Protection of Stratospheric Ozone; Listing of Substitutes in the
Foam Sector
[Federal Register: September 30, 2004 (Volume 69, Number 189)]
[Rules and Regulations]
[Page 58269-58280]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se04-10]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[OAR-2003-0228, FRL-7821-6]
RIN 2060-AG12
Protection of Stratospheric Ozone; Listing of Substitutes in the
Foam Sector
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today the Environmental Protection Agency (EPA) is taking
final action to change the listing of HCFC-141b from acceptable to
unacceptable for use as a foam blowing agent under the Significant New
Alternatives Policy (SNAP) Program under section 612 of the Clean Air
Act. The SNAP program reviews alternatives to Class I and Class II
ozone depleting substances and approves use of alternatives which
reduce the overall risk to public health and the environment. On July
11, 2000 EPA issued a proposed rule concerning the use of several
hydrochlorofluorocarbons (HCFCs) in foam blowing applications. On July
22, 2002, EPA took final action with respect to a number of the HCFCs,
but deferred its decision on changing the list for HCFC-141b in foam
blowing applications due to the pending production and import ban of
HCFC-141b (effective as of January 1, 2003) and incomplete information
regarding the technical viability of alternatives. Since the
publication of that final rule, EPA received information from outside
parties through letters, meetings, and the HCFC-141b Exemption
Allowance Petition process (68 FR 2819) that addresses the use of HCFC-
141b in foam blowing applications. On March 10, 2004, EPA issued a
Notice of Data Availability (NODA) which contained the new information
mentioned above and sought comment on its completeness and accuracy.
Today, based on the information contained in the NODA and the comments
received on the NODA, EPA is making its final decision to change the
listing for use of HCFC-141b as a foam blowing agent from acceptable to
unacceptable.
DATES: This rule is effective on November 29, 2004.
ADDRESSES: EPA has established an official public docket for this
action under Docket ID No. OAR-2003-0228 (continuation of Docket A-
2000-18). All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index,
confidential business information (CBI) or other information whose
disclosure is restricted by statute is not publically available.
Certain other material, such as copyrighted material, is also listed in
the index but not placed on the Internet. This material will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically in EDOCKET. The official public
docket is the collection of materials that is available for public
viewing at the Air and Radiation Docket in the EPA Docket Center, (EPA/
DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
The EPA Docket Center Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Reading Room is (202) 566-1742, and the
telephone number for the Air and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Suzie Kocchi, Stratospheric Protection
Division, Office of Atmospheric Programs (6205J), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: (202) 343-9387; fax number: (202) 343-2363; e-mail
address: kocchi.suzanne@epa.gov. The published versions of notices and
rulemakings under the SNAP program are available on EPA's Stratospheric
Ozone Web site at http://www.epa.gov/ozone/snap/regs.
SUPPLEMENTARY INFORMATION:
Table of Contents: This action is divided into seven sections:
I. Regulated Entities
II. Section 612 Program
A. Statutory Requirements
B. Regulatory History
C. Listing Decisions
III. Listing Decision on HCFC-141b in the Foam Sector
A. Background
B. Decision
IV. Response to Comments
V. Summary
VI. Statutory and Executive Order Reviews
VII. Additional Information
I. Regulated Entities
Today's rule regulates the use of HCFC-141b as a foam blowing agent
used in the manufacture of rigid polyurethane/polyisocyanurate foam
products. Businesses that currently might be using HCFC-141b, or might
want to use it in the future, include:
--Businesses that manufacture polyurethane/polyisocyanurate foam
systems.
--Businesses that use polyurethane/polyisocyanurate systems to apply
insulation to buildings, roofs, pipes, etc.
[[Page 58270]]
Table 1 lists potentially regulated entities:
Table 1.--Potentially Regulated Entities, by North American Industrial
Classification System (NAICS) Code or Subsector
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NAICS code or Description of regulated
Category subsector entities
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Industry...................... 326150 Urethane and Other Foam
Product (except
Polystyrene)
Manufacturing.
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This table is not intended to be exhaustive, but rather a guide
regarding entities likely to be regulated by this action. If you have
any questions about whether this action applies to a particular entity,
consult the person listed in the preceding section, FOR FURTHER
INFORMATION.
II. 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
(ODS). 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. When the Agency grants a
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 EPA 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 EPA
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.
EPA 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 (40 CFR 82.172). Anyone
who produces a substitute must provide EPA 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 (40 CFR
82.174(a)). 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, EPA has considerable discretion in the risk
management decisions it can make 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 (40 CFR 82.180(b)). Fully
acceptable substitutes, i.e., those with no restrictions, can be used
for all applications within the relevant sector end-use.
After reviewing a substitute, EPA 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.''
Even though EPA 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 first 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.
It is a violation of the CAA and EPA's SNAP regulations to replace
an ODS with a substitute listed as unacceptable or to use of substitute
in contravention of the limits set by a use condition or the narrowed
use limits (40 CFR 82.174).
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
[[Page 58271]]
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 revising its determination regarding the acceptability of
HCFC-141b as a substitute 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 determination that
is made final in today's Final Rule.
III. Listing Decision on HCFC-141b in the Foam Sector
A. Background
A major goal of the SNAP program is to facilitate the transition
away from ODS. In 1994, EPA listed several HCFCs 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). As a result, HCFC-141b became one of the
most common foam blowing agents in place of CFC-11. Pursuant to the CAA
and the Montreal Protocol on Substances that Deplete the Ozone Layer
HCFC-141b was phased out of production and import on January 1,
2003.\1\ Since the time EPA initially listed HCFC-141b as acceptable in
certain foam blowing uses, the Agency has listed several other non-ODS
alternative blowing agents, including hydrofluorocarbons (HFCs),
hydrocarbons, carbon dioxide, and other compounds as acceptable
substitutes in foam blowing.\2\ As of 2003, the vast majority of the
foam industry has implemented alternatives other than HCFC-141b.\3\
Finished products containing these alternatives are commercially
available today. Spray foam is the only significant foam end use that
has not completed the transition away from ODS. However, some spray
foam companies have implemented non-ODS alternatives and are marketing
foam systems containing non-ODS alternatives today. Others have
identified non-ODS alternatives, overcome technical constraints and are
working on the final implementation of non-ODS alternatives, such as
acquiring final building code approvals before offering foam systems in
the market by the end of 2004.
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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.
\2\ These listings are published in the following Federal
Register notices: 61 FR 47012, 62FR 10700, 62 FR 30275, 63 FR 9151,
64 FR 30410, 64 FR 68039, 65 FR 19327, 65 FR 37900, 65 FR 78977 and
68 FR 50533.
\3\ Within the context of this rule, the word alternative refers
to a technically viable SNAP approved alternative that presents a
lower overall risk to human health and the environment.
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The spray foam sector operates differently than many other end
users regulated under SNAP. Rather than the end user directly buying
and using an alternative, the alternative is first processed by a
formulator. The formulators purchase raw materials, including the
blowing agent (e.g. HCFC-141b), isocyanates, surfactants, fire
retardants, etc. from suppliers and blend the materials into a spray
foam system. Because the re-formulating and testing is done by the
formulators, they are relied upon for much of the technical expertise
and support provided to the ultimate end user--on-site contractors. The
contractors purchase these systems from the formulators in order to
produce the actual foam product (e.g., roof or wall insulation). Thus,
in the spray foam sector, the formulators are responsible for
implementing alternatives to HCFC-141b and providing the contractors
with systems that produce foam meeting the necessary technical and code
requirements. However, both the formulators and contractors are subject
to SNAP regulations because both use the blowing agent (e.g. HCFC-
141b). In the former case this entails blending the blowing agent in a
foam formulation and in the latter case this involves producing the
foam with aid of the blowing agent.
On July 11, 2000, EPA published a proposal that addressed the use
of various HCFCs in foam end-uses (65 FR 42653). Part of that proposed
rule was a proposal to list HCFC-141b as unacceptable in all foam end-
uses upon finalization of the rule, with existing users allowed to
continue use (i.e., grandfathered) until January 1, 2005. EPA believed
that this time period was sufficient for these end-users to transition
to alternative foam blowing agents, considering the production phaseout
of HCFC-141b on January 1, 2003. The Agency allowed 60 days for public
comment and received 45 responses to the proposal by the close of the
comment period (September 11, 2000). EPA received comments from
chemical manufacturers, appliance manufacturers, spray foam
manufacturers, associations, and others. Copies of the comments can be
obtained through the Air Docket by referencing A-2000-18, IV-D-1
through 45 (see ADDRESSES section above for docket contact
information). Specifically, the comments to the proposal on HCFC-141b
detailed issues surrounding the technical viability and availability of
non-ODS alternatives in the spray foam sector. On July 22, 2002, EPA
took final action on other aspects of the July 11, 2000 proposed rule.
In response to the comments regarding the technical viability and
availability of alternatives in the spray foam sector, EPA deferred
final action on the proposal to list HCFC-141b as unacceptable in order
to monitor the progress of the spray foam sector in implementing
technically viable alternatives (67 FR 47703).
Since EPA's deferral on the decision to find the use HCFC-141b in
foam blowing applications unacceptable, the Agency has undertaken a
number of initiatives to address the concerns of spray foam formulators
that non-ODS alternatives were not technically and economically viable.
There are approximately 15-20 companies in the U.S. that formulate
spray foam for thousands of customers, including roofing contractors
and others. Several of these formulators are larger businesses, but
many are small businesses. In comments on the SNAP proposal and on a
separate but related rulemaking (the HCFC Allowance Allocation
proposal, July 20, 2001, 66 FR 38063), some small businesses that used
HCFC-141b requested an industry wide exemption from the HCFC-141b
production phaseout of January 1, 2003 (the phaseout date established
in 1993). Based on their view of the technical viability and
availability of alternatives, the formulators explained that access to
HCFC-141b beyond the phaseout would allow them to complete all the
tests and qualifications necessary to implement alternative blowing
agents (see Air Docket A-98-33: IV-D-35 to IV-D-66 and IV-G-06 to IV-G-
09). Upon review of these comments, EPA concluded that allowing
production of HCFC-141b for the entire spray foam sector would
[[Page 58272]]
unfairly penalize companies who had invested in the transition from
HCFC-141b. Additionally, hundreds if not thousands of companies had
been relying on the HCFC-141b phaseout for ten years and had made
investments according to the phaseout date established in 1993. EPA did
not believe an industry wide exemption from the production ban would
provide any small businesses that were experiencing technical
constraints access to HCFC-141b produced after January 1, 2003, because
they would be forced to compete with other companies for a limited
supply of HCFC-141b (68 FR 2827). Therefore, in an immediate effort to
address the concerns of small businesses, EPA funded a three-year grant
(2001-2004) to the Spray Polyurethane Foam Alliance (SPFA). This grant
assisted the SPFA to investigate and test non-ODS alternatives as well
as provide guidance to the spray foam sector on implementation of those
alternatives. EPA also provided outreach and assistance through various
meetings, presentations and guidance directed at the spray foam sector
from 2001 to 2004 (Air Docket OAR-2003-0228-30 and 31 and
http://www.epa.gov/ozone/snap/foams/index.html).
More importantly, in response to the small businesses' requests for
an extension of the production phaseout of HCFC-141b, EPA created the
HCFC-141b Exemption Allowance Petition process in the final HCFC
Allowance Allocation rule (January 21, 2003, 68 FR 2819). This process
allowed formulators of HCFC-141b to individually petition EPA (on an
annual basis) for new production of HCFC-141b beyond the phaseout date.
The petitions must detail the technical viability of alternatives,
access to stockpiled HCFC-141b and efforts to implement alternatives as
well as the other information required under 40 CFR 82.16(h). Over the
past two years, EPA has received approximately 25 petitions from
formulators for a variety of applications, the majority of which were
spray foam roofing and wall insulation.
The switch to alternatives has been slowed in the spray foam market
because of the continued availability of HCFC-141b. Although stockpiled
HCFC-141b will be depleted by the end of 2004, that is not the only
source of HCFC-141b being used for spray foam applications. ``Blended''
polyurethane foam systems \4\ containing HCFC-141b as the blowing agent
are being imported to the U.S. under this scenario, HCFC-141b is newly
produced and blended with the isocyanates, surfactants, fire
retardants, etc. into a system in a country that is not subject to the
production phaseout in the Montreal Protocol. Then, that ``blended''
system is imported into the U.S. for use in spray foam applications.
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\4\ A foam system typically consists of two transfer pumps that
deliver ingredients (polyisocyanate from one side and a mixture
including the blowing agent and stabilizers from the other side) to
a metering/mixing device which allows the components to be delivered
in the appropriate proportions. The components are then sent to a
mixing gun and dispensed as foam directly to a surface such as a
roof or tank. The ``blended'' foam systems being imported to the
U.S. are complete systems, containing all the ingredients including
the polyisocyanate and the blowing agent.
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EPA has been monitoring this situation since the production
phaseout on January 1, 2003 in order to determine whether this vehicle
for obtaining HCFC-141b beyond the phaseout date would be exploited. As
explained in the 2002 final foam rule, `` * * * if this activity
becomes widespread and compromises or undermines the intent of the U.S.
HCFC-141b phaseout, disadvantages companies that have made good faith
investments in developing and implementing non-ODS alternative
technologies, EPA could consider establishing a SNAP use restriction *
* *'' (67 FR 47708). Given the information EPA has received since HCFC-
141b production was phased out, it is apparent that the continued
availability of HCFC-141b through these ``blended'' systems is not only
delaying the transition to alternatives in the spray foam sector but
threatens to reverse the transition by penalizing companies that have
either transitioned to alternatives, or are technically capable of
transitioning to alternatives but choose not to because of the
widespread availability of foam systems containing HCFC-141b.
Based on the information from the HCFC-141b Exemption Allowance
Petitions and other information provided by the industry, on March 10,
2004, EPA published a NODA (69 FR 11358) pertaining to the
availability, including the technical viability, of alternatives, and
the import of ``blended'' HCFC-141b polyurethane foam systems. EPA
allowed 30 days for comment and received 16 comments on the information
by the close of the comment period (April 9, 2004). The Agency received
information on the technical viability of alternatives from chemical
manufacturers, spray foam manufacturers, contractors, industry
associations, and others. Copies can be obtained through the Air Docket
by referencing OAR-2003-0228, Reference Numbers 14-29 (see ADDRESSES
section above for docket contact info). Of the 16 comments received, 5
were from small businesses raising some concerns about the use of
stockpiled HCFC-141b and the ability for all businesses to transition
to alternatives by January 1, 2005. EPA addressed these and other
issues the commenters raised below. In addition, EPA addressed any
comments received to the 2004 NODA after the comment period closed on
April 9, 2004 in a document titled ``Response To Late Comments'' found
in Air Docket OAR-2003-0228. Today, EPA is making its final decision
regarding the acceptability of HCFC-141b in the foam sector. 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, safety, and the potential
economic implications of this action.
B. Decision
Based on the comments received on the proposal and NODA, EPA is
taking the following final actions: (1) Changing the listing decision
for HCFC-141b so that it is unacceptable for all foam blowing end uses
(other than those applications specifically exempted) as of January 1,
2005, (2) exempting the use of HCFC-141b for space vehicle, nuclear and
defense foam applications from the unacceptability determination, (3)
exempting the use of HCFC-141b for laboratory research and development
applications from the unacceptability determination and (4) allowing
the use of fully formulated HCFC-141b foam systems in inventory before
January 1, 2005 until July 1, 2005.
The majority of the HCFC-141b users in the foam industry
transitioned to alternatives on or before January 1, 2003. The
remaining portion of the industry, specifically the spray foam sector,
required additional time to implement alternatives to HCFC-141b. This
sector includes small businesses at both the formulator level and the
contractor level. Of the 15-20 formulators in the U.S. some are small
businesses. Equally, of the thousands of contractors many are small
businesses. Both the formulators and contractors use the blowing agent
(e.g. HCFC-141b) in the manufacture of foam. The formulators use the
blowing agent by blending it into the foam formulations found in the
spray foam systems. The contractors use the blowing agent by spraying
the foam system containing the blowing agent to create the actual foam
product (e.g. roof, wall, pipe insulation). Over the past three years,
EPA has been working extensively with this sector in order to ensure a
safe and timely
[[Page 58273]]
transition to less harmful alternatives, through the SPFA grant, the
HCFC-141b Exemption Allowance Petition process and through the outreach
efforts cited above.
In 2000, before the phaseout of HCFC-141b, small business
formulators requested an extension of the HCFC-141b phaseout date in
order to complete testing, qualification and code approvals of their
alternative systems. EPA's technical expert, Caleb Management Services,
surveyed the foam industry through a review of technical data and
industry interviews and concluded that due to the field testing and
approval process necessary for spray foam, commercial products
containing alternatives would not be widely available until the
beginning of 2005 (Air Docket A-2000-18, IV-D-78). The formulators
supported this assessment and urged EPA to take action consistent with
the Caleb Report. EPA agreed with the formulators and Caleb's
assessment and established the HCFC-141b Exemption Allowance Petition
process to provide relief to any business that did not have access to
HCFC-141b while they were developing alternatives.
Suppliers of HCFC-141b and the majority of spray foam formulators
(which hold the stockpiled HCFC-141b) provided key information to EPA
through the two years of the HCFC-141b Exemption Allowance Petition
process. This information included the quantity of stockpiled HCFC-141b
available to the industry and the progress of formulators in
implementing alternatives across the industry. EPA's analysis of that
information determined that stockpiled HCFC-141b will be depleted by
the end of 2004, the majority of technical constraints limiting the use
of other acceptable alternatives have been overcome and alternatives
will be implemented by the end of 2004 (Air Docket OAR-2003-0228-0009).
In the second half of 2002 the suppliers produced a large quantity
of stockpiled HCFC-141b, including approximately 6.5 million pounds of
uncommitted HCFC-141b. As a result, the majority of formulators
purchased stockpiled HCFC-141b to meet their needs as they transitioned
to non-ODS alternatives. Those formulators that did not purchase
stockpiled HCFC-141b in 2002 before the phaseout, did so in both 2003
and 2004. As a result, the spray foam sector primarily relied on
stockpiled HCFC-141b. During this period, EPA did not authorize new
production of HCFC-141b through the HCFC-141b Exemption Allowance
Petition process, with the exception of small quantities for
specialized space vehicle applications (Air Docket A-98-33, IV-G-26-30).
Some formulators have made significant progress to transition away
from HCFC-141b since their 2000 extension request. These firms now
offer on the market foam systems containing non-ODS alternatives and
others will be doing the same throughout 2004 (Air Docket OAR-2003-
0228-0009). As EPA stated when establishing the HCFC-141b Exemption
Allowance Petition process in January 2003, ``EPA believes all or
almost all formulators can have fully-approved commercially available
foam systems using alternatives by the end of 2004.'' (68 FR 2828). The
information gathered through the HCFC-141b Exemption Allowance Petition
process supports EPA's belief that alternatives to HCFC-141b are
technically and economically viable for foam applications.
Although alternatives are technically and economically viable for
the majority of end uses in the foam industry, a few exceptions exist
for space, nuclear and defense applications. EPA received information
from the National Aeronautics and Space Administration (NASA), the
National Nuclear Security Administration (NNSA) of the U.S. Department
of Energy (DOE) and their contractors about specific foam applications
that require continued use of HCFC-141b. These applications which
include the use of HCFC-141b to insulate the external tank of the space
shuttle and space launch vehicles in order to meet rigorous technical
and human health and safety requirements. Alternatives to these uses
have not proved technically viable to date (Air Docket OAR-2003-18, 20,
14 and 33). Those entities project their use of HCFC-141b will continue
to at least 2010 when either the projects will be complete or
alternatives will be qualified. Based on the highly specialized safety
and technical requirements, EPA is allowing the continued use of HCFC-
141b in space vehicle, nuclear and defense foam applications beyond
January 1, 2005.
Additionally, suppliers of blowing agents, isocyanates,
surfactants, fire retardants, etc. in the foam industry use small
quantities of stockpiled HCFC-141b in laboratory-scale research and
development for users outside the US.\5\ This use includes various
research and development activities such as preparing control samples,
blending formulations, analyzing samples, etc. Given the fact that this
is a small use that does not develop HCFC-141b foam products for the
U.S., EPA is allowing the continued use of HCFC-141b in laboratory
research and development applications beyond January 1, 2005.
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\5\ Although raw material suppliers are currently relying on
stockpiled HCFC-141b for their research and development needs they
may require additional production or import of de minimis quantities
of HCFC-141b in the future. In a 2002 final rule, EPA defined de
minimis quantities of class I controlled substances as 5 pounds or
less (December 31, 2002, 67 FR 79861). EPA regulations exempt import
and production of de minimis quantities of class I (CFCs) controlled
substances for laboratory use from the phaseout of those substances
with specific restrictions outlined in Appendix G in accordance with
the Montreal Protocol (66 FR 14760). The issue of an HCFC-141b
laboratory exemption including commercial research and development
will be addressed in a separate rulemaking at a later date.
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Finally, EPA received comments from spray foam formulators and
contractors requesting the use of inventoried HCFC-141b spray foam
systems beyond January 1, 2005. Since 2000, EPA has provided continual
updates on the status of the proposal through regulatory actions every
year.\6\ EPA believes that the spray foam sector has had sufficient
notice to prepare and plan for the use restriction. This includes the
prudent management of their inventories of stockpiled HCFC-141b and
fully formulated systems containing HCFC-141b.
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\6\ These actions are as follows:
? SNAP Foam NPRM, July 11, 2000, 65 FR 42653,
? SNAP Foam NODA, May 23, 2001, 66 FR 28408,
? SNAP Foam Final rule, July 22, 2002, 67 FR 47703,
? HCFC Allowance Allocation Final rule, January 21, 2003, 68 FR 2819,
? SNAP Foam NODA, March 10, 2004, 69 FR 11385.
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On the other hand, EPA recognizes that the actual application of
spray foam is weather dependent, especially in the winter months where
spray foam jobs are scheduled and delayed because of uncontrollable
weather events. Additionally, EPA understands that a fully formulated
spray foam system typically has a shelf life of approximately six
months. In other words, if a spray foam system was formulated in
December for a roofing application but that application was delayed due
to weather, that formulated system has to be used by the end of June in
order to maintain the foam's high quality and performance
characteristics (after six months, the formulation could degrade and
thus produce lower quality foam that does not meet all of the required
performance standards). The total inventory of fully formulated spray
foam systems is low in the winter because it is historically the
slowest time of the year with relatively few spray foam applications
scheduled. Thus, EPA is allowing the application of existing stock of
fully formulated
[[Page 58274]]
systems containing HCFC-141b until July 1, 2005.
In order to accommodate users who may have some remaining systems
in inventory at the end of 2004, EPA is granting a one-time exception.
Any fully formulated spray foam system containing HCFC-141b that is on-
site and in the company's physical inventory, as of December 31, 2004
can be used through June 30, 2005, pursuant to this one time exception.
However, effective July 1, 2005, it will be illegal to use an
inventoried fully formulated system containing HCFC-141b for the
purpose of foam application. As explained above, a fully formulated
spray foam system typically has a finite shelf life of approximately
six months before the reactivity of the system slows down and it will
not perform to specification. Therefore, once blended the fully
formulated spray foam systems needs to be applied within that limited
period.
In order to comply with this exception, the spray foam systems
containing HCFC-141b must be fully formulated and in existing stock
with the formulator or contractor before January 1, 2005. Existing
stock is defined as the total number of fully formulated systems
containing HCFC-141b physically on-site at the company's facility on
December 31, 2004 and listed on the inventory list. An inventory list
must be created reflecting the total number of fully formulated systems
containing HCFC-141b, on-site, at the facility. The inventory list must
identify the name, address (not a Post Office Box), city, state, zip
code, of the facility where the fully formulated systems are stored,
and a signature attesting that the total number of fully formulated
systems is true and accurate as of December 31, 2004. The facility must
keep a copy of the inventory list at the facility site which stores the
fully formulated systems list for three years.
Fully formulated systems that meet these conditions must be applied
before July 1, 2005. Any user who knowingly applies an inventoried
fully formulated system containing HCFC-141b on or after July 1, 2005
may be fined up to $27,500 per kilogram of HCFC-141b.
IV. Response to Comments
EPA received 45 comments during the comment period to the 2000
proposal. Those comments referred to all provisions in the proposal,
including those related to the use of HCFC-22 and HCFC-142b, and were
addressed in the 2002 final foam rule (67 FR 477703). The comments
received on the 2000 proposal and the 2001 NODA regarding HCFC-141b
were responded to in the final HCFC Allowance Allocation rule (28 FR
6819) which created the HCFC-141b Exemption Allowance Petition process.
In addition, EPA received 16 comments during the comment period on the
2004 NODA. EPA addressed any late comments received to the 2004 NODA
after the comment period closed on April 9, 2004 in a document titled
``Response To Late Comments'' found in Air Docket OAR-2003-0228. The
comments EPA received within the comment period related to the use of
HCFC-141b are summarized in the following 6 topics which are addressed
in detail below:
1. Technical Availability of Alternatives.
2. Quantity of Stockpiled HCFC-141b.
3. Import into the U.S. of ``Blended'' Polyurethane Foam Systems.
4. Clean Air Act.
5. North American Free Trade Agreement.
6. De-listing HCFC-141b and Grandfathering under SNAP.
Technical Viability of Alternatives
Some commenters said that not all spray foam formulators will have
qualified non-ODS alternatives available to them at the end of 2004.
EPA's decision to list HCFC-141b as unacceptable in foam blowing is
based on the fact that alternatives that provide a lower risk to human
health and the environment are technically viable and commercially
available. The commenters did not suggest or provide evidence why
alternatives are not available to spray foam formulators. EPA's
analysis of the information gathered from the HCFC-141b Exemption
Allowance Petitions indicates that some formulators are already
offering commercial products using non-ODS alternative blowing agents
and the majority of formulators will be able to offer such products by
the end of 2004 (Air Docket OAR-2003-0228-0009). As EPA stated when
establishing the HCFC-141b Exemption Allowance Petition process, ``EPA
believes the spray and pour foam industries have had access to
sufficient quantities of HFC-245fa [the alternative of choice for most
formulators]
for research, development and testing purposes since early
2001 and in many cases before. Therefore, by 2004, EPA believes that
most, if not all, formulators in this sector will have had sufficient
time to test and implement alternatives.'' (68 FR 2828).
Moreover, the formulators that petitioned EPA for newly produced
HCFC-141b had to provide detailed information about the status of their
implementation of alternatives. That information demonstrated that,
overall, any remaining technical constraints were being addressed and
alternatives would be implemented by the end of 2004 (Air Docket OAR-
2003-0228-0009). It is important to note that these findings correspond
and are consistent with the assessment in the Caleb Report of the spray
foam sector and the formulators' support of that assessment. The Caleb
Report stated that after completing field testing and achieving code
approvals, the spray foam sector would be able to offer commercial
products containing alternatives by 2005. Due to the progress in
development, field testing and qualification in the sector, EPA
believes by the beginning of 2005, the spray foam demand can be met
with non-ODS alternatives. HCFC-141b will not be required to maintain
technical requirements, such as structural integrity or thermal
efficiency, in foam applications. However, as discussed in the previous
section there are certain specialized space vehicle, nuclear and
defense applications that do require HCFC-141b to meet rigorous
technical, human health and safety requirements (i.e. space shuttle
flight safety). For those limited applications, EPA is allowing the
continued use of HCFC-141b.
Quantity of Stockpiled HCFC-141b
Some commenters recommended that EPA allow the use of any remaining
stockpiled HCFC-141b in 2005. Before the phaseout of HCFC-141b, EPA
encouraged stockpiling HCFC-141b for use during the transition to
alternatives, especially for formulators that were experiencing
technical constraints. According to EPA's analysis of data received
from formulators and HCFC-141b suppliers, the remaining stockpiled
HCFC-141b will be depleted by the end of 2004. In fact, petitioners in
the HCFC-141b Exemption Allowance Petition process provided EPA with
the quantity of stockpiled HCFC-141b they currently held and then
demonstrated they did not have access to additional stockpiled HCFC-
141b. Morever, the foam industry has been aware of the need to plan for
its transition from HCFC-141b since 1993, which includes the use and
management of a finite quantity of HCFC-141b. It is unlikely any
company would be holding a large stockpile of HCFC-141b two years
beyond the phaseout date. EPA is confident its analysis accurately
reflects the quantity of stockpiled HCFC-141b available for use in the
foam industry because it is based on data from the same industry that
has requested to use stockpiles in
[[Page 58275]]
2005. EPA has been provided with no evidence that large stockpiles of
HCFC-141b will exist in the spray foam sector beyond January 1, 2005.
Therefore, EPA has determined that it is not necessary to allow
stockpiled HCFC-141b to be used in 2005.
In a related issue, EPA acknowledges that some formulators and
contractors could have HCFC-141b systems formulated and purchased in
2004 held in inventory at the beginning of 2005 due to weather delays.
Given the fact that the production of HCFC-141b has been phased out
since January 1, 2003 and that the use restriction was proposed in
2000, the foam industry has been on notice and should be making every
effort to use HCFC-141b systems and transition to alternative based
systems as soon as possible. However, as discussed in the previous
section, in order to allow for the uncertainty of the winter months,
EPA is allowing the use of fully formulated HCFC-141b foam systems that
are in inventory before January 1, 2005 until July 1, 2005. This
allowance will accommodate any formulators and contractors holding
fully formulated HCFC-141b systems at the end of 2004 and ensure that
HCFC-141b produced before the phaseout is consumed without a loss to
the purchaser.
Import Into the U.S. of ``Blended'' Polyurethane Foam Systems
EPA received comments suggesting that restricting the use HCFC-141b
would unfairly impact Mexico because such a restriction would preclude
the use of ``blended'' foam systems containing HCFC-141b that are
manufactured in and imported from Mexico. Restricting the use of HCFC-
141b in foam applications in the U.S. does not restrict Mexico's
ability to obtain HCFCs or use HCFCs. Under the Montreal Protocol, as
an Article 5 country (a developing country), Mexico is allowed to
produce and import HCFCs until 2040 in accordance with their baseline
(which will be established in 2015). Equally, this use restriction does
not prevent the use of or import into the U.S. of refrigerators or
metal panels, for example, that contain HCFC-141b. Those products can
continue to be manufactured in Mexico (or any other country) and
imported into the U.S.
The commenters did not provide the quantity of HCFC-141b they were
importing into the U.S. via these ``blended'' foam systems but another
commenter stated that as much as 8-9 million pounds of HCFC-141b could
be imported into the U.S. in this manner (Air Docket OAR-2003-0019).
? Some of the commenters contend that they are relying on
the revenue from the sale of these ``blended'' foam systems for use in
the U.S. to fund their research and development into alternatives in
Mexico. This issue is beyond scope of this rulemaking because the SNAP
program focuses on the transition to alternatives in the U.S. rather
than other countries.
Clean Air Act
Another commenter stated that Section 610 of the CAA prevents EPA
from restricting the use of HCFC-141b in foam applications. Under
Section 610, EPA promulgated regulations prohibiting the sale and
distribution and the offer for sale and distribution of nonessential
products containing Class I and Class II controlled substances as of
January 1994 (58 FR 4768 and 58 FR 69638). In Section 610, Congress
provided a list of products manufactured with those controlled
substances that it considered nonessential and that should be banned
from sale and distribution in the U.S. However, in the language of CAA
Section 610(d)--the Class II Nonessential Ban, Congress did not provide
a list of products it considered essential. It listed exceptions to the
self-effectuating ban for certain products (including ``foam insulation
products'' containing Class II controlled substances), stating that
those products should not be banned from sale and distribution in the
U.S. at that time. Additionally, Section 610(d) provides the criteria
that EPA should use to determine if additional products should be
exempted from the ban. During the initial rulemaking to implement the
Class II Nonessential Ban, EPA promulgated a definition for ``foam
insulation products'' because the Agency determined that the use of the
term ``insulation'' in the statute was ambiguous.\7\ EPA used its
authority to reach a reasonable interpretation in developing a
definition of foam insulation.
---------------------------------------------------------------------------
\7\ Foam insulation products are defined as a product containing
or consisting of the following foam types: Closed cell rigid
polyurethane foam; closed cell rigid polystyrene boardstock foam;
closed cell rigid phenolic foam; and closed cell rigid polyethylene
foam when such foam is suitable in shape, thickness and design to be
used as a product that provides thermal insulation around pipes used
in heating, plumbing, refrigeration, or industrial process systems
(40 CFR 82.62). Any use of acceptable HCFC substitutes listed under
the Section 612 SNAP program must comply with these restrictions.
---------------------------------------------------------------------------
Specifically, the commenter stated because Section 610 identifies
foam insulation products as excluded from the nonessential product ban,
EPA ``has no authority to restrict HCFC use in foam insulation products
based on the availability of substitutes.'' EPA agrees that under
Section 610 it cannot ban the sale of foam insulation products made
with ODS. However, the regulatory authority under Section 610 does not
address EPA's ability to regulate the transition from the use of ODS to
alternatives in the manufacturing of products such as foam. EPA has
consistently interpreted the relationship between Section 610 and 612
as being independent, in that, Section 612 can restrict the use of a
substitute in a product regardless of whether or not that product is
considered nonessential under Section 610 (58 FR 69646).
Additionally, that same commenter states that EPA cannot prevent
the use of ``blended'' foam systems containing HCFC-141b because
Sections 604, 605 and 606 of the CAA are limited to controlled
substances rather than products. Sections 604 and 605 mandate EPA to
phaseout consumption (production + import - export) of Class I and
Class II controlled substances. Section 606 gives EPA the power to
accelerate the phaseout schedule of Class I and Class II controlled
substances based on new scientific or technological information or in
accordance with changes in the Montreal Protocol. In 1993, EPA
promulgated a regulation phasing out the production and import of Class
I and Class II controlled substances (58 FR 65018). As with Section
610, regulations promulgated under Sections 604, 605 and 606 do not
limit the ability of EPA to address the transition from ODS to
alternatives under Section 612, in particular whether an ODS is an
acceptable substitute for another ODS in light of the availability of
less harmful substitutes. While Sections 604, 605, and 606 regulate the
production of HCFC-141b, this rule under Section 612 only restricts the
use of HCFC-141b as a foam blowing agent substitute. The rule does not
prohibit the production and import of HCFC-141b or products containing
HCFC-141b (both of these issues are addressed in the separate EPA
rulemakings discussed above).
North American Free Trade Agreement (NAFTA)
The commenter also states that if EPA prevents the use of HCFC-141b
in foam applications the Agency would violate NAFTA because EPA's
action would exempt grandfathered domestic use of HCFC-141b while
restricting the import of similar products from Mexico. EPA has
considered this argument and does not believe that the final rule is
inconsistent with U.S. obligations under
[[Page 58276]]
the NAFTA (or any other international trade agreement to which the
United States is a signatory), including Article 301 (national
treatment) or Chapter 11. This rule does not regulate trade in HCFC-
141b.\8\ In terms of the use restriction on HCFC-141b, this rule does
not distinguish where the HCFC-141b or the foam system containing HCFC-
141b comes from. Rather, the use restriction applies to the use of
HCFC-141b in certain foam blowing applications in the United States in
the end uses covered by the SNAP regulations, including the use of foam
systems containing HCFC-141b, regardless of the point of origin
(domestic or foreign) of the HCFC-141b or how it is packaged. EPA is
unaware of any other uses of foam systems containing HCFC-141b other
than the uses covered by this rule. Thus, after December 31, 2004, it
is unlikely that there will be a market for HCFC-141b systems in the
United States. Although this rule does not restrict the import of HCFC-
141b systems, we do not anticipate that these systems will continue to
be imported after that date.
---------------------------------------------------------------------------
\8\ This rule applies to the use of HCFC-141b, in the U.S., in
foam applications covered by SNAP regulations. This rule does not
apply to the production and import of ozone depleting substances
(ODS). For information about trade of bulk ozone depleting
substances, including HCFC-141b, between Parties of the Montreal
Protocol please refer to the Direct Final rule EPA published on June
17, 2004 (69 FR 34024).
---------------------------------------------------------------------------
De-Listing HCFC-141b and Grandfathering Under SNAP
The same commenter argues that EPA does not have the authority to
``de-list'' HCFC-141b once it has found it unacceptable unless
petitioned to do so under Section 612(d). EPA found HCFC-141b
acceptable in foam applications in 1994, but stated it was doing so as
an interim measure (59 FR 13044). 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 than the ODS they replace and as compared with other
potential substitutes. EPA disagrees, and as the Agency explained in
the 2000 proposal, it has the authority to amend its regulations and
change SNAP determinations independent of any petitions (65 FR 42659).
Nothing in the statute bans such action and EPA believes that inherent
in our authority to promulgate regulations initially is the authority
to review and revise those regulations as the state of science advances.
Because one goal of the SNAP program is to expedite the transition
from ODS to alternatives, the basis for EPA's proposal in 2000 was that
the Agency believed alternatives were technically and economically
viable in all foam applications. EPA deferred final action in 2002
because of insufficient information regarding the availability
substitutes that presented a lower risk to human health and the
environment. Because of concerns that the spray foam sector was
experiencing technical constraints in implementing alternatives, in a
separate rulemaking under Sections 605 and 606, EPA established the
HCFC-141b Exemption Allowance Petition process as a mechanism to ensure
formulators had access to HCFC-141b after the phaseout date. EPA also
funded a three year grant to assist SPFA to develop and test
alternatives. Today, considering the information generated by the above
efforts, EPA believes alternatives are technically and economically
viable and that the continued use of HCFC-141b contravenes the purpose
and goal of Section 612, which is to ensure the use of alternatives
that pose a lower risk to human health and the environment when such
alternatives are technically and economically viable.
The commenter also claims that restricting the use of HCFC-141b
would violate EPA's grandfathering practice. As explained in the
proposal, ``in the original SNAP rulemaking, EPA recognized that, where
appropriate, EPA can grandfather the use of a substitute by setting the
effective date of its unacceptability listing for one or more specific
parties in the future.'' (65 FR 42658). In addition, the U.S. District
Court for the District of Columbia established a four part test to
judge the appropriateness of grandfathering which includes: (1) Is the
new rule an abrupt departure from Agency practice, (2) what is the
extent the interested parties relied on the previous rule, (3) what is
the burden of the new rule on the interested parties and (4) what is
the statutory interest in making the new rule effective immediately, as
opposed to grandfathering interested parties (59 FR 13057). EPA
disagrees with the commenter that grandfathering is appropriate here.
Grandfathering is designed to avoid penalizing users who have made
good faith investments in alternatives. The foam industry has been on
notice since 1993 (when the production phaseout date for HCFC-141b was
published) about the need to find alternatives to HCFC-141b.
Furthermore, in 1994 in the initial SNAP rulemaking, EPA stated that
the Agency was finding HCFC-141b acceptable as a substitute for CFC-11
in foam blowing as an interim measure (59 FR 13083). Additionally, in
2000, EPA proposed to change the listing for HCFC-141b from acceptable
to unacceptable effective January 1, 2005. Therefore, listing HCFC-141b
as unacceptable is not an ``abrupt departure'' of EPA policy.
Acknowledging the production phaseout of HCFC-141b, the majority of the
foam industry made considerable investments and successfully
transitioned to a variety of alternatives for a broad set of
applications. The spray foam sector used stockpiled HCFC-141b for the
remaining applications for an additional two years beyond the phaseout
date in order to overcome any technical issues and qualify
alternatives. That stockpile is expected to be depleted by the end of
2004 and the spray foam sector now has technically and economically
viable alternatives to HCFC-141b (Air Docket OAR-2003-0228-0009).
However, despite the technical and commercial availability of
alternatives, the transition from HCFC-141b in the spray foam
applications is delayed by the continued availability of HCFC-141b in
the U.S. The alternatives which are technically and economically
available pose a lower overall risk to human health and the
environment. There is no technical reason why the transition to
alternatives should not be completed in the foam industry. Thus, EPA is
finding HCFC-141b unacceptable in foam applications as of January 1, 2005.
V. 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 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-141b as
unacceptable in foam applications is based on EPA's finding that the
continued use of HCFC-141b in applications where non-ozone depleting
alternatives are technically and economically available, would
contribute to the continued depletion of the ozone layer, and will
perpetually delay the transition to alternatives that pose lower
overall risk to the health and the environment.
[[Page 58277]]
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735; October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to the Office of Management and Budget (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 has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0226.
This action does not impose any new information collection burden.
Today's final rule is an Agency determination. OMB has previously
approved the information collection requirements contained in the
existing regulations in subpart G of 40 CFR part 82 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0226 (EPA ICR No. 1596.05). This
Information Collection Request (ICR) included five types of respondent
reporting and record-keeping activities pursuant to SNAP regulations:
submission of a SNAP petition, filing a SNAP/Toxic Substances Control
Act (TSCA) Addendum, notification for test marketing activity, record-
keeping for substitutes acceptable subject to use restrictions, and
record-keeping for small volume uses.
Copies of the ICR document(s) may be obtained from Susan Auby, by
mail at the Office of Environmental Information, Office of Information
Collection, Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC
20460, by email at auby.susan@epa.gov, or by calling (202) 566-1672. A
copy may also be downloaded off the Internet at http://www.epa.gov/icr.
Include the ICR and/or OMB number in any correspondence.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
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 (APA) 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. For purposes of assessing the
impacts of today's rule on small entities, small entity is defined as:
(1) A small business that has fewer than 500 employees;
(2) A small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and
(3) A small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.
Types of businesses that are subject to today's final rule include:
? Businesses that manufacture polyurethane/polyisocyanurate
foam systems (NAICS 326150).
? Businesses that use polyurethane/polyisocyanurate systems
to apply insulation to buildings, roofs, pipes, etc. (NAICS 326150).
The proposal preceding this final rule contained provisions related
to HCFC-141b, HCFC-22 and HCFC-142b. As explained in the 2001 NODA and
the 2002 final rule (66 FR 28408, 67 FR 47703), there were many small
users of HCFC-22 and HCFC-142b that EPA was unaware of at the time of
the proposal. The Agency hired a technical expert to investigate the
concerns of the small businesses using HCFC-22 and HCFC-142b and
published the findings in the 2001 NODA mentioned above. Subsequently,
EPA addressed those concerns in the 2002 final rule mentioned above.
Furthermore, as described in the preamble to this rule, EPA
deferred its decision on the use of HCFC-141b in the 2002 final rule in
order to address the concerns of the small businesses using HCFC-141b.
Through a separate process, those small businesses in the spray foam
sector requested an extension of the January 1, 2003 production
phaseout of HCFC-141b in order to complete the field testing and
approvals necessary to transition to other alternatives. In response to
the request, EPA established the HCFC-141b Exemption Allowance Petition
process in the HCFC Allowance Allocation final rule (January 21, 2003,
68 FR 2819). This process allows formulators to petition EPA for new
production of HCFC-141b if they do not have access to stockpiled HCFC-
141b and meet the other criteria in 40 CFR 82.16(h).
After two years of development and field testing in the spray foam
sector, alternatives are technically and economically viable and
products containing those alternatives are commercially available. The
majority of the spray foam sector has overcome the technical
constraints and will be able to meet the demand in 2005 with
alternatives. The spray foam sector consists of approximately 15-20
formulators and thousands of
[[Page 58278]]
contractors, both groups include small businesses. The spray foam
sector operates differently than many other end users regulated under
SNAP, in that the contractors purchase the spray foam systems from the
formulators and thus rely heavily on those formulators to provide
technical expertise and qualified spray foam systems.
EPA's analysis, found at Air Docket OAR-2003-0228, discusses the
impact on formulators and contractors in the spray foam industry. This
analysis indicates that due to the availability of multiple
alternatives and the depletion of stockpiled HCFC-141b any economic
impact on small businesses will be insignificant. Furthermore,
virtually all those potential economic impacts result from the
production and import phaseout of HCFC-141b in 2003. Because the
production and import of HCFC-141b was phased out in the U.S. in 2003
and stockpiles of HCFC-141b will be depleted at the end of this year,
spray foam formulators are transitioning to non-ODP blowing agents.
Moreover, as explained in the analysis, EPA believes that the
formulators that have completed the transition to alternatives have the
capacity to meet the contractors demand in 2005. Finally, as described
earlier in the preamble, in order to account for any remaining
inventory of fully formulated systems containing HCFC-141b and to
minimize any potential impact on contractors, EPA is allowing spray
foam contractors to use those HCFC-141b systems in inventory at the end
of the year until July 1, 2005.
As noted above, there are numerous alternatives available and some
users have independently transitioned away from the substances listed
as unacceptable. The actions herein may well provide benefits to small
businesses who have transitioned to alternatives and made good faith
efforts and investments in the transition. After considering the
economic impacts of today's rule on small entities, EPA has concluded
that this rule will not have a significant economic impact on a
substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 to State, local, and tribal governments, in
the aggregate, or to 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. 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. Today's final rule does not affect
State, local, or tribal governments. The enforceable requirements of
the rule for the private sector affect only a small number of foam
manufacturers using HCFC-141b in the United States, and there are
technically viable alternatives for those manufacturers. The impact of
this rule on the private sector is less than $100 million per year.
Thus, today's rule is not subject to the requirements of sections 202
and 205 of the UMRA. EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. This regulation applies directly to facilities that
use these substances and not to governmental entities.
E. 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.''
This final rule does not have federalism implications. It 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. This regulation applies directly
to facilities that use these substances and not to governmental
entities. Thus, Executive Order 13132 does not apply to this rule.
F. 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.
Today's final rule does not significantly or uniquely affect the
communities of Indian tribal governments, because this regulation
applies directly to facilities that use these substances and not to
governmental entities. Thus, Executive Order 13175 does not apply to
this final rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children From Environmental
Health
[[Page 58279]]
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. The use of HCFC-141b in foam
manufacture occurs in the workplace where we expect adults are more
likely to be present than children, and thus, the agents do not put
children at risk disproportionately.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
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 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. This action would
impact the manufacture of foam using HCFC-141b. Further, we have
concluded that this rule is not likely to have any adverse energy effects.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
104-113, Sec. 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards. This action does not involve
technical standards. Therefore, EPA did not consider the use of any
voluntary consensus standards.
J. Congressional Review Act
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. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective November 29, 2004.
VII. Additional Information
For more information on EPA'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 Web site at http://www.epa.gov/ozone/ and
from the Stratospheric Protection Hotline number at (800) 296-1996.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.
Dated: September 23, 2004.
Michael O. Leavitt,
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. 7414, 7601, 7671-7671q.
Subpart G--Significant New Alternatives Policy Program
? 2. Subpart G is amended by adding Appendix M to read as follows:
Appendix M to Subpart G--Unacceptable Substitutes Listed in the
September 30, 2004 Final Rule, Effective November 29, 2004
[[Page 58280]]
Foam Blowing--Unacceptable Substitutes
---------------------------------------------------------------------------------------------
End-use Substitute Decision Comments
---------------------------------------------------------------------------------------------
All foam end-uses: HCFC-141b.. Unacceptable... Alternatives exist with
lower or zero = ODP.
--Rigid polyurethane and
polyisocyanurate laminated
boardstock
--Rigid polyurethane appliance
--Rigid polyurethane spray and
commercial refrigeration, and
sandwich panels
--Rigid polyurethane slabstock
and other foams
--Polystyrene extruded insulation
boardstock and billet
--Phenolic insulation board and
bunstock
--Flexible polyurethane
--Polystyrene extruded sheet
Except for: \1\
--Space vehicle
--Nuclear
--Defense
--Research and development for
foreign customers
---------------------------------------------------------------------------------------------
\1\ Exemptions for specific applications are identified in the list of
acceptable substitutes.
[FR Doc. 04-21809 Filed 9-29-04; 8:45 am]
BILLING CODE 6560-50-P