers may not replace HCFC-141b in current
formulations with HCFC-22 or HCFC-142b. In these end-uses, HCFC-141b
can only be replaced by SNAP approved alternatives. For example, if a
formulation contains 8% HCFC-141b (by weight) and 2% HCFC-22 (by
weight), the user cannot increase the total content of HCFC-22 in the
formulation when replacing HCFC-141b with other SNAP approved
alternatives. In addition to combined use of HCFC-141b and HCFC-22 in
blends, EPA recognizes that a manufacturer may run separate production
lines, some with HCFC-141b and some with HCFC-22, or may have multiple
production facilities. Although such a manufacturer is an existing user
of HCFC-22/HCFC-142b for some production lines, he may not convert the
HCFC-141b lines or facilities, in whole or part, to HCFC-22 or HCFC-
142b, except for those end-uses in which such substitution is deemed
acceptable, subject to narrowed use limits (e.g., commercial
refrigeration, sandwich panels, and rigid polyurethane slabstock). In
those end-uses where substitution of HCFC-141b with HCFC-22 or HCFC-
142b is deemed unacceptable, SNAP approved alternatives for HCFC-141b
must be used in those lines or facilities.
In today's action, EPA is also addressing use of HCFC-22 and HCFC-
142b as replacements for HCFC-141b. EPA is finalizing its proposed
determination that HCFC-22 and HCFC-142b are unacceptable as
replacements for HCFC-141b in polyurethane boardstock and spray foam,
and appliance end-uses; as of the effective date of this rule, these
HCFCs cannot be used as substitute foam blowing agents for HCFC-141b.
EPA believes that polyurethane boardstock, spray foam, and appliance
manufacturers have identified and, in many cases, implemented viable
non-ozone-depleting alternatives to HCFC-141b.
For commercial refrigeration and sandwich panel applications, and
the polyurethane slabstock and other foams end-use, EPA is listing
HCFC-22 and HCFC-142b, with narrowed use limits, as acceptable
replacements for HCFC-141b. These end-uses are comprised of a wide
range of diverse applications with unique technical considerations and
fragmented HCFC use. EPA is strongly opposed to listing HCFCs as
acceptable where non-ozone-depleting alternatives are available.
However, EPA believes that ozone-friendly alternatives to HCFC-141b
have not yet been fully developed and implemented across the spectrum
of applications within these end-uses. In these situations, EPA
believes switching to HCFC-22 and/or HCFC-142b as a bridge to non-
ozone-depleting alternatives presents a lower risk than continued use
of HCFC-141b.
In prior SNAP program regulations, substitutes have been permitted
under a narrowed range of use within a sector end-use because of the
lack of alternatives for specialized applications. The narrowed use
limit means that users intending to adopt HCFC-22 or HCFC-142b, and
blends thereof in the commercial refrigeration and sandwich panels, and
the ``slabstock and other foams'' end-uses, must ascertain that other
acceptable alternatives are not technically feasible. These narrowed
use requirements are summarized in a table at the end of this document
and will be incorporated into Appendix J, Subpart G of the Code of
Federal Regulations (CFR) at 40 CFR part 82. Under these provisions,
companies must document the results of their evaluation, and retain the
results on file for the purpose of demonstrating compliance. This
documentation must 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. The use of HCFC-22, HCFC-142b, and blends
thereof in applications which are not specified as acceptable in the
narrowed use limit is considered unacceptable and violates section 612
of the CAA and the SNAP regulations. In addition, foam manufacturers
should be aware that EPA is continuing to review the commercial
refrigeration, and sandwich panels and slabstock and other foams end-
uses to determine the progress of non-ozone-depleting alternatives. As
non-ozone-depleting alternatives become more widely available, the
Agency will reevaluate the acceptability of HCFCs in these end-uses.
Therefore, foam manufacturers within these applications that are using
HCFCs should begin using non-ozone-depleting alternatives as soon as
they are available in anticipation of future EPA action restricting the
use of HCFCs.
[[Page 47708]]
C. HCFC-124
Summary of Proposal
In the July 11, 2000 proposal, EPA proposed to list HCFC-124 as
unacceptable in all foam end-uses. Because HCFC-124 has never been
listed as an acceptable foam blowing substitute for CFCs, EPA believed
there were no current users of the chemical and, therefore, did not
address existing users separately.
Summary of Final Action
Today's final rule lists HCFC-124 as unacceptable in all foam end-
uses. Although HCFC-124 has a lower ODP than HCFC-141b, it was never
submitted as a replacement for CFCs and therefore has never been
commercialized for use as a blowing agent in the U.S. EPA is not aware
of any uses of HCFC-124 as a foam blowing agent anywhere in the world.
Comments on the proposal indicate that HCFC-124 has been tested on a
limited scale as a foam blowing agent for rigid polyurethane foam only
in the appliance industry. EPA believes that introduction of an HCFC
into the foams industry to replace an existing HCFC is not necessary or
appropriate in light of the ability of the appliance industry to
convert directly from HCFC-141b to technically viable zero-ODP foam
blowing alternatives.
III. Response to Comments
A. HCFC-141b
Because EPA is not taking final action today on its proposed
decision to list HCFC-141b as unacceptable, the Agency is not
responding to comments at this time. However, EPA would like to note
the following issues raised in comments: (1) Import of pre-blended
HCFC-141b polyurethane systems; and (2) use of stockpiled HCFC-141b.
Commenters' concerns are summarized below along with EPA's preliminary
views on these issues and information on the Agency's regulatory
authority to address them.
Some commenters expressed concern that there was a potential for
HCFC-141b, produced in the U.S. after the production ban for domestic
use but subsequently exported from the U.S., to be re-imported in pre-
blended polyurethane systems and used to produce foam in the U.S.
Polyurethane foam systems generally consist of two components. One
contains polyols, surfactants, blowing agents and other chemicals, the
other contains isocyanate. These components are mixed on site to
produce foam. Information specifically addressing or referencing these
issues can be found in Air Docket A-2000-18 reference numbers IV-E-7,
IV-D-80, IV-D-93, and IV-D-96. Currently there are no regulations
prohibiting insulating foam products containing HCFC-141b from being
sold in the U.S. after January 1, 2003.\2\
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\2\ Foam products which contain or are manufactured with HCFCs
are currently banned from sale or distribution into interstate
commerce under section 610 of the Clean Air Act. However, section
610 exempts foam insulation from this ban. Foam insulation products
are defined as product containing or consisting of the following
closed cell rigid foam types: polyurethane, polystrene boardstock,
phenolic, and polyethylene foam used for pipe insulation.
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These comments are outside the scope of the present rulemaking.
However, EPA will continue to monitor the situation closely and collect
information in order to decide if any action is necessary and if so,
the appropriate timing of such action. Available information does not
now indicate the extent to which import of HCFC-141b systems may occur.
However, if this activity becomes widespread and compromises or
undermines the intent of the U.S. HCFC-141b phaseout, disadvantaging
companies that have made good faith investments in developing and
implementing alternative technologies, EPA could consider establishing
a SNAP use restriction under section 612 of the Clean Air Act or other
appropriate actions; expanding the definition of ``controlled product''
or ``bulk substance'' under the U.S. phaseout regulations at 40 CFR
part 82 to specifically address polyurethane pre-polymers; and/or
establishing a labeling requirement under section 611 of the Clean Air
Act for foams blown with HCFC-141b and any products containing such
foam. These labels would inform the public that these products contain
HCFC-141b, an ozone-depleting chemical that destroys stratospheric
ozone. Other possible actions that could occur if the import of pre-
blended HCFC-141b systems is seen to be compromising the U.S. phaseout
of HCFC-141b include: (1) Section 610 of the Clean Air Act could be
amended to remove the exemption for foam insulation products which
would allow EPA to restrict the sale and distribution of products
containing HCFC-141b; and (2) international discussions under the
Montreal Protocol might result in a re-classification of polyurethane
pre-polymers to include all pre-blended polyurethane systems as
controlled bulk substances subject to the import restrictions or other
such changes that could prevent import of pre-blended polyurethane
systems.
Another issue identified in the NODA was the potential for users to
stockpile large enough quantities to delay the transition from HCFC-
141b to non-ozone-depleting chemicals. Comments in the docket show that
there are conflicting views on the amount of HCFC-141b that could be
stockpiled for use after January 1, 2003. Some comments stated that the
amount of HCFC-141b that could be stockpiled was limited by production
and storage capacity and those limitations would prevent use of HCFC-
141b after 2005 regardless of EPA's proposed unacceptability listing.
Opposing this position, a commenter estimated that enough HCFC-141b
could be collected, stockpiled, and sold to last more than 5 years past
the production phaseout date.
The Agency does not have evidence that use of stockpiled HCFC-141b
will significantly impede the transition away from HCFC-141b after the
production phaseout. As the phaseout nears and access to HCFC-141b
becomes more limited, the Agency believes that greater numbers of HCFC-
141b users who have not yet transitioned to alternatives will do so.
EPA encourages foam manufacturers to follow the lead of the
polyisocyanurate boardstock industry, certain appliance manufacturers,
and other foam manufacturers that are undertaking commendable efforts
to transition to ozone-friendly alternatives. EPA will continue to
monitor the situation closely and collect information in order to
decide if any action is necessary and if so, the appropriate timing.
The Agency may address this issue in more detail at the time we address
the question of limited, continued production of HCFC-141b as part of
the HCFC allocation rulemaking.
B. Existing Use of HCFC-22 and HCFC-142b
In today's action, EPA is withdrawing its proposal to list HCFC-22
and HCFC-142b as unacceptable substitutes for CFCs. Comments on the
July 11, 2000 proposal and May 23, 2001 NODA regarding existing use of
HCFC-22 and HCFC-142b fall under the following four summarized
statements which are addressed in detail below:
1. Alternatives to HCFC-22 and HCFC-142b have not been fully
developed for U.S. foam markets and, therefore, they are not
technically viable for existing users of these chemicals.
2. There would be a significant impact on small businesses if EPA
finalized its proposed action to list HCFC-22 and HCFC-142b as
unacceptable for existing users.
[[Page 47709]]
3. EPA should not de-list chemicals without new evidence suggesting
that these chemicals are more harmful than previously known or that
eliminating their use would benefit the environment.
4. EPA should not use the SNAP program to accelerate the phaseout
of HCFC-22 and HCFC-142b.
1. Technical Viability of Alternatives
EPA's proposal was based on published and other publicly available
information indicating that technically viable alternatives to HCFC-22
and HCFC-142b are available in all foam end-uses. Although some
commenters agreed with EPA and supported the proposed decision, many
commenters argued that EPA had insufficient data and that technically
viable alternatives are not available. Commenters who disagreed with
EPA recommended that EPA withdraw portions of the proposal that would
affect existing users of HCFC-22 and HCFC-142b or extend the
grandfathering period, for example, to 2008 instead of 2005. Based on
these comments, EPA decided to collect more information in those foam
sectors where publicly available information and published literature
are limited. This additional information was made available for public
review in a May 23, 2001 Notice of Data Availability (NODA) (66 FR
28408). The NODA included a technical analysis of comments received
from the extruded polystyrene industry and a review of challenges
facing the polyurethane spray foam industry and other systems house
based applications. Both of these reports can be found in Docket A-
2000-18, reference number IV-D-77 and IV-D-78, respectively.\3\
---------------------------------------------------------------------------
\3\ Based on EPA's information collection effort and public
comments submitted in response to the NODA, EPA estimates that
approximately 160 million pounds of HCFCs are used in the foam
sector. HCFC-22 makes up only 5% of the total HCFC use in the foam
sector on a weight basis. Approximately half of that is in the
polyurethane appliance sector. The remaining HCFC-22 use is in
polyurethane commercial refrigeration, sandwich panel and other
polyurethane applications with some minor use of HCFC-22 in the
polystyrene industry. Nearly 95% of the approximately 30 million
pounds of HCFC-142b is used by the polystyrene industry. The
remaining HCFC-142b use is scattered amongst polyurethane appliance,
commercial refirgeration, one-component, and sandwich panel
applications. Some HCFC-142b is also used to produce polyethylene
foam.
---------------------------------------------------------------------------
The polystyrene industry represents the largest foam end-use of
HCFC-142b, with some minor HCFC-22 use. Key concerns raised during the
comment periods relate to the technical feasibility of alternatives
coupled with the cost and timing of the transition to non-ozone
depleting chemicals. Polystyrene manufacturers commented that while
zero-ODP alternatives have been implemented in Europe, conversion to
non-HCFC alternatives in the U.S. would require more than 5 years of
research and development due to differences in building codes and
product requirements. The major challenges facing the polystyrene
industry relate to balancing density and thickness (i.e., insulation
value) of the foam and compliance with safety requirements. For
example, current building codes limit the use of polystyrene to either
thin, high density foam or thicker, low density foam. Any changes that
result in higher density or lower R-value (thicker) foam would result
in products that cannot meet current building codes. Existing building
codes are not expected to be revised in the near future and EPA agrees
with comments indicating that it could take longer than 4 years to
finalize the development of new codes to account for increased ``fire
loads'' (i.e., denser or thicker foam) that the polystyrene industry
indicates would result from switching to non-HCFC alternatives.
The technical analysis of comments received from the extruded
polystyrene industry, Air Docket A-2000-18, IV-D-77, shows that the
polystyrene industry needs to maximize its efforts between now and 2010
in order to transition to alternatives in time for the HCFC-22/HCFC-
142b production phaseout. EPA believes that research and development to
modify existing blowing agent options and/or building codes in the
U.S., and to also conduct trials and plant modifications, could take up
to 8 years. EPA urges polystyrene manufacturers to examine research and
development applied in Europe to further develop non-HCFC blowing agent
options in order to achieve foam densities and insulation values that
will meet building codes and be marketable in the U.S. at the earliest
possible date. The Agency will continue to monitor the development of
alternatives in the polystyrene sector and work with this industry to
establish a time-frame for transitioning away from HCFCs.
As indicated in footnote 3 above, end-uses other than polystyrene
account for a small percentage of the total existing HCFC-22 and HCFC-
142b use in the foam industry. HCFC-22 and HCFC-142b are used in
polyurethane appliance, commercial refrigeration, sandwich panels, and
slabstock and other foam end-uses. Many comments on the July 11, 2000
proposal stated that EPA had not identified all entities potentially
affected by the proposed HCFC-22/HCFC-142b restrictions or failed to
assess the impact of the proposal on these users, many of which are
small businesses. In response to comments, EPA expanded its effort to
identify users of HCFC-22 and HCFC-142b and analyze the current status
of alternatives in these applications. EPA reviewed comments and hired
a foam industry expert to collect information from spray polyurethane
foam representatives and systems house representatives on the viability
of alternatives in each application that could be identified. Due to
the fragmentation of the industry, it was difficult to identify
specific applications, blowing agents used, and the viability of
alternatives for each end-user.
In developing the proposed rule, based on information available to
the Agency at the time, we concluded that non-ozone-depleting chemicals
which reduce the risk to human health and the environment were
available as replacements, and that existing users of HCFC-22 and HCFC-
142b could switch to these alternatives. Based on comments and EPA's
data collection efforts, the Agency learned that HCFC-22/HCFC-142b
alternatives have been identified and developed by some polyurethane
foam manufacturers. However, due to unique technical considerations for
many HCFC-22/HCFC-142b users in the polyurethane industry, EPA believes
that technically viable alternatives cannot be implemented across the
spectrum of applications at this time. Consequently, EPA believes that
for many polyurethane manufacturers that have been relying on HCFC-22
and HCFC-142b, switching to alternatives by 2005 would be difficult and
prohibitively costly.
Thus, because of the infeasibility in the near term of alternatives
for existing users in the polystyrene industry and the availability and
technical viability of alternatives in other end-uses, EPA is
withdrawing the proposed restriction on HCFC-22 and HCFC-142b for
existing users. However, EPA believes that there are certain
polyurethane applications, particularly non-insulating applications,
that may currently have technically viable alternatives that are
economically feasible. EPA is conducting a complete review of the
spray, commercial refrigeration, and sandwich panels and slabstock and
other foams end-uses to determine the current status of specific
applications and products within these end-uses and the progress being
made to implement non-ozone-depleting alternatives. As non-ozone-
depleting alternatives become more widely available and implemented,
the Agency
[[Page 47710]]
plans to reevaluate the acceptability of HCFCs in these end-uses. In
order to anticipate future EPA action restricting the use of HCFCs, EPA
urges foam manufacturers to implement non-ozone-depleting alternatives
as soon as they are available and economically feasible.
2. Small Business Impacts
At the time of the proposal, EPA did not believe that a significant
number of small entities would be affected by the proposed action.
However, EPA acknowledged that this decision would reverse a prior
acceptability determination and current users could be disadvantaged if
forced to quickly switch to other substitutes. For that reason, the
Agency proposed to grandfather existing users of HCFC-22 and HCFC-142b
until January 1, 2005. Through comments to the proposal, it came to the
Agency's attention that we were not aware of some users of these HCFCs.
Commenters argued that the flexibility EPA proposed to allow individual
users to demonstrate need for continued use of HCFC-22 and HCFC-142b
beyond 2005 was not appropriate because a case-by-case review to
provide extensions to the grandfathering period would create a new SNAP
process that would place an undue burden on many small businesses. In
reaction to these comments, EPA expanded its effort to identify
existing users of HCFC-22 and HCFC-142b that would be affected if EPA
made final a decision to make HCFC-22 and HCFC-142b unacceptable for
existing users. As discussed above, on May 23, 2001, EPA published a
NODA that identified many of the existing HCFC-22/HCFC-142b users in
the foam industry as small businesses (66 FR 28408). Because EPA is
withdrawing the proposed action, there will be no effect on small
businesses that are existing users of HCFC-22 and/or HCFC-142b. If the
Agency takes future action to restrict the use of HCFCs based on its
review of commercial refrigeration, and sandwich panels and slabstock
and other foams end-uses, small business impacts will be fully
considered prior to an EPA proposal.
3. Environmental Benefit
Commenters argued that the environmental benefit of the proposal
had not been quantified and that an analysis would have shown minimal
benefit. Specifically, these commenters claimed that a decision to list
HCFC-22 and HCFC-142b as unacceptable would not significantly reduce
damage to the ozone layer and that EPA had not shown how the proposal
would reduce overall risks to human health and the environment. One
commenter stated that ``any phaseout of HCFCs in the U.S. foam-blowing
sector would have a de minimis impact on the recovery of the
stratospheric ozone layer.''
Under the SNAP program, EPA does not rank various risk factors
(e.g., toxicity, flammability, ozone depletion potential) for each
alternative being considered. Instead, EPA considers all relevant
health and environmental information in a comparative framework.
Today's decision is to list HCFC-22 and HCFC-142b as unacceptable
substitutes for HCFC-141b in certain applications because of the
availability of non-ozone depleting alternatives. Because of the risks
they pose to the stratospheric ozone layer, HCFC-22 and HCFC-142b are
being phased out of production under the provisions of the Montreal
Protocol and the Clean Air Act. Under SNAP, EPA's mandate is to
determine that it is ``unlawful'' to replace an ODS with a substitute
where other alternatives are available and would reduce the overall
risk to human health and the environment. EPA's decision to list HCFC-
22 and HCFC-142b as unacceptable in specific end-uses is based on the
conclusion that other non-ODS substitutes are available and,
considering all risk factors, create less overall risk to human health
and the environment.
Because of technical constraints faced by existing users of HCFC-22
and HCFC-142b, EPA is withdrawing the proposal affecting existing
users. However, EPA maintains that use of these chemicals continues to
destroy the ozone layer (estimates gathered by EPA and provided in the
NODA show that 35 million pounds of HCFC-142b and HCFC-22 are used
annually) and that there will be an environmental benefit to
transitioning from ODSs as soon as technically viable, energy efficient
alternatives are fully developed and available. EPA encourages
companies to continue efforts to develop and implement these
alternatives.
4. Accelerated Phaseout
Many commenters viewed EPA's proposed listing decision for HCFC-22
and HCFC-142b as an attempt to accelerate the phaseout of these HCFCs.
Many commenters argued that prohibiting use of HCFCs under SNAP would
amount to an acceleration of the established January 1, 2010 production
phase-out of HCFC-22 and HCFC-142b established under section 605 of the
Clean Air Act (CAA), and that such action is not authorized under the
SNAP program (section 612).
EPA recognizes that some foam manufacturers viewed the 2010
production phaseout of HCFC-22 and HCFC-142b as equivalent to an end-
of-use date because after that time supplies of these chemicals will
significantly diminish. However, the 2010 deadline only relates to
consumption of HCFCs as defined under section 601 of the CAA
(consumption = production + import-exports). SNAP determinations under
section 612 of the CAA do not affect consumption, defined under section
605 of the CAA. If finalized, EPA's determination would have only
restricted use of HCFC-22 and HCFC-142b in the foam sector.
Nevertheless, this issue is moot because under today's action, existing
users of HCFC-22 and HCFC-142b can continue using these chemicals
beyond January 1, 2005.
EPA also received comments that SNAP should not be used in order to
reduce consumption of ozone depleting chemicals. Use restrictions under
SNAP may have the effect of reducing the production and import of
ozone-depleting substances. However, the SNAP program does not directly
regulate or constrain HCFC consumption. Compliance with HCFC
consumption requirements for the U.S., specified in the Montreal
Protocol and Clean Air Act, are addressed in separate regulatory
actions by the Agency. In the proposal, EPA was following its mandate
to review ODS alternatives and make determinations on their
acceptability in order to ensure that substitutes for ODSs that are
determined acceptable present a lower risk to human health and the
environment. EPA's basis for the proposal was that the Agency believed
technically and economically viable non-ozone depleting alternatives
were available. Because the goal of the SNAP program is to facilitate
an expeditious movement to these alternatives, EPA believed its
proposed action was appropriate at the time. However, as provided
above, EPA is withdrawing its proposed decision because EPA now
believes that technically feasible alternatives are not widely
available for polystyrene manufacturers. Additional information will be
collected on the viability and timing of non-ozone-depleting
alternatives for polyurethane manufacturers currently using HCFC-22
and/or HCFC-142b.
C. New Use of HCFC-22 and HCFC-142b
A major objective of the SNAP program is to facilitate the
transition from ozone-depleting chemicals by promoting the use of
substitutes which present a lower risk to human health
[[Page 47711]]
and the environment (40 CFR 82.170(a)). Today's rule lists HCFC-22 and
HCFC-142b as unacceptable replacements for HCFC-141b in rigid
polyurethane and polyisocyanurate boardstock, and polyurethane
appliance and spray foam applications. EPA has concluded based on the
available information that technically viable, non-ozone depleting
(zero-ODP) alternatives are currently or potentially available for
HCFC-141b for these end-uses. The Agency believes that the use of HCFC-
22 and HCFC-142b in applications where non-ozone depleting chemicals
are available is unnecessary and presents greater risk to human health
and the environment by contributing to the continued depletion of the
ozone layer.
In the boardstock and appliance foam sectors, many companies have
already switched to non-ozone-depleting alternatives or plan to do so
in the near future. In the spray foam sector, alternatives other than
HCFC-22 or HCFC-142b have been identified as eventual replacements for
HCFC-141b. At this point, however, the spray foam industry believes
that additional time is needed to test and implement any alternatives
to HCFC-141b. The Agency is currently reviewing a request that limited
quantities of HCFC-141b be made available for spray foam applications
beyond the January 1, 2003 phaseout deadline. EPA intends to issue a
proposed determination pertaining to this request later this year as
part of the HCFC allocation rulemaking.
Today's rule lists HCFC-22 and HCFC-142b as acceptable
replacements, under narrowed use limits, for HCFC-141b in commercial
refrigeration, sandwich panels, and slabstock and other foams
applications. Users intending to adopt HCFC-22 or HCFC-142b, and blends
thererof in the commercial refrigeration and sandwich panels, and the
``slabstock and other foams'' end-uses, must ascertain and document
that other acceptable alternatives are not technically feasible. EPA
believes that at this time, technically viable, non-ozone depleting
(zero-ODP) alternatives to HCFC-141b are not fully developed for all
applications within these end-uses. With the production phaseout of
HCFC-141b approaching, several comments indicated that many companies
are aggressively testing non-ozone-depleting alternatives and plan to
implement them in the near future. However, these end-uses are
comprised of extremely diverse products and non-ozone-depleting
alternatives may not be fully developed in every unique application
within these end-uses. Additionally, these end-uses comprise thousands
of small businesses and EPA believes that, in this situation, it is
appropriate to allow the narrowed use of HCFC-22 and/or HCFC-142b where
necessary. Although EPA encourages continued efforts to implement non-
ozone-depleting alternatives, the Agency feels that allowing narrowed
use of HCFC-22 and/or HCFC-142b will facilitate the impending HCFC-141b
transition by providing flexibility to small businesses who have not
yet successfully identified suitable alternatives.
Comments on the July 11, 2000 proposal and May 23, 2001 NODA
regarding new use of HCFC-22 and HCFC-142b as replacements for HCFC-
141b indicate opposing views on the following four major issues which
are addressed in detail below:
1. Technical viability of alternatives to HCFC-141b
2. Availability of alternatives to HCFC-141b
3. Economic/small business impacts
4. EPA's review process
1. Technical Viability of Alternatives
EPA's proposal was based on our understanding that technically
feasible alternatives are available in all foam sectors. However, some
comments suggested that feasible alternatives were not available for
all end-uses and that EPA should have proposed acceptability
determinations by end-use rather than across the entire foam sector.
EPA's SNAP program has defined ten major end-uses in the foam sector.
Of these ten end-uses, manufacturers in the following four use HCFC-
141b:\4\
---------------------------------------------------------------------------
\4\ HCFC-141B is not used to manufacture polystyrene foam.
---------------------------------------------------------------------------
Rigid Polyurethane and Polyisocyanurate Laminated
Boardstock
Rigid Polyurethane Appliance
Rigid Polyurethane Spray, Commercial Refrigeration, and
Sandwich Panels
Rigid Polyurethane Slabstock and Other Foams
Based on data collected by the Agency (Air Docket A-2000-18, IV-D-
79), rigid polyurethane/polyisocyanurate laminated boardstock makes up
60% of the total foam manufacturing use of HCFC-141b in the U.S., the
rigid polyurethane appliance end-use and spray foam application each
use approximately 18% of the total HCFC-141b, and the remaining 4-5% of
HCFC-141b use is combined in rigid polyurethane commercial
refrigeration, sandwich panels, slabstock and other foam applications.
Below is a discussion, by end-use, on the technical feasibility of non-
ODS alternatives to HCFC-141b (Table B lists the SNAP approved
alternatives).
Table B.--SNAP Approved Alternatives to HCFCs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial
refrigeration, Slabstock and
SNAP approved HCFC alternative Boardstock Appliance Spray and sandwich other foams
panels
--------------------------------------------------------------------------------------------------------------------------------------------------------
Water/CO2.......................................................... X X X X X
HFC-134a........................................................... X X X X X
HFC-152a........................................................... X X X X X
HFC-245fa.......................................................... X X X X X
Exxsol............................................................. X X X X X
Hydrocarbons (C3-C6)............................................... X X ............... X X
Formic Acid........................................................ X X X X X
Vacuum Panels...................................................... ............... X
2-chloropropane.................................................... X
Methyl Formate..................................................... X X ............... X X
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 47712]]
Rigid Polyurethane and Polyisocyanurate Laminated Boardstock
Although the majority of comments supported EPA's determination
that technically viable alternatives to HCFC-141b are available for the
polyurethane and polyisocyanurate boardstock industry, two commenters
stated that those manufacturers converting from HCFC-141b to
hydrocarbons would see a 10-15% loss in insulation value of their
product. EPA recognizes that foam manufactured using alternative
blowing agents may display slightly different properties than HCFC-
141b-blown foam. However, the Agency did not receive, and is not
otherwise aware of, data demonstrating that the use of hydrocarbons
would reduce the insulating performance of polyurethane and
polyisocyanurate boardstock. On the contrary, EPA received information
showing that hydrocarbons are a viable option and that manufacturers in
the polyurethane and polyisocyanurate laminated boardstock industry are
actively transitioning to them, as described below.
Hydrocarbon blowing agents have been considered viable candidates
to replace HCFCs for several years. A 1995 article indicates that
``hydrocarbon blown foams can be developed that meet the stringent
requirements of the North American construction industries'' (Docket A-
2000-18, IV-D-41, Supporting Document #54). Although processing
techniques were not optimized at the time, according to the authors,
the data ``clearly indicate[s]
that n-pentane and cyclopentane are
viable candidates for use as * * * blowing agents in polyisocyanurate
foams.'' Subsequent studies show that, due to further research and
development of hydrocarbon blown foams over the past 5 years, the
technical viability of hydrocarbons has improved (A-2000-18, IV-D-41,
Supporting Document #44-51).
Additionally, several comments provided information confirming that
rigid polyurethane and polyisocyanurate laminated boardstock
manufacturers are rapidly converting to hydrocarbon-based blowing
agents. One roofing corporation presented a line of hydrocarbon blown
foam in 1997, well ahead of the 2003 HCFC-141b phaseout (A-2000-18, IV-
D-72). As of March 2000, two additional polyisocyanurate boardstock
manufacturers had announced their intention to use hydrocarbons, and
two or three others planned to do so before 2001 (Docket A-2000-18, IV-
D-41, Supporting Document #43). EPA has additional information
indicating that several other boardstock manufacturers are in the
process of converting some or all of their facilities from HCFC-141b to
hydrocarbons (A-2000-18, IV-D-64, 73). EPA believes that evidence of an
ongoing transition from HCFC-141b to hydrocarbon blowing agents,
provides conclusive support for the Agency's position that low- or
zero-ODP alternatives are available in the rigid polyurethane and
polyisocyanurate boardstock sector.
Although hydrocarbons have taken the lead as the replacement for
HCFC-141b in rigid polyurethane and polyisocyanurate laminated
boardstock applications, hydrofluorocarbons (HFCs) may also be
considered viable alternatives to HCFC blowing agents (Docket A-2000-
18, IV-D-41, Supporting Document #48, 52, 54). An article
published for a Polyurethanes World Congress meeting in 1997 indicates
that HFC-245fa is a technically viable zero-ODP alternative that
``produces foams with properties comparable to HCFC-141b with minimal
reformulation'' (Docket A-2000-18, IV-D-41, Supporting Document
#52). Although the author states that the predicted costs of
HFC-245fa could limit its use in certain applications, recently
published articles show that more cost-effective blends of HFC-245fa
and water or HFC-245fa and hydrocarbons are currently being tested and
developed for the boardstock sector (Docket A-2000-18, IV-D-74, 75).
Based on this information, the Agency believes HFC-245fa and HFC-245fa
blends are additional, viable zero-ODP alternatives to HCFC-141b in the
polyurethane and polyisocyanurate boardstock industry.
Rigid Polyurethane Appliance Foam
The rigid polyurethane appliance foam industry predominantly uses
HCFC-141b with some minor use of HCFC-22 and HCFC-142b. As discussed in
the previous section, existing use of HCFC-22 and HCFC-142b is
considered acceptable in today's action.\5\ For appliance foam
manufacturers using HCFC-141b today, however, the Agency believes that
there are a sufficient number of viable, non-ozone depleting
alternatives to which the industry has already made substantial
commitment. As discussed below, in anticipation of the phaseout of
HCFC-141b and new Department of Energy efficiency standards, the U.S.
appliance industry has been testing and developing zero-ODP
alternatives for at least five years (Docket A-2000-18: IV-D-11,
Attachments #2, 4; IV-D-41, Supporting Document #5).
---------------------------------------------------------------------------
\5\ Appliance manufacturers recently modified their products and
operations to comply with 2001 DOE energy efficiency standards. In
contrast to appliance manufacturers that have been using HCFC-141b,
HCFC-22/-142b users have assumed that their blowing agents would be
available until 2010. As discussed in this section, alternatives to
HCFC-141b in the appliance sector have been developed and are being
implemented in ways to ensure compliance with the DOE standard. The
Agency believes that it would be difficult at this point for HCFC-
22/-142b users to test and implement other blowing agents in their
products to meet the new energy standards.
---------------------------------------------------------------------------
Hydrocarbon blowing agents have been considered viable candidates
to replace CFCs and HCFCs for several years and are widely used to
produce appliance foam in Europe and Japan. One commenter provided 16
articles showing performance developments of hydrocarbon appliance
systems since 1995 (Docket A-2000-18, IV-D-41, Supporting Documents
#2-5, 8-9, 12-13, 15, 17, 21-23, 25-26, 29). Although U.S.
appliance manufacturers have not shown broad movement towards
hydrocarbons, comments indicate that hydrocarbons are technically
viable alternatives to HCFC-141b (Docket A-2000-18, IV-D-31 and 41 -
Supporting Document #5, 43).
HFC-134a also is a technically viable alternative that is currently
being used in the U.S. to manufacture appliance foam (Docket A-2000-18,
IV-D-41-Supporting Document #5, IV-E-6). An October 2000
industry report (Docket A-2000-18, IV-D-75c) documents developments in
HFC-134a technology that have improved processing and foam properties.
The author concludes that HFC-134a is a ``cost-effective substitute to
produce rigid polyurethane foam with excellent properties for the
appliance industry.''
EPA received some comments opposed to the Agency's determination
that technically viable alternatives are available for the polyurethane
appliance foam sector. Three commenters stated that appliance
manufacturers converting from HCFC-141b to commercially available zero-
ODP alternatives would see a 10% loss in energy efficiency (Docket A-
2000-18, IV-D-3, 11, 16). These commenters also suggest that
alternative blowing agents, such as HFC-134a and cyclopentane, may
result in foams that are not as thermally insulating as those produced
with HCFC-141b. However, one study reported that performance of
cyclopentane-blown appliance foam may approach that of CFC-11 (Docket
A-2000-18, IV-D-41, Supporting Document #8). If appliance
manufacturers see losses in insulation values when using hydrocarbons
or HFC-134a, modifications can be made to reduce energy consumption to
[[Page 47713]]
compensate for losses in insulation value (Docket A-2000-18: IV-D-11,
Attachment #1; IV-D-41, Supporting Document #27, 32,
33). Additionally, EPA received numerous studies showing that use of
HFC-245fa, which is scheduled to be commercially available by mid-2002,
could result in energy efficiencies equal or superior to those for
HCFC-141b (Docket A-2000-18: IV-D-11, Attachment #1-5, IV-D-41,
Supporting Documents #1, 2, 5-7, 10, 11, 14-17, 23, 28) and
several appliance manufacturers have finalized their plans to convert
to HFC-245fa blowing agents (Docket A-2000-18: IV-E-6, IV-D-23).
Water heaters and vending machines also fall under the SNAP rigid
polyurethane appliance sector. Both of these applications are primarily
supplied by polyurethane systems houses and some manufacturers in this
end-use currently use HCFC-22 and HCFC-142b, while others use HCFC-
141b.\6\ The technical viability of alternatives for these applications
was discussed in the May 23, 2001 Notice of Data Availability (NODA).
Available information indicates that non-ozone depleting alternatives
to HCFC-141b are available and are already being implemented. Several
water heater manufacturers have transitioned from HCFCs to non-ozone-
depleting alternatives or are planning for conversions as the HCFC-141b
production phaseout nears. No technical barriers to these alternatives
were identified in the comments received from the polyurethane systems
houses (non-spray foam) provided in the NODA.
---------------------------------------------------------------------------
\6\ Polyurethane systems houses sell pre-blended polyurethane
systems which are defined in Section III, A.
---------------------------------------------------------------------------
Rigid Polyurethane Spray Foam
Based on several comments and a report commissioned by the Agency
to supplement information provided in the comments to the proposed rule
and NODA, there is little if any interest within the spray polyurethane
foam industry in switching from HCFC-141b to HCFC-22 and/or HCFC-142b.
Much of this resistance is due to differences in processing and
performance, and the capital costs associated with transitioning from a
liquid blowing agent (HCFC-141b) to a gaseous blowing agent (HCFC-22/
HCFC-142b). Today's action lists HCFC-22 or HCFC-142b as unacceptable
substitutes for HCFC-141b within the rigid polyurethane spray foam
sector. As discussed previously, the Agency will issue a separate
decision on the request to allow for limited production of HCFC-141b
beyond January, 2003 for spray foam applications.
Commercial Refrigeration and Sandwich Panels; Slabstock and ``Other
Foams''
Based on comments from numerous foam manufacturers within the
commercial refrigeration, sandwich panels, and slabstock & ``other
foams'' applications, EPA is approving use of HCFC-22 and HCFC-142b in
these end-uses with narrowed use conditions. EPA found that these end-
uses have the following characteristics: (1) Highly diverse
applications with unique technical considerations depending on the
application; (2) thousands of small businesses with varying levels of
progress made on research and development on alternatives; and (3) use
of different HCFCs within the same applications with no single
preferred blowing agent of choice;. These end-uses include a broad
array of products and applications such as walk-in coolers, garage and
entry doors, refrigerated trucks and railcars, architectural panels,
picnic coolers, tank and pipe insulation, marine flotation foams,
floral foams, and taxidermy foams. Given the limited amount of
published information on the technical viability of alternatives in
these end-uses, EPA commissioned a review of the diverse foam
applications encompassed under this sector. The resulting information
was made available for public review in the May 23, 2001 NODA (66 FR
28408) and can be found in EPA's Air Docket (A-2000-18, IV-D-78, and
79).
Through the NODA, EPA provided information on the type and amount
of HCFC used in each foam industry end-use (Air Docket A-2000-18, IV-D-
79). Based on information collected by EPA and comments to the NODA,
EPA believes there is mixed use of HCFC-141b, -22, and HCFC-142b in the
commercial refrigeration and sandwich panels and the slabstock and
other foams applications, depending on the specific product and the
individual manufacturer (Air Docket A-2000-18, IV-D-81). Unlike the
polyurethane boardstock, appliance, and spray foam end-uses, a majority
of foam manufacturers in these end-uses did not adopt HCFC-141b as
their prime blowing agent. Instead, individual foam manufacturers
within these applications adopted different HCFC blowing agents based
on the original blowing agent used and existing equipment and product
requirements (although there were differences in handling and
processing due to differences in vapor pressure, the blowing agent and
capital costs to transition were similar). Because HCFC-141b, -22, and
HCFC-142b were similar in cost, companies could meet their specific
product requirements and remain cost competitive while using different
blowing agents to manufacture similar products.
Within the commercial refrigeration and sandwich panel
applications, non-ozone depleting alternatives have been identified
and, in limited cases, implemented successfully. EPA is allowing
limited use of HCFC-22 and/or HCFC-142b as alternatives to HCFC-141b
for companies within these applications who have not had access to and/
or have been able to fully implement ozone-friendly alternatives to
meet their thermal performance, dimensional, and flammability control
requirements. The narrowed use limits imposed under today's action are
in recognition of comments and information collected by the Agency
indicating that many companies in the pour foam industry are engaged in
developing and testing alternatives to ozone depleting chemicals, but
that ozone-friendly alternatives are not yet widely available to ensure
that products are made that maintain sufficient thermal efficiency,
product integrity and safety. While technical information is scarce for
these applications, EPA believes that within the wide range of small
foam uses within these applications, there are HCFC-141b users who
currently have technical constraints in transitioning from HCFC-141b to
non-ozone-depleting alternatives. To help ensure that HCFC-22 and HCFC-
142b are used as substitutes for HCFC-141b only in specific
applications where no technically viable alternatives are available,
however, EPA is including these narrowed use limit provisions.
In commercial refrigeration and sandwich panel applications, EPA's
consultant report and comments identified HCFC-22 and HCFC-142b as
potential alternatives to HCFC-141b. One example is in refrigerated
transport insulation, which may include refrigerated truck bodies and
insulated rail cars, where there are cases in which it is critical to
maintain thermal performance, flammability control, and an absolute
outside dimension of a container while maximizing internal dimensions.
Further, due to new low temperature requirements for food storage and
transport recently imposed by the Food and Drug Administration, there
is an increased demand for thermal performance of blowing agents for
these applications. Even though manufacturers switching from a liquid
[[Page 47714]]
(HCFC-141b) to a gaseous (HCFC-22/HCFC-142b) blowing agent will need to
make process/equipment modifications, some companies consider HCFC-22
and HCFC-142b viable alternatives to HCFC-141b because their
manufacturing processes occur in a controlled factory setting, making
this transition more manageable. Therefore, where low temperature and/
or space requirements cannot be met with non-ozone-depleting blowing
agents, HCFC-22 and HCFC-142b can be used as replacements for HCFC-
141b.
Comments to the consultant report and information from systems
houses indicate that there are also pour foam applications within the
slabstock and other foams end-use where manufacturers have identified
difficulties in transitioning from HCFC-141b to non-ODS alternatives.
EPA received comments that HCFC-22/HCFC-142b may also be used as
transitional blowing agents within this end-use. Similar to the
commercial refrigeration and sandwich panel end-uses, available data
indicate that alternatives to HCFCs are available for some applications
within the rigid polyurethane slabstock and other foam end use,
particularly those where foam is used in non-insulating applications.
However, due to the diverse nature of this end use (e.g., picnic
coolers, drink dispensers, marine flotation, tanks and pipes, floral
and taxidermy foam) and potential technical constraints of some small
businesses in transitioning to ozone-friendly alternatives, EPA is
approving the use of HCFC-22 and HCFC-142b as alternatives to HCFC-141b
with narrowed use limits. At this time, EPA believes it is appropriate
to approve these blowing agents in narrowed uses to facilitate the
HCFC-141b phaseout and level the playing field for small businesses.
The Agency recognizes that some of the constraints within the
commercial refrigeration and sandwich panel and slabstock and other
foam end-use sectors can be resolved through equipment and formulation
modifications and that non-ozone-depleting blowing agents are currently
under consideration or are being used in some applications. However,
the end-uses within these sectors are highly diverse and their use of
HCFCs fragmented (some use HCFC-141b while others use HCFC-22 and HCFC-
142b), and it is difficult to assess, in the absence of detailed
information, the viability of alternatives in each narrow application.
While HCFC-22/HCFC-142b may be the most viable alternatives to HCFC-
141b for some applications, non-ozone-depleting alternatives may be
technically viable in other applications, such as entry or garage
doors, where there are no strict insulation requirements. In fact,
several door manufacturers have converted or are in the process of
converting to non-ODS alternatives already listed as acceptable (Docket
A-2000-18, IV-D-64, IV-E-6). In other cases, where HCFC-141b is used in
niche applications, EPA believes foam manufacturers may experience
difficulties and delays in transitioning from HCFC-141b to non-ozone-
depleting alternatives. Given the constraints associated with cost and
timing of transitioning to alternatives for small businesses, and the
need to facilitate a smooth and equitable transition from HCFC-141b,
EPA believes that within the commercial refrigeration and sandwich
panel and the slabstock and other foam end-use sectors, it is
appropriate to approve use of HCFC-22 and/or HCFC-142b as substitutes
for HCFC-141b in these end-uses, provided that the users intending to
adopt HCFC-22 or HCFC-142b ascertain and document that other acceptable
alternatives are not technically feasible. EPA urges foam manufacturers
to replace HCFC-141b with non-ODP alternatives in applications where
the non-ODP alternatives are technically and economically feasible. The
Agency will continue its review of the transition in these end-uses for
possible regulatory action in the future.
2. Availability of Alternatives
Many commenters expressed concern over the timing and continued
availability of the alternatives to HCFC-141b. The majority of these
comments related to the limited supply of HFC-245fa to date and the
uncertainty associated with relying on a single source of supply. EPA
recognizes that HFC-245fa is not currently produced in commercial
quantities. However, information from the manufacturer indicates that
pilot quantities of HFC-245fa have been supplied to the foam industry,
with semi-commercial quantities available today, and world-scale
quantities becoming available later in 2002. Because the major market
for this chemical is as a replacement for HCFC-141b, it is not
surprising that the timing of commercialization coincides with the
phaseout of 141b by January 1, 2003. Based on the progress on plant
construction, EPA is confident that HFC-245fa will be commercially
available to a significant part of the foam industry later this year.
It is important to note that other alternatives, including other
HFCs, hydrocarbons, and CO2/water have been commercially
available for years. Although two commenters expressed concern that
chemical manufacturers may not commit to produce sufficient quantities
of HFC-134a, EPA has no reason to believe that HFC-134a will not be
available for the foams industry. HFC-134a is extensively used
throughout the U.S. in foam applications and as a refrigerant in
automobile air conditioners. Hydrocarbons, CO2/water, and
other SNAP approved alternatives are also widely available.
3. Economic/Small Business Impacts
Today's action designates HCFC-22 and HCFC-142b as acceptable
substitutes subject to narrowed use limits for new users in some
sectors (commercial refrigeration, sandwich panels, slabstock and other
foam applications), and unacceptable for new use in other sectors where
ozone-friendly alternatives are available. The Agency believes that its
original cost analysis adequately accounts for the projected costs
associated with the final rule. In evaluating the potential cost
impacts of the July 11, 2000 proposal, EPA focused on the appliance
sector where a range of alternative blowing agents, including HCFC-22
and HCFC-142b were considered technically viable replacements for HCFC-
141b; responses to comments on this evaluation are provided later in
this section. For other foam end-uses, EPA believed that either: (a)
There would be no cost associated with the proposed decision; or, (b)
that the costs would be extremely low. Explanations for each scenario
follows:
(a) The Agency did not project additional costs for certain
polyurethane foam end-uses because the Agency believed that those end-
uses had identified non-ozone depleting chemicals as the most viable
options. Because HCFC-22 and HCFC-142b were not seen as technically
viable and/or cost effective, restrictions on new use of HCFC-22 and
HCFC-142b in those sectors would not impose additional costs to the
industry. Based on comments, EPA believes that assessment was accurate
for the boardstock and spray foam end-uses. For other polyurethane
applications, however, EPA found that HCFC-22 and HCFC-142b are
considered technically and economically viable alternatives to HCFC-
141b. In those applications, EPA is listing HCFC-22 and HCFC-142b as
acceptable subject to narrowed use limits. The Agency does not believe
there will be costs to the industry related to this decision that have
not already been accounted for as part of the
[[Page 47715]]
original CFC and HCFC phaseout regulations.
Since 1993, the foam industry, including the relevant sectors:
commercial refrigeration, sandwich panels, and slabstock, have been
aware of the impending phaseout of HCFCs. Individual companies in these
sectors commented that they have been engaged in evaluating
alternatives to HCFC-141b and collecting the kind of information
required by the narrowed use provisions in today's rule. Under this
rulemaking, these companies will only have to retain the documentation
of these evaluations. The Agency has already accounted for costs
associated with recordkeeping requirements for substitutes acceptable
subject to narrowed use limits under the SNAP program (2001 SNAP ICR,
OMB No. 2060-0226). The Agency therefore does not project any added
costs for these sectors associated with today's rule.
(b) The bulk of comments on the economic impacts to industry,
including small business impacts, came from existing users of HCFC-22
and HCFC-142b who were concerned that EPA had not fully considered the
impact of discontinuing use of these chemicals by 2005. Any potential
impacts on such users are not an issue given today's action which
withdraws EPA's proposed decision to list HCFC-22 and HCFC-142b as
unacceptable for existing users of those chemicals. EPA concluded in
its original economic analysis that the cost of transitioning away from
HCFC-22 and HCFC-142b by January 1, 2005 would be extremely low because
alternatives were readily available and comparably priced. As stated
above, this issue is no longer relevant given that EPA is withdrawing
the proposed restriction on continued use of HCFC-22 and HCFC-142b for
those end-uses.
As noted above, for those applications where new use of HCFC-22 and
HCFC-142b is not considered acceptable, rigid polyurethane appliance
foam is the only sector where HCFC-22 and HCFC-142b has been considered
a possible option by at least some companies. As part of the July 11,
2000 proposal, EPA estimated potential costs associated with
restricting use of HCFC-22, HCFC-142b, and HCFC-124, in the appliance
end-use. The Agency's assessment of costs to the appliance sector was
premised on the fact that the costs of transitioning out of HCFC-141b
for all users had been previously accounted for in the original CFC and
HCFC phaseout regulations. Furthermore, EPA examined the potential
costs associated with meeting the proposed SNAP restrictions while
complying with the DOE efficiency standards which took effect in July,
2001. Thus, for purposes of this rule, EPA compared the costs of
manufacturing new refrigerators with foam blowing agents other than
HCFC-141b (i.e., the cost of using HCFC-22/-142b was compared with the
costs of using HFC-134a, HFC-245fa or hydrocarbons).
Two commenters claim that the Unfunded Mandates Act obligated EPA
to consider a reasonable number of regulatory alternatives and develop
a budgetary impact statement because the proposed rule would result in
costs to the private sector of more than $100 million or more in any
one year. One of these commenters suggests that ``full utilization'' of
HFC-245fa (i.e., use in all new refrigerators) would result in a
material cost impact of $86 million per year and that full utilization
of HFC-134a would result in an annual cost of $114.5 million. The
commenters note that these costs do not take into account the retail
pricing structure nor capital expenditures.
Although it is unclear precisely what assumptions went into the
commenters' conclusions regarding cost, it appears that the cost
figures provided assume the full cost of transferring from HFC-141b to
a substitute. EPA disagrees with that method of determining the costs
associated with this rule. The core costs of switching from HCFC-141b
to another substitute are costs associated with the HCFC phase-out
rule, which mandates a phaseout in production of HCFC-141b by January
1, 2003. In the economic analysis performed for the phaseout rule, EPA
took into account the general cost that users of HCFCs would incur in
switching to substitutes. Thus, in this rulemaking, which restricts
some of the potential substitutes, EPA took into consideration the
differential costs associated with employing the substitutes. For
example, in examining the cost of this rule, EPA compared the costs to
a user of switching from HCFC-141b to HCFC-22/142b with the costs of
switching from HCFC-141b to HFC-245fa. Thus, if it were more costly to
switch to HFC-245fa than to switch to HCFC-22/142b, the cost
attributable to this rule which lists HCFC-22/142b as an unacceptable
substitute in appliance foam would be the incremental cost of switching
to HFC-245fa. In addition, EPA notes that the figures provided by the
commenter for HFC-245fa and HFC-134a both assume ``full utilization.''
Thus, those numbers should not be combined; rather, it should be
assumed that the costs identified by the commenter would fall somewhere
between $86 million and $114.5 million, assuming the validity of those
numbers. (As noted above, the commenter does not explain how those
numbers were derived.) In concluding that the $100 million threshold
would be exceeded because of this rule, the commenter apparently
assumes a distribution of refrigerators using both HFCs (134a and
245fa) but does not explain the scenario that they project for the
industry.
The Agency also disagrees with the commenter's claim that EPA's
economic analysis under-estimates the manufacturing costs for
refrigerators that would be converting to zero-ODP blowing agents for
their insulation foam. As noted above, the Agency did not attribute
costs specific to transitioning out of HCFC-141b to this rulemaking,
since those costs have already been accounted for as part of the CFC
and HCFC phaseout regulations. The Agency did estimate additional
manufacturing costs associated with alternative blowing agents and it
is noteworthy that this commenter presents a range of added costs
comparable to the range derived by EPA. The commenter estimates that
zero-ODP blowing agents would cost between $4.07 and $8.60 per
refrigerator, while EPA estimated that the cost to convert to zero-ODP
blowing agents would range from approximately $3 to $10 for a mid-size
refrigerator. It is difficult for the Agency to respond to the
commenter's analysis in any detail, however, because the commenter only
states in a footnote to the table entitled ``Foam Blowing Agent
Performance/Cost Factors'' that the costs include ``all costs necessary
to insure that the foam system will function satisfactorily: blowing
agent, polyurethane components, and capital investment,'' but does not
disaggregate costs for separate manufacturing components as EPA did in
its analysis (blowing agent price, foam density, foam cost, foam liner
cost, capital to convert).
By apparently ignoring the differential costs considered by EPA,
the commenter under-estimates costs associated with less energy
efficient blowing agents (e.g., HCFC-22/-142b) and over-estimates costs
associated with more efficient blowing agents (e.g., HFC-245fa). In
reviewing the insulation efficiencies associated with various
acceptable foam blowing agents, EPA believed it was necessary to
reflect the total costs of refrigerator manufacture under the new DOE
requirements associated with alternative blowing agents. EPA's analysis
calculated the potential additional costs associated with these kinds
of design modifications needed to compensate for foams blown with
agents that provide less insulation value. These additional costs
depend on
[[Page 47716]]
the insulation value of the different blowing agents. EPA derived
``energy penalties'' or ``energy gaps'' for the various foam blowing
agents relative to HCFC-141b based on the R-values and k-factors for
foams made with the various alternative blowing agents and other data
provided in various industry forums. For example, these data indicate
an 8% energy gap for a 60%/40% blend of HCFC-22/142b, whereas the
commenter presents a significantly lower energy penalty (2%) for an
unspecified blend of HCFC-22 and HCFC-142b. Unlike EPA's analysis, the
commenter's analysis does not appear to account for differential costs
between alternative blowing agents associated with potential
refrigerator re-designs to meet DOE energy efficiency standards that
took effect in July 2001.
The commenter incorrectly concludes that ``EPA implies that lower
power, more efficient evaporator and condenser fan motors, more foam,
and more extensive gasket systems cost less rather than more.'' The
Agency does not believe that these types of modifications would not
entail costs, and recognizes that complying with the new DOE energy
standard, and transitioning from HCFC-141b to alternative blowing
agents will have costs. However, as noted above, these costs are
attributable to the phaseout and DOE energy efficiency standards.
Blowing agents that provide greater insulation value will reduce the
burden on the manufacturer to increase energy efficiency in other
components of the refrigerator. In comparing the costs associated with
the different alternatives, the Agency estimated that the impacts of
the proposal, because it would facilitate a transition to an energy
efficient blowing agent, would actually be a cost savings for the
industry and ultimately, consumers. Because HFC-245fa has a high
insulation value, EPA calculated that the total costs (cost of foam
plus re-design costs to comply with new energy efficiency standard)
associated with a transition to this agent would be considerably lower
compared to a transition using any other alternative. In other words, a
switch from HCFC-141b to HFC-245fa (which have comparable insulation
values) would cost between $2.30 and $3.40 per refrigerator less
compared to a switch from HCFC-141b to other blowing agents with lower
insulation values and boiling points, such as HCFC-142b/HCFC-22 blends,
or HFC-134a. When these costs are aggregated for the U.S., the cost
reductions would total between approximately $23 million and $34
million per year.
The Agency believes, as discussed above, that the total costs of
transitioning out of HCFC-141b in manufacturing new refrigerators is
not a relevant consideration for today's rulemaking. The commenter
again is apparently not accounting for differences in insulation value
across the different blowing agents that are potential alternatives to
HCFC-141b. For example, the commenter on one hand states that indirect
costs are included to compensate for the reduced insulation value
provided by HFC-134a; however, indirect cost savings from using HFC-
245fa, which provides significantly greater insulation value, are not
included in the commenter's analysis. One commenter raised a concern
that EPA does not restrict the import of products containing
substitutes that EPA has determined unacceptable under SNAP and that
companies that shift production of appliances to Mexico will have an
unfair economic advantage. While EPA sympathizes with and shares the
concerns raised by the commenter, the issues surrounding imports are
complex and there are limits on EPA's ability to control the import of
appliances that contain substitutes listed as unacceptable for use in
the United States. However, those limits on EPA's ability to control
imports do not justify a decision to list as acceptable substitutes
that are more harmful to human health and the environment than other
available substitutes.
The Agency concludes that comments received since the proposal do
not provide any substantive reasons why the original estimates require
revision. The Agency maintains its assertion that the costs associated
with today's decision will not result in the expenditure by State,
local, and tribal governments or the private sector of $100 million or
more in any one year.
4. EPA's Review Process
EPA received comments that the Agency's review process took much
longer than the period provided by the CAA and EPA's regulations and
that the lengthy review created industry hardship. EPA recognizes that
while a manufacturer of a substitute may market that substitute 90 days
after it files a petition with EPA, that there may be reluctance of
users to switch to that substitute until EPA makes a determination of
whether that substitute is acceptable. EPA makes its best effort to
review and act on a petition as quickly as possible. Under the SNAP
procedures established in 1994, EPA may make determinations that a
substitute is acceptable without going through notice-and-comment
rulemaking. Thus, often, EPA can make determinations that a substitute
is acceptable relatively quickly. However, EPA believes that notice-
and-comment rulemaking is required to place any alternative on the list
of prohibited substitutes or to establish use limits. In providing
adequate technical and scientific review of the substitute and
providing sufficient public participation through the notice-and-
comment rulemaking process, it is virtually impossible for the Agency
to make such determinations quickly.
In this case, the Agency listed one of the chemicals in the
petition, HFC-134a, as an acceptable substitute as soon as possible
after the petition was received (64 FR 30410, June 8, 1999). HFC-134a
is a non-ozone-depleting chemical that is safe to use and widely
available. At that time, EPA reached the conclusion that additional
review was necessary for the remaining chemicals (HCFCs) in the
petition. Because of their ozone-depletion potential, EPA believed that
the HCFCs could pose a higher risk than other SNAP approved
alternatives. Therefore, EPA took additional time to assess the
availability and technical viability of other SNAP approved
alternatives in each foam sector end-use. Based on that review, EPA
concluded that there were alternatives that posed a lower risk than
HCFCs and drafted a proposal to list these chemicals as unacceptable.
Following the comment period to the proposal, the Agency was faced with
reviewing a significant amount of technical information provided in
comments, collecting additional information regarding small businesses
that might be affected by the rule, and seeking public comment on this
new information through a Notice of Data Availability published in the
Federal Register.
While EPA strives to act on these petitions in a quick, yet
thoughtful, manner, if a person is concerned that EPA is failing to act
in accordance with statutory or regulatory time frames the CAA provides
a remedy. Under section 304 of the CAA, a person may file an action
requesting a federal district court to order EPA to take action as
required under the Act.
Several commenters argued that EPA did not consider the factors
identified by EPA in the original SNAP program regulations as key
decision criteria in evaluating the acceptability of proposed
alternatives to ODSs (40 CFR 82.180 (a)(7)). Some commenters believed
that EPA based the proposal on ODP alone and argued that the Agency
cannot make a listing decision without taking into account the overall
risk of the
[[Page 47717]]
alternatives. EPA would like to assure commenters that these factors
were indeed considered. EPA's SNAP submission form requests extensive
information on each substitute.\7\ Before proposing action on July 11,
2000, the Agency considered ODP, global warming potential (GWP),
insulation values for the resulting foam products, and toxicological
risks for HCFC-22, -142b, and -124 compared to HCFC-141b and other
acceptable alternatives. (EPA discusses its final decision to list
HCFC-124 as unacceptable more fully in the next section.) Although in
the preamble of the July 11, 2000 proposal, EPA summarized only the
atmospheric effects of the various HCFCs, the information regarding the
other decision criteria was considered and is publicly available in
EPA's Air Docket A-91-42. After considering health and environment risk
criteria, EPA determined that ODP and atmospheric lifetimes of HCFC-22,
-142b, and -124 distinguish these chemicals from other HCFC-141b
alternatives. As stated in the proposal, HCFC-141b has an ODP of 0.1,
HCFC-142b has an ODP of 0.065, HCFC-22 has an ODP of 0.055, and HCFC-
124 has an ODP of 0.02 (World Meteorological Organization, 1999). The
atmospheric lifetimes for these chemicals range from 6-18 years.
Although it was not the determining factor for this decision, EPA noted
that HCFC-22 and HCFC-142b also have 100-year global warming potentials
that are significantly higher (1900 and 2300 respectively) than the
zero-ODP alternatives already listed as acceptable. The Agency believes
that the ozone depletion potentials of HCFC-22, -124, and -142b make
them unacceptable substitutes for HCFC-141b in appliance, boardstock
and spray foam applications because other alternatives are available
that overall pose less risk to human health and the environment.
---------------------------------------------------------------------------
\7\ To minimize the reporting burden EPA does not require
submitters to re-submit data that have been previously reviewed by
the Agency. HCFC-22 and HCFC-142b and HCFC-124 were previously
submitted and fully reviewed as CFC substitutes in the foam and
refrigeration sectors. This information is part of the record for
the original March 1994 SNAP rulemaking.
---------------------------------------------------------------------------
One commenter suggested that EPA should list HCFC-22, -142b, and -
124 as acceptable substitutes for HCFC-141b in all foam end-uses
because each of the submitted chemicals has a lower ODP than does HCFC-
141b. The same commenter suggested EPA's proposed decision not to list
as acceptable substitutes with any ODP was inconsistent with prior EPA
decisions because 2-chloropropane, with an ODP of 0.003, was recently
listed as acceptable under SNAP in the polyurethane boardstock sector.
Similarly, another commenter referenced approval of a blend with
CF3I (ODP estimated to be 0.008, atmospheric lifetime
approximately 1 day) to replace CFC-12 in some refrigeration
applications. EPA acknowledges that the Agency has listed substitutes
for ODSs that themselves have ODPs; indeed, EPA approved the use of
HCFCs as transitional foam blowing agents, despite their ozone
depletion potential, because technically feasible alternatives to CFCs
were limited at that time. EPA is taking the same approach in today's
final action. In commercial refrigeration, sandwich panels, and
slabstock and other foams applications, the Agency is approving
narrowed use of HCFC-22 and HCFC-142b as replacements for HCFC-141b
because other approved alternatives may not be viable in certain
applications at this time. However, in polyurethane boardstock,
appliance and spray foam applications, EPA believes that low- or non-
ozone-depleting alternatives have been identified; therefore, EPA is
listing HCFCs as unacceptable as replacements for HCFC-141b in these
end-uses. EPA does not believe that today's decision to list HCFC-22
and HCFC-142b as unacceptable replacements for HCFC-141b in those end
uses is inconsistent with EPA's approval of 2-chloropropane as a
replacement for HCFC-141b because the ODP of 2-chloropropane is
estimated to be 0.003 which is extremely low (significantly lower than
the ODPs of HCFC-22 and HCFC-142b).
Even though HCFC-22, and 142b have lower ODPs than HCFC-141b, EPA
does not believe that new use of these ODSs as substitutes for HCFC-
141b, even for a short period of time, is warranted across the spectrum
of foam applications given the availability of zero-ODP foam blowing
agents in certain applications. Where alternatives are available, the
transition from HCFCs to zero-ODP alternatives can be made, and will be
made more quickly without an additional and incremental transition from
HCFC-141b to other HCFCs. 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 (59 FR 13044). A determination that it
is acceptable for users of HCFC-141b to switch to HCFC-22, HCFC-142b or
blends thereof would result in continued damage to the ozone layer and
would delay the transition to zero-ODP foam blowing agents which are
available.
One commenter suggested that EPA's review should have resulted in
approval of HCFCs because, based on data provided by the commenter,
some of the currently acceptable alternatives increase GWP,
CO2 loading, and energy use compared to HCFC-141b (Docket A-
2000-18, IV-D-3) and that HCFC-22, -142b, and -124 provide lower
overall risk than HCFC-141b. Under SNAP, EPA's primary consideration is
the comparison of substitutes, not the comparison of the substitute
with the substance it is replacing (Clean Air Act Section 612 (c)). The
information that EPA had at the time of proposal, as well as the
information provided by the commenter, shows that the zero-ODP
alternatives already listed as acceptable, compared to HCFC-22 and
HCFC-142b, can in fact reduce ODP, GWP, atmospheric lifetime, and
improve energy efficiency, thereby reducing emissions of
CO2. The information also shows that the zero-ODP
alternatives, compared to HCFC-124 reduce ODP in all cases, and reduce
GWP, atmospheric lifetime, and CO2 loading in some cases.
However, the differences in GWP, atmospheric lifetime, and
CO2 loading were not significant enough to warrant
determining HCFC-124 acceptable. Although information provided by this
commenter and a few others report increases in energy use for some
currently acceptable substitutes, EPA believes, as discussed above in
section III, C, 1 under Rigid Polyurethane Appliance Foam, that use of
zero-ODP alternatives will result in insulation values very close to
those for HCFC-141b and that other non-foam related modifications could
improve energy efficiency where necessary.
Regarding the other health and environmental factors typically
included in SNAP review (40 CFC 82.180(a)(7)), EPA found no substantive
distinction between the HCFCs under consideration and the alternatives
already listed as acceptable foam blowing agents. However, some
commenters disagreed with EPA's finding and expressed concern that EPA
disregarded evidence that HCFC-22 and HCFC-142b pose lower risks than
current alternatives in certain aspects. Two commenters specifically
pointed out that hydrocarbons are flammable volatile organic compounds
and pose a greater risk than the HCFCs under review. One of these
commenters also stated that HCFC-22 and HCFC-142b are relatively less
toxic than HFC-245fa.
EPA recognizes that the risks associated with factors such as
toxicity and flammability vary amongst the
[[Page 47718]]
SNAP-approved alternatives and the HCFCs under consideration. For
example, EPA recognized the flammability risks and VOC issues
associated with hydrocarbons when they were originally approved as
replacements for CFCs in the foam sector (59 FR 13083). In SNAP listing
decisions published in December 1999 and April 2000, the Agency
approved hydrocarbons for use as replacements for HCFC-141b, but
indicated that hydrocarbon blowing agents are flammable and should be
handled with proper precautions (64 FR 68039 and 65 FR 19327). EPA gave
examples of high risk scenarios and stated that approval of
hydrocarbons in certain applications would be granted only to
manufacturers providing safety training to their customers (64 FR 68039
and 65 FR 19327).
Regarding the comment about toxicity of HFC-245fa, EPA does not
believe there are increased human health risks associated with use of
HFC-245fa versus HCFCs in the foam industry. When EPA listed HFC-245fa
as an acceptable substitute, EPA's Office of Pollution Prevention and
Toxics reviewed the toxicity profile of HFC-245fa and referred it to
the American Industrial Hygiene Association's (AIHA) workplace
environmental exposure limit (WEEL) committee for a final exposure
limit. Since then, the WEEL committee adopted an occupational exposure
limit of 300 ppm (8-hour Time Weighted Average). EPA anticipates that
HFC-245fa will be used in a manner consistent with recommendations
specified in the manufacturers' Material Safety Data Sheets (MSDSs) (64
FR 68039) and that any exposures will fall well below acceptable
exposure limits set by the AIHA or other voluntary consensus standards
organizations.
As part of prior SNAP determinations, the Agency has specifically
reviewed the flammability and toxicological risks associated with the
various alternative foam blowing agents, and consistent with its
conclusion and recommendations at the time these substitutes where
listed as acceptable, the Agency believes that those potential risks
associated with the zero-ODP alternatives will be mitigated by the
industry with appropriate health and safety procedures.
D. HCFC-124
Based on comments, EPA believes that interest in using HCFC-124 is
limited to the rigid polyurethane appliance end-use within the foam
sector. Comments on the July 11, 2000 proposal and May 23, 2001 NODA
regarding new use of HCFC-124 in appliances indicate opposing views on
whether HCFC-124 should be listed as an acceptable substitute for HCFC-
141b.
Several comments summarized and responded to above suggested that
EPA should list HCFC-124, as well as HCFC-22 and HCFC-142b, as
acceptable substitutes in all foam end-uses because each of these
chemicals has a lower ODP than HCFC-141b. In addition, two commenters
argued that HCFC-124 provided an energy-efficient alternative to HCFC-
141b while use of zero-ODP alternatives would result in energy losses.
As discussed above in section III, C, 1 under Rigid Polyurethane
Appliance Foam, EPA believes use of currently acceptable alternatives
could result in energy efficient products. One commenter agreed with
the Agency's proposed decision on HCFC-124 and estimated that foam
blown with HFC-245fa has a 7-10% energy consumption advantage compared
to HCFC-124 and, after accounting for the aging rate of the foam, that
a refrigerator made with HFC-245fa blown foam would have about 15% less
total global warming impact compared to a similar product made with
HCFC-124. This commenter expressed confidence that the appliance
industry has zero-ODP alternatives to HCFC-141b that will not adversely
affect energy efficiency, including HFC-245fa. The commenter expressed
concern that approval of HCFC-124 would reverse progress made by the
appliance industry to eliminate compounds with an ODP, would fail to
account for the availability of other, more viable non-ODP
alternatives, and this would be inconsistent with the intent of the
Clean Air Act and EPA's mandate to protect the environment. This
commenter also expressed concern that approval would ``penalize
environmentally responsible companies''.
The Agency agrees with the latter commenter and their analysis
which more fully takes account of energy consumption and the total
environmental impact of alternative blowing agents. As discussed, EPA
does not believe that new use of HCFCs as substitutes for HCFC-141b,
even for a short period of time, is warranted in all foam end-uses
given the availability of zero-ODP foam blowing agents in most specific
applications. In the case of rigid polyurethane appliance foam, the
transition from HCFCs to zero-ODP alternatives can be made without an
additional and incremental transition from HCFC-141b to HCFC-124. The
Agency has identified several zero ODP foam blowing agent alternatives
for the appliance foam end-uses. The Agency believes that the ozone
depletion potential of HCFC-124 makes it an unacceptable substitute for
HCFC-141b because other alternatives are available for the appliance
foam industry that overall pose a less significant risk to human health
and the environment. The information that EPA had at the time of
proposal as well as the information provided by commenters since shows
that the zero-ODP alternatives already listed as acceptable, compared
to HCFC-124, have lower ODPs in all cases, and in some cases, lower
GWPs and atmospheric lifetimes. A determination that it would be
acceptable for users of HCFC-141b to switch to HCFC-124 would result in
continued damage to the ozone layer and would delay the transition to
zero-ODP foam blowing agents which are available.
IV. Summary
A major objective of the SNAP program is to facilitate the
transition from ozone-depleting chemicals by promoting the use of
substitutes which present a lower risk to human health and the
environment (40 CFR 82.170(a)). In this light, a key policy interest of
the SNAP program is promoting the quickest shift from ODSs to
alternatives posing lower overall risk and that are currently or
potentially available (59 FR 13044). Today's decision to list HCFC-22,
HCFC-142b, and HCFC-124 as unacceptable substitutes for HCFC-141b in
the end-uses discussed above is based on the Agency's finding that the
use of HCFC-22 and HCFC-142b, in applications where non-ozone depleting
chemicals are available, would contribute to the continued depletion of
the ozone layer, and would delay the transition to alternatives that
pose lower overall risk to the health and the environment.
For commercial refrigeration and sandwich panel applications, and
the polyurethane slabstock and other foams end-use, EPA is listing
HCFC-22 and HCFC-142b, with narrowed use limits, as acceptable
replacements for HCFC-141b. EPA is strongly opposed to listing HCFCs as
acceptable where non-ozone-depleting alternatives are available.
However, EPA believes that ozone-friendly alternatives to HCFC-141b
have not yet been fully developed and implemented across the spectrum
of applications within these end-uses. In these situations, EPA
believes switching to HCFC-22 and/or HCFC-142b as a bridge to non-
ozone-depleting alternatives presents a lower risk than continued use
of HCFC-141b.
[[Page 47719]]
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 Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector.
Under section 202 of the UMRA, EPA generally must prepare a written
statement, including a cost-benefit analysis, for proposed and final
rules with ``Federal mandates'' that may result in expenditures by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. Before
promulgating an EPA rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Section 204 of the UMRA requires the
Agency to develop a process to allow elected state, local, and tribal
government officials to provide input in the development of any
proposal containing a significant Federal intergovernmental mandate.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. This rule imposes no enforceable duty on any
State, local or tribal government. The core costs of transitioning from
HCFC-141b to substitutes are costs associated with the January 1, 2003
phaseout deadline for the production and import of HCFC-141b,
previously established on December 10, 1993 (58 FR 65018). In the
economic analysis for that rule, EPA accounted for costs to HCFC
manufacturers and users to shift from, for example, HCFC-141b to
substitutes. For the private sector, this rule identifies which HCFC-
141b alternatives are acceptable and adds minor recordkeeping
requirements for those who wish to transition from HCFC-141b to HCFC-22
or HCFC-142b in sectors where that transition is acceptable. Thus, it
is not subject to the requirements of sections 202 and 205 of the UMRA.
EPA has also determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments; therefore, EPA is not required to develop a plan with
regard to small governments under section 203. Finally, because this
rule 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 under section 204.
C. Regulatory Flexibility Act (RFA) as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute 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 organizations, and small
governmental jurisdictions. As discussed above, EPA received comments
on potential small business impacts of the proposal. In response to
those comments, the Agency collected additional technical information
and analyzed the potential for economic impacts to small businesses.
EPA found that there are some foam manufacturers who currently have
technical constraints in transitioning from HCFCs to non-ozone-
depleting alternatives. Based on that information, EPA is withdrawing
its proposed decision to list existing use of HCFC-22 and HCFC-142b as
unacceptable and approving narrowed use of HCFC-22 and HCFC-142b as
replacements for HCFC-141b in certain applications. As provided above,
EPA believes that the recordkeeping requirement associated with the
narrowed use determination will not result in any substantial cost. In
the end-uses for which EPA is listing HCFC-22 and HCFC-142b acceptable,
small businesses will not be affected. 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 final 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
[[Page 47720]]
narrowed use limits, and record-keeping for small volume uses. The OMB
Control Numbers are 2060-0226 and 2060-0350.
E. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
F. 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 final 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 final rule primarily apply to the
workplace.
G. 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 final rule 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 rule.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This rule applies to facilities that manufacture foam and not
government entities. Thus, Executive Order 13175 does not apply to this
rule.
I. 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 rule does not mandate the use of any technical
standards; accordingly, the NTTAA does not apply to this rule.
J. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 Fed.
Reg. 28355 (May 22, 2001)) because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. The rule lists acceptable and unacceptable substitutes for
ozone-depleting chemicals in foam manufacturing. Where other approved
alternatives are available and technically viable, EPA is listing HCFC-
22, HCFC-142b, and HCFC-124 as unacceptable replacements for HCFC-141b.
Although some comments to the proposal stated that use of other EPA
approved alternatives would result in diminished insulation value and
reduce the energy efficiency of products such as appliances, as
discussed in the response to comments above, EPA believes that use of
alternatives can result in products that are equal or superior in
energy efficiency. EPA's position is supported by several appliance
manufacturers who plan to meet DOE energy efficiency requirements using
non-ozone-depleting foam blowing agents. Where alternatives to HCFC-
141b have not been fully developed, EPA is listing HCFC-22 and HCFC-
142b as acceptable in certain applications with narrowed use limits.
Based on our evaluation of comments and technical data, we have
concluded
[[Page 47721]]
that this rule is not likely to have any adverse energy effects.
VI. Additional Information
For copies of the comprehensive SNAP lists or additional
information on SNAP, contact the Stratospheric Protection Hotline at
(800) 296-1996.
For more information on the Agency's process for administering the
SNAP program or criteria for evaluation of substitutes, refer to the
SNAP final rulemaking published in the Federal Register on March 18,
1994 (59 FR 13044). 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/'' and from the Stratospheric Protection Hotline
number as listed above.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.
Dated: July 12, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, 40 CFR part 82 is 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. Sec. 7414, 7601, 7671-7671q.
Subpart G--Significant New Alternatives Policy Program
2. Subpart G is amended by adding Appendix K to read as follows:
Appendix K to Subpart G--Substitutes Subject to Use Restrictions and
Unacceptable Substitutes Listed in the July 22, 2002, Final Rule,
Effective August 21, 2002.
Foam Blowing--Unacceptable Substitutes
----------------------------------------------------------------------------------------------------------------
End-use Substitute Decision Comments
----------------------------------------------------------------------------------------------------------------
Replacements for HCFC-141b in the HCFC-22, HCFC-142b and Unacceptable.......... Alternatives exist with
following rigid polyurethane/ blends thereof. lower or zero-ODP.
polyisocyanurate applications:
--Boardstock
--Appliance
--Spray
All foam end-uses.................. HCFC-124.............. Unacceptable.......... Alternatives exist with
lower or zero-ODP.
----------------------------------------------------------------------------------------------------------------
Foam Blowing--Acceptable Substitutes
----------------------------------------------------------------------------------------------------------------
End-use Substitute Decision Comments
----------------------------------------------------------------------------------------------------------------
Replacements for HCFC-141b in the HCFC-22, HCFC-142b and Acceptable Subject to Users must evaluate other
following rigid polyurethane blends thereof. Narrowed to Narrowed acceptable non-ozone-
applications: Use Limits. depleting substitutes to
--Commercial Refrigeration......... determine that HCFC-22/
--Sandwich Panels.................. HCFC-142b use is necessary
--Slabstock and Other Foams........ to meet performance or
safety requirements. Users
must determine that there
are technical constraints
that preclude the use of
other available
substitutes. Documentation
of this evaluation must be
available for review upon
request.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 02-18176 Filed 7-19-02; 8:45 am]
BILLING CODE 6560-50-P