[Federal Register Volume 78, Number 247 (Tuesday, December 24, 2013)]
[Proposed Rules]
[Pages 78072-78103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29817]
[[Page 78071]]
Vol. 78
Tuesday,
No. 247
December 24, 2013
Part VI
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 82
Protection of Stratospheric Ozone: Adjustments to the Allowance System
for Controlling HCFC Production, Import and Export; Proposed Rule
Federal Register / Vol. 78 , No. 247 / Tuesday, December 24, 2013 /
Proposed Rules
[[Page 78072]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2013-0263; FRL-9900-52-OAR]
RIN 2060-AR04
Protection of Stratospheric Ozone: Adjustments to the Allowance
System for Controlling HCFC Production, Import and Export
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: EPA is seeking comment on options for adjusting the allowance
system controlling United States consumption and production of
hydrochlorofluorocarbons (HCFCs). Under Title VI of the Clean Air Act,
EPA is required to phase out production and import of these chemicals
in accordance with United States obligations under the Montreal
Protocol on Substances that Deplete the Ozone Layer (Protocol). Under
the Protocol and the Clean Air Act, total United States HCFC production
and consumption is capped, and will be completely phased out by 2030.
Beginning January 1, 2015, United States production and consumption of
all HCFCs must be no more than ten percent of the established cap.
Existing EPA regulations prohibit production and consumption of HCFC-22
and HCFC-142b as of January 1, 2020. At that time, all other HCFC
production and consumption must not exceed 0.5 percent of the cap, and
is limited to use as a refrigerant in existing air conditioning and
refrigeration equipment. Given these requirements, EPA is seeking
comment on how best to implement the 2015 stepdown to no more than 10
percent of the cap. Since the beginning of the HCFC phaseout program,
the agency has tried to ensure a smooth transition out of HCFCs into
non-ozone depleting alternatives. Essential to a smooth transition are
the recycling and emissions reductions requirements mandated by section
608 of the Clean Air Act. This proposal also includes a request for
comment on potential changes to regulations promulgated under that
authority, found in 40 CFR part 82 subpart F. In addition to taking
comment on the implementation of phaseout requirements and proposed
changes to section 608 regulations, the agency is also highlighting
important Clean Air Act requirements that take effect in 2015,
specifically the section 611 labeling requirements and the section 605
restrictions on HCFC use and introduction into interstate commerce.
DATES: Comments on this notice of proposed rulemaking must be received
on or before February 24, 2014, unless a public hearing is held. If a
public hearing is held, comments must be received on or before March
10, 2014. Any party requesting a public hearing must notify the contact
listed below under FOR FURTHER INFORMATION CONTACT by 5 p.m. Eastern
Daylight Time on January 8, 2014. If a public hearing is requested, the
hearing will be held on January 23, 2014. If a hearing is held, it will
take place at EPA headquarters in Washington, DC. EPA will post a
notice on our Web site, www.epa.gov/ozone/strathome.html, announcing
further information should a hearing take place.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2013-0263, by one of the following methods:
www.regulations.gov: Follow the online instructions for
submitting comments.
Email: [email protected]
Mail: Docket EPA-HQ-OAR-2013-0263, Air and
Radiation Docket and Information Center, United States Environmental
Protection Agency, Mail code: 6102T, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460
Hand Delivery: Docket EPA-HQ-OAR-2013-0263 Air
and Radiation Docket at EPA West, 1301 Constitution Avenue NW., Room
B108, Mail Code 6102T, Washington, DC 20004. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2013-0263. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statue. Do not submit information that you consider to be
CBI or otherwise protected through www.regulations.gov or email. If you
want to submit confidential comments, please send them to the
individual listed in the FOR FURTHER INFORMATION CONTACT section. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at www.epa.gov/epahome/dockets.htm.
FOR FURTHER INFORMATION CONTACT: Elizabeth Whiteley by telephone at
(202) 343-9310 or by email at [email protected], or by mail at
United States Environmental Protection Agency, Stratospheric Protection
Division, Stratospheric Program Implementation Branch (6205J), 1200
Pennsylvania Ave. NW., Washington DC, 20460. You may also visit the
Ozone Protection Web site of EPA's Stratospheric Protection Division at
www.epa.gov/ozone/strathome.html for further information about EPA's
Stratospheric Ozone Protection regulations, the science of ozone layer
depletion, and related topics.
SUPPLEMENTARY INFORMATION: Acronyms and Abbreviations. The following
acronyms and abbreviations are used in this document.
ANPRM Advance Notice of Proposed Rulemaking
CAA Clean Air Act
CAAA Clean Air Act Amendments of 1990
CFC Chlorofluorocarbon
CFR Code of Federal Regulations
EPA Environmental Protection Agency
FR Federal Register
HCFC Hydrochlorofluorocarbon
HVACR Heating, Ventilating, Air Conditioning and Refrigeration
Montreal Protocol Montreal Protocol on Substances That Deplete the
Ozone Layer
MOP Meeting of the Parties
MT Metric Ton
ODP Ozone Depletion Potential
ODS Ozone-Depleting Substance(s)
Party States and regional economic integration organizations that
have consented to be bound by the Montreal Protocol on Substances
That Deplete the Ozone Layer
RACA Request for Additional Consumption Allowances
[[Page 78073]]
Organization of This Document. The following outline is provided to
aid in locating information in this preamble.
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments for EPA?
1. Confidential Business Information (CBI)
2. Tips for Preparing Your Comments
II. Background
A. How does the Montreal Protocol Phase Out HCFCs?
B. How do the Clean Air Act and EPA Regulations Phase Out HCFCs?
C. What sections of the Clean Air Act apply to this rulemaking?
III. Clean Air Act Requirements That Begin in 2015
A. Labeling Requirements in Section 611(c) and (d)
B. Use and Sales Restriction in Section 605(a)
1. What is EPA proposing for existing inventory of HCFC-225ca
and HCFC-225cb?
2. How is EPA planning to update regulations to account for
recent changes to Section 605(a)?
C. Step Down to 10 Percent of Montreal Protocol Baseline
IV. How Will EPA Determine Baselines for 2015-2019?
A. Using Existing Baselines
B. Consideration of Establishing Revised Baselines Using More
Recent Production and Import Data
V. How is EPA developing allocation levels for each HCFC?
A. How will EPA determine the HCFC-22 consumption allocation?
1. Using a Linear Drawdown From 2014 Allocation Levels
2. Determining the Allocation by Estimating Servicing Need and
Then Accounting for Need That Can Be Met by Sources Other Than New
Production
3. Accounting for Existing HCFC-22 Inventory
B. How will EPA determine the HCFC-22 production allocation?
1. Allocate the Maximum Production Allocation Allowed Under the
Cap
2. Allocate Approximately the Same Number of Production
Allowances as Consumption Allowances
C. How will EPA determine the HCFC-142b allocation?
D. How will EPA determine the HCFC-123 allocation?
1. Allocate 100 Percent of HCFC-123 Consumption Baseline Through
2019
2. Allocate Less Than 100 Percent of HCFC-123 Consumption
Baseline
E. How will EPA determine the HCFC-124 allocation?
F. How will EPA determine the HCFC-225ca/cb allocation?
G. What is EPA proposing to do with the HCFC-141b exemption
program?
H. Other HCFCs That are Class II Controlled Substances
VI. What other adjustments to the HCFC allowance system is EPA
considering?
A. Will EPA consider banning dry-shipped HCFC-22 condensing
units?
B. How will EPA respond to requests for additional consumption
allowances in 2020 and beyond?
C. How might EPA maximize compliance with HCFC regulations?
VII. What modifications to Section 608 Regulations is EPA proposing?
A. Overview of Current Reclamation Standards
B. Benefits of Reclamation
C. Regulatory Changes That EPA is Proposing Under Section 608
Authority
1. Adoption of AHRI 700-2012 Standards
2. Notification to EPA if Change in Business, Management,
Location or Contact Information
3. Reporting and Recordkeeping Requirements
4. Technical and Process Information Required in Reclaimer
Certification Application
5. Expanded End Product Testing Requirements
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. Does this action apply to me?
This rule will affect the following categories:
--Industrial Gas Manufacturing entities (NAICS code 325120), including
fluorinated hydrocarbon gas manufacturers and reclaimers;
--Other Chemical and Allied Products Merchant Wholesalers (NAICS code
424690), including chemical gases and compressed gases merchant
wholesalers;
--Air-Conditioning and Warm Air Heating Equipment and Commercial and
Industrial Refrigeration Equipment Manufacturing entities (NAICS code
333415), including air-conditioning equipment and commercial and
industrial refrigeration equipment manufacturers;
--Air-Conditioning Equipment and Supplies Merchant Wholesalers (NAICS
code 423730), including air-conditioning (condensing unit, compressors)
merchant wholesalers;
--Electrical and Electronic Appliance, Television, and Radio Set
Merchant Wholesalers (NAICS code 423620), including air-conditioning
(room units) merchant wholesalers;
--Plumbing, Heating, and Air-Conditioning Contractors (NAICS code
238220), including Central air-conditioning system and commercial
refrigeration installation, HVACR contractors; and
--Refrigerant reclaimers, manufacturers of recovery/recycling equipment
and refrigerant recovery/recycling equipment testing organizations.
This list is not intended to be exhaustive, but rather provides a guide
for readers regarding the types of entities that could potentially be
regulated by this action. Other types of entities not listed in this
table could also be affected. To determine whether your facility,
company, business organization, or other entity is regulated by this
action, you should carefully examine these regulations. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the FOR FURTHER INFORMATION
CONTACT section.
B. What should I consider as I prepare my comments for EPA?
1. Confidential Business Information (CBI)
Do not submit CBI information to EPA through www.regulations.gov or
[email protected]. Submit CBI directly to the person listed in the
FOR FURTHER INFORMATION CONTACT section. Clearly mark the part or all
of the information that you claim to be CBI. For CBI information in a
disk or CD ROM that you mail to EPA, mark the outside of the disk or CD
ROM as CBI and then identify electronically within the disk or CD ROM
the specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
[[Page 78074]]
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. How does the Montreal Protocol phase out HCFCs?
The Montreal Protocol on Substances that Deplete the Ozone Layer is
the international agreement aimed at reducing and eventually
eliminating the production and consumption of ozone-depleting
substances (ODS). The United States was one of the original signatories
to the 1987 Montreal Protocol, and ratified the Protocol on April 12,
1988. Congress then enacted, and President George H.W. Bush signed into
law, the Clean Air Act Amendments of 1990 (CAAA) to ensure that the
United States could satisfy its obligations under the Montreal
Protocol. Title VI of the Act (codified as 42 U.S.C. Chapter 85,
Subchapter VI) is titled Stratospheric Ozone Protection; it includes
restrictions on production, consumption, and use of ODS that are
subject to acceleration if ``the Montreal Protocol is modified to
include a schedule to control or reduce production, consumption, or use
. . . more rapidly than the applicable schedule'' prescribed by the
statute. Both the Montreal Protocol and the Clean Air Act (CAA) define
consumption as production plus imports minus exports.
In 1990, as part of the London Amendment to the Montreal Protocol,
the Parties identified HCFCs as ``transitional substances'' to serve as
temporary, lower ozone depletion potential (ODP) substitutes for
chlorofluorocarbons (CFCs) and other ODS. EPA similarly viewed HCFCs as
``important interim substitutes that will allow for the earliest
possible phaseout of CFCs and other class I substances \1\'' (58 FR
65026, December 10, 1993). In 1992, through the Copenhagen Amendment to
the Montreal Protocol, the Parties created a detailed phaseout schedule
for HCFCs, beginning with a cap on consumption for developed countries
not operating under Article 5 of the Montreal Protocol (non-Article 5
Parties), a schedule to which the United States adheres. The
consumption cap for each non-Article 5 Party was set at 3.1 percent
(later tightened to 2.8 percent) of a Party's CFC consumption in 1989,
plus a Party's consumption of HCFCs in 1989 (weighted on an ODP basis).
Based on this formula, the HCFC consumption cap for the United States
was set at 15,240 ODP-weighted metric tons, effective January 1, 1996.
This cap is the United States HCFC consumption baseline.
---------------------------------------------------------------------------
\1\ Class I refers to the controlled substances listed in
appendix A to 40 CFR part 82 subpart A. Class II refers to the
controlled substances listed in appendix B to 40 CFR part 82 subpart
A; HCFCs are class II substances.
---------------------------------------------------------------------------
The 1992 Copenhagen Amendment created a schedule with graduated
reductions and eventual phaseout of HCFC consumption (Copenhagen, 23-25
November, 1992, Decision IV/4). The schedule for non-Article 5 Parties
initially called for tighter consumption caps based on a Party's
baseline, as follows: An annual consumption cap equal to 65 percent of
baseline in 2004, 35 percent of baseline in 2010, 10 percent of
baseline in 2015, and 0.5 percent of baseline in 2020, with a complete
HCFC phaseout by 2030.
The Copenhagen Amendment did not cap HCFC production. In 1999, the
Parties created a cap on production for non-Article 5 Parties through
an amendment to the Montreal Protocol agreed to at the Eleventh Meeting
of the Parties (Beijing, 29 November-3 December 1999, Decision XI/5).
The cap on production was set at the average of: (a) 1989 HCFC
production plus 2.8 percent of 1989 CFC production, and (b) 1989 HCFC
consumption plus 2.8 percent of 1989 CFC consumption. Based on this
formula, the HCFC production cap for the United States was set at
15,537 ODP-MT, effective January 1, 2004. This cap is the United States
HCFC production baseline.
To further protect human health and the environment, the Parties to
the Montreal Protocol adjusted the Montreal Protocol's phaseout
schedule for HCFCs at the 19th Meeting of the Parties in September
2007. As a result of the 2007 Montreal Adjustment (reflected in
Decision XIX/6),\2\ the United States and other non-Article 5 parties
were obligated to reduce HCFC production and consumption to 25 percent
of baseline by 2010, rather than 35 percent as previously required. The
other milestones remain the same. The adjustment also resulted in a
phaseout schedule for HCFC production that parallels the consumption
phaseout schedule. All production and consumption for non-Article 5
Parties must be phased out by 2030.
---------------------------------------------------------------------------
\2\ The adjustment entered into force and became binding for all
Parties on May 14, 2008.
---------------------------------------------------------------------------
Decision XIX/6 also adjusted the provisions for Parties operating
under paragraph 1 of Article 5, considered as developing countries
under the Protocol: (1) To set HCFC production and consumption
baselines based on the average 2009-2010 production and consumption,
respectively; (2) to freeze HCFC production and consumption at those
baselines in 2013; and (3) to add stepwise reductions to 90 percent of
baseline by 2015, 65 percent by 2020, 32.5 percent by 2025, and an
average of 2.5 percent for 2030-2039. All production and consumption
for Article 5 Parties must be phased out by 2040.
In addition, Decision XIX/6 adjusted Article 2F to allow non-
Article 5 Parties to produce ``up to 10 percent of baseline levels''
for export to Article 5 countries ``in order to satisfy basic domestic
needs'' until 2020.\3\ Paragraph 14 of
[[Page 78075]]
Decision XIX/6 notes that no later than 2015, the Parties would
consider ``further reduction of production for basic domestic needs''
in 2020 and beyond. Paragraph 3 of Decision XIX/6 contains the
accelerated phaseout schedule, allowing consumption and production up
to 0.5 percent of baseline from 2020-2030 for servicing needs only.
Under paragraph 13 of Decision XIX/6, the Parties will review in 2015
and 2025, respectively, the need for the ``servicing tails'' for
Article 5 and non-Article 5 countries. The term ``servicing tail''
refers to an amount of HCFCs used to service existing equipment, such
as certain types of air-conditioning and refrigeration appliances.
---------------------------------------------------------------------------
\3\ Paragraphs 4-6 of adjusted Article 2F read as follows:
``4. Each Party shall ensure that for the twelve-month period
commencing on 1 January 2010, and in each twelve-month period
thereafter, its calculated level of consumption of the controlled
substances in Group I of Annex C does not exceed, annually, twenty-
five per cent of the sum referred to in paragraph 1 of this Article.
Each Party producing one or more of these substances shall, for the
same periods, ensure that its calculated level of production of the
controlled substances in Group I of Annex C does not exceed,
annually, twenty-five per cent of the calculated level referred to
in paragraph 2 of this Article. However, in order to satisfy the
basic domestic needs of the Parties operating under paragraph 1 of
Article 5, its calculated level of production may exceed that limit
by up to ten per cent of its calculated level of production of the
controlled substances in Group I of Annex C as referred to in
paragraph 2.
5. Each Party shall ensure that for the twelve-month period
commencing on 1 January 2015, and in each twelve-month period
thereafter, its calculated level of consumption of the controlled
substances in Group I of Annex C does not exceed, annually, ten per
cent of the sum referred to in paragraph 1 of this Article. Each
Party producing one or more of these substances shall, for the same
periods, ensure that its calculated level of production of the
controlled substances in Group I of Annex C does not exceed,
annually, ten per cent of the calculated level referred to in
paragraph 2 of this Article. However, in order to satisfy the basic
domestic needs of the Parties operating under paragraph 1 of Article
5, its calculated level of production may exceed that limit by up to
ten per cent of its calculated level of production of the controlled
substances in Group I of Annex C as referred to in paragraph 2.
6. Each Party shall ensure that for the twelve-month period
commencing on 1 January 2020, and in each twelve-month period
thereafter, its calculated level of consumption of the controlled
substances in Group I of Annex C does not exceed zero. Each Party
producing one or more of these substances shall, for the same
periods, ensure that its calculated level of production of the
controlled substances in Group I of Annex C does not exceed zero.
However:
a. each Party may exceed that limit on consumption by up to
zero point five per cent of the sum referred to in paragraph 1 of
this Article in any such twelve-month period ending before 1 January
2030, provided that such consumption shall be restricted to the
servicing of refrigeration and air conditioning equipment existing
on 1 January 2020;
b. each Party may exceed that limit on production by up to zero
point five per cent of the average referred to in paragraph 2 of
this Article in any such twelve-month period ending before 1 January
2030, provided that such production shall be restricted to the
servicing of refrigeration and air conditioning equipment existing
on 1 January 2020.''
---------------------------------------------------------------------------
B. How do the Clean Air Act and EPA regulations phase out HCFCs?
The Clean Air Act schedules for the phase out of HCFC production
and consumption, and for the restriction of HCFC use, appear in Section
605. The EPA has used its authority under Section 606 to accelerate
those schedules. EPA regulations that apply to production and
consumption of HCFCs are designed to enable the United States to meet
the phaseout schedule under the Montreal Protocol.
The United States has chosen to implement the Montreal Protocol
phaseout schedule on a chemical-by-chemical basis. In 1992,
environmental and industry groups petitioned EPA to implement the
required phaseout by eliminating the most ozone-depleting HCFCs first.
Based on data available at that time, EPA believed the United States
could meet, and possibly exceed, the required Montreal Protocol
reductions through a chemical-by-chemical phaseout that employed a
``worst-first'' approach. In 1993, as authorized by section 606 of the
CAA, EPA established a phaseout schedule that eliminated HCFC-141b
first and would greatly restrict HCFC-142b and HCFC-22 next, followed
by restrictions on all other HCFCs and ultimately a complete phaseout
(58 FR 15014, March 18, 1993 and 58 FR 65018, December 10, 1993).
On January 21, 2003, EPA promulgated regulations (68 FR 2820,
January 21, 2003, subsequently referred to in this document as the 2003
Final Rule) to ensure compliance with the first reduction milestone in
the HCFC phaseout: the requirement that by January 1, 2004, the United
States reduce HCFC consumption to 65 percent of baseline and freeze
HCFC production. In the 2003 Final Rule, EPA established chemical-
specific consumption and production baselines for HCFC-141b, HCFC-22,
and HCFC-142b for the initial regulatory period ending December 31,
2009. Section 601(2) states that EPA may select ``a representative
calendar year'' to serve as the company baseline for HCFCs. In the 2003
Final Rule, EPA concluded that because the entities eligible for
allowances had differing production and import histories, no single
year was representative for all companies. Therefore, EPA assigned an
individual consumption baseline year to each company by selecting its
highest ODP-weighted consumption year from 1994 through 1997. EPA
assigned individual production baseline years in the same manner. EPA
also provided for new entrants that began importing after the end of
1997 but before April 5, 1999, the date the advanced notice of proposed
rulemaking was published. EPA took this action to ensure that small
businesses that might not have been aware of the impending rulemaking
would be able to continue in the HCFC market.
In the United States, an allowance is the unit of measure that
controls production and consumption of ODS. EPA allocates calendar-year
allowances equal to a percentage of the baseline--they are valid from
January 1 to December 31 of that control period. A calendar-year
allowance represents the privilege granted to a company to produce or
import one kilogram (not ODP-weighted) of the specific substance.
``Production allowance'' and ``consumption allowance'' are defined at
section 82.3. To produce an HCFC for which allowances have been
allocated, an allowance holder must expend both production and
consumption allowances. To import an HCFC for which allowances have
been allocated, an allowance holder must expend consumption allowances.
An allowance holder exporting HCFCs for which it has expended
consumption allowances may request a refund of those consumption
allowances by submitting proper documentation and receiving approval
from EPA.
The 2003 Final Rule set production and consumption baselines for
the 2003-2009 regulatory period, using each company's highest
``production year'' or ``consumption year''. It completely phased out
the production and import of HCFC-141b by granting zero percent of
baseline for production and consumption in the table at 40 CFR 82.16.
EPA did, however, create a petition process to allow applicants to
request small amounts of HCFC-141b beyond the phaseout. The 2003 Final
Rule allocated allowances for production and consumption of HCFC-22 and
HCFC-142b for each of the years 2003 through 2009. EPA was able to
allocate allowances for HCFC-22 and HCFC-142b at 100 percent of
baseline because, in light of the concurrent complete phaseout of HCFC-
141b, the allocations for HCFC-22 and HCFC-142b, combined with
projections for consumption of all other HCFCs, remained below the 2004
cap of 65 percent of the United States baseline.
Since EPA is implementing the phaseout on a chemical-by-chemical
basis, it allocates and tracks production and consumption allowances on
an absolute kilogram basis for each chemical. Upon EPA approval, an
allowance holder may transfer calendar-year allowances of one type of
HCFC for calendar-year allowances of another type of HCFC, with
transactions weighted according to the ODP of the chemicals involved.
Pursuant to section 607 of the CAA, EPA applies an offset to each HCFC
transfer by deducting 0.1 percent from the transferor's allowance
balance. The offset benefits the ozone layer since it ``results in
greater total reductions in the production in each year of . . . class
II substances than would occur in that year in the absence of such
transactions'' (42 U.S.C. 7671f).
The United States remained comfortably below the aggregate HCFC cap
through 2009. The 2003 Final Rule announced that EPA would allocate
allowances for 2010-2014 in a subsequent action and that those
allowances would be lower in aggregate than for 2003-2009, consistent
with the next stepwise reduction for HCFCs under the Montreal Protocol.
EPA subsequently monitored the market to estimate servicing needs and
market adjustments in the use of HCFCs, including HCFCs for which EPA
did not establish baselines in the 2003 Final Rule. In the 2009 Final
Rule (74 FR 66412, December 15, 2009), EPA issued production and import
allowances for
[[Page 78076]]
HCFC-22, HCFC-142b and other HCFCs not previously included in the
allowance system, for the 2010-2014 control periods.
In the 2009 Final Rule, EPA determined both the estimated need for
HCFC-22 during the 2010-2014 regulatory period and the percentage of
that estimated need for which it was appropriate to allocate
allowances. EPA decided that the percentage of the estimated need
allocated in the form of allowances should not remain constant from
year to year, but rather should decline on an annual basis. For 2010,
EPA allocated HCFC-22 allowances equal to 80 percent of the estimated
need, concluding that reused, recycled, and reclaimed material could
meet the remaining 20 percent. The percentage of estimated need for
which there was no allocation, and that would therefore need to be met
through recycling and reclamation, rose from 20 percent in 2010 to 29
percent in 2014. The intent of this approach was to foster reclamation,
and to ensure that the United States could meet the 2015 stepdown under
the Montreal Protocol.
However, part of the 2009 Final Rule was vacated in an August 27,
2010 decision issued by the United States Court of Appeals for the
District of Columbia Circuit (Court) in Arkema v. EPA (618 F.3d 1, D.C.
Cir. 2010). Certain allowance holders affected by the 2009 Final Rule
filed petitions for judicial review of the rule under section 307(b) of
the Clean Air Act. Among other arguments, the petitioners contended
that the rule was impermissibly retroactive because in setting the
baselines for the new regulatory period, EPA did not take into account
certain inter-pollutant baseline transfers that petitioners had
performed during the prior regulatory period. Accounting for these
transfers in the 2009 Final Rule and applying the same methodology
would have resulted in different baselines and calendar-year allowances
for HCFC-22 and HCFC-142b.
The Court agreed with petitioners that ``the [2009] Final Rule
unacceptably alters transactions the EPA approved under the 2003
Rule,'' (Arkema v. EPA, 618 F.3d at 3). The Court vacated the rule in
part, ``insofar as it operates retroactively,'' and remanded to EPA
``for prompt resolution,'' (618 F.3d at 10). EPA's petition for
rehearing was denied on January 21, 2011. EPA addressed the Court's
partial vacatur as it related to 2011 in an August 5, 2011 interim
final rule, ``Protection of Stratospheric Ozone: Adjustments to the
Allowance System for Controlling HCFC Production, Import, and Export,''
(76 FR 47451, August 5, 2011, 2011 Interim Final Rule). In that rule,
EPA established new baselines that (1) credited the 2008 inter-
pollutant trades at issue in Arkema v. EPA based on the Court's
decision, (2) reflected inter-company, single-pollutant baseline
transfers that occurred since the 2009 Final Rule was signed, (3)
allocated HCFC-22 and HCFC-142b allowances for 2011, (4) clarified
EPA's policy on all future inter-pollutant transfers and (5) updated
company names. The HCFC-22 and HCFC-142b use restrictions and the
allocation for other controlled HCFCs were not affected by the partial
vacatur.
To complete its response to the court's decision, EPA published a
final rule with the same name on April 3, 2013, allocating HCFC-142b
and HCFC-22 allowances for 2012-2014 (78 FR 20004, 2013 Final Rule). In
that rule, EPA reduced HCFC-22 allowances in 2012-2014 by almost 30
percent relative to the 2009 Final Rule in order to incentivize proper
handling and recovery of HCFC-22 and encourage transition to non-ODS
alternatives.
EPA has not yet allocated any HCFC allowances for year 2015 or
beyond. The regulations at 40 CFR 82.15(a) and (b) prohibit the
production and import of HCFCs for which EPA has apportioned baseline
allowances without calendar-year (or ``annual'') allowances. As a
result, production and import of HCFC-22 and HCFC-142b, as well as
HCFC-123, HCFC-124 and HCFC-225ca/cb is prohibited in 2015 and beyond
under current regulations, pending the allocation of allowances. This
proposed rule initiates the rulemaking process for setting the 2015-
2019 HCFC allocations.
For more information on the history of the HCFC phaseout and
applicable rulemakings, see: http://www.epa.gov/ozone/title6/phaseout/classtwo.html.
C. What sections of the Clean Air Act apply to this rulemaking?
Several sections of the CAA apply to this rulemaking. Section 602
states that EPA shall publish an initial list of class II substances,
which is to include the HCFCs specified in the statute as well as their
isomers. EPA's listing of class II substances appears at appendix B to
40 CFR part 82, subpart A.
Section 605 of the CAA phases out production and consumption and
restricts the use of HCFCs in accordance with the schedule set forth in
that section. As discussed in the 2009 Final Rule (74 FR 66416),
section 606 provides EPA authority to set a more stringent phaseout
schedule than the schedule in section 605 based on an EPA determination
regarding current scientific information or the availability of
substitutes, or to conform to any acceleration under the Montreal
Protocol. EPA previously set a more stringent schedule than the section
605 schedule through a rule published December 10, 1993 (58 FR 65018).
Through the 2009 Final Rule, EPA made a further adjustment to the
section 605 schedule based on the acceleration under the Montreal
Protocol as agreed to at the Meeting of the Parties in September 2007.
The more stringent schedule established in that rule is still in
effect.
Section 606 provides authority for EPA to promulgate regulations
that establish a schedule for production and consumption that is more
stringent than what is set forth in section 605 if: ``(1) based on an
assessment of credible current scientific information (including any
assessment under the Montreal Protocol) regarding harmful effects on
the stratospheric ozone layer associated with a class I or class II
substance, the Administrator determines that such more stringent
schedule may be necessary to protect human health and the environment
against such effects, (2) based on the availability of substitutes for
listed substances, the Administrator determines that such more
stringent schedule is practicable, taking into account technological
achievability, safety, and other relevant factors, or (3) the Montreal
Protocol is modified to include a schedule to control or reduce
production, consumption, or use of any substance more rapidly than the
applicable schedule under this title.'' It is only necessary to meet
one of the three criteria. In the 2009 Final Rule, EPA determined that
all three criteria had been met with respect to the schedule for
phasing out production and consumption of HCFC-22 and HCFC-142b.\4\
---------------------------------------------------------------------------
\4\ The phaseout schedule for HCFC-22 and HCFC-142b was
unaffected by the decision in Arkema v. EPA.
---------------------------------------------------------------------------
Section 608 of the CAA, titled National Recycling and Emission
Reduction Program, requires EPA to establish standards and requirements
for the use and disposal of class I and II substances. Those
requirements must reduce the use and emissions of controlled substances
to the lowest achievable level, as well as maximize their recapture and
recycling. Additionally, section 608(c) prohibits any person
maintaining, servicing, repairing or disposing of an appliance that
contains refrigerant from knowingly venting, releasing, or disposing of
that substance to the environment, regardless of whether the
refrigerant is an ODS or a substitute. Substitutes are
[[Page 78077]]
exempted from this prohibition only if EPA has determined that venting,
releasing, or disposing of the substitute does not pose a threat to the
environment.
Section 611 of the CAA requires EPA to establish and implement
labeling requirements for containers of, and products containing or
manufactured with class I or class II ODS. While containers of class II
substances (i.e. HCFCs) already are subject to labeling requirements,
products containing or manufactured with class II substances must be
labeled beginning January 1, 2015. The specific requirements and
existing regulation implementing those requirements are discussed in
the following section.
Finally, Section 614 of the CAA describes the relationship of Title
VI to the Montreal Protocol. Section 614(b) states: ``In the case of
conflict between any provision of this title and any provision of the
Montreal Protocol, the more stringent provision shall govern.'' Section
614 ensures that EPA regulations are in accordance with United States
obligations under the Montreal Protocol.
III. Clean Air Act Requirements That Begin in 2015
A. Labeling Requirements in Section 611(c) and (d)
Section 611 of the CAA requires EPA to establish and implement
labeling requirements for containers of, and products containing or
manufactured with class I or class II ODS. In 1993, EPA published
regulations on these labeling requirements (58 FR 8136, February 11,
1993), codified at 40 CFR part 82 subpart E. Currently, these
requirements only apply to containers containing class I or II ODS and
products containing or manufactured with class I ODS. Products
containing or manufactured with class II substances will be subject to
these requirements beginning on January 1, 2015. As a result, in 2015,
containers containing, products containing, and products manufactured
with a class I or class II substance must bear a product label stating:
``Warning: Contains [or Manufactured with, if applicable] [insert name
of class I or II substance], a substance which harms public health and
environment by destroying ozone in the upper atmosphere'' (40 CFR
82.106).
EPA defines a ``product containing'' a class II substance as a
``product including, but not limited to, containers, vessels, or pieces
of equipment, that physically holds a controlled substance at the point
of sale to the ultimate consumer which remains within the product,''
(40 CFR 82.104). Two examples of a ``product containing'' a class II
substance that would require a label are (1) portable fire
extinguishers containing an HCFC and (2) appliances that incorporate
closed-cell foam blown with an HCFC. Foams are plastics (such as
polyurethane or polystyrene) that are manufactured using blowing agents
to create bubbles or cells in the material's structure. Closed-cell
foam physically holds blowing agent within the cells. While HCFCs are
no longer used as blowing agents in the United States, they are used in
other countries from which the United States may import products. In
the case of portable fire extinguishers, the fire suppression agent is
contained in a reservoir within the extinguisher and released by the
user when needed.
On the other hand, the definition of a product ``manufactured
with'' a class II substance is a product for which the manufacturer
used a class II substance directly in that product's manufacturing, but
where the product itself does not contain more than trace quantities of
the ODS at the point of introduction into interstate commerce. A
product ``manufactured with'' a class II substance would include
electronics cleaned with HCFC solvent and open cell foam blown with an
HCFC. Open cell foam is different from closed cell foam in that it was
manufactured with a blowing agent, but no longer contains the blowing
agent because the cells or bubbles in open cell foam are open to the
surrounding environment. Since HCFCs are no longer used as foam blowing
agents in the United States, and the Nonessential Products Ban
prohibits the sale or distribution of open cell plastic foam products
made with HCFCs (40 CFR 82.70(c)), EPA expects the requirement for a
``manufactured with'' label should not be relevant to most open cell
foam products. The agency welcomes comment on which open or closed cell
foam products are currently being imported, and whether those products
are likely blown with an HCFC. EPA would like this information so it
can communicate with and offer guidance to companies that must
determine whether the HCFC labeling requirements apply to their
products. Final products that incorporate another product that was
``manufactured with'' a class I or class II ODS do not have to bear a
label so long as the manufacturer of the final product is distinct from
the manufacturer of the product ``manufactured with'' the ODS (40 CFR
82.116). By contrast, final products that incorporate ``products
containing'' a class I or II ODS will require a warning label, even if
the final product manufacturer purchases the ``product containing'' the
ODS from another manufacturer or supplier (40 CFR 82.114). For a
discussion of the labeling pass-through requirements, see the February
11, 1993 final rule that implemented the statutory labeling
requirements (58 FR 8136).
EPA has created a preliminary list of products that might be
affected by these requirements beginning in 2015. This list, along with
guidance for manufacturers and importers of potentially affected
products, is titled Summary of HCFC Product Labeling Requirements &
Potentially Affected Products (Labeling Memo) and can be found in the
docket for this rulemaking. EPA is seeking comment on whether this list
is accurate and complete, and would like to know where products made
with or containing HCFCs are manufactured. This information will help
the agency better inform manufacturers in the United States and abroad
about the labeling requirement taking effect in 2015.
The agency is also interested in comments on which products have
mainly switched to non-ODS alternatives so it can assist companies in
determining whether the labeling requirements are likely to apply to
their products. For products that no longer are manufactured with or
contain HCFCs, the agency would like to know if that change applies
globally, or only to manufacture in the United States. The agency also
welcomes comment on whether any clarification to the regulations at 40
CFR subpart E (82.100-82.124) is needed in order to implement the
existing labeling requirement for products containing or manufactured
with class II substances. More background on the labeling requirements
can be found in the 1993 Final Rule (58 FR 8136), which is also
included in the docket to this rulemaking.
EPA is not proposing any substantive changes to the regulations at
40 CFR subpart E; however, the agency is proposing three very minor
modifications to clarify the intent of the regulatory language with
respect to class II substances. The first two proposed clarifications
are to replace ``class I substance'' with ``controlled substance.''
While the emphasis in 1993 was on class I substances, EPA is now
proposing to remove any ambiguity with respect to class II substances
by reconciling inconsistent terminology, specifically at 82.110(c) and
82.112(d). The Combined statement for multiple class I substances at
82.110(c) states, ``If a container containing or a product
[[Page 78078]]
contains or is manufactured with, more than one class I or class II
substance, the warning statement may include the names of all of the
substances in a single warning statement, provided that the combined
statement clearly distinguishes which substances the container or
product contains and which were used in the manufacturing process.''
This paragraph clearly applies to both class I and class II products,
as stated in the operative text. EPA is proposing to modify the title
of this paragraph to be Combined statement for multiple controlled
substances, consistent with the operative text. Similarly, 82.112(d),
which is titled: Manufacturers, distributors, wholesalers, retailers
that sell spare parts manufactured with controlled substances solely
for repair, includes the more general term ``controlled substances'' in
the title, but not the operative text. The operative text that follows
the title reads: ``Manufacturers, distributors, wholesalers, and
retailers that purchase spare parts manufactured with a class I
substance from another manufacturer or supplier, and sell such spare
parts for the sole purpose of repair, are not required to pass through
an applicable warning label if such products are removed from the
original packaging provided by the manufacturer from whom the products
are purchased . . .'' EPA is proposing to replace ``class I substance''
with ``controlled substance'' in order to clarify that this narrow
exemption to the labeling requirements also applies to class II
products in the same way it applied to class I products.
The final minor change that EPA is proposing is at 82.122,
Certification, recordkeeping, and notice requirements. The first
sentence at (a)(1) refers to persons claiming the exemption for certain
methyl chloroform users provided for in 82.106(b)(2); however, this
exemption is actually provided for in 82.106(b)(4). EPA is proposing to
revise the current text to reference the correct paragraph, which is
82.106(b)(4) not (b)(2). EPA also notes that this exemption ended May
15, 1994 and that the agency is proposing this minor change solely to
avoid confusion.
B. Use and Sales Restriction in Section 605(a)
Starting January 1, 2015, section 605(a) of the Clean Air Act
prohibits the use or introduction into interstate commerce of any class
II substance that does not meet one of four exceptions. Specifically,
use or introduction into interstate commerce is allowed only if (1) the
substance has been used, recovered and recycled; (2) it is entirely
transformed, except for trace quantities, in the production of other
chemicals; (3) it is used as a refrigerant in appliances manufactured
prior to 2020; or (4) it is listed as acceptable for use as a
nonresidential fire suppression agent in accordance with CAA section
612(c).\5\ Section 612 is the statutory authority for EPA's Significant
New Alternatives Policy program, under which the agency reviews
potential substitutes for class I and class II substances in certain
end uses and lists those potential substitutes as acceptable,
acceptable subject to use conditions, acceptable subject to narrowed
use limits, or unacceptable (see 40 CFR subpart G).
---------------------------------------------------------------------------
\5\ The fourth exception in this list is a recent change to the
Clean Air Act, which was included in the National Defense
Authorization Act for Fiscal Year 2012 [112th Congress, H.R. 1540,
Title III, Section 320, Fire Suppression Agents]. EPA is proposing
to incorporate this change into the regulations at 40 CFR
82.15(g)(4) and 82.16(d). See Section III.B.2. of this preamble for
further discussion.
---------------------------------------------------------------------------
In the 2009 Final Rule (74 FR 66412), EPA used its authority under
section 606 to accelerate the section 605(a) restrictions on use and
introduction into interstate commerce for HCFC-22 and HCFC-142b,
applying them to HCFC-22 and HCFC-142b \6\ as of January 1, 2010, five
years earlier than the date specified in section 605(a). Effective
January 1, 2010, EPA prohibited the use of virgin HCFC-22 and HCFC-142b
to manufacture or service new air-conditioning and refrigeration
appliances. In a separate rule, under the authority provided in section
615 of the CAA, EPA also prohibited the sale and distribution of
appliances and appliance components pre-charged with virgin or used,
recovered and recycled HCFC-22 and HCFC-142b (74 FR 66450). For all
other HCFCs, including those for which EPA has not historically issued
allowances, the section 605(a) prohibitions and exceptions apply as of
January 1, 2015. All HCFCs other than HCFC-22 and HCFC-142b may
continue to be used and sold as refrigerants, but only for use in
appliances manufactured before 2020.
---------------------------------------------------------------------------
\6\ EPA also accelerated the restrictions on use and
introduction into interstate commerce for HCFC-141b in the same
rulemaking; however, HCFC-141b is not discussed further in this
section because it is not used for refrigeration purposes.
---------------------------------------------------------------------------
EPA believes the term ``use'' is ambiguous in the context of
section 605(a) with respect to potential categories of use that
Congress did not directly address. Historically, in the context of
section 605, EPA has focused on use of refrigerants to manufacture and
service appliances and the section 605(a)(3) exception for servicing
existing equipment. In 1993, EPA took the section 605(a) use
restrictions into account in establishing the HCFC chemical-by-chemical
phaseout. The 1993 Notice of Proposed Rulemaking (58 FR 15014)
discusses the acceleration of the use restriction for HCFC-22 and HCFC-
142b from the standpoint of when it would be technologically feasible
to cease using these two chemicals in new refrigeration and air-
conditioning equipment. In that rulemaking, EPA did not explore how to
interpret or apply the term ``use'' in other circumstances. EPA
considered various interpretations of that term in developing the 2009
Final Rule but again focused on refrigerants. In the 2008 Notice of
Proposed Rulemaking (73 FR 78680, December 23, 2008), EPA noted that
the three statutory exceptions that existed at that time ``inform EPA's
understanding of the term `use''' (73 FR 78698). The preamble to the
2009 Final Rule states: ``With regard to HCFCs used as refrigerants,
EPA interprets the term `use' to mean initially charging as well as
maintaining and servicing refrigeration equipment'' (74 FR 66437). In
regard to non-refrigerant uses, EPA addressed two manufacturing uses of
HCFC-22 (manufacture of sterilant blends for medical equipment and
manufacture of thermostatic expansion valves); EPA also concluded that
section 605(a) would ban the primary pre-2010 use of HCFC-142b (foam-
blowing). At that time, however, EPA was not yet implementing section
605(a) with respect to other HCFCs and did not fully explore what
``use'' might mean in the context of non-refrigerants.
In the development of the 2009 Final Rule, EPA did consider whether
section 605(a) applies to the operation of products containing HCFCs.
With regard to refrigeration equipment, EPA concluded: ``the section
605(a) `use' ban does not apply to a consumer's operation of equipment
containing HCFCs'' (74 FR 66438). The agency's conclusion was partially
based on the third exemption to 605(a), for class II substances that
are used as refrigerants in appliances manufactured before a specified
date. This exemption indicated ``that Congress intended to permit the
continued use of previously manufactured appliances.'' EPA also stated
that for ``products containing HCFCs for non-refrigerant uses. . . .
EPA interprets the term `use' as relating to the manufacture (and where
applicable, the service) of those products, not the utilization of
those products in the hands of the end user'' (74 FR 66437).
EPA is not revisiting its interpretation of section 605(a) with
respect to how it interprets ``use'' for products containing
[[Page 78079]]
HCFCs. For purposes of implementing the 2015 use restriction in section
605(a), ``use'' of a controlled substance would include manufacture of
products that contain or are made with HCFCs; however, it would not
include use of existing products containing HCFCs (i.e., for substances
other than HCFC-22 and HCFC-142b, products manufactured before January
1, 2015). The reasons for this conclusion are explained in the preamble
to the 2009 Final Rule. As made clear in that notice, EPA interprets
section 605(a) as prohibiting the use of substances, not the use of
products. The statutory language does not directly address whether use
of a product containing controlled substances might constitute a
prohibited use of the substance. However, consistent with its earlier
statements, EPA does not intend to treat use of a product containing
HCFCs as use of the HCFC. The agency has a long history of
distinguishing between products and substances in its ODS phaseout
regulations. Controlled substances are defined in 40 CFR part 82
subpart A as listed substances ``whether existing alone or in a
mixture, but excluding any such substance or mixture that is in a
manufactured product other than a container used for the transportation
or storage of the substance or mixture.'' EPA distinguishes between
bulk containers of HCFCs and products containing HCFCs. The subpart A
definition of controlled substance clarifies that if a substance needs
to be transferred from a bulk container to a piece of equipment or
another container to realize its intended use, it will be treated as a
``substance.'' Examples of bulk containers include jugs, drums, and
cylinders.
EPA refers readers to the preamble of the 2009 Final Rule for two
other clarifications on how EPA interprets the term ``use'' in the
context of section 605(a). First, the agency provided the following
clarification on how the Nonessential Products Ban (CAA section 610)
and the HCFC use restriction (CAA section 605(a)) should be interpreted
together: ``By prohibiting use and introduction into interstate
commerce of HCFCs as bulk substances, section 605(a) effectively
prohibits the continued manufacture of any products containing HCFCs
(which qualifies as a type of `use') unless specifically exempted in
that section.'' EPA explained that while the section 610(a)
Nonessential Products Ban exempts certain products, these exempted
products may not be manufactured after 2014 due to the HCFC use
restrictions in section 605(a). EPA clarified that ``such products are
prohibited from continued manufacture, unless manufactured with
recovered HCFCs'' (74 FR 66439). Second, in the preamble to the 2009
Final Rule the agency clarified that ``EPA does not interpret `use' [in
the context of section 605] to include destruction, recovery for
disposal, discharge consistent with all other regulatory requirements,
or other similar actions where the substance is part of a disposal
chain'' (74 FR 66439).
Because the use prohibition will apply to a variety of sectors and
circumstances beginning in 2015, EPA believes it may be helpful to
define ``use'' in the phaseout regulations (40 CFR part 82 subpart A).
There is currently a definition of ``use'' in the regulations for the
Significant New Alternatives Policy (SNAP) Program (40 CFR part 82
subpart G), which reads as follows: ``Use means any use of a substitute
for a Class I or Class II ozone-depleting compound, including but not
limited to use in a manufacturing process or product, in consumption by
the end user, or in intermediate uses, such as formulation or packaging
for other subsequent uses'' (40 CFR 82.172). In this rulemaking, the
agency is proposing a related, but somewhat different definition for
purposes of the section 605(a) use prohibition, which is implemented at
40 CFR 82.15: ``Use of a class II controlled substance, for the
purposes of section 82.15 of this subpart, includes but is not limited
to use in a manufacturing process, use in manufacturing a product,
intermediate uses such as formulation or packaging for other subsequent
uses, and use in maintaining, servicing, or repairing an appliance or
other piece of equipment. Use of a class II controlled substance also
includes use of that controlled substance when it is removed from a
container used for the transportation or storage of the substance but
does not include use of a manufactured product containing a controlled
substance.'' The primary difference between this proposed definition
under section 605(a) and the SNAP definition is that the SNAP
definition includes use by the consumer of a product containing ODS.
This difference reflects EPA's interpretation of the section 605(a) use
restriction as set forth in the preamble to the 2009 Final Rule.
EPA welcomes comment on its proposed section 605(a) definition of
``use'' of a class II controlled substance, particularly with regard to
how such a definition can help clarify the distinction between use of a
controlled substance and use of a product. Please note that the
language regarding that distinction in the last line of the proposed
definition is based on the existing definition of controlled substance
in 40 CFR 82.3. If finalized, the definition of use of a class II
controlled substance would appear at 40 CFR 82.3, which is the
Definitions section of subpart A.
The section 605(a) restrictions on use and introduction into
interstate commerce apply to all class II controlled substances. As
explained in section V.H. of this preamble, the agency is proposing to
revise the list of class II controlled substances in 40 CFR part 82
subpart A, appendix B to include all isomers of listed substances,
consistent with section 602 of the CAA and the Montreal Protocol
listing of HCFCs (found in Group I to Annex C of the Protocol).
1. What is EPA proposing for existing inventory of HCFC-225ca and HCFC-
225cb?
Numerous stakeholders have asked what they will be able to do with
inventory of HCFC-225ca/cb that exists as of January 1, 2015. To EPA's
knowledge, HCFC-225ca, HCFC-225cb and mixtures thereof are only used as
solvents, primarily for precision cleaning in the aerospace and
electronics industries. As explained above, the section 605(a) use ban
does not apply to the use of products that contain class II controlled
substances. However, some substances, including HCFC-225ca/cb, may be
used directly in cleaning equipment or in manufacturing a product
without first being put into a manufactured product themselves. For
example, a person may take HCFC-225ca/cb from a bulk container and
either add it to a vapor degreaser or pour it on a hand wipe to clean a
piece of equipment or component. In those circumstances, the substance
itself--not a product containing the substance--is being used. (This
differs from use of products that contain HCFC-225ca/cb, such as
aerosol cans or pre-soaked wipes). In general, EPA is proposing to
interpret the section 605(a) use ban to apply to use when the substance
is removed from a container used for transportation or storage.
However, EPA believes the use of HCFC-225ca/cb entered into
inventory prior to January 1, 2015 by persons that use these substances
as solvents may fairly be considered to be de minimis. Thus, for
reasons discussed below, the agency is proposing a de minimis exemption
to the use prohibition in 605(a), which would allow any person with
HCFC-225ca/cb in inventory prior to January 1, 2015 to use that
material
[[Page 78080]]
as a solvent for as long as needed.\7\ ``Person'' is defined in 40 CFR
82.3 to include corporations and federal agencies, among other
entities. EPA is not proposing an exemption to the prohibition on
introduction into interstate commerce, nor is it proposing to change
the existing regulatory phaseout date for production and import of
HCFC-225ca/cb. The person holding the HCFC-225ca/cb in inventory would
not be able to transfer or sell it to another person, nor would EPA
issue any allowances to produce or import new HCFC-225ca/cb.
Additionally, neither companies that manufacture products for their own
use, nor companies that manufacture products for sale to others would
be allowed to manufacture products containing virgin HCFC-225ca/cb, as
that would constitute a prohibited use of the substance; however, a
person would be able to sell any products containing HCFC-225ca/cb that
had been manufactured and entered into initial inventory prior to
January 1, 2015, since at that point they would be ``products'' and not
``class II controlled substances.'' A product is considered to be a
part of ``initial inventory'' at the point where the original product
has completed its manufacturing process and is ready for sale by the
product manufacturer. For more discussion of EPA's interpretation of
the term ``initial inventory,'' see the 1993 Nonessential Products Ban
at 58 FR 69661. Also, for purposes of section 605(a), manufacturers may
continue to use HCFC-225ca/cb to make both products ``manufactured
with'' and products ``containing'' HCFC-225ca/cb as of January 1, 2015,
so long as the HCFC-225ca/cb has been used, recovered and recycled.
Labeling requirements for these products manufactured with either
virgin or used, recovered and recycled HCFC-225ca/cb would apply
beginning January 1, 2015 (see section III.A. of this preamble).
Manufacturers should also ensure that they are in compliance with the
Nonessential Products Ban and with SNAP regulations.
---------------------------------------------------------------------------
\7\ Since the section 605(a) Clean Air Act prohibition only
limits the use of virgin or unused HCFC-225ca/cb solvent, used,
recovered and recycled solvent can still be used for precision
cleaning and manufacturing products after January 1, 2015 regardless
of EPA's decision on the proposed exemption.
---------------------------------------------------------------------------
EPA believes it has implied authority to propose a de minimis
exemption from the section 605(a) use restriction. The United States
Court of Appeals for the District of Columbia Circuit has recognized
that ``[u]nless Congress has been extraordinarily rigid, there is
likely a basis for an implication of de minimis authority to provide
exemption when the burdens of regulation yield a gain of trivial or no
value.'' Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir.
1980). In Alabama Power, the Court held that ``[c]ategorical exemptions
from statutory commands may . . . be permissible as an exercise of
agency power, inherent in most statutory schemes, to overlook
circumstances that in context may fairly be considered de minimis. It
is commonplace, of course, that the law does not concern itself with
trifling matters, and this principle has often found application in the
administrative context. Courts should be reluctant to apply the literal
terms of a statute to mandate pointless expenditures of effort.'' Id.
(internal citations omitted).
In an earlier case cited by the court in Alabama Power, the court
described the doctrine as follows: ``The `de minimis' doctrine that was
developed to prevent trivial items from draining the time of the courts
has room for sound application to administration by the Government of
its regulatory programs. . . The ability, which we describe here, to
exempt de minimis situations from a statutory command is not an ability
to depart from the statute, but rather a tool to be used in
implementing the legislative design.'' District of Columbia v. Orleans,
406 F.2d 957, 959 (1968).
In this respect, the Alabama Power opinion observed in a footnote
that the de minimis principle ``is a cousin of the doctrine that,
notwithstanding the `plain meaning' of a statute, a court must look
beyond the words to the purpose of the act where its literal terms lead
to `absurd or futile results.' '' Id. at 360 n. 89 (citations omitted).
To apply an exclusion based on the de minimis doctrine, ``the agency
will bear the burden of making the required showing'' that a matter is
truly de minimis which naturally will turn on the assessment of
particular circumstances. Id. The Alabama Power opinion concluded that
``most regulatory statutes, including the CAA, permit such agency
showings in appropriate cases.'' Id.
A notable limitation on the de minimis doctrine is that it does not
authorize the agency to exclude something on the basis of a cost-
benefit analysis. As the court explained, this ``implied authority is
not available for a situation where the regulatory function does
provide benefits, in the sense of furthering the regulatory objectives,
but the agency concludes that the acknowledged benefits are exceeded by
the costs.'' Id. The court held that any ``implied authority to make
cost-benefit decisions must be based not on a general doctrine but on a
fair reading of the specific statute, its aims and legislative
history.'' Id.
Since Chevron, several courts have recognized de minimis exceptions
(1) so long as they are not contrary to the express terms of the
statute \8\ and (2) the agency's interpretation of the exception is a
permissible reading of the statute. See e.g., Ober v. Whitman, 243 F.3d
1190 (9th Cir. 2001); see also Ohio v. EPA, 997 F.2d 1520 (D.C. Cir.
1993).
---------------------------------------------------------------------------
\8\ In Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013), the DC
Circuit held that EPA had no de minimis authority to create an
exemption from the preconstruction monitoring requirement in Sec.
165(e)(2) of the CAA. ``Whether we call preconstruction monitoring a
`plain requirement' or a requirement mandated by an `extraordinarily
rigid' statute, the result is the same: The EPA has no de minimis
authority to exempt the requirement.'' Id. at 468.
---------------------------------------------------------------------------
EPA believes a de minimis exemption is permissible in this
situation for several reasons. First, section 605(a) is not
extraordinarily rigid. Second, the use prohibition in section 605(a) is
ambiguous with respect to potential categories of use that Congress did
not directly address. Third, banning the use of HCFC solvent inventory
held by the end user would not advance the statutory purpose. These
arguments are discussed in more detail in the following paragraphs.
The purpose of Title VI of the Clean Air Act is, as its title
suggests, ``Stratospheric Ozone Protection.'' Title VI can be
summarized into three principal areas: the phaseout of production and
import of ozone depleting substances (section 602-607); reduction in
emissions of these substances via various means such as required
servicing practices, restrictions on sale and distribution of products,
and consumer education (section 608-611); and the transition to
alternatives that do not harm the stratospheric ozone layer and that
reduce overall risk to human health and the environment (section 612).
Section 605 specifically addresses the ``Phase-out of production and
consumption of class II controlled substances.'' Section 604 applies to
the ``Phase-out of production and consumption of class I substances.''
There are notable differences between the two phaseouts. The phaseout
under section 604 operates much quicker than the phaseout under section
605. In addition, the section 604 phaseout operates much earlier than
the section 605 phaseout. Section 604 required the first reductions in
class I substances in 1992, followed by a series of stepdowns
culminating in the complete phaseout of nearly all class I substances
by 2000. For
[[Page 78081]]
class II substances, section 605 freezes production and consumption in
2015, with the complete phaseout not occurring until 2030.\9\ Two
principal factors drive the distinction in phaseout schedules; class I
substances have much higher ODPs relative to class II substances,\10\
and class II substances were recognized as important transitional
chemicals, beneficial in phasing out class I substances as quickly as
possible. During the development of the 1990 Clean Air Act Amendments,
Congress heard testimony on the need to phase out HCFCs as well as
class I substances. Senator Chaffee acknowledged that ``one difficulty,
however, is the fact that achieving the goal of eliminating the potent
long-lived CFCs as rapidly as possible is, to some extent, dependent on
the continued availability of HCFCs as intermediate substitutes pending
development of other, safe, non-ozone depleting substances or
processes.'' (A Legislative History of the Clean Air Act Amendments of
1990, volume 1, p. 5210 (Senate debate)).
---------------------------------------------------------------------------
\9\ Through rulemakings, EPA accelerated the statutory deadlines
in section 604 and 605, in accordance with the requirements in
section 606. See 57 FR 3354 and 58 FR 65013.
\10\ For example, all CFCs have an ODP of 0.6 or greater, with
most having an ODP of1.0, whereas the HCFC with the highest ODP is
HCFC-141b, which has an ODP of 0.11.
---------------------------------------------------------------------------
It is clear that Congress' intent was to phase out production and
import of class I substances ``as rapidly as possible,'' and certainly
more rapidly than class II substances given the difference in the start
and duration of the two phaseout schedules; however, nowhere in section
604 does Congress restrict the use of class I substances. Instead,
Congress phases out the production and import for domestic use, and
allows for certain exemptions to the phaseout for specific uses (see,
e.g., section 604 (f) and (g).) Given the comparable titles of sections
604 and 605 and the overarching goal of phasing out both class I and
class II ODS \11\, Congress likely intended that the ``use''
restriction, which is unique to section 605, should be interpreted in a
manner that furthers the phaseout of production and import of HCFCs
while recognizing the role of HCFCs as transitional substances.
---------------------------------------------------------------------------
\11\ ``The centerpiece of the stratospheric ozone protection
program established by this title is the phaseout of production and
consumption of all ozone depleting substances.'' Clean Air Act
Amendments--Conference Report (Senate--October 27, 1990) (136 Cong.
Rec. S16946).
---------------------------------------------------------------------------
Congress' overall approach to the class II phaseout is generally
less rigid than its approach to the class I phaseout, given the longer
timeframes and the presence of only one intermediate reduction step
(see section 605(b)). Given this context, EPA is not inclined to view
section 605(a) as ``extraordinarily rigid.'' In addition, section
605(a) provides an explicit exception for class II substances that have
been ``used, recovered, and recycled.'' Thus, Congress clearly did not
envision that all HCFC use in applications not specifically exempted
come to a halt by 2015. Indeed, end users of HCFC-225ca/cb could avail
themselves of this exception by putting their entire existing inventory
of HCFC-225ca/cb into their equipment before January 1, 2015. For
example, an end user could use its entire inventory of virgin HCFC-
225ca/cb in its vapor degreaser, recover the HCFC-225ca/cb from the
degreaser, and then recycle it for reuse in 2015 and beyond. In other
instances, an end user could take virgin HCFC-225ca/cb, apply it to a
surface via the typical application method such that the surface is
cleaned as intended, at which point any recovered HCFC-225ca/cb would
be rendered ``used''. EPA does not wish to encourage this approach to
meeting Sec. 605(a) requirements, which would do nothing to advance
the statutory purpose. Rather than insist on an inflexible reading of
the statute that may create ``absurd or futile results,'' EPA believes
the better option is to allow end users to continue to use virgin
inventory that they hold prior to 2015.
EPA views Section 605(a) as ambiguous with respect to potential
categories of use that Congress did not explicitly address. Section
605(a) explicitly addresses refrigerant uses of HCFCs but is silent
with respect to solvents. At the time the 1990 Clean Air Act Amendments
were written, HCFCs were used predominantly as refrigerants and much
consideration was given to this use in the legislative history. HCFC
solvent uses, on the other hand, were not considered by Congress in the
context of the class II phaseout, because they did not exist. At that
time, two class I substances, CFC-113 and methyl chloroform, were used
as solvents. Far from expecting an early transition, Congress allowed
production and import of methyl chloroform until 2002, two years after
the phaseout date for most class I substances. In addition, in
604(d)(1), Congress specifically allowed for limited exemptions to the
production and import phaseout for methyl chloroform for ``use in
essential applications.'' It was not until 1995 that HCFC-225ca/cb was
listed under SNAP as acceptable subject to use conditions in
electronics cleaning and precision cleaning (see 60 FR 31092, June 13,
1995). HCFC-225ca/cb was listed as acceptable in metals cleaning as
recently as 2002 (see 67 FR 77927, December 20, 2002). In all three of
these end uses, HCFC-225ca/cb, which has an ODP of 0.025/0.033, is a
substitute for CFC-113 and methyl chloroform, which have ODPs of 0.8
and 0.1, respectively. While HCFC-225ca/cb solvents have acted since
1995 as transitional substances between class I ODS and non-ODS
substitutes for certain niche needs, there is no evidence that Congress
anticipated in 1990 that any HCFCs would be used as solvents. Thus,
Congress did not have the opportunity to consider whether to apply the
section 605(a) use restriction to HCFC-225ca/cb solvents.
EPA does not believe that prohibiting persons that use HCFC-225ca/
cb as a solvent to clean their equipment or to clean components of
products they manufacture-resulting in products ``manufactured with''
these HCFCs-from using their existing inventory of HCFC-225ca/cb would
advance the goals of Title VI. As discussed above, any person could
avoid such a prohibition by rendering all their inventory ``used'' in
advance of the effective date. From the perspective of potential ozone
destruction, there is little or no difference in this instance whether
the person uses such de minimis quantities already on site at the end
of 2014 or after January 1, 2015.
EPA believes a de minimis exemption is appropriate for the reasons
provided, and also because the quantities involved are extremely
limited. This is a small niche use and EPA is only proposing to exempt
HCFC-225ca/cb held in inventory by persons that use these substances as
a solvent. The quantities produced or imported using allowances act as
a ceiling on the quantities that can comprise pre-2015 inventory, and
the annual allocation of allowances for HCFC-225ca/cb from 2010-2014 is
only 20.7 ODP-weighted MT. Recent HCFC-225ca/cb consumption has been
substantially less than the allocation, further decreasing the absolute
maximum amount that could remain in inventories as of 2015.
EPA also considered its past use of de minimis authority under
Title VI of the Clean Air Act; in fact, the agency is modeling this
proposed exemption to 605(a) on the de minimis exemption to the
nonessential products ban for class II substances (CAA section 610(c)
and (d)). In the 1993 Nonessential Products Rule, EPA proposed and
finalized an exemption to the ban on sale and distribution in
interstate commerce of products manufactured with or
[[Page 78082]]
containing HCFCs. The ban applied to products that were placed in
initial inventory by December 27, 1993--90 days after the proposed rule
published and four days prior to the statutory ban on sale and
distribution (58 FR 50464, September 27, 1993 and 58 FR 69638, December
30, 1993). EPA finalized this narrow ``grandfather'' exception for
existing inventories based on the de minimis rationale: ``The crux of
EPA's reasoning for providing any exemption for existing inventories
was that emissions from products already in existence were de minimis''
(58 FR 69660). EPA believes that emissions from existing inventories of
HCFC-225ca/cb would also be de minimis.
As discussed, EPA believes it has sufficient authority to propose a
de minimis exemption to the section 605(a) use prohibition for use of
HCFC-225ca/cb held in inventory by persons using these substances as
solvents. In addition to evaluating its legal authority, EPA has also
considered policy aspects of proposing an exemption. In the 1993
Nonessential Products Rule, EPA identified various policy reasons for
exempting existing inventory. One policy goal was to relieve a
potentially onerous burden on small businesses because, absent a sell
through provision, existing inventories would otherwise have to be
liquidated (or in the case of the section 605(a) use restriction,
intentionally used, recovered and recycled prior to the effective date
of the prohibition). EPA recognizes the potential inefficiency of a
company rendering all of their HCFC-225ca/cb inventory used in advance
of 2015. The agency welcomes comment from end users of HCFC-225ca/cb,
with specifics on their continued HCFC-225ca/cb needs, whether they are
planning to transition to an alternative solvent prior to 2015, the
time required to transition to alternatives for specific uses of HCFC-
225ca/cb, and what hardships they would face with or without an
exemption to the 605(a) use prohibition.
If EPA does not finalize an exemption for inventories of virgin
HCFC-225ca/cb, use of all virgin HCFC-225ca/cb would be prohibited as
of January 1, 2015 under the current regulations. EPA urges destruction
of virgin ODS for which use is prohibited as the appropriate method for
disposal. There are seven EPA-approved destruction technologies for ODS
(see 40 CFR 82.3). EPA recognizes, however, that use of these
technologies does have a cost. Further, the agency is concerned that
some persons might dispose of their supplies of HCFC-225ca/cb in a
manner allowing release into the environment if they are not allowed to
use the substance for its intended purpose of cleaning. This could
result in as much or more harm to the environment as the use of
existing inventory as a solvent.
An important policy consideration is that the nature of precision
cleaning is such that the group of affected entities is small, but
their needs are very specific. Those needs often include minimal to
zero flammability as well as excellent solvency properties, and if
those needs are not met, human safety can be jeopardized (for example,
in the case of future space vehicle launches). The agency believes that
manufacturers of products containing HCFC-225ca/cb have sufficient lead
time to use their remaining HCFC-225ca/cb inventory to manufacture
products and place them into initial inventory, or alternatively, to
sell virgin bulk HCFC-225ca/cb to users of these solvents prior to
2015. However, EPA has heard from several entities that use HCFC-225ca/
cb directly as solvents for cleaning existing equipment or for cleaning
surfaces that are part of a newly-produced product who still have not
found a suitable alternative to HCFC-225ca/cb. In some instances,
entities need more time to test alternatives in order to ensure that
the chosen replacement has acceptable solvency, flammability and
usability characteristics. Also, in some areas of the United States, a
number of federal, state and local regulations affect the choice of
solvents. In particular, areas that are not meeting the national
ambient air quality standard for ground-level ozone may regulate
solvents that are volatile organic compounds (VOC) to reduce emissions
that contribute to the formation of smog. HCFC-225ca and HCFC-225cb are
exempt from the definition of VOC under CAA regulations (see 40 CFR
51.100(s)) addressing the development of State Implementation Plans
(SIPs) to attain and maintain the national ambient air quality
standards. This exemption allows greater flexibility in the use of
HCFC-225ca/cb than is allowed for cleaning solvents that are regulated
as VOCs. Only some SNAP-listed alternatives to HCFC-225ca/cb are exempt
from the definition of VOC (e.g., trans-1-chloro-3,3,3-trifluoroprop-1-
ene).
Given these legal and policy considerations, EPA is proposing a de
minimis exemption to the use restriction in CAA section 605(a) for
entities that use HCFC-225ca/cb as solvents and that have HCFC-225ca/cb
in their inventory prior to January 1, 2015. The exemption would appear
at 40 CFR 82.15(g). This exemption would not pertain to manufacturers
of products containing HCFC-225ca/cb, such as technical aerosol
solvents, or to producers and importers of HCFC-225ca/cb. Any aerosol
solvent product manufactured prior to January 1, 2015, could be sold
and used after that date, since an aerosol can is a product, not a
controlled substance; however, manufacture of the product or HCFC
blends used in those products would be considered use of a controlled
substance, and would be prohibited after January 1, 2015, unless the
HCFC were used, recovered and recycled. The agency invites comment on
the proposed exemption, particularly on the need for continued use of
HCFC-225ca/cb after 2014. The agency is also seeking comment on whether
there are other small niche uses of HCFCs that Congress may not have
contemplated in the 1990 CAA Amendments for which a prohibition on use
of inventory would yield trivial or no benefits in light of the
statutory purpose. The agency may consider extending the proposed
exemption to other such niche uses in the final rule.
2. How is EPA planning to update regulations to account for recent
changes to section 605(a)?
In the National Defense Authorization Act for fiscal year 2012,
Congress amended section 605(a) of the Clean Air Act to allow for
continued use and introduction into interstate commerce of a class II
substance that ``is listed as acceptable for use as a fire suppression
agent for nonresidential applications in accordance with section
612(c).'' Section 612 of the Clean Air Act 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. Section 612(c) requires EPA to publish a list of the
substitutes unacceptable for specific uses and to publish a
corresponding list of acceptable alternatives for specific uses. The
list of acceptable substitutes is found at www.epa.gov/ozone/snap/lists/index.html, and the lists of ``unacceptable,'' ``acceptable
subject to use conditions,'' and ``acceptable subject to narrowed use
limits'' substitutes are found in the appendices to subpart G of 40 CFR
part 82. HCFC-123, HCFC-124, and several blends containing an HCFC are
currently listed as acceptable and acceptable subject to narrowed use
limits, where the only use limit restricts use to nonresidential fire
suppression. EPA assumes that Congress intended the statutory phrase
``listed as acceptable for use'' to include HCFCs listed as acceptable
and acceptable subject to narrowed use limits. In light
[[Page 78083]]
of this statutory revision, EPA is proposing to update its regulations
for use and introduction into interstate commerce of HCFCs (82.15(g)),
as well as the regulations governing production and import (82.16).
Specifically, the agency intends to add the following language to
82.15(g)(4) allowing for use and introduction into interstate commerce
of any class II controlled substance not governed by the acceleration
of the use prohibition to 2010, when used ``as a fire suppression
streaming agent listed as acceptable for use or acceptable subject to
narrowed use limits for nonresidential applications in accordance with
the regulations at subpart G of [part 82].'' EPA believes this addition
is necessary and appropriate, given Congress' addition to section
605(a).
Though section (a) pertains only to use and introduction into
interstate commerce, EPA believes that allowing for continued HCFC
production and import for nonresidential fire suppression uses is a
natural follow-on, and is in accordance with Congressional intent.
Section 605 does not establish a production phaseout date for any
specific HCFC. EPA has used its discretion to establish a regulatory
phaseout date, which the agency is proposing to modify in this action.
This change has minimal impact on the overall allocation since the
primary HCFC used for fire suppression, HCFC-123, has a low ODP, and
the quantities used for fire suppression are small relative to the
other uses of HCFCs.
In large part, the regulatory phaseout date for HCFCs used in fire
suppression was driven by the section 605(a) limitations on use and
introduction into interstate commerce of class II controlled
substances, to which Congress has now created an exception. Therefore,
EPA is also proposing to amend 82.16(d), by allowing for HCFC
production and import in the 2015-2019 regulatory period for use in
nonresidential streaming fire suppression applications. Accordingly,
EPA is proposing to add the following text to 82.16(d), allowing for
both production and import of class II controlled substances ``for use
as a fire suppression streaming agent listed as acceptable for use or
acceptable subject to narrowed use limits for nonresidential
applications in accordance with the regulations at subpart G of [part
82].'' To give practical effect to this proposed change, EPA is
proposing to allocate consumption allowances for HCFC-123, not just for
use as a refrigerant, but for use as a fire suppression agent as well.
As discussed in section V.D.1., EPA is proposing to allocate the
maximum allowed amount of HCFC-123 consumption allowances under section
605(b) (i.e., 100 percent of HCFC-123 baseline), which is still less
than three percent of United States consumption allowed under the
Montreal Protocol cap for 2015-2019. EPA is proposing to allow
production and import for fire suppression purposes for the 2015-2019
regulatory period only. Beginning January 1, 2020, Article 2F of the
Montreal Protocol limits United States production and import of HCFCs
to use in servicing and repair of existing refrigeration equipment.
Under section 614(b), where either the Montreal Protocol or Title VI is
more stringent, the more stringent provision governs. To reflect this
Montreal Protocol time limitation, EPA is proposing to add language to
82.16(e) indicating the purposes for which production and import may
continue in 2020 and beyond: The proposed list does not include fire
suppression purposes. The agency welcomes comment on any aspect of
these proposed regulatory additions.
C. Step Down to 10 Percent of Montreal Protocol Baseline
As discussed in section II.A. of this preamble, the United States
has agreed under the Montreal Protocol to limit consumption and
production of HCFCs by January 1, 2015 to no more than 10 percent of
its Montreal Protocol baseline. Starting in 2015, the United States cap
on consumption will be 1,524 ODP-weighted MT and the cap on production
will be 1,553.7 ODP-weighted MT. By January 1, 2020, the United States
is required to limit consumption and production of HCFCs to 0.5 percent
of baseline. As required under sections 606(a) and 614(b) of the Clean
Air Act, the EPA phaseout regulations reflect the Montreal Protocol
schedule for phasing out HCFCs, including the 2015 and 2020 stepdowns.
In developing the proposed HCFC allocation schedule for 2015-2019, the
agency bore in mind that as of January 1, 2020, the consumption and
production caps will be approximately 76 and 77.5 ODP-weighted MT,
respectively. Also, as of January 1, 2020, Article 2F of the Protocol
limits United States production and consumption of HCFCs to servicing
needs for refrigeration and air conditioning equipment. In addition,
CAA section 605(a) limits the use of virgin HCFCs as of January 1,
2015, to use as a refrigerant in equipment manufactured prior to 2020,
and use as a nonresidential fire suppressant. EPA regulations also
prohibit the production and import of virgin HCFC-22 or HCFC-142b for
refrigeration uses as of January 1, 2020 (see 40 CFR 82.16(e)). In
determining the proposed allocation options in this rule, EPA took into
account the 2015 and 2020 milestones in the Montreal Protocol and the
Clean Air Act.
IV. How will EPA determine baselines for 2015-2019?
The current structure of the HCFC allowance program was first
established in the 2003 Final Rule (68 FR 2820), in which EPA decided
to allocate HCFC allowances using a baseline system for the 2003-2009
regulatory period. Specifically, calendar-year allowances for
production and consumption of HCFCs would be issued as a percentage of
each company's baseline. A company's baseline would be calculated from
historic levels of production and import. Since 2003, the program has
changed very little, using the same baseline system to issue
consumption and production allowances on an annual basis.
In the 2003 Final Rule, EPA prohibited production and consumption
of HCFCs subject to the allowance system without the appropriate
allowances (40 CFR 82.15(a),(b)). The agency sets the maximum
production and consumption of each HCFC by issuing allowances that are
valid for a single calendar year, equal to a certain percentage of each
company's baseline.\12\ The agency determines the percentage of
baseline for each year by taking into account limits set under the
Montreal Protocol, estimated need for a particular HCFC, and
restrictions under the Clean Air Act. 2015 is a significant milestone
in the domestic phaseout of HCFCs, since United States production and
consumption of all HCFCs must be at or below 10 percent of baseline
levels by January 1, 2015, and use of those HCFCs must comply with
restrictions in section 605 of the Clean Air Act.
---------------------------------------------------------------------------
\12\ The process works as follows for each HCFC: First, all the
company-specific consumption baselines (listed in the table at 40
CFR 82.19) are added to determine the aggregate amount of
consumption baseline. Second, EPA determines how many allowances to
allocate in a given year and divides that amount by the aggregate
amount of baseline allowances. The resulting percentage listed in
the table at section 82.16 becomes what each company is allowed to
consume in a given control period. For example, a company with
100,000 kg of HCFC-22 baseline consumption allowances would multiply
that number by the percentage allowed (for example, 14.2 percent in
2014) to determine its calendar-year consumption allocation of
14,200 kg. Until the 2013 Final Rule, the percentage listed in 82.16
applied to production allocations as well. However, now that EPA has
decoupled baseline percentages, there are two tables at 82.16 and
the process of calculating baseline percentages applies to
production as well.
---------------------------------------------------------------------------
[[Page 78084]]
A. Using Existing Baselines
In the 2003 Final Rule, EPA decided that each company producing or
importing HCFC-22 or HCFC-142b between 1994 and 1997 would receive
baseline allowances equal to its highest annual production and import
level from those four years, with a limited extension for small
businesses that began importing before April 5, 1999--the date EPA
published the HCFC Allocation System ANPRM for the 2003-2009 regulatory
period. In the 2009 Final Rule (74 FR 66412), EPA continued this
approach for HCFC-22 and HCFC-142b. EPA also applied the same general
approach to allocating allowances for HCFC-123, HCFC-124 and HCFC-
225ca/cb, using 2005-2007 as the baseline years for those substances.
The portion of the 2009 Final Rule governing baselines and allocations
of HCFC-22 and HCFC-142b allowances was vacated by the Court in Arkema
v. EPA. However, the rest of the rule, including the baselines for four
other HCFCs and the use restrictions on HCFC-22 and HCFC-142b, remains
in effect. HCFC-22 and HCFC-142b baselines and allowances were re-
established for 2011 in the 2011 Interim Final Rule (76 FR 47451) and
for 2012-2014 in the 2013 Final Rule (78 FR 20004).
In this rulemaking, EPA is proposing to keep the post-Arkema
historical baselines as reflected in the 2013 Final Rule (as adjusted
to reflect subsequent name changes and inter-company baseline allowance
transfers) for the 2015-2019 regulatory period. The baselines for
production and consumption of the seven HCFCs for which EPA has
allocated allowances can be found at 40 CFR 82.17 and 82.19,
respectively. The agency believes there is benefit to the regulated
community in continuing with the established system, with updates to
reflect name changes and inter-company baseline allowance transfers. In
the past, some stakeholders have acknowledged the certainty and
stability of continuing with established baselines. Others have pointed
out that the established baselines do not reflect current market
conditions. Because of this concern, the agency considered an option to
update baselines, which in the case of HCFC-22 and HCFC-142b were
derived from 1994-1997 data. However, EPA's preferred approach is to
keep the current baselines in place. EPA has several reasons for
maintaining historic baselines. EPA determines the total amount of
allowances to be allocated independent from the baseline amounts. Re-
establishing each company's baseline would alter the distribution of
allowances, but would not affect the total allocation. EPA sets the
baseline percentage such that once every company receives its
allowances, the number of allowances issued equals the total allocation
for that year. Therefore, EPA does not see an environmental rationale
to updating baselines, since changing individual company baselines
would not affect the total amount of HCFC-22 that could be produced or
imported in a given year. Further, choosing and implementing changed
baseline years would change existing market expectations, and thus
potentially may detract from the certainty that allows stakeholders,
all of whom are already familiar with the existing system (in place
since 2003), to plan for an orderly transition to alternatives. Such a
change may not be justified given that there are only five remaining
years for HCFC allocation (excluding the 0.5 percent of baseline for
servicing needs). Under EPA's preferred approach of maintaining current
baselines, baseline allocations would be the same as those shown in the
proposed regulatory text at 40 CFR 82.17 and 82.19.
EPA invites comment on the advantages and disadvantages of
maintaining the established baseline system.
B. Consideration of Establishing Revised Baselines Using More Recent
Production and Import Data
Current production and consumption baselines were established using
data from 1994-1997 and 2005-2007. EPA's preferred option is to keep
the current baselines. However, EPA considered a second option: Re-
establishing baselines using more recent production and import data.
Updating baselines would result in fewer allowances for companies that
have fully or partially left the HCFC market and a greater number of
allowances for companies that have more recently used calendar-year
allowances.
In the 2012 Proposed Rule (77 FR 237, January 4, 2012), the agency
provided advance notice that for the 2015-2019 regulatory period, it
would consider using more recent production and import data than the
1994-1997 data used to set baselines for the first time in the 2003
Final Rule. EPA was particularly interested in stakeholders' views on
whether there would be an environmental benefit to updating baselines.
In response to the proposed rule, the agency received several comments,
both for and against updating baselines, but did not receive any
comments indicating there was an environmental benefit to changing
baselines. In the 2013 Final Rule, EPA stated that it would continue to
assess the merits of using a more recent set of years to determine
HCFC-22 and HCFC-142b baselines, but pointed out that it still had not
heard an environmental rationale for making such a change.
Further, the program's market-based orientation encouraged EPA to
consider ways to promote an orderly phaseout--one in which stakeholders
are offered advance planning certainty in their efforts to replace
controlled chemicals. Thus, in completing the 2013 Final Rule we
concluded that the certainty that facilitates orderly market transition
to new, safer alternatives could be best promoted by maintaining
expectations. Given the current state of the phaseout--within 5 years
of virtual completion--the market may be best served by predictability
and by the confirmation of long-established policy approaches.
In developing this proposed rule, the agency evaluated whether to
update baselines for the 2015-2019 regulatory period. First, consistent
with its earlier statements, EPA considered whether there would be an
environmental benefit to doing so. Second, EPA considered how it would
pick ``a representative calendar year'' or years to serve as the
baseline, as required by CAA section 601. Third, EPA also considered
whether the agency would credit only actual production and import, or
if a company would receive credit for allowances held as the result of
a transfer. Fourth, EPA considered the length of time the baselines
have already been used, as well as the length of time remaining before
the HCFC-22 and HCFC-142b phaseout.
Based on these considerations, EPA has decided not to propose to
use a more recent set of years to establish company baselines. First,
the agency does not see an environment benefit to using a more recent
set of years: It is the percentage of baseline issued--not the
aggregate baseline itself--that determines the allowed amount of
production and import in a given year. A shift to different baselines
would simply rearrange companies' shares of allowances. EPA has not
made a practice of updating company baselines to reflect changes in the
market. Rather, private entities may use the allowance transfer
provisions in Part 82 to sell or acquire baseline allowances as
appropriate. Second, it is unlikely that there is a more recent year or
range of years that the majority of stakeholders could accept as
representative. Third, while it would be important for the agency to
consider whether to credit
[[Page 78085]]
only actual production and import, or also allowances held as the
result of a transfer, such consideration would introduce uncertainty
into the process. Fourth, the use of production and import data from
1994-97 for HCFC-22 and HCFC-142b baselines began in the 2003 Final
Rule and has continued through the present. These substances will be
phased out in 2020. The current baselines are well understood by all
affected entities and a change that would apply only to the last few
years before the phaseout might simply cause confusion, in addition to
affecting any longer-term business plans that companies may have based
on the current baselines. Confusion resulting from resetting existing
baselines would be counter to the Agency's goal of promoting a smooth
transition to alternatives. For these reasons, the agency is not
proposing to update the baselines for the 2015-2019 regulatory period.
V. How is EPA developing allocation levels for each HCFC?
In developing proposed allocation levels, EPA considered what uses
of HCFCs will be permitted in 2015 through 2019. Section 605(a) of the
Clean Air Act limits the use of newly-produced (i.e. virgin) HCFCs
beginning January 1, 2015. Under the statute, virgin HCFCs may be used
as a refrigerant in appliances \13\ manufactured prior to 2020 (EPA
accelerated this manufacturing date to 2010 for HCFC-22 and HCFC-142b)
\14\ and also as a nonresidential fire suppressant, if listed as
acceptable under SNAP for this end use. HCFC-22 and HCFC-123 are both
used as refrigerants, and thus EPA is proposing to issue allowances for
these chemicals. HCFC-22 has many refrigeration applications, and
accounts for over 90 percent of all HCFC use; HCFC-123, on the other
hand, accounts for a much smaller portion of refrigerant use,
predominantly in large chillers. HCFC-123 and HCFC-123 blends are also
listed as acceptable or acceptable subject to narrowed use limits for
nonresidential fire suppression uses. EPA is proposing to issue
allowances for both HCFC-22 and HCFC-123; however, since refrigeration
represents a larger market than fire suppression, nearly all
consumption and production allowances proposed for 2015-2019 will be
for HCFC-22. EPA is also proposing to issue consumption and production
allowances for HCFC-142b and HCFC-124, since both are listed as
acceptable for certain refrigerant end uses and there continues to be
small, albeit decreasing, demand for refrigerant blends containing
these HCFCs. In addition, HCFC-124 is listed as acceptable in certain
fire suppression blends. The proposed allocation options for HCFC-142b
and HCFC-124 are presented in section V.C. and V.E., respectively. EPA
is not proposing to issue allowances for HCFC-225ca or HCFC-225cb
because neither is used as a refrigerant nor as a fire suppressant. Use
of HCFC-141b was banned effective January 1, 2010 under existing
regulations (see 82.15(g)(1),(3)), with limited exceptions. In
addition, the exemption from the production and import phaseout that
allows for HCFC-141b exemption allowances does not continue beyond 2014
(see 40 CFR 82.16(b),(d)). Since the exemption does not exist beyond
2014, EPA is proposing, effective January 1, 2015, to remove 40 CFR
82.16(h), which describes the petition requirements for receiving HCFC-
141b exemption allowances. However, in accordance with 40 CFR
82.18(a)(2) and (3), each company with an HCFC production baseline will
receive Article 5 allowances \15\ in 2015 through 2019 equal to 10
percent of its baseline for that HCFC, even if EPA does not issue
consumption, production or exemption allowances for that substance.
---------------------------------------------------------------------------
\13\ The Clean Air Act defines appliance as ``any device which
contains and uses a class I or class II substance as a refrigerant
and which is used for household or commercial purposes, including
any air conditioner, refrigerator, chiller or freezer.''
\14\ EPA accelerated the 605(a) use restrictions for HCFC-22 and
HCFC-142b in the 2009 Final Rule. Consequently, HCFC-22, HCFC-142b
and blends containing either can only be used as a refrigerant in
appliances manufactured before January 1, 2010, not 2020.
Additionally, the Clean Air Act allows use and introduction into
interstate commerce of virgin HCFCs for use in transformation, but
since this use does not require consumption or production
allowances, it will not be discussed in this section.
\15\ Article 5 allowances allow a company with an HCFC baseline
to produce that HCFC only for export to Article 5 Parties under the
Montreal Protocol. See 40 CFR 82.18(a).
---------------------------------------------------------------------------
The proposed allocations in the following sections are based on
EPA's Vintaging Model demand projections, recent market research on
current HCFC uses and trends, and the expected availability of
recovered and reused material. In the case of HCFC-22 and HCFC-142b,
EPA also considered the fact that under longstanding regulations, these
two HCFCs will be phased out as of January 1, 2020. Thus, EPA will
cease issuing HCFC-22 and HCFC-142b consumption and production
allowances by 2020 at the latest. The agency has compiled Vintaging
Model projections and other data supporting its proposed allocations
for 2015-2019 in the 2013 Servicing Tail Report on HCFC market needs,
found in the docket to this rulemaking. EPA welcomes comment on all
aspects of the report, including but not limited to the underlying
assumptions and sensitivity analyses. Since the data in the report will
be used to support the final allocations for 2015-2019, EPA requests
any relevant data and market information that would improve the
accuracy of the agency's projections. If commenters wish to submit
confidential business information to support their comments on this
proposal, please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section and review section I.B.1. of this notice.
A. How will EPA determine the HCFC-22 consumption allocation?
EPA is considering three options for determining the HCFC-22
consumption allocation. Each would involve a declining allocation from
year to year. Under the linear drawdown (Option 1), which is EPA's
preferred approach, the agency is proposing to decrease the allocation
by the same amount each year, such that there is a linear decrease in
allowances from 2015 through 2019, ending at zero in 2020. Under Option
2, EPA is proposing a three year version of the linear drawdown, where
consumption is phased out in 2018 instead of 2020. Under the estimation
approach (Option 3), EPA is proposing to estimate servicing need using
the Vintaging Model, and then make adjustments to account for estimated
recovery and reuse, and inventory, much like it did in the 2009 and
2013 Final Rules. Regardless of the option chosen, once the final rule
is issued EPA does not intend to revise the 2015-2019 allocation.
Leaving the possibility of additional EPA action to increase or
decrease the allocation could create unnecessary uncertainty and
undermine business planning and a smooth phaseout.
In 2009, EPA published the 2009 Servicing Tail Report (available in
the docket), which estimated HCFC-22 servicing need through 2020 using
the Vintaging Model and several rounds of industry feedback. Through
2011 and early 2012, market factors and feedback from industry
indicated there was an over-supply of HCFC-22, which was discouraging
use of recycled refrigerant and slowing transition to ozone-safe
alternatives. EPA developed Analysis of HCFC-22 Servicing Needs in the
U.S. Air Conditioning and Refrigeration Sector: Additional
Considerations for Estimating Virgin Demand (Adjustment Memo, available
in the docket) to accompany the proposed rule for 2012-2014, which
contained new proposed
[[Page 78086]]
allocations in the wake of the Court's decision in Arkema. The
Adjustment Memo examined updated projections from EPA's Vintaging
Model, and then took into account recent market conditions. The
Adjustment Memo considered reductions in the allocation based on
increased reclaimer capacity, existing HCFC-22 inventory, and recovery
and reuse by supermarkets. After reviewing public comment and
stakeholder feedback, EPA finalized HCFC-22 allowances for 2012, 2013
and 2014 in the 2013 Final Rule (78 FR 20004).
As presented in the revised 2013 Servicing Tail Report included in
the docket, EPA's Vintaging Model estimates that HCFC-22 servicing need
in 2015 will be 46,165 MT, or 2,539 ODP-weighted MT. In 2015, the
Montreal Protocol cap for all HCFC consumption is 1,524 ODP-weighted
MT, which means that even if EPA allocated only HCFC-22 allowances, it
still could not provide enough allowances to account for all projected
HCFC-22 need. The gap in 2015 between projected servicing need and the
Montreal Protocol cap is why EPA has continually emphasized the need
for recovery, reuse and reclamation of HCFC-22, in addition to
transition to non-ODS alternatives. Recovery, reuse and reclamation
will become even more important in 2020, when HCFC-22 may no longer be
produced or imported, but the projected servicing need is 22,572 MT.
EPA also uses the Vintaging Model to project the amount of
recoverable HCFC-22 each year. This projection is based on the modeled
retirement of HCFC-22 equipment and modeled recovery rates specific to
each equipment type. For example, for residential air conditioning, the
Vintaging Model assumes each system being retired in a given year has a
full charge at decommissioning, and that an average of 35 percent of
the refrigerant in each retiring system is recovered. For other end
uses, particularly those with very large charge sizes, the modeled
recovery rate is much higher. In the Vintaging Model, the overall,
industry-wide recovery rate is approximately 50 percent, though the
exact number fluctuates each year based on the amount of equipment
modeled as retiring in each end use. See Appendix A of the 2013
Servicing Tail Report for modeled recovery rates specific to each
equipment type.
In the 2013 Servicing Tail Report, EPA has also included several
sensitivity analyses to gauge how changes in several key assumptions
affect estimated servicing need in 2015-2019. The assumptions EPA
looked at include system charge size, average annual equipment leak
rates (i.e., loss rates), and the expected length of time a system is
in operation (i.e., equipment lifetime). All of these factors were
examined as a result of information provided by industry
representatives concerned that the agency's assessment of servicing
need in the Vintaging Model could be too high. In addition to the
sensitivity analyses, EPA has also updated its assessment of HCFC-22
inventory and is providing more discussion of other factors affecting
the HCFC-22 phaseout. The agency welcomes comment on all aspects of the
2013 Servicing Tail Report. This information will support the
allocation option chosen in the final rule.
1. Using a Linear Drawdown From 2014 Allocation Levels
In 2020, the United States must be at 0.5 percent of its HCFC
baseline, and under EPA regulations none of the HCFC production or
import at that time may be for HCFC-22 or HCFC-142b. Given the agency's
goal of ensuring a smooth transition away from HCFC-22 and into non-ODS
alternatives, EPA is proposing a linear decrease in HCFC-22 allowances
from 2015-2019. That is, allowances would decrease by the same amount
each year, such that a decrease by that same amount from 2019 to 2020
would bring the HCFC-22 allocation to zero. Under the linear drawdown
approach, EPA is proposing to use the lowest proposed 2014 allocation
level as its starting point (approximately 16,500 MT). Under this
approach, the 2015 allocation would be approximately 13,700 MT with an
annual decrease of approximately 2,700 MT. In 2019 the allocation would
be 2,700 MT and in 2020 the allocation would be zero, with a total
allocation of approximately 41,100 MT over the five year period. This
linear drawdown--from the lowest proposed allocation in 2014 to zero in
2020--is EPA's preferred approach. Since the market for virgin HCFC-22
is solely for servicing air-conditioning and refrigeration equipment
that was installed prior to 2010 (with limited exceptions through the
end of 2011), EPA believes that decreasing the allocation by the same
amount each year will drive the necessary changes in the service market
to prepare for the 2020 phaseout, without unnecessarily forcing
transition or retrofits out of HCFC-22 for equipment that is still
within its expected lifetime. Several industry representatives have
also suggested a 2015 allocation very close to EPA's preferred 2015
allocation of approximately 13,700 MT; their support for such an
allocation stems from the belief that the allocation for 2013 and 2014
was higher than needed, resulting in an over-supply of HCFC-22 and an
increase in inventory levels.
EPA believes its preferred 2015 allocation is sufficient based on
how the market responded in 2012 and early 2013 to the allowed amount
of consumption under the No Action Assurance (i.e., non-enforcement)
letters. The 2015 proposed allocation is only about 20 percent lower
than the allowed consumption at the start of 2013 (17,902 MT). At that
time, there was minimal concern that allowed consumption levels were
too low; certain industry practices were changing and significant
inventory was available to meet servicing need (summarized below). EPA
obtained this information through numerous conversations with
stakeholders, all of which are noted in the memo in the docket titled
Relevant Meetings With External Stakeholders.
First, channel inventory (i.e., existing material available for
sale and distribution) likely helped meet servicing needs. Some
industry feedback indicates a significant amount of inventory was
consumed in 2012 to meet servicing needs. Industry feedback continues
to indicate that despite this drawdown there remains a significant
amount of inventory that can help meet servicing need in 2015 and later
years.
Second, servicing practices likely changed with the lower
allocation to help meet servicing needs. With the price of HCFC-22
increasing, industry feedback indicates service technicians may have
been more careful with the refrigerant, resulting in lower loss rates
and higher recovery rates than those estimated in the Vintaging Model.
Third, industry feedback indicates the demand for dry-shipped HCFC-
22 condensing units continued to decrease. This suggests that the
service contractor or the consumer's repair/replace decision may be
affected by the price and availability of HCFC-22.
Fourth, as the price of HCFC-22 increased and as equipment reached
the end of its useful life, retrofits and system replacements occurred
more rapidly than modeled. This is particularly apparent in the retail
food segment. For example, feedback from numerous contacts in the
supply chain indicate supermarkets used the seven- to 10-year remodel
cycle to not only update display cases, but to also switch to new
refrigerants (either through retrofits or system replacements). These
retrofits result in significant amounts of used refrigerant that can be
reclaimed, or recovered and reused. Feedback from several sources
indicates HCFC-22 sales
[[Page 78087]]
to supermarkets dropped off significantly in the past few years,
especially in 2012 and early 2013, with the reduction in allocation.
Information from recovery companies also shows that supermarkets were
holding onto their recovered HCFC-22 from decommissioned or retrofitted
stores for use in other equipment under the same ownership. This
practice will likely accelerate as the phaseout progresses.
Other evidence indicates that service technicians also became more
aware of and comfortable using non-ODS retrofit refrigerants. Feedback
from numerous points in the supply chain indicates sales of HCFC-22
retrofit refrigerants (e.g., R-407C, R-421A, R-422B, R-422D, R-438A,
and numerous other non-ODS alternatives) have increased dramatically
since 2011. This is also supported by data received recently from
producers and distributors of HCFCs. As the phaseout progresses, the
percentage of HCFC-22 demand met by retrofit refrigerants is expected
to rise, thereby further reducing the need for HCFC-22 and adding to
the potential inventory of reclaimed refrigerant.
While EPA encourages equipment owners to retrofit when it makes
sense, the agency also encourages equipment owners to look at the
lowest GWP refrigerant that meets their needs and to consider the
capacity and efficiency tradeoffs associated with a retrofit out of
HCFC-22. HCFC-22 is typically the most efficient refrigerant to use in
a piece of equipment designed to use HCFC-22--an important
consideration when servicing an existing system. When changing the type
of refrigerant used in a system, technicians and contractors may only
use substitutes listed as an acceptable retrofit refrigerant for that
end use under the SNAP program. If replacing the equipment, new systems
may only use refrigerants listed under the SNAP program as acceptable
for new equipment for that end use. A complete list of acceptable
substitutes by end use is available at www.epa.gov/ozone/snap/refrigerants/. In addition to being illegal, failure to use an
acceptable substitute may be unsafe. For example, equipment that is not
designed for flammable refrigerants should not be retrofitted for use
with hydrocarbons or other flammable substitutes.
Fifth, as HCFC-22's price increased and its perceived availability
decreased, reclamation increased by about 13 percent in 2012 from 8.3
million lbs to 9.4 million lbs. While the increase between 2011 and
2012 is only one year of data, the higher price of HCFC-22 was likely a
factor since reclaimers started offering a higher buyback price for
used material. Since the higher price of virgin refrigerant also
encouraged retrofits, HCFC-22 from retiring systems was available for
recovery and reclamation.
EPA has attempted to quantify the possible effects on servicing
need from many of these trends in the 2013 Servicing Tail Report.
Coupled with the fact that an additional two years of retrofits and
system retirements will have occurred by 2015, the agency's analysis
and feedback from industry affirm that the preferred allocation option
can meet servicing needs without causing shortages. EPA seeks comment
on its assessment of market trends and the agency's preferred
allocation of 13,700 MT of HCFC consumption allowances in 2015, with an
annual decrease in allocation of 2,700 MT.
EPA also notes that there appears to be a significant amount of
HCFC-22 in inventory. As discussed in EPA's 2013 Servicing Tail Report,
EPA has revised its estimate of HCFC-22 inventory. In the last
rulemaking, EPA estimated HCFC-22 inventory at 22,700-45,400 MT. Based
on information received recently, inventory is above that range.\16\
While excess HCFC-22 may provide the market more flexibility in its
transition timeline, it may also discourage recovery and recycling of
existing HCFCs. Since EPA has attempted to encourage recovery and
reclamation throughout the HCFC phaseout, as well as a smooth
transition, the agency is also seeking comment on whether a lower 2015
allocation is preferable. Specifically, EPA is proposing as an
alternative a lower linear drawdown starting at 10,000 MT in 2015 and
dropping by 2,000 MT per year before reaching zero in 2020. Over the
five year period, it would result in approximately 11,000 MT fewer
HCFC-22 allowances than under the agency's preferred approach and could
encourage better refrigerant management practices and more recycling
and reclamation.
---------------------------------------------------------------------------
\16\ This revised assessment is based on inventory data from a
limited number of companies as of December 31, 2012, as well as
other information received by the agency during the development of
this proposed rule.
---------------------------------------------------------------------------
Though all evidence received to date suggests that a 2015
allocation of 13,700 MT is sufficient to meet market needs, EPA is also
proposing as an alternative a linear drawdown starting from the 2014
pre-recoupment \17\ allocation of 20,100 MT and ending at zero in 2020.
Under this alternative linear drawdown, the allocation would start at
about 16,700 MT in 2015 and would decrease by about 3,350 MT each year
over the five year period; over five years EPA would allocate 9,200 MT
more than under the preferred linear drawdown approach.
---------------------------------------------------------------------------
\17\ Recoupment allowances refer to the additional HCFC-22 and
HCFC-142b allowances that EPA allocated for 2013 and 2014, which
were in addition to the aggregate allocations determined by the
established percentage of baseline. EPA issued recoupment allowances
to address the Court's decision in Arkema with respect to allowances
for 2010. For a discussion of the agency's decision to provide
recoupment, see the 2013 Final Rule at 78 FR 20015.
---------------------------------------------------------------------------
As discussed in the preceding paragraphs, EPA is proposing higher
and lower alternatives to its preferred approach for the linear
drawdown. However, some stakeholders have encouraged EPA to go to zero
and cease allocating allowances for HCFC-22 in 2015 instead of in 2020.
They base this recommendation on the availability of alternatives, the
capacity for reclamation, and the presence of a significant amount of
inventory. While this approach could offer environmental benefits, the
agency believes going to zero too quickly could have unintended
consequences for end users that have been making equipment retrofit and
replacement plans based on EPA's long-standing 2020 deadline for
phasing out HCFC-22.
EPA believes the linear drawdown approaches discussed in this
section have several advantages. First, a linear drawdown provides the
market with a clear signal that features consistent annual decreases
that will drive transition to alternatives in advance of the 2020
phaseout. The agency believes, and past commenters agree, that
gradually decreasing the allocation provides the appropriate and
necessary signal to encourage equipment owners and service technicians
to transition when it makes sense for their individual circumstances.
The linear drawdown allows the industry to establish plans in advance
and develop the infrastructure to transition without significant market
disruptions. Without a gradual transition, large quantities of system
owners could wait until the last possible moment to transition, which
could pose significant financial hardship and lead to widespread market
disruptions in the 2019 to 2020 timeframe as end users scramble to find
solutions to the HCFC-22 phaseout. While the estimation approach
(Option 3) also decreases year-by-year, the 2015 allocation is
significantly higher than under the preferred linear drawdown approach.
Additionally, the change from 2019 to 2020 is substantially higher
under the estimation approach than under any of the linear drawdown
options, which could prompt system owners to stay in old HCFC-22
equipment longer,
[[Page 78088]]
potentially contributing to market disruption. Regardless of the option
chosen, a lower allocation could result in economic advantages for
companies investing in reclamation and alternative refrigerants and
equipment if it encourages consumers to use reclaimed refrigerant or an
alternative sooner.
The linear drawdown is also simple and easy to explain. This aspect
is important for service technicians, since they are the ones directly
interacting with home and business owners. It is often their job to
explain what the HCFC phaseout means and how it works. Providing
technicians with an easier-to-explain transition should improve
consumers' understanding of the phaseout and the options available to
them.
Finally, this linear drawdown approach is preferred because it does
not primarily rely on EPA's ability to predict annual servicing need,
which becomes increasingly difficult as HCFC-22 is phased out. While
the Vintaging Model is updated frequently to reflect changes in the
marketplace, it doesn't model how the allocation in recent years
affects servicing need in future years. For example, the final 2013-
2014 allocations will affect how HCFC-22 is bought, sold and stockpiled
in each year. While there are limitations of the model, the sensitivity
analyses in the 2013 Servicing Tail Report indicate the proposed linear
drawdown approach is reasonable and can meet servicing need without
shortages if servicing practices improve, and recycling and transition
occur. The linear drawdown approach also takes into account how the
market responded in 2012 and 2013 under the agency's No Action
Assurance, which indicates the linear allocation approach may even more
accurately reflect servicing need.
The agency is also proposing a linear drawdown option that would
use fewer steps and less time to arrive at an HCFC-22 allocation of
zero. Option 2 in Table 1 shows a linear drawdown over three years
instead of five, resulting in a consumption allocation of zero in 2018
instead of 2020. One possible benefit of decreasing the HCFC-22
allocation to zero sooner would be increased incentive to recover and
recycle HCFC-22, and increased incentive to transition to alternatives
and replace older, less energy efficient equipment. The three year
linear drawdown provides environmental benefits as compared to the five
year linear drawdown because it issues fewer HCFC-22 consumption
allowances over the five year period. As under the five year linear
drawdown (Option 1), EPA is proposing to use the lowest proposed
allocation in 2014 as a starting point. The 2015 allocation would
therefore be approximately 12,400 MT, with an annual decrease of about
4,100 MT such that 2017 would be the final year of HCFC-22 consumption
allowances (Option 2 in Table 1). In total, Option 2 would result in
approximately 24,800 MT of allowances, which is 16,200 MT fewer than
under EPA's preferred five year linear drawdown approach. EPA is also
proposing a variant to this three year linear drawdown under which the
agency would start from the pre-recoupment 2014 allocation of 20,100
MT. EPA seeks comment on its alternative proposal to base the
allocation on a three year linear drawdown instead of five years, and
on whether, in this case, the 2015 allocation should be determined from
the lowest proposed amount in 2014 or the actual 2014 allocation prior
to the addition of recoupment allowances. Regardless of which variant
of the three year linear drawdown is chosen, it would provide the
largest environmental benefit of the options presented in this rule,
since it results in the fewest allowances overall.
In summary, EPA believes a linear drawdown helps ensure a smooth,
simpler transition out of HCFC-22. This method of decreasing allowances
does not rely directly on EPA's estimate of HCFC-22 servicing needs or
changes in demand for refrigerant, though the 2013 Servicing Tail
Report does confirm that a linear drawdown of allowances would still
enable projected servicing need to be met under plausible recovery and
reuse scenarios and changes in servicing practices. As a result, the
agency believes making simple and consistent reductions in allowances
each year could provide the certainty the market needs to transition
smoothly from HCFC-22 to non-ODS alternatives.
The agency welcomes comment on the benefits or drawbacks to a
linear allocation schedule, as well as comments on both linear drawdown
options (Options 1 and 2 in Table 1) and the proposed variants of
Option 1 and Option 2, which are discussed in this section but not
shown in Table 1.
2. Determining the Allocation by Estimating Servicing Need and Then
Accounting for Need That Can Be Met by Sources Other Than New
Production
While not its preferred approach, EPA is also proposing to take the
modeled servicing need for 2015-2019 as estimated in the 2013 Servicing
Tail Report, subtract the amount of expected recovery and reuse, and
then issue consumption allowances to account for the remaining HCFC-22
need. This is the estimation approach, shown as Option 3 in Table 1. In
the 2009 Final Rule covering 2010-2014, comments on the 2009 Servicing
Tail Report prompted EPA to account for 12,500 MT of recovery and reuse
in each year. That is, the allowances issued each year were 12,500 MT
lower than the modeled servicing need for HCFC-22. This same
methodology was used in the 2013 Final Rule covering 2012-2014, except
the 2013 Final Rule also accounted for existing inventory, which could
be used to meet servicing need as well. When EPA addressed existing
inventory in the 2013 Final Rule, it did not necessarily intend to
address inventory in subsequent rules or make it part of the ongoing
allocation methodology. However, recent data received by EPA indicates
there still is a significant inventory of HCFC-22. The proposal to
account for existing inventory when setting the final HCFC-22
allocation under this option is discussed in section V.A.3.
In 2015, the amount of projected servicing need, minus the amount
of expected recovery \18\ and reuse, is actually higher than the 2014
allocation of 23,100 MT. The agency does not see any reason to increase
the allocation from 2014 to 2015 because allowing the allocation to
increase from 2014 to 2015 could reduce incentives for recovery and
transition. In addition, EPA has received feedback from stakeholders
that the final allocations for 2013 and 2014 were higher than the
market was expecting. Thus, under this approach, the agency is
proposing to issue the same amount of allowances in 2015 as in 2014,
instead of allowing the allocation to increase in 2015. EPA would then
apply the methodology presented earlier in this section to years 2016
through 2019. EPA is proposing to use the currently modeled average
recovery and reuse rate of approximately 50 percent. The resulting
allocation schedule would start at 23,100 MT in 2015 and end at 6,200
MT in 2019 before going to zero in 2020, shown as Option 3 in Table 1
of this section. EPA welcomes comment on using the estimation approach
to allocate allowances, in addition to comments on model parameters,
such as the recovery rates used in the model for each end use and the
installed equipment base (see 2013 Servicing Tail Report and
appendices). The agency is especially interested in comment on modeled
equipment characteristics, like
[[Page 78089]]
expected lifetime, charge size and leak rate, since assumptions about
equipment characteristics affect the projected servicing needs for each
end use.
---------------------------------------------------------------------------
\18\ The expected recovery rate is approximately 50 percent
industry-wide and is listed as the baseline recovery rate in the
2013 Servicing Tail Report available in the docket.
Table 1--Proposed Options for HCFC-22 Consumption Allocation in 2015-2019
[Metric tons]
--------------------------------------------------------------------------------------------------------------------------------------------------------
HCFC-22 Proposed consumption allocation options 2015 2016 2017 2018 2019 2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Option 1: Linear drawdown over 5 years.................. 13,700 10,900 8,200 5,500 2,700 0
Option 2: Linear drawdown over 3 years.................. 12,400 8,300 4,100 0 0 0
Option 3: Estimation Approach........................... 23,100 20,900 15,100 11,500 6,200 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Accounting for Existing HCFC-22 Inventory
As stated earlier in this section, EPA did not commit itself to
account for existing HCFC-22 inventory when setting the allocations for
2015-2019; however, EPA is proposing to account for existing inventory
for two primary reasons. The first is that EPA has heard from
stakeholders that industry-wide inventory is still very large. In
addition, many feel that the final 2013 and 2014 allocations were
higher than the market needs, and will therefore lead to a buildup of
additional HCFC-22 stocks going in to 2015. The second reason EPA is
proposing to account for existing inventory is based on the agency's
fall 2011 market analysis supporting its proposal to reduce allowances,
as compared to the 2009 Final Rule (see Adjustment Memo, included in
the docket to this rulemaking). That analysis assumed there was a
surplus inventory between 22,700 and 45,400 MT at the beginning of
2012. Given expectations about the transition away from HCFCs, as well
as the 2015 and 2020 HCFC phaseout milestones, EPA estimated that the
complete drawdown could take somewhere between four to eight years.
Based on its estimates of existing inventory, EPA proposed and
finalized a 6,000 MT reduction in allowances for 2012-2014. Given that
a 6,000 MT reduction over 2012-2014 is only 18,000 MT total, the agency
believes there still is ample existing supply of HCFC-22. Recent data
from stakeholders confirms that the inventory level is above the high
end or above EPA's previous estimate. As such, EPA is proposing to
account for up to 10,000 MT of inventory each year in 2015-2019 under
the estimation approach. EPA is also proposing to make larger annual
reductions in the earlier years and smaller annual reductions in the
later years under this approach. Such a tapered approach to accounting
for existing inventory would be consistent with the recent feedback and
comments that EPA has received. Many stakeholders have noted that
sending strong market signals early in the control period is
fundamental to preparing the market for the complete phaseout of virgin
HCFC-22 production and import by 2020.
For this modified estimation approach, as well as the linear
drawdown approaches, the agency will consider inventory data in
choosing its final allocation methodology and welcomes comment on its
approach.
B. How will EPA determine the HCFC-22 production allocation?
Since the start of the HCFC phaseout program in 2003, the agency
has determined the HCFC-22 production allocation in one of two ways.
Under either method, EPA first determines the aggregate consumption
allocation needed and assigns the consumption baseline percentage
accordingly. The process for assigning consumption baseline percentages
works as follows: First, all the company-specific baselines listed in
the tables at 40 CFR 82.19 are added to determine the aggregate
consumption baseline. Second, EPA determines how many consumption
allowances to allocate for a given year and divides that amount by the
aggregate baseline. The resulting percentage listed in the table at
section 82.16 becomes what each company is allowed to consume in a
given control period. For example, a company with 100,000 kg of HCFC-22
consumption baseline allowances would multiply that number by the
percentage allowed in a given year (for example, 25 percent) to
determine its calendar-year consumption allowance is 25,000 kg.
In the 2003 Final Rule covering 2003-2009, and again in the 2009
Final Rule covering 2010-2014, EPA allocated the same percentage of
baseline allowances for production as it did for consumption. A company
with a production baseline at 40 CFR 82.17 would simply multiply its
baseline by the percentage listed at 82.16 to determine its calendar-
year production allocation. However, in the 2013 Final Rule covering
2012-2014, EPA provided a larger percentage of baseline and more HCFC-
22 production allowances than it did for consumption. That is, section
82.16 was amended to include two tables, one listing the baseline
percentage for consumption and the other listing the percentage for
production. As discussed in the 2013 Final Rule, the reason for this
change was to allow United States manufacturers to produce at the same
level as under the 2009 Final Rule and continue to compete globally,
and to potentially reduce the need for less efficient production abroad
(see 78 FR 20020).
For the 2015-2019 regulatory period, EPA is considering two options
for the HCFC-22 production allocation: (1) Issue production allowances
at the highest allowable level under the Montreal Protocol to continue
to allow United States producers to compete globally much like it did
in the 2013 Final Rule covering 2012-2014, which is the agency's
preferred approach or (2) provide approximately the same number of
production allowances as consumption allowances.
1. Allocate the Maximum Production Allocation Allowed Under the Cap
In the 2013 Final Rule, EPA determined that it has the authority to
issue calendar-year consumption and production allowances using
different percentages of baseline, as long as the agency complies with
the overall schedule set by the Montreal Protocol and Congress, as
accelerated under section 606. Therefore, the agency has the ability to
set baseline percentages such that the aggregate production allocation
is larger than the consumption allocation. See the 2013 Final Rule (78
FR 20018) for a discussion of EPA's ability to decouple production and
consumption baselines.
As stated in the 2013 Final Rule, EPA believes that allocating more
production allowances than consumption allowances cannot lead to an
increase in United States consumption, would not
[[Page 78090]]
result in a global increase in production or consumption of HCFC-22,
but could result in more United States production for export relative
to the scenario in which production allowances are at approximately the
same level as consumption allowances. This may have economic benefits
for the United States and potentially environmental benefits to the
extent that production might otherwise occur in plants that lack HFC-23
byproduct destruction technologies. EPA's preferred approach is to
allocate more production allowances than consumption allowances, up to
the maximum allowed under the Montreal Protocol cap.
Allocating more production allowances than consumption allowances
would not provide United States producers the opportunity to produce
more HCFCs for domestic consumption than the amount allowed by the
consumption allocation. Production of one kilogram of an HCFC still
requires both a production allowance and a consumption allowance
(82.15(a)(1), (2)). Allocating more production than consumption would
provide United States producers the opportunity to continue production
for export subject to existing regulatory constraints. A company must
submit documentation to verify the export of an HCFC for which
consumption allowances were expended in order to request a
reimbursement of spent consumption allowances. The agency reviews the
documentation and issues a notice to either deny or grant the request.
Therefore, a company would not be able to produce more HCFC-22 unless
it had exported an equal amount of material and been granted a refund
of spent consumption allowances.
As mentioned previously, EPA also believes that allocating more
production allowances than consumption allowances could have
environmental benefits if United States production displaces production
at facilities that do not control byproduct emissions of
hydrofluorocarbon (HFC)-23, which has a global warming potential of
14,800.\19\ In the 2013 Final Rule, EPA responded to comments that
cited the growth of HFC-23 emissions globally and indicated that
facilities in Article 5 countries do not control HFC-23 emissions to
the same degree as companies operating in the United States. EPA has
worked with industry through its HFC-23 Emission Reduction Partnership
to encourage companies to reduce HFC-23 byproduct emissions from the
manufacture of HCFC-22. Production of HCFC-22 in the United States may
provide environmental benefits in reduced HFC-23 emissions to the
extent United States production supplants the Article 5 production in
those specific plants that do not have HFC-23 byproduct destruction
technologies installed. For further discussion of HFC-23 byproduct
emissions in Article 5 countries, see the 2013 Final Rule at 78 FR
20021.
---------------------------------------------------------------------------
\19\ GWP of HFC-23 presented in the Intergovernmental Panel on
Climate Change (IPCC) Fourth Assessment Report: Climate Change 2007
(AR4).
---------------------------------------------------------------------------
EPA also determined in the 2013 Final Rule that allowing United
States production to remain at the levels finalized in the 2009 Final
Rule would not result in increased global consumption. Providing more
production than consumption allowances could allow companies to
continue exporting to non-Article 5 countries, which have the same
overall Montreal Protocol phaseout schedule as the United States but
may not use the United States' chemical-by-chemical approach to phasing
out HCFCs. Also, consumption of HCFCs in Article 5 countries was capped
starting in 2013, which further limits global HCFC-22 demand (see
Montreal Protocol Art. 5, para. 8 ter.). And finally, at least one
company holding production allowances does not produce HCFC-22 in the
United States, so it is unlikely that every production allowance issued
will be used. EPA is concerned that the alternative approach--issuing
production allowances at the same level as consumption, instead of at
the maximum level allowed under the cap--could deprive United States
manufacturers of existing global business.
Therefore, EPA is proposing to issue the maximum number of HCFC-22
production allowances allowed under the Montreal Protocol cap, after
accounting for production allocations of any other HCFCs. Starting in
2015, the United States production cap under the Montreal Protocol is
1,553.7 ODP-weighted MT; when converted entirely to HCFC-22, the
production cap is 28,249 MT of HCFC-22. To put the 2015 cap in
perspective, EPA issued 41,200 MT of HCFC-22 production allowances in
2013 and 36,000 MT in 2014. Allocating the maximum allowed under the
cap would still be a significant decrease from 2013 and 2014 production
allocations. EPA is proposing to take the cap of 1,553.7 ODP-weighted
MT, subtract the final production allocation for any other HCFCs, and
then issue the remaining amount for HCFC-22 production. Under the
agency's preferred options for all other production allocations, the
resulting HCFC-22 allocation in 2015-2019 would be approximately 28,000
MT, or 21.7% percent of baseline. EPA welcomes comment on this
approach.
2. Allocate Approximately the Same Number of Production Allowances as
Consumption Allowances
A second option for determining the HCFC-22 production allocation
is to issue approximately the same number of production allowances as
consumption allowances. Under this approach, the production allocation
would be significantly lower than in 2013 and 2014. The highest
proposed consumption allocation in this rulemaking is 23,100 MT in
2015, which is close to half as much as the 2013 production allocation
and about two-thirds as much as the 2014 production allocation. This
approach could result in less United States production for export, with
economic disadvantages for the United States and potentially
environmental disbenefits to the extent that more production might
occur in plants that lack HFC-23 byproduct destruction technologies.
Under this approach, EPA would determine the desired aggregate
consumption allocation in each year and set the percentage of
consumption baseline accordingly. The percentage of production baseline
issued would be whatever percentage results in an aggregate production
allocation that is approximately equal to the aggregate consumption
allocation. EPA welcomes comment on the merits of this option.
C. How will EPA determine the HCFC-142b allocation?
In the 2009 Final Rule for 2010-2014, EPA allocated 100 MT of HCFC-
142b consumption allowances for each of those years (74 FR 66412). When
EPA re-established HCFC-22 and HCFC-142b baselines in the 2011 Interim
Final Rule and 2013 Final Rule, the HCFC-142b consumption allocation
remained at 100 MT. However, since the HCFC-142b production baseline
was significantly higher than the consumption baseline, and the same
percentage of baseline was used for both consumption and production,
the production allocation became 463 MT (not including recoupment) in
2011-2014.
As discussed briefly in the 2013 Servicing Tail Report, the
Vintaging Model does not model demand for HCFC-142b uses after 2014.
However, several HCFC manufacturers anticipate continued, albeit
decreasing, sales of refrigerant blends containing HCFC-142b in 2015
and later. HCFC-142b is predominantly used in refrigerant
[[Page 78091]]
blends that have historically served as replacements for CFC-12 and R-
500 in medium- and large-sized refrigeration equipment. It is important
to note that some of these blends containing HCFC-142b, namely R-409A,
are in use today but are not modeled in the Vintaging Model; thus, the
model is not an accurate reflection of the niche refrigeration needs
for HCFC-142b. Given that the agency knows there is some R-409A
equipment in use based on refrigerant sales data collected by the
California Air Resources Board (see Preliminary 2011 and 2012 Sales and
Distribution Data from the California Air Resources Board's Refrigerant
Management Program in the docket) and industry feedback, the agency is
proposing to allocate 35 MT in 2015 with a decrease of 5 MT each year.
EPA believes an allocation of 35 MT in 2015 is an appropriate balance
between the 2010-2014 allocation of 100 MT, the actual consumption of
HCFC-142b in recent years, and the fact that while R-409A is still
needed, it is used mainly in CFC retrofitted equipment (i.e., equipment
that is at or is nearing its expected retirement). With an annual
decrease of 5 MT, the HCFC-142b allocation would be 15 MT in 2019. The
agency thinks that a decreasing allocation sends a stronger market
signal that production and import of HCFC-142b are ending, as compared
to a constant allocation in all five years. Such a signal should help
encourage equipment owners to transition to more energy efficient
equipment that uses non-ODS refrigerants. EPA will consider issuing up
to 100 MT of HCFC-142b consumption allowances, but would need
substantial data supporting such an allocation. Specifically, EPA would
need to know for which blends, in what quantity and for what end use(s)
the HCFC-142b is needed.
EPA is proposing to issue HCFC-142b production allowances at the
same level as consumption, not the same percentage of baseline. Given
historic exports of HCFC-142b, EPA does not believe the same rationale
for allowing production to be higher than consumption applies to HCFC-
142b as it applies to HCFC-22. In the 2013 Final Rule, HCFC-142b
production was higher than consumption due to the different changes in
production and consumption baselines, not due to any concerns about
HCFC-142b export (as was the case for HCFC-22 production). The agency
would consider issuing up to 100 MT of production, even if the final
consumption allocation is lower, if there is documented need for United
States-produced HCFC-142b in other non-Article 5 countries. The agency
is not proposing to issue any more than 100 MT of HCFC-142b production
allowances. EPA requests comments on its proposal, as well as data on
current and future needs of HCFC-142b.
D. How will EPA determine the HCFC-123 allocation?
HCFC-123 is currently used as a refrigerant and as a fire
suppression agent, which are the two consumptive uses of virgin HCFCs
permitted by section 605(a) of the CAA as of January 1, 2015. The
agency is proposing to issue consumption allowances to allow import for
these two uses. For the 2010-2014 regulatory period, EPA issued
approximately 2,500 MT of HCFC-123 consumption allowances each year,
which is 125% of the HCFC-123 consumption baseline. EPA has never
established a production baseline for HCFC-123, and the agency has no
record of domestic production of HCFC-123 for consumptive uses during
the baseline years (2005-2007). Section 605(b) of the Clean Air Act
restricts production of any class II substance to 100% of baseline
levels or less beginning on January 1, 2015. Section 605(c) requires
that consumption of class II substances be phased out on the same
schedule as production. The agency's reading of 605(b) and 605(c)
together is that as of January 1, 2015, EPA may allocate no more than
100 percent of baseline for production or consumption of each class II
substance. This milestone is part of the phaseout schedule contained in
the CAA. EPA has accelerated the section 605 phaseout schedule under
the authority of section 606. Nevertheless, the 2015 milestone in
section 605(b) is still relevant because it applies to each class II
substance individually. This is in contrast to the basket approach
contained in the Montreal Protocol. Under section 614(b), where there
is a conflict between Title VI of the CAA and the Montreal Protocol,
``the more stringent provision shall govern.'' With respect to
individual substances, section 605 is more stringent. Thus, for the
2015 control period and beyond, EPA may not allocate more than 100
percent of baseline for any class II substance. EPA did determine in
the 2013 Final Rule that the percent of production and consumption
baseline allocated as calendar-year allowances may be different, but
only so long as the phaseout of a substance continues on the same
overall schedule presented in the CAA and the Protocol (78 FR 20004).
See the 2013 Final Rule and the accompanying Response to Comments for a
complete discussion of the agency's authority to decouple production
and consumption percentages.
In considering allocation options, EPA has looked at the projected
need for virgin HCFC-123 for refrigeration and nonresidential fire
suppression uses. EPA's modeled need for each of these uses is
presented in the 2013 Servicing Tail Report, included in the docket to
this rulemaking. EPA is taking comment on the remaining refrigerant and
fire suppression uses of HCFC-123, how much is needed, and why non-ODS
alternatives could not meet this need. Commenters should clarify the
quantity of their specific needs, in addition to any broader comments
on industry demand for HCFC-123.
Under the current phaseout regulations, beginning in 2015,
production and import of HCFC-123 is limited to servicing of existing
refrigeration and air conditioning equipment only. EPA is proposing to
revise section 82.16(d) to allow production and import of HCFC-123 for
fire suppression purposes to complement section 605(a)(4) of the CAA.
This exemption would sunset on December 31, 2019 because, as discussed
in more detail in Section II.A. of this preamble, beginning in 2020,
Article 2F of the Montreal Protocol restricts production and import of
HCFCs to servicing of existing refrigeration and air conditioning
equipment.\20\ Under section 614 of the CAA, where either the Montreal
Protocol or the CAA is more stringent, the more stringent provision
governs. While virgin HCFCs could continue to be used in fire
suppression applications, EPA does not intend to issue consumption
allowances for fire suppression after 2019. In addition, beginning in
2020, section 605(a) of the CAA prohibits the use of virgin class II
substances in the installation and/or manufacture of new AC and
refrigeration systems. Any HCFC-123 consumption allowances issued after
2019 would only allow HCFC-123 import for use as a refrigerant for
servicing existing HCFC-123 systems.
---------------------------------------------------------------------------
\20\ Use of HCFC-123 that was imported prior to 2020, or that is
used, recovered and recycled, is still allowed beyond January 1,
2020.
---------------------------------------------------------------------------
EPA's understanding is that much of the HCFC-123 refrigerant in use
today is to service and manufacture low pressure chillers, which have
relatively long expected lifetimes; the Vintaging Model assumes a 27-
year average lifetime, and the United States tax code uses a 39-year
depreciation schedule for a category of equipment that includes HCFC-
123 chillers (26 U.S.C. 168).
[[Page 78092]]
Given the expectation that these chillers will last for well over 20
years, EPA seeks comment on whether it should provide a static amount
of HCFC-123 allowances through 2019, or whether it should begin to
gradually reduce HCFC-123 allowances now to foster transition. The two
proposed options for issuing HCFC-123 consumption allowances are
outlined below, though EPA's preferred option is to issue 100 percent
of the HCFC-123 baseline. Commenters should explain why they prefer
either option in as much detail, and with as much quantitative
reasoning, as possible.
1. Allocate 100 Percent of HCFC-123 Consumption Baseline Through 2019
EPA is proposing to issue approximately 2,000 MT of HCFC-123
consumption allowances for each year from 2015-2019, which is the
maximum allocation allowed under the CAA because it is equal to 100
percent of the consumption baseline. The agency believes this amount
would be sufficient to meet the refrigeration and nonresidential fire
suppression needs, even though projected need is 2,200 MT in 2015-2018
and 2,300 MT in 2019. EPA expects 2,000 MT of HCFC-123 allowances will
be sufficient to meet modeled need because the Vintaging Model projects
that at least 330 MT of HCFC-123 will be available for recovery and
reuse in 2015, and even more should be available in later years, mainly
because HCFC-123 chillers have high (90 percent) expected recovery
rates due to their large charge size. So while this proposed option
does not incorporate specific reductions for recovery and reuse, it
does assume that some demand for HCFC-123 can be met with recovered
material. EPA prefers this approach because (1) the allocation is still
below modeled need; (2) HCFC-123 may be produced and imported for use
as a refrigerant until 2030; and (3) there are no commercially
available alternatives to HCFC-123 in low-pressure chillers as of mid-
2013. EPA welcomes comment on its preferred proposal to issue 2,000 MT
in each year, and again notes that it cannot issue more than 100
percent of the HCFC-123 baseline.
2. Allocate Less Than 100 Percent of HCFC-123 Consumption Baseline
EPA is proposing in the alternative to issue only enough HCFC-123
allowances to meet anticipated need, after specifically accounting for
recovery and reuse. Under this option, EPA would allocate 1,900 MT of
consumption allowances in 2015-2017, and 1,400 MT of allowances in 2018
and 2019. The objective of this approach is to foster recovery and
reuse, and to recognize that while virgin production of HCFC-123 could
occur through 2029, HCFC-123 equipment can only be manufactured through
2019. As shown in Table 4-12 of the 2013 Servicing Tail Report, the
total servicing demand plus the demand for charging new refrigeration
and fire suppression equipment is 2,200 MT in 2015-2018 and 2,300 MT in
2019. After subtracting the amount of that total demand that EPA
estimates can be met by recovered and reused material, the remaining
need that would be met by virgin production is equal to the proposed
allocation in each year. For 2015-2017 the proposed allocation is 1,900
MT, dropping to 1,400 MT in 2018 and 2019, as discussed in the 2013
Servicing Tail Report. The agency is seeking comment on this approach,
especially the HCFC-123 need estimates presented in the 2013 Servicing
Tail Report, to what extent need could reasonably be met with recovered
material and to what extent commenters believe the HCFC-123 allocation
will affect transition to alternatives.
E. How will EPA determine the HCFC-124 allocation?
Though HCFC-124 has both refrigeration and fire suppression
applications that are listed as acceptable under the Significant New
Alternatives Policy (SNAP) program, its primary use today is in
sterilant blends. Beginning January 1, 2015, CAA section 605(a)
prohibits the use of virgin HCFCs as sterilants, since sterilant use is
not one of the four statutory exceptions. As discussed earlier in
section III.B. of this preamble, 605(a) restricts the use of bulk class
II substances, not products containing class II substances. However,
manufacture of a product is considered ``use'' of a bulk substance and
therefore is prohibited beginning January 1, 2015, unless the
manufacturer is using recovered and recycled HCFC-124. EPA's
understanding is that most of the sterilant industry is on target to
transition to non-ODS alternatives prior to January 1, 2015, but
welcomes comment on the transition out of HCFC-124 sterilants,
particularly the status of sterilant users' transition to alternatives.
While most HCFC-124 use is as a sterilant, there are, in fact,
several refrigerant blends with HCFC-124 that are listed as acceptable
by the SNAP program. These blends include: R-401A, R-401B, R-409A, R-
414A, R-414B and R-416A. Similarly, EPA has also listed as acceptable
certain fire suppression alternatives that contain HCFC-124. For total
flooding applications, EPA has listed neat HCFC-124 and HCFC Blend A
(NAFS-III) as acceptable alternatives to Halon 1301. For streaming
applications, the agency has listed neat HCFC-124 and HCFC Blend C (NAF
P-III) as acceptable alternatives to Halon 1211. However, the agency is
not aware of any HCFC-124 fire suppression uses in the United States.
Given the small projected need for HCFC-124 beyond 2014 and the
continued use of certain refrigerant blends containing HCFC-124, the
agency is proposing to issue some HCFC-124 allowances in 2015-2019,
consistent with the most recent Vintaging Model projections of HCFC-124
servicing need and recent feedback from industry stakeholders. Due to
the very small projected need, HCFC-124 is only discussed briefly in
the 2013 Servicing Tail Report; the remainder of the HCFC-124
discussion is included here. The estimated need in the Vintaging Model
decreases from 4.5 MT in 2015 to 3.1 MT in 2019, with just over half of
the need modeled for use in Industrial Process Refrigeration and the
other half for Medium Retail Food. EPA could propose to allocate just 4
MT in each year, but the agency recognizes that the Vintaging Model may
not capture all current uses of HCFC-124 refrigeration equipment, as is
the case with HCFC-142b equipment. Based on Vintaging Model estimates,
along with industry feedback on the needs and uses of HCFC-124, and the
use of HCFC-124 allowances in recent years, EPA is proposing to
allocate 200 MT of HCFC-124. For reference, the 2010-2014 consumption
and production allocations are roughly 3,000 MT and 5,000 MT,
respectively, though reported consumption and production has been
substantially less in recent years. EPA's goal is to ensure that
servicing needs can be met, while also encouraging recovery and reuse
or transition to non-ODS refrigerant blends. An allocation of 200 MT
supports this goal because it accounts for allowed end uses of HCFC-124
that may not be captured by the Vintaging Model (e.g. use of niche
refrigerant blends containing HCFC-124), but also recognizes that the
primary use of HCFC-124 will no longer be allowed as of January 1,
2015.
Unlike HCFC-123, companies do have HCFC-124 production baselines
and so EPA is proposing to allocate consumption and production at the
same level. EPA's preferred approach is to allocate 200 MT of
production and consumption allowances to allow for limited manufacture
of niche refrigerant blends; however, the agency is proposing in the
alternative to issue as
[[Page 78093]]
few as 4 MT of HCFC-124 consumption and/or production allowances,
consistent with the Vintaging Model projections. This is not EPA's
preferred allocation, but the agency is open to comments in support of
this lower proposed option if commenters can provide evidence
suggesting that the allocation should be as low as 4 MT. Similarly, EPA
is also requesting data from commenters in support of allocating up to
400 MT of HCFC-124 allowances and is proposing to issue up to 400 MT if
comments and data warrant an increase. The agency seeks comment on the
transition or retrofit plans of equipment owners, and for how long they
expect to need virgin HCFC-124.
F. How will EPA determine the HCFC-225ca/cb allocation?
According to the 2009 Servicing Tail Report, more recent updates to
EPA's Vintaging Model and conversations with stakeholders, HCFC-225ca
and HCFC-225cb are used only as solvents, usually in precision cleaning
of electronics, optical equipment or liquid oxygen systems. In the 2009
Final Rule, the agency used HCFC-225ca/cb as an example of the future
effects of the section 605(a) use restriction, stating that ``HCFC-
225ca and HCFC-225cb are generally used as solvents, but as of January
1, 2015, under section 605(a), HCFCs may not be used as solvents'' (74
FR 66433). This restriction is reflected in the regulations at section
82.15(g). However, as discussed in section III.B, EPA is proposing a
limited exemption to allow entities that have HCFC-225ca/cb in their
inventory prior to January 1, 2015 to continue to use their HCFC-225ca/
cb as a solvent beyond that date.
The proposed exemption would apply only to use of HCFC-225ca/cb as
a solvent by persons who hold that HCFC-225ca/cb in their inventory as
of January 1, 2015; EPA is not proposing an exemption from the
restriction on introduction into interstate commerce of HCFCs for
solvent purposes. Accordingly, the agency is not proposing to issue any
allowances for the production or consumption of HCFC-225ca/cb. Combined
with the continued use of products containing HCFC-225ca/cb, EPA's
understanding from stakeholders is that an exemption to the use
prohibition to allow for continued use of virgin HCFC-225ca/cb as a
solvent by persons with HCFC-225ca/cb in their inventory would be
sufficient to meet the anticipated solvent needs for specialized, niche
applications that are not able to transition to alternatives prior to
2015. EPA is proposing such an exemption in section III.B.1. of this
preamble.
G. What is EPA proposing to do with the HCFC-141b exemption program?
The HCFC-141b exemption program has been in place since the start
of the HCFC allowance program in 2003. In the preamble to the 2009
Final Rule, EPA stated that the petition process for HCFC-141b
exemption allowances at section 82.16(h) would end in 2015, since HCFC-
141b is not used as a refrigerant and thus does not meet the criteria
established by section 605(a) for continued use. HCFC-141b similarly is
not used as a fire suppression agent. EPA is proposing to revise 40 CFR
82.16, which is the section of subpart A that addresses the phaseout
schedule of class II controlled substances. The date limitation on the
HCFC-141b petition process can already be seen by comparing section
82.16(b), which lists ``HCFC-141b exemption needs'' as one of the
exceptions to the HCFC-141b phaseout, with section 82.16(d), which does
not include HCFC-141b exemption needs in the list of exceptions that
continue beyond January 1, 2015. However, the HCFC-141b petition
process in 82.16(h) does not specify an end date. EPA is proposing to
remove the HCFC-141b petition process from the regulations effective
January 1, 2015. Removing the text will clarify that EPA will not grant
petitions, whether new or existing, for HCFC-141b exemption allowances
in 2015 or beyond.
In recent years the amount of HCFC-141b imported or produced has
been decreasing significantly. The agency does not anticipate there
will be any remaining need for HCFC-141b import or production starting
in 2015. Excluding transhipments, heels or used material, the
regulations at 40 CFR 82.15(g)(3) limit the use or introduction into
interstate commerce of HCFC-141b to export to Article 5 countries and
use in transformation or destruction processes, beginning January 1,
2015. Despite the strict limits on HCFC-141b use in 82.15(g)(3), EPA
appreciates that some current users of HCFC-141b may face a similar
situation as users of HCFC-225ca/cb. That is, there may be users with
HCFC-141b inventory that will not be allowed to use any remaining HCFC-
141b after 2014. The agency has not heard from any HCFC-141b users, and
thus does not anticipate the need for any exemption to the use
restrictions for HCFC-141b; however, EPA welcomes comment on whether
there are remaining niche uses of HCFC-141b. Commenters should explain
the use and the quantity of HCFC-141b needed, why alternatives or used
HCFC-141b cannot meet this need and the plan for transitioning to
alternatives.
H. Other HCFCs That Are Class II Controlled Substances
To date, EPA has not established baselines or issued allowances for
the production or import of HCFCs that are not included in the tables
at 40 CFR 82.16(a). The prohibitions in 40 CFR 82.15(a) and (b) on
production and import without allowances do not apply to such HCFCs.
However, the phaseout schedule in 40 CFR 82.16 applies to all class II
substances, whether or not they are governed by the allowance system.
Similarly, all class II substances are subject to the restrictions on
introduction into interstate commerce and use contained in 40 CFR
82.15(g). HCFCs that EPA has listed as class II controlled substances
are identified in appendix B to subpart A.
Beginning January 1, 2015, the use of all class II substances is
banned, unless specifically exempted (see section III.B. of this
preamble for more details). EPA is seeking comment on whether any of
the HCFCs not governed by the allowance system qualify for the
nonresidential fire suppression and/or refrigeration servicing
exemptions and what quantity the market will need going forward for
these purposes. Should the need for any of these chemicals grow or
potentially put the United States in danger of not meeting its
commitments under the Montreal Protocol, EPA would consider
establishing baselines and allocating calendar-year allowances via a
separate rulemaking.
As mentioned earlier in section III.B. of this preamble, EPA is
proposing to amend the list of class II controlled substances in
appendix B of subpart A to better match the Clean Air Act section 602
and the Montreal Protocol HCFC lists (found in Group I to Annex C of
the Protocol). Currently, both the Protocol and CAA section 602 include
all isomers of listed substances, but 40 CFR part 82 subpart A,
appendix B does not include all isomers, only those that are
specifically named (e.g., HCFC-141b is listed as such, but there are
other isomers of HCFC-141 that are not included in appendix B). CAA
section 602 states that EPA ``shall publish'' a list of class II
substances that shall include the specified HCFCs and ``shall also
include the isomers'' of those substances. EPA's intent was to list all
isomers in appendix B, as indicated by the footnote explaining that
when a range of ODPs is listed for a chemical, the range applies to an
isomeric group. The proposed change would correct this
[[Page 78094]]
omission. Specifically, EPA is proposing to reconcile the statutory and
Montreal Protocol lists with the list in the regulations, and to add a
statement that appendix B of the regulations includes all isomers of a
listed chemical, even if the isomer itself is not listed on its own.
VI. What other adjustments to the HCFC allocation system is EPA
considering?
A. Will EPA consider banning dry-shipped HCFC-22 condensing units?
Condensing units are a type of component in split system air
conditioners. Under current regulations, the sale or distribution of a
condensing unit pre-charged with HCFC-22 is prohibited (40 CFR 82
subpart I); however, a dry-shipped unit may be sold and used to repair
an existing system that uses HCFC-22 as the refrigerant. In February
2011, the Carrier Corporation sent a letter to EPA, asking the agency
to ban this particular type of repair. In the proposed rule providing
2012-2014 HCFC-22 allocations (77 FR 237), EPA took comment on whether
repairs using dry-shipped condensing units affect the phaseout of HCFC-
22. The agency received numerous comments, and responded to them in the
2013 Final Rule (78 FR 20004). While many comments discussed dry-
shipped condensing units, very few provided EPA any additional data or
information to indicate that repairs using condensing units affect the
HCFC phaseout. The agency is again seeking quantifiable information on
the number of dry-shipped condensing units being shipped, whether they
are being used as a repair in lieu of a compressor or motor
replacement, and whether and to what extent condensing unit
replacements extend the life of an existing system. The agency
continues to assess whether or not dry-shipped units jeopardize the
agency's ability to phase out and ensure a smooth transition from HCFC-
22. If the agency believes its ability to phase out HCFC-22 smoothly is
jeopardized, EPA would consider proposing a ban via a separate
rulemaking process.
B. How will EPA respond to requests for additional consumption
allowances in 2020 and beyond?
Currently, the regulations at 82.20(a) allow a person to obtain
consumption allowances equivalent to the quantity of class II
controlled substances that the person exported during the control
period, provided that the substances were originally produced or
imported with consumption allowances. The exporter must submit certain
information to EPA which the agency reviews before issuing a notice
either denying the request, or granting the additional consumption
allowances. A person may submit this request (known as a Request for
Additional Consumption Allowances, or RACA) upon export of any HCFC for
which consumption allowances were originally expended, regardless of
what control period the production or import took place. As the
phaseout deadline approaches for certain HCFCs, the agency believes it
makes sense to restrict RACAs accordingly. For example, 1,000 kg of
HCFC-22 could be produced in 2019 using consumption and production
allowances. In 2020, or some later year, that material could be
exported--and under the current regulations the exporter would be
eligible to request 1,000 additional HCFC-22 consumption allowances;
however, there will not be any consumption allowances for HCFC-22 in
2020 or subsequent years.
The agency believes that issuing additional consumption allowances
past the phaseout date for an HCFC--thereby allowing for continued
import--would be contrary to the goals of a program that has
purposefully set phaseout dates based on a worst-first approach.
Continuing to issue RACAs beyond the phaseout date for a substance
would also be contrary to past EPA actions for class I substances. For
class I substances, the option to obtain consumption allowances
equivalent to the level of class I controlled substances that the
person exported was available for most class I substances only until
January 1, 1996, which was the phaseout date for CFCs and most other
class I substances, and until January 1, 2005 for class I group VI
substances (i.e. methyl bromide), which was the phaseout date for that
substance. Therefore, EPA is proposing to add the following sentence to
paragraph 82.20(a): ``Both the export of the class II controlled
substance and the request for additional consumption allowances must
occur during a calendar year in which consumption allowances were
issued for that class II controlled substance.'' EPA welcomes comment
on its proposed addition to 82.20, and on its proposal to treat class
II RACAs the same as it treated the request for additional consumption
allowances for class I substances.
C. How might EPA maximize compliance with HCFC regulations?
EPA is interested in comments and suggestions for ensuring
compliance with HCFC regulations. EPA recognizes that the 2015 stepdown
and the approaching complete phaseout of HCFC-22 may affect prices,
which could have the effect of increasing the incentives for illegal
activity, particularly illegal imports of HCFCs or HCFC blends. On the
other hand, the agency believes that reduced allocations and market
changes increasing the value of the material will encourage proper
recovery and decrease motivation to vent HCFCs, especially HCFC-22. EPA
seeks comment on how it could alter existing regulations to encourage
compliance with the HCFC phaseout requirements and section 608
refrigerant regulations. In addition, the agency is interested in ways
it could increase awareness and ensure compliance with the section
605(a) use restrictions and the section 611 labeling requirements that
will begin in 2015.
VII. What modifications to Section 608 regulations is EPA proposing?
The portion of the stratospheric ozone regulations titled Recycling
and Emissions Reduction (40 CFR 82 subpart F) contains requirements
promulgated under CAA section 608. The section 608 requirements are
intended to: ``Reduce emissions of class I and class II refrigerants
and their substitutes to the lowest achievable level,'' by designing
standards for the use of ``refrigerants during the service,
maintenance, repair, and disposal of appliances'' (40 CFR 82.150). To
support this goal, EPA is proposing to update its reclamation
standards.
A. Overview of Current Reclamation Standards
Recovered refrigerant often contains contaminants, including air,
water, particulates, acids, chlorides, high boiling residues, and other
impurities. Reclamation is the re-processing and upgrading of a
recovered controlled substance through such mechanisms as filtering,
drying, distillation, and chemical treatment in order to restore the
substance to a specified standard of performance. EPA regulations at 40
CFR 82.152 define reclaim as ``. . . to reprocess refrigerant to all of
the specifications in appendix A to 40 CFR part 82, subpart F (based on
ARI Standard 700-1995, Specification for Fluorocarbons and Other
Refrigerants) that are applicable to that refrigerant and to verify
that the refrigerant meets these specifications using the analytical
methodology prescribed in Section 5 of appendix A of 40 CFR part 82,
subpart F.'' Before a used refrigerant may re-enter the market place,
it must be reclaimed to the purity level specified by the regulations,
and its purity must be verified (40 CFR 82.154(g)).
[[Page 78095]]
B. Benefits of Reclamation
EPA believes that proper recovery, recycling or reclamation, and
reuse of HCFC-22 and other ODS refrigerants is an essential component
of stratospheric protection. Refrigerant reuse is preferable to venting
or destruction. Recovery and reuse reduces emissions of HCFCs to the
atmosphere. Reuse also reduces the amount of virgin material that needs
to be produced. Section 608 of the CAA prohibits knowingly venting
HCFCs due to the adverse effects on stratospheric ozone, and EPA
regulations require that HCFCs be recovered during service or disposal
of appliances and then be either recycled, reclaimed, or destroyed.
Recovery and reuse is becoming increasingly important as the United
States continues its progress in the phaseout of ODS. As discussed
earlier in this preamble, in 2015 the United States consumption cap for
HCFCs will decrease from 3,810 ODP-weighted metric tons to 1,524 ODP-
weighted metric tons (i.e. 10 percent of baseline).
C. Regulatory Changes That EPA Is Proposing Under Section 608 Authority
1. Adoption of AHRI 700-2012 Standards
On July 24, 2003 (68 FR 43786), EPA adopted the requirements of ARI
Standard 700-1995 into its regulation as appendix A of 40 CFR part 82
subpart F. EPA has not updated its use of this standard since then. The
current version of the ARI (now AHRI) Standard 700 is 700-2012,
including addenda added in August 2008 and August 2012 (AHRI 700C-2008:
Appendix C to AHRI Standard 700-Analytical Procedures for AHRI Standard
700-06 and AHRI 700D-2012: Appendix D Gas Chromatograms for AHRI
Standard 700-2012-Informative, all three of which are included in the
docket). Appendix A to subpart F has not kept pace with these
revisions. It lacks the most up-to-date listing of refrigerants, purity
requirements and changes to analytical methodologies. EPA's intent is
for reclaimers to use the most recent AHRI standards as reclamation
technology changes, and the agency would like its regulations to
reflect the best technical information and industry practices. For that
reason EPA is proposing to revise appendix A to reflect the most recent
set of AHRI standards, thereby keeping abreast of advances in the
reclamation industry. Under this option, EPA would replace Appendix A's
current text with the text in AHRI 700-2012 and its appendices. EPA
also intends to revise the definition of ``reclaim'' to reflect this
update to appendix A.
Alternatively, rather than continue its practice of modifying the
language of appendix A to accommodate revisions to AHRI Standard 700
(in this case, to AHRI Standard 700-2012), EPA is proposing to cross-
reference AHRI Standard 700-2012 directly, eliminating the need for
reproducing the entire standard in appendix A. Such an approach, known
as incorporation by reference, allows a Federal agency to comply with
the requirement to publish rules in the Federal Register by referring
to materials already published elsewhere. The legal effect of
incorporation by reference is that the material is treated as if it
were published in the Federal Register. When EPA incorporates material
by reference, it references a specific version of the material instead
of providing a ``generic'' reference. Here, EPA is proposing to refer
specifically to AHRI Standard 700-2012 Specification for Fluorocarbon
Refrigerants and not to ``AHRI Standard 700'' or ``the most recent
version of AHRI Standard 700.'' The proposed regulatory text
incorporates by reference AHRI Standard 700-2012 at appendix A to
subpart F, and changes the definition of reclaim to the updated
standard incorporated by reference at appendix A.
EPA believes incorporating AHRI Standard 700-2012 by reference, and
deleting the text in appendix A, has several advantages. AHRI standards
are published standards, they are widely known to and used by the
persons affected by this regulation, and they are available free of
charge at www.ahrinet.org/standards.aspx. Referencing the AHRI
standard, in lieu of duplicating it in appendix A, would reduce any
potential confusion about the relationship between the two sets of
requirements. It would also substantially reduce the amount of material
published in the Federal Register and Code of Federal Regulations. On
the other hand, EPA recognizes that there is an advantage to including
the requirements of the standard in an appendix to its own regulation,
avoiding the need to search for the 2012 version of the technical
standard and providing certainty that compliance with appendix A
(although possibly outdated) constitutes compliance with EPA
regulations. EPA seeks comment on incorporation by reference of a
specific version of the AHRI 700 standard, as compared to revising
appendix A to reflect a specific version. EPA also seeks comment on
whether the definition of ``reclaim'' should contain other aspects that
are not reflected in the AHRI standard, or conversely, whether there
are aspects of the AHRI standard that are not appropriate to include in
the regulatory definition.
2. Notification to EPA if Change in Business, Management, Location or
Contact Information
Reclaimer certification does not transfer when there is a change in
ownership. Section 40 CFR 82.164(f) requires the new owner of the
reclamation company to certify with EPA within thirty days of the
change of ownership; however, there are no provisions that a
reclamation company must notify EPA of changes in business management,
location or contact information. EPA believes that notification of
changes in business information would improve accountability and
benefit reclaimers in the long run. Without accurate information, EPA
may not be able to communicate with a reclaimer in a timely manner,
potentially causing unnecessary burden to the reclaimer. For example,
if EPA does not receive an annual report from a reclaimer, the agency
wants to be able to contact the reclaimer by phone or mail to follow
up. If there is no response from the company, EPA sends a certification
revocation letter. Prior to revoking a reclaimer certification, EPA
would prefer to contact the company to find out what happened to their
annual reclaim report. Additionally, as a benefit to the public, the
agency wants to ensure that the Web site listing certified reclaimers
and their contact information is up-to-date. EPA is seeking comment on
its proposal to require notification from the reclaimer when there is a
change in business management, location or contact information (i.e.,
for the refrigerant manager who communicates with EPA).
3. Reporting and Recordkeeping Requirements
EPA's ability to verify whether reclaimers are complying with
section 608 regulations is limited. Currently, 40 CFR 82.166(h)
requires that reclaimers, on an annual basis, report how much material
was received, how much they reclaimed, and the amount of waste product
generated as a result of reclamation activities. Under paragraph
82.166(g) refrigerant reclaimers must also maintain records of the
names and addresses of persons sending them material for reclamation
and the quantity of material (combined mass of refrigerant and
contaminant) sent to them for reclamation on a transactional basis.
However, the regulations do not
[[Page 78096]]
clearly state that information must be broken down by refrigerant type.
Some reclaimers do submit information broken down by refrigerant, and
EPA typically asks for refrigerant-specific information when it is not
provided. This information is used as part of an overall review of
refrigerant supply to help ensure the continued smooth transition out
of ODS refrigerants. The agency believes it is essential for EPA and
the public to have accurate information concerning the amounts of
specific types of refrigerants that are available from reclaimers for
reuse, and is therefore proposing to clarify the regulations to require
disaggregated information for all reclaimed refrigerants as part of the
annual reporting. The agency is proposing to revise paragraph 82.166(h)
to read: ``Reclaimers must maintain records of the quantity of material
(the combined mass of refrigerant and contaminants) sent to them for
reclamation, the mass of each refrigerant reclaimed, and the mass of
waste products. Reclaimers must report this information to the
Administrator annually within 30 days of the end of the calendar
year.'' This information is typically maintained by reclaimers and in
current practice is either included in the initial report to EPA or
transmitted in response to a specific request; therefore the agency
does not believe this proposed option increases reporting burden. The
agency hopes that this proposed change will clarify what information it
needs from reclaimers up front, and will alleviate the need for
additional back-and-forth between EPA and reclamation companies that in
the past were not submitting refrigerant-specific data, thereby
potentially reducing reporting burden.
EPA also believes that in the future it may be beneficial to have
an accountability system that tracks refrigerant material at reclaimer
facilities on a longer time scale. 40 CFR 82.164(c) mandates that no
more than 1.5 percent of total refrigerant reclaimed shall be released
during the reclamation process. However, emissions can occur from leaks
in tubing, valves and other loss pathways and may not be recorded or
tracked. To increase accountability and awareness of any leaks or
losses, in the future EPA could require reclaimers to regularly report,
by refrigerant type, how much is in inventory, including storage,
regardless of when material was received. Based on information
available to the agency (Stratus, 2010), EPA believes that reclaimers
generally could support these modest changes. EPA believes that
inventory information is routinely maintained by reclaimers in the
course of normal business activity, and that the burden of reporting it
to EPA would be minimal.
EPA is seeking input on future possible reporting and recordkeeping
changes that would help minimize emissions and facilitate a smooth
transition away from ODS. Commenters should consider what evidence, if
any, reclaimers should submit to verify their product is meeting AHRI-
700 standards, what format results should be reported in, and whether
summary results would be acceptable. EPA is taking comment on the
benefits of requiring reporting of testing sample results, and the
mechanisms that exist for EPA to validate that samples are
representative samples of reclaimer product. Additionally, the agency
is seeking information on the various mechanisms for material loss
during the reclamation process, and whether the losses can be
quantified.
4. Technical and Process Information Required in Reclaimer
Certification Application
The reclamation regulations at 40 CFR 82.164(e)(2) include a
general requirement to submit ``a list of equipment used to reprocess
and analyze the refrigerant.'' This requirement, dating to the May 14,
1993 final rule, titled ``Protection of Stratospheric Ozone;
Refrigerant Recyling,'' (58 FR 28660), was included to help EPA ensure
that an applicant would own and use equipment that achieves AHRI 700
standards. Given the general language of this requirement, submissions
are often incomplete or vague, forcing EPA to request additional
information from the applicant. As the reclamation industry has
matured, EPA has developed a more precise understanding of technical
information, which, if submitted with a certification, would enable the
agency to more reliably assess a reclaimer's ability to achieve AHRI
standards and minimize emissions.
While EPA is not proposing changes to this requirement in this
rulemaking, EPA seeks comment on whether developing a more robust
reclaimer certification process that requires more specific information
would clarify EPA's expectations for submitted certification
information and minimize refrigerant leaks. The agency believes that
reclaimers maintain this information as part of good business practice,
and that the burden of providing it to EPA as part of a certification
application would be small. Specifically, the agency is seeking comment
on the importance for EPA to collect the following information and the
burden that would be imposed by requiring it to be submitted: (1)
Detailed description of technology applied to achieve the applicable
AHRI Standard 700 requirements. If home-engineered, the certification
would include a schematic. If off-the-shelf, the applicant would
provide (1) the make, manufacturer, and serial number; (2) Batch
capacity; (3) Types of refrigerant to be reclaimed by reclaimer and
standard operating procedures for reclaiming those refrigerants; (4)
Information on the instrumentation and methodology that meets AHRI 700
requirements for determination of acidity, determination of moisture,
determination of chloride, determination of non-condensable,
determination of impurities, including other refrigerants, or, for
reclaimers that send refrigerant to an outside lab for analysis, a
certified letter from the outside lab identifying the methodology that
meets the AHRI 700 standards. In addition, the agency is considering
adding a provision to the regulations that clarifies what information
is necessary in order for EPA to approve certification. The agency is
also considering a new requirement that reclaimers submit a partial
recertification if they plan to accept refrigerants that are not
addressed in its current certification or if the reclaimer decides to
use a different type of reclamation equipment, thereby ensuring the
agency can assess whether they have the capability to properly process
all refrigerants they receive. EPA welcomes comment on other triggers
for requiring recertification, for example, a significant change in the
type of reclamation equipment.
5. Expanded End Product Testing Requirements
EPA is interested in potentially expanding the requirements for
sampling and testing of reclaimed refrigerant in a future agency
rulemaking. Currently, the definition of ``reclaim'' says that
reclaimers are required to verify that reclaimed refrigerant meets the
AHRI Standard specifications using the analytical methodology in
Section 5 of appendix A of subpart F. Section 5 contains requirements
for sampling, test methods, and maximum permissible contaminant levels
of reclaimed refrigerant. However, the regulations do not specify how
often, or on what basis, reclaimers must use the Section 5 methodology.
EPA's concern is that it does not have current knowledge on the quality
of reclaimer product, and the agency is therefore interested in ways to
[[Page 78097]]
verify that reclaimed refrigerant is of acceptable quality. It is
possible that some reclaimed refrigerant entering the market does not
meet the AHRI standard and is being illegally vented due to the high
cost associated with disposition or destruction of the material.
Section 5 of appendix A, as well as AHRI 700-2012, contains test
methods but does not specify testing frequency or requirements for
reporting test results. EPA is seeking information on what specific
criteria end product testing and reporting could be based on in order
to help validate that reclaimed product is meeting AHRI 700 standards.
Specifically, the agency is interested in: Sampling procedures and
specific testing protocols beyond what is currently in section 5; how
frequently testing should be required; how a batch of refrigerant would
be defined and whether testing should be on a per batch basis, or if
multiple tests should be required and on what time frame. Additionally,
EPA is interested in how it could ensure product quality, for example,
by requiring third party certification for all reclaimers, and the
advantages and disadvantages to such an approach. The agency notes that
technicians must be certified by a third party in order to service
equipment containing ODS, and is interested in how a third party
certification for reclaimers could be similar or different.
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' since it raises
``novel legal or policy issues.'' Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under
Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any
changes made in response to OMB recommendations have been documented in
the docket for this action.
EPA did not conduct a specific analysis of the benefits and costs
associated with this action. Many previous analyses provide a wealth of
information on the costs and benefits of the United States HCFC
phaseout including:
The 1993 Addendum to the 1992 Phaseout Regulatory Impact
Analysis: Accelerating the Phaseout of CFCs, Halons, Methyl Chloroform,
Carbon Tetrachloride, and HCFCs.
The 1999 Report Costs and Benefits of the HCFC Allowance
Allocation System.
The 2000 Memorandum Cost/Benefit Comparison of the HCFC
Allowance Allocation System.
The 2005 Memorandum Recommended Scenarios for HCFC
Phaseout Costs Estimation.
The 2006 ICR Reporting and Recordkeeping Requirements of
the HCFC Allowance System.
The 2007 Memorandum Preliminary Estimates of the
Incremental Cost of the HCFC Phaseout in Article 5 Countries.
The 2007 Memorandum Revised Ozone and Climate Benefits
Associated with the 2010 HCFC Production and Consumption Stepwise
Reductions and a Ban on HCFC Pre-charged Imports.
A memorandum summarizing these analyses is available in the docket.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has previously approved
the information collection requirements contained in the existing
regulations at 40 CFR part 82, subpart A under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0498. The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR part 9.
However, EPA is proposing modifying the regulations covering
recordkeeping and reporting contained in the existing regulations at 40
CFR part 82, subpart F, which were approved by OMB under the provisions
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. under OMB
control number 2060-0256. The two modifications, (1) requiring
reclaimers to provide updated contact information and (2) requiring
reclaimers to provide the amount of each refrigerant reclaimed in their
annual reporting, are already customary business practices and
therefore do not affect information collection burden. In both of these
cases, EPA is modifying the regulations so they align with current
practices.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act (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. For purposes
of assessing the impacts of this rulemaking on small entities, a small
entity is defined as: (1) A small business as defined by the Small
Business Administration's (SBA) regulations at 13 CFR 121.201; (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.
This action will affect the following categories:
--Industrial Gas Manufacturing entities (NAICS code 325120), including
fluorinated hydrocarbon gas manufacturers and reclaimers;
--Other Chemical and Allied Products Merchant Wholesalers (NAICS code
424690), including chemical gases and compressed gases merchant
wholesalers;
--Air-Conditioning and Warm Air Heating Equipment and Commercial and
Industrial Refrigeration Equipment Manufacturing entities (NAICS code
333415), including air-conditioning equipment and commercial and
industrial refrigeration equipment manufacturers;
--Air-Conditioning Equipment and Supplies Merchant Wholesalers (NAICS
code 423730), including air-conditioning (condensing unit, compressors)
merchant wholesalers;
--Electrical and Electronic Appliance, Television, and Radio Set
Merchant Wholesalers (NAICS code 423620), including air-conditioning
(room units) merchant wholesalers;
--Plumbing, Heating, and Air-Conditioning Contractors (NAICS code
238220), including Central air-conditioning system and commercial
refrigeration installation, HVACR contractors; and
--Refrigerant reclaimers, manufacturers of recovery/recycling
equipment, and refrigerant recovery/recycling equipment testing
organizations.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any
[[Page 78098]]
significant economic impact of the rule on small entities.'' 5 U.S.C.
603 and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
Without allowances for the 2015-2019 regulatory period, existing
regulations would prohibit production and import of HCFCs, thus the
proposal to issue allowances is not a potential burden to small
business. EPA's HCFC Phaseout Benefits and Costs Memo, included in the
docket for this rulemaking, provides a summary of previous small
business analyses. Also, under section 608 of the CAA and 40 CFR
subpart F, EPA is proposing some minor modifications to recordkeeping
and reporting provisions; however, these proposed changes are to lessen
burden on small reclamation businesses by ensuring that businesses that
have already reported do not have to spend additional time responding
to follow-up requests from EPA, and so that EPA can reach businesses in
a timely manner with any necessary information. We have therefore
concluded that this proposed rule will relieve regulatory burden for
all affected small entities. We continue to be interested in the
potential impacts of the proposed rule on small entities and welcome
comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. UMRA does not apply to rules that are necessary for the
national security or the ratification or implementation of
international treaty obligations. This proposed rule would implement
the 2015 milestone for the phase-out of HCFCs under the Montreal
Protocol. Therefore, this action is not subject to the requirements of
sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action
apportions production and consumption allowances and establishes
baselines for private entities, not small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It does 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 action is expected to
primarily affect producers, importers, and exporters of HCFCs. Thus,
Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed action
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action does
not significantly or uniquely affect the communities of Indian tribal
governments. It does not impose any enforceable duties on communities
of Indian tribal governments. Thus, Executive Order 13175 does not
apply to this action. EPA specifically solicits additional comment on
this proposed action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866. The Agency nonetheless has reason to believe that the
environmental health or safety risk addressed by this action may have a
disproportionate effect on children. Depletion of stratospheric ozone
results in greater transmission of the sun's ultraviolet (UV) radiation
to the earth's surface. The following studies describe the effects of
excessive exposure to UV radiation on children: (1) Westerdahl J,
Olsson H, Ingvar C. ``At what age do sunburn episodes play a crucial
role for the development of malignant melanoma,'' Eur J Cancer 1994:
30A: 1647-54; (2) Elwood JM Japson J. ``Melanoma and sun exposure: an
overview of published studies,'' Int J Cancer 1997; 73:198-203; (3)
Armstrong BK, ``Melanoma: childhood or lifelong sun exposure,'' In:
Grobb JJ, Stern RS Mackie RM, Weinstock WA, eds. ``Epidemiology, causes
and prevention of skin diseases,'' 1st ed. London, England: Blackwell
Science, 1997: 63-6; (4) Whiteman D., Green A. ``Melanoma and
Sunburn,'' Cancer Causes Control, 1994: 5:564-72; (5) Heenan, PJ.
``Does intermittent sun exposure cause basal cell carcinoma? A case
control study in Western Australia,'' Int J Cancer 1995; 60: 489-94;
(6) Gallagher, RP, Hill, GB, Bajdik, CD, et. al. ``Sunlight exposure,
pigmentary factors, and risk of nonmelanocytic skin cancer I, Basal
cell carcinoma,'' Arch Dermatol 1995; 131: 157-63; (7) Armstrong, DK.
``How sun exposure causes skin cancer: an epidemiological
perspective,'' Prevention of Skin Cancer. 2004. 89-116.
This action implements the United States' commitment to reduce the
total basket of HCFCs produced and imported to a level that is 90
percent below the respective baselines. While on an ODP-weighted basis,
this is not as large a step as previous actions, such as the 1996 class
I phaseout, it is one of the most significant remaining actions the
United States can take to complete the overall phaseout of ODS and
further decrease impacts on children's health from stratospheric ozone
depletion.
H. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (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 proposed rule would issue
allowances for the production and consumption of HCFCs.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 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 proposed
rule involves technical standards. Through this action, EPA is
proposing to incorporate by reference
[[Page 78099]]
AHRI Standard 700-2012 Specification for Fluorocarbons and Other
Refrigerants and its appendices, which is available in the docket for
this rulemaking and online at http://www.ahrinet.org/search+standards.aspx. This industry standard for refrigerant
reclamation is an updated version of the standard contained in the
current regulations.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this action will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because the 2015 phaseout
step increases the level of environmental protection for all affected
populations without having any disproportionately high and adverse
human health or environmental effects on any population, including any
minority or low-income population. This action continues the
implementation of the United States commitment to reduce the total
basket of HCFCs produced and imported to a level that is 90 percent
below the respective baselines. While on an ODP-weighted basis, this is
not as large a step as previous actions, such as the 1996 class I
phaseout, it is one of the most significant remaining actions the
United States can take to complete the overall phaseout of ODS and
further lessen the adverse human health effects for the entire
population.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Exports, Hydrochlorofluorocarbons,
Imports, Incorporation by reference.
Dated: December 5, 2013.
Gina McCarthy,
Administrator.
40 CFR part 82 is proposed to be amended to read as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
0
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
Subpart A--Production and Consumption Controls
0
2. Amend Sec. 82.3 by adding the definition of ``Use of a class II
controlled substance'' to read as follows:
Sec. 82.3 Definitions for class I and class II controlled substances.
* * * * *
Use of a class II controlled substance, for the purposes of 82.15
of this subpart, includes but is not limited to use in a manufacturing
process, use in manufacturing a product, intermediate uses such as
formulation or packaging for other subsequent uses, and use in
maintaining, servicing, or repairing an appliance or other piece of
equipment. Use of a class II controlled substance also includes use of
that controlled substance when it is removed from a container used for
the transportation or storage of the substance but does not include use
of a manufactured product containing a controlled substance.
* * * * *
0
3. Amend Sec. 82.15 by revising paragraph (g)(4) to read as follows:
Sec. 82.15 Prohibitions for class II controlled substances.
* * * * *
(g) * * *
(4)(i) Effective January 1, 2015, no person may introduce into
interstate commerce or use any class II controlled substance not
governed by paragraphs (g)(1) through (3) of this section (unless used,
recovered and recycled) for any purpose other than for use in a process
resulting in its transformation or its destruction; for use as a
refrigerant in equipment manufactured before January 1, 2020; for use
as a fire suppression streaming agent listed as acceptable for use or
acceptable subject to narrowed use limits for nonresidential
applications in accordance with the regulations at subpart G of this
part; for export to Article 5 Parties under Sec. 82.18(a); as a
transshipment or heel; for exemptions permitted under paragraph (f) of
this section; or for exemptions permitted under paragraph (g)(4)(ii) of
this section.
(ii) Effective January 1, 2015, use of HCFC-225ca or HCFC-225cb as
a solvent (excluding use in manufacturing a product containing HCFC-
225ca or HCFC-225cb) is not subject to the use prohibition in paragraph
(g)(4)(i) of this section if the person using the HCFC-225ca or HCFC-
225cb placed the controlled substance into inventory before January 1,
2015. This paragraph does not create an exemption to the prohibition on
introduction into interstate commerce in paragraph (g)(4)(i) of this
section.
* * * * *
0
4. Amend Sec. 82.16 by revising paragraphs (a), (d) and (e) and
removing and reserving paragraph (h) to read as follows:
Sec. 82.16 Phaseout schedule of class II controlled substances.
(a) Calendar-year Allowances. (1) In each control period as
indicated in the following tables, each person is granted the specified
percentage of baseline production allowances and baseline consumption
allowances for the specified class II controlled substances apportioned
under Sec. Sec. 82.17 and 82.19:
Calendar-Year HCFC Production Allowances
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent of Percent of HCFC- Percent of Percent of Percent of HCFC- Percent of Percent of
Control period HCFC-141b 22 HCFC-142b HCFC-123 124 HCFC-225ca HCFC-225cb
--------------------------------------------------------------------------------------------------------------------------------------------------------
2003.................................. 0 100 100 .............. ............... .............. ..............
2004.................................. 0 100 100 .............. ............... .............. ..............
2005.................................. 0 100 100 .............. ............... .............. ..............
2006.................................. 0 100 100 .............. ............... .............. ..............
2007.................................. 0 100 100 .............. ............... .............. ..............
2008.................................. 0 100 100 .............. ............... .............. ..............
2009.................................. 0 100 100 .............. ............... .............. ..............
[[Page 78100]]
2010.................................. 0 41.9 0.47 0 125 125 125
2011.................................. 0 32.0 4.9 0 125 125 125
2012.................................. 0 17.7 4.9 0 125 125 125
2013.................................. 0 30.1 4.9 0 125 125 125
2014.................................. 0 26.1 4.9 0 125 125 125
2015.................................. 0 21.7 0.37 0 5.0 0 0
2016.................................. 0 21.7 0.32 0 5.0 0 0
2017.................................. 0 21.7 0.26 0 5.0 0 0
2018.................................. 0 21.7 0.21 0 5.0 0 0
2019.................................. 0 21.7 0.16 0 5.0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calendar-Year HCFC Consumption Allowances
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent of Percent of HCFC- Percent of Percent of Percent of HCFC- Percent of Percent of
Control period HCFC-141b 22 HCFC-142b HCFC-123 124 HCFC-225ca HCFC-225cb
--------------------------------------------------------------------------------------------------------------------------------------------------------
2003.................................. 0 100 100 .............. ............... .............. ..............
2004.................................. 0 100 100 .............. ............... .............. ..............
2005.................................. 0 100 100 .............. ............... .............. ..............
2006.................................. 0 100 100 .............. ............... .............. ..............
2007.................................. 0 100 100 .............. ............... .............. ..............
2008.................................. 0 100 100 .............. ............... .............. ..............
2009.................................. 0 100 100 .............. ............... .............. ..............
2010.................................. 0 41.9 0.47 125 125 125 125
2011.................................. 0 32.0 4.9 125 125 125 125
2012.................................. 0 17.7 4.9 125 125 125 125
2013.................................. 0 18.0 4.9 125 125 125 125
2014.................................. 0 14.2 4.9 125 125 125 125
2015.................................. 0 9.6 1.7 100 8.3 0 0
2016.................................. 0 7.7 1.5 100 8.3 0 0
2017.................................. 0 5.8 1.2 100 8.3 0 0
2018.................................. 0 3.9 1.0 100 8.3 0 0
2019.................................. 0 1.9 0.7 100 8.3 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
(d) Effective January 1, 2015, no person may produce class II
controlled substances not previously controlled for any purpose other
than for use in a process resulting in their transformation or their
destruction, for use as a refrigerant in equipment manufactured before
January 1, 2020, for use as a fire suppression streaming agent listed
as acceptable for use or acceptable subject to narrowed use limits for
nonresidential applications in accordance with the regulations at
subpart G of this part;, for export under Sec. 82.18(b) using
unexpended Article 5 allowances, or for export under Sec. 82.18(a)
using unexpended export production allowances, or for exemption
permitted in Sec. 82.15(f). Effective January 1, 2015, no person may
import class II controlled substances not subject to the requirements
of paragraph (b) or (c) of this section (other than transhipments,
heels or used class II controlled substances) for any purpose other
than for use in a process resulting in their transformation or their
destruction, for exemption permitted in Sec. 82.15(f), for use as a
refrigerant in equipment manufactured prior to January 1, 2020, or for
use as a fire suppression streaming agent for nonresidential
applications in accordance with the regulations at subpart G of this
part.
* * * * *
(e)(1) Effective January 1, 2020, no person may produce HCFC-22 or
HCFC-142b for any purpose other than for use in a process resulting in
their transformation or their destruction, for export under Sec.
82.18(a) using unexpended Article 5 allowances, or for export under
Sec. 82.18(b) using unexpended export production allowances, or for
exemptions permitted in Sec. 82.15(f). Effective January 1, 2020, no
person may import HCFC-22 or HCFC-142b for any purpose other than for
use in a process resulting in their transformation or their
destruction, or for exemptions permitted in Sec. 82.15(f).
(2) Effective January 1, 2020, no person may produce HCFC-123 for
any purpose other than for use in a process resulting in its
transformation or its destruction, for use as a refrigerant in
equipment manufactured before January 1, 2020, for export under Sec.
82.18(a) using unexpended Article 5 allowances, or for export under
Sec. 82.18(b) using unexpended export production allowances, or for
exemptions permitted in Sec. 82.15(f). Effective January 1, 2020, no
person may import HCFC-123 for any purpose other than for use in a
process resulting in its transformation or its destruction, for use as
a refrigerant in equipment manufactured before January 1, 2020 or for
exemptions permitted in Sec. 82.15(f).
* * * * *
(h) [Reserved].
0
5. Amend Sec. 82.17 by revising the table to read as follows:
Sec. 82.17 Apportionment of baseline production allowances for class
II controlled substances.
The following persons are apportioned baseline production
allowances for HCFC-22, HCFC-141b, HCFC-142b, HCFC-123, HCFC-124, HCFC-
225ca and HCFC-225cb, as set forth in the following table:
[[Page 78101]]
----------------------------------------------------------------------------------------------------------------
Person Controlled substance Allowances (kg)
----------------------------------------------------------------------------------------------------------------
AGC Chemicals Americas......................... HCFC-225ca.................................. 266,608
HCFC-225cb.................................. 373,952
Arkema......................................... HCFC-22..................................... 46,692,336
HCFC-141b................................... 24,647,925
HCFC-142b................................... 484,369
DuPont......................................... HCFC-22..................................... 42,638,049
HCFC-124.................................... 2,269,210
Honeywell...................................... HCFC-22..................................... 37,378,252
HCFC-141b................................... 28,705,200
HCFC-142b................................... 2,417,534
HCFC-124.................................... 1,759,681
MDA Manufacturing.............................. HCFC-22..................................... 2,383,835
Solvay Specialty Polymers USA, LLC............. HCFC-142b................................... 6,541,764
----------------------------------------------------------------------------------------------------------------
0
6. Amend Sec. 82.19 by revising the table to read as follows:
Sec. 82.19 Apportionment of baseline consumption allowances for class
II controlled substances.
The following persons are apportioned baseline consumption
allowances for HCFC-22, HCFC-142b, HCFC-123, HCFC-124, HCFC-225ca and
HCFC-225cb, as set forth in the following table:
----------------------------------------------------------------------------------------------------------------
Person Controlled substance Allowances (kg)
----------------------------------------------------------------------------------------------------------------
ABCO Refrigeration Supply...................... HCFC-22..................................... 279,366
AGC Chemicals Americas......................... HCFC-225ca.................................. 285,328
HCFC-225cb.................................. 286,832
Altair Partners................................ HCFC-22..................................... 302,011
Arkema......................................... HCFC-22..................................... 48,637,642
HCFC-141b................................... 25,405,570
HCFC-142b................................... 483,827
HCFC-124.................................... 3,719
Carrier........................................ HCFC-22..................................... 54,088
Continental Industrial Group................... HCFC-141b................................... 20,315
Coolgas, Inc................................... HCFC-141b................................... 16,097,869
Combes Investment Property..................... HCFC-22..................................... 1,040,458
HCFC-123.................................... 19,980
HCFC-124.................................... 3,742
Discount Refrigerants.......................... HCFC-141b................................... 994
DuPont......................................... HCFC-22..................................... 38,814,862
HCFC-141b................................... 9,049
HCFC-142b................................... 52,797
HCFC-123.................................... 1,877,042
HCFC-124.................................... 743,312
H.G. Refrigeration Supply...................... HCFC-22..................................... 40,068
Honeywell...................................... HCFC-22..................................... 35,392,492
HCFC-141b................................... 20,749,489
HCFC-142b................................... 1,315,819
HCFC-124.................................... 1,284,265
ICC Chemical Corp.............................. HCFC-141b................................... 81,225
ICOR........................................... HCFC-124.................................... 81,220
Mexichem Fluor Inc............................. HCFC-22..................................... 2,546,305
Kivlan & Company............................... HCFC-22..................................... 2,081,018
MDA Manufacturing.............................. HCFC-22..................................... 2,541,545
Mondy Global................................... HCFC-22..................................... 281,824
National Refrigerants.......................... HCFC-22..................................... 5,528,316
HCFC-123.................................... 72,600
HCFC-124.................................... 50,380
Perfect Technology Center, LP.................. HCFC-123.................................... 9,100
Refricenter of Miami........................... HCFC-22..................................... 381,293
Refricentro.................................... HCFC-22..................................... 45,979
R-Lines........................................ HCFC-22..................................... 63,172
Saez Distributors.............................. HCFC-22..................................... 37,936
Solvay Fluorides, LLC.......................... HCFC-22..................................... 3,781,691
HCFC-141b................................... 3,940,115
Solvay Specialty Polymers USA, LLC............. HCFC-142b................................... 194,536
Tulstar Products............................... HCFC-141b................................... 89,913
HCFC-123.................................... 34,800
HCFC-124.................................... 229,582
USA Refrigerants............................... HCFC-22..................................... 14,865
----------------------------------------------------------------------------------------------------------------
[[Page 78102]]
0
7. Amend Sec. 82.20 by revising paragraph (a) introductory text to
read as follows:
Sec. 82.20 Availability of consumption allowances in addition to
baseline consumption allowances for class II controlled substances.
(a) A person may obtain at any time during the control period, in
accordance with the provisions of this section, consumption allowances
equivalent to the quantity of class II controlled substances that the
person exported from the United States and its territories to a foreign
state in accordance with this section, when that quantity of class II
controlled substance was produced in the U.S. or imported into the
United States with expended consumption allowances. Both the export of
the class II controlled substance and the request for additional
consumption allowances must occur during a calendar year in which
consumption allowances were issued for that class II controlled
substance.
* * * * *
0
8. Amend appendix B to subpart A by inserting footnote B following
footnote A, to read as follows:
Appendix B to Subpart A of Part 82--Class II Controlled Substances A B
------------------------------------------------------------------------
Controlled Substance ODP
------------------------------------------------------------------------
1. HCFC-21 (CHFCl2) Dichlorofluoromethane............. 0.04
2. HCFC-22 (CHF2Cl) Monochlorodifluoromethane......... 0.055
3. HCFC-31 (CH2FCl) Monochlorofluoromethane........... 0.02
4. HCFC-121 (C2HFCl4) Tetrachlorofluoroethane......... 0.01-0.04
5. HCFC-122 (C2HF2Cl3) Trichlorodifluoroethane........ 0.02-0.08
6. HCFC-123 (C2HF3Cl2) Dichlorotrifluoroethane........ 0.02
7. HCFC-124 (C2HF4Cl) Monochlorotetrafluoroethane..... 0.022
8. HCFC-131 (C2H2FCl3) Trichlorofluoroethane.......... 0.007-0.05
9. HCFC-132 (C2H2F2Cl2) Dichlorodifluoroethane........ 0.008-0.05
10. HCFC-133 (C2H2F3Cl) Monochlorotrifluoroethane..... 0.02-0.06
11. HCFC-141 (C2H3FCl2) Dichlorofluoroethane.......... 0.005-0.07
12. HCFC-141b (CH3CFCl2) Dichlorofluoroethane......... 0.11
13. HCFC-142 (C2H3F2Cl) chlorodifluoroethane.......... 0.008-0.07
14. HCFC-142b (CH3CF2Cl) Monochlorodifluoroethane..... 0.065
15. HCFC-151 (C2H4FCl) Chlorofluoroethane............. 0.003-0.005
16. HCFC-221 (C3HFCl6) Hexachlorofluoropropane........ 0.015-0.07
17. HCFC-222 (C3HF2Cl5) Pentachlorodifluoropropane.... 0.01-0.09
18. HCFC-223 (C3HF3Cl4) Tetrachlorotrifluoropropane... 0.01-0.08
19. HCFC-224 (C3HF4Cl3) Trichlorotetrafluoropropane... 0.01-0.09
20. HCFC-225 (C3HF5Cl2) Dichloropentafluoropropane.... 0.02-0.07
21. HCFC-225ca (CF3CF2CHCl2) 0.025
Dichloropentafluoropropane...........................
22. HCFC-225cb (CF2ClCF2CHClF) 0.033
Dichloropentafluoropropane...........................
23. HCFC-226 (C3HF6Cl) Monochlorohexafluoropropane.... 0.02-0.1
24. HCFC-231 (C3H2FCl5) Pentachlorofluoropropane...... 0.05-0.09
25. HCFC-232 (C3H2F2Cl4) Tetrachlorodifluoropropane... 0.008-0.1
26. HCFC-233 (C3H2F3Cl3) Trichlorotrifluoropropane.... 0.007-0.23
27. HCFC-234 (C3H2F4Cl2) Dichlorotetrafluoropropane... 0.01-0.28
28. HCFC-235 (C3H2F5Cl) Monochloropentafluoropropane.. 0.03-0.52
29. HCFC-241 (C3H3FCl4) Tetrachlorofluoropropane...... 0.004-0.09
30. HCFC-242 (C3H3F2Cl3) Trichlorodifluoropropane..... 0.005-0.13
31. HCFC-243 (C3H3F3Cl2) Dichlorotrifluoropropane..... 0.007-0.12
31. HCFC-244 (C3H3F4Cl) Monochlorotetrafluoropropane.. 0.009-0.14
33. HCFC-251 (C3H4FCl3) Monochlorotetrafluoropropane.. 0.001-0.01
34. HCFC-252 (C3H4F2Cl2) Dichlorodifluoropropane...... 0.005-0.04
35. HCFC-253 (C3H4F3Cl) Monochlorotrifluoropropane.... 0.003-0.03
36. HCFC-261 (C3H5FCl2) Dichlorofluoropropane......... 0.002-0.02
37. HCFC-262 (C3H5F2Cl) Monochlorodifluoropropane..... 0.002-0.02
38. HCFC-271 (C3H6FCl) Monochlorofluoropropane........ 0.001-0.03
------------------------------------------------------------------------
\a\ * * *
\b\ This table includes all isomers of the substances above, regardless
of whether the isomer is explicitly listed on its own.
Subpart E--The Labeling of Products Using Ozone-Depleting
Substances
0
9. Amend Sec. 82.110 by revising paragraph (c) title to read as
follows:
Sec. 82.110 Form of label bearing warning statement.
* * * * *
(c) Combined statement for multiple controlled substances * * *
* * * * *
0
10. Amend Sec. 82.112 by revising paragraph (d) to read as follows:
Sec. 82.112 Removal of label bearing warning statement.
* * * * *
(d) Manufacturers, distributors, wholesalers, retailers that sell
spare parts manufactured with controlled substances solely for repair
Manufacturers, distributors, wholesalers, and retailers that purchase
spare parts manufactured with a class I or class II substance from
another manufacturer or supplier, and sell such spare parts for the
sole purpose of repair, are not required to pass through an applicable
warning label if such products are removed from the original packaging
provided by the manufacturer from whom the products are purchased. * *
*
* * * * *
0
11. Amend Sec. 82.122 by revising paragraph (a)(1) to read as follows:
Sec. 82.122 Certification, recordkeeping, and notice requirements.
(a) * * * (1) Persons claiming the exemption provided in Sec.
82.106(b)(4) must submit a written certification to the following
address: Labeling Program Manager, Stratospheric Protection
[[Page 78103]]
Division, Office of Atmospheric Programs, 6205-J, 1200 Pennsylvania
Ave. NW., Washington, DC 20460.
* * * * *
Subpart F--Recycling and Emissions Reductions
0
12. Amend Sec. 82.152 by revising the definition ``Reclaim'' to read
as follows:
Sec. 82.152 Definitions.
* * * * *
Reclaim refrigerant means to reprocess refrigerant to all of the
specifications in AHRI Standard 700-2012 Specification for Fluorocarbon
Refrigerants (incorporated by reference at appendix A to 40 CFR part 82
subpart F) that are applicable to that refrigerant and to verify that
the refrigerant meet these specifications using the analytical
methodology prescribed therein.
* * * * *
0
13. Amend Sec. 82.164 by revising paragraph (f) to read as follows:
Sec. 82.164 Reclaimer certification.
* * * * *
(f) Certificates are not transferrable. In the event of a change in
ownership of an entity which reclaims refrigerant, the new owner of the
entity shall certify within 30 days of the change of ownership pursuant
to this section. In the event of a change in business management,
location or contact information, the owner of an entity shall notify
EPA within 30 days of the change.
* * * * *
0
14. Amend Sec. 82.166 by revising paragraph (h) to read as follows:
Sec. 82.166 Reporting and recordkeeping requirements.
* * * * *
(h) Reclaimers must maintain records of the quantity of material
(the combined mass of refrigerant and contaminants) sent to them for
reclamation, the mass of each refrigerant reclaimed, and the mass of
waste products. Reclaimers must report this information to the
Administrator annually within 30 days of the end of the calendar year.
* * * * *
0
15. Revise all text in appendix A to subpart F of Part 82-
Specifications for Fluorocarbon and Other Refrigerants to read as
follows:
Appendix A to Subpart F of Part 82--Specifications for Fluorocarbon and
Other Refrigerants
AHRI Standard 700-2012: Specifications for Fluorocarbon
Refrigerants specifies acceptable levels of contaminants (purity
requirements) for fluorocarbon refrigerants and lists acceptable
test methods. This appendix incorporates by reference AHRI Standard
700-2012: Specifications for Fluorocarbon Refrigerants (2012
edition, Air-Conditioning, Heating, and Refrigeration Institute).
The entire standard, including Appendices A and B, are made part of
the regulations in part 82 subpart F. Accordance with the
specifications in AHRI Standard 700-2012 is required by the relevant
regulations of this subpart.
The Director of the Federal Register approves this incorporation
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
You may obtain a copy from AHRI online at: http://www.ahrinet.org or
by contacting AHRI by phone: (+1) 703-524-8800 or by fax: (+1) 703-
562-1942. You may also obtain a copy in person or by mail at Air-
Conditioning, Heating, and Refrigeration Institute (AHRI) 2111
Wilson Blvd., Suite 500 Arlington, VA 22201, USA.
AHRI Standard 700-2012 is also available online at http://www.regulations.gov/ by searching for docket number: EPA-HQ-OAR-
2013-0263. You may also inspect a copy at the United States EPA's
Air Docket; EPA West Building, Room 3334; 1301 Constitution Ave.
NW., Washington, DC or at the National Archives and Records
Administration (NARA). For questions regarding access to these
standards, the telephone number of EPA's Air Docket is 202-566-1742.
For information on the availability of this material at NARA, call
202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
* * * * *
[FR Doc. 2013-29817 Filed 12-23-13; 8:45 am]
BILLING CODE 6560-50-P