[Federal Register Volume 63, Number 22 (Tuesday, February 3, 1998)]
[Proposed Rules]
[Pages 5491-5494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2617]

[[Page 5491]]



40 CFR Part 82

RIN 2060-AG12

Protection of Stratospheric Ozone; Listing of Substitutes for 
Ozone-Depleting Substances

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking.


SUMMARY: This action proposes restrictions or prohibitions on 
substitutes for ozone depleting substances (ODSs) under the 
Environmental Protection Agency's (EPA) Significant New Alternatives 
Policy (SNAP) program. SNAP implements section 612 of the amended Clean 
Air Act of 1990, which requires EPA to evaluate substitutes for the 
ODSs to reduce overall risk to human health and the environment. 
Through these evaluations, SNAP generates lists of acceptable and 
unacceptable substitutes for each of the major industrial use sectors. 
The intended effect of the SNAP program is to expedite movement away 
from ozone depleting compounds while avoiding a shift into substitutes 
posing other environmental problems.
    On March 18, 1994, EPA promulgated a final rulemaking setting forth 
its plan for administering the SNAP program, and issued decisions on 
the acceptability and unacceptability of a number of substitutes. In 
this Notice of Proposed Rulemaking (NPRM), EPA is issuing its 
preliminary decisions on the acceptability of certain substitutes not 
previously reviewed by the Agency. Specifically, this action proposes 
to list as unacceptable the use of two gases as refrigerants in ``self-
chilling cans'' because of unacceptably high greenhouse gas emissions 
which would result from the direct release of the cans' refrigerants to 
the atmosphere.

DATES: Written comments or data provided in response to this document 
must be submitted by March 5, 1998.

ADDRESSES: Written comments and data should be sent to Docket A-91-42, 
U.S. Environmental Protection Agency, OAR Docket and Information 
Center, 401 M Street, S.W., Room M-1500, Mail Code 6102, Washington, 
D.C. 20460. The docket may be inspected between 8 a.m. and 5:30 p.m. on 
weekdays. Telephone (202) 260-7548; fax (202) 260-4400. As provided in 
40 CFR part 2, a reasonable fee may be charged for photocopying. To 
expedite review, a second copy of the comments should be sent to Carol 
Weisner, Stratospheric Protection Division, U.S. Environmental 
Protection Agency, 401 M Street, S.W., Mail Code 6205J, Washington, 
D.C. 20460, or at the address listed in the next paragraph for 
overnight or courier deliveries. Information designated as Confidential 
Business Information (CBI) under 40 CFR, part 2, subpart B must be sent 
directly to the contact person for this document. However, the Agency 
is requesting that all respondents submit a non-confidential version of 
their comments to the docket as well.

FOR FURTHER INFORMATION CONTACT: Carol Weisner at (202) 564-9193 or fax 
(202) 565-2096, Substitutes Analysis and Review Branch, Stratospheric 
Protection Division, Mail Code 6205J, Washington, D.C. 20460. Overnight 
or courier deliveries should be sent to our 501-3rd Street, NW, 
Washington, DC, 20001 location.


I. Overview of This Action

    This action is divided into six sections, including this 
II. Section 612 Program
    A. Statutory Requirements
    B. Regulatory History
III. Proposed Listing of Substitutes
IV. Administrative Requirements
V. Additional Information

II. Section 612 Program

A. Statutory Requirements

    Section 612 of the Clean Air Act authorizes EPA to develop a 
program for evaluating alternatives to ozone-depleting substances. EPA 
is referring to this program as the Significant New Alternatives Policy 
(SNAP) program. The major provisions of section 612 are:
    Rulemaking--Section 612(c) requires EPA to promulgate rules making 
it unlawful to replace any class I (chlorofluorocarbon, halon, carbon 
tetrachloride, methyl chloroform, methyl bromide, and 
hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance 
with any substitute that the Administrator determines may present 
adverse effects to human health or the environment where the 
Administrator has identified an alternative that (1) reduces the 
overall risk to human health and the environment, and (2) is currently 
or potentially available.
    Listing of Unacceptable/Acceptable Substitutes--Section 612(c) also 
requires EPA to publish a list of the substitutes unacceptable for 
specific uses. EPA must publish a corresponding list of acceptable 
alternatives for specific uses.
    Petition Process--Section 612(d) grants the right to any person to 
petition EPA to add a substitute to or delete a substitute from the 
lists published in accordance with section 612(c). The Agency has 90 
days to grant or deny a petition. Where the Agency grants the petition, 
EPA must publish the revised lists within an additional six months.
    90-day Notification--Section 612(e) requires EPA to require any 
person who produces a chemical substitute for a class I substance to 
notify the Agency not less than 90 days before new or existing 
chemicals are introduced into interstate commerce for significant new 
uses as substitutes for a class I substance. The producer must also 
provide the Agency with the producer's health and safety studies on 
such substitutes.
    Outreach--Section 612(b)(1) states that the Administrator shall 
seek to maximize the use of federal research facilities and resources 
to assist users of class I and II substances in identifying and 
developing alternatives to the use of such substances in key commercial 
    Clearinghouse--Section 612(b)(4) requires the Agency to set up a 
public clearinghouse of alternative chemicals, product substitutes, and 
alternative manufacturing processes that are available for products and 
manufacturing processes which use class I and II substances.

B. Regulatory History

    On March 18, 1994, EPA published the Final Rulemaking (FRM) (59 FR 
13044) which described the process for administering the SNAP program 
and issued EPA's first acceptability lists for substitutes in the major 
industrial use sectors. These sectors include: refrigeration and air 
conditioning; foam blowing; solvent cleaning; fire suppression and 
explosion protection; sterilants; aerosols; adhesives, coatings and 
inks; and tobacco expansion. These sectors comprise the principal 
industrial sectors that historically consume large volumes of ozone-
depleting compounds.
    The Agency defines a ``substitute'' as any chemical, product 
substitute, or alternative manufacturing process, whether existing or 
new, that could replace a class I or class II substance. Anyone who 
produces a substitute must provide the Agency with health and safety 
studies on the substitute at least 90 days before introducing it into 
interstate commerce for significant new use as an alternative. This 
requirement applies to chemical manufacturers, but may include 
importers, formulators or end-users when they are responsible for 
introducing a substitute into commerce.

[[Page 5492]]

III. Proposed Listing of Substitutes

    To develop the lists of unacceptable and acceptable substitutes, 
EPA conducts screens of health and environmental risks posed by various 
substitutes for ozone-depleting compounds in each use sector. The 
outcome of these risks screens can be found in the public docket, as 
described above in the ADDRESSES portion of this document.
    Under section 612, the Agency has considerable discretion in the 
risk management decisions it can make in SNAP. The Agency has 
identified five possible decision categories: acceptable; acceptable 
subject to use conditions; acceptable subject to narrowed use limits; 
unacceptable; and pending. Fully acceptable substitutes, i.e., those 
with no restrictions, can be used for all applications within the 
relevant sector end-use. Conversely, it is illegal to replace an ODS 
with a substitute listed by SNAP as unacceptable. A pending listing 
represents substitutes for which the Agency has not received complete 
data or has not completed its review of the data.
    After reviewing a substitute, the Agency may make a determination 
that a substitute is acceptable only if certain conditions of use are 
met to minimize risks to human health and the environment. Use of such 
substitutes in ways that are inconsistent with such use conditions 
renders these substitutes unacceptable.
    Even though the Agency can restrict the use of a substitute based 
on the potential for adverse effects, it may be necessary to permit a 
narrowed range of use within a sector end-use because of the lack of 
alternatives for specialized applications. Users intending to adopt a 
substitute acceptable with narrowed use limits must ascertain that 
other acceptable alternatives are not technically feasible. Companies 
must document the results of their evaluation, and retain the results 
on file for the purpose of demonstrating compliance. This documentation 
shall include descriptions of substitutes examined and rejected, 
processes or products in which the substitute is needed, reason for 
rejection of other alternatives, e.g., performance, technical or safety 
standards, and the anticipated date other substitutes will be available 
and projected time for switching to other available substitutes. Use of 
such substitutes in application and end-uses which are not specified as 
acceptable in the narrowed use limit renders these substitutes 
    In this Notice of Proposed Rulemaking (NPRM), EPA is issuing its 
preliminary decision on the acceptability of certain substitutes not 
previously reviewed by the Agency. As described in the final rule for 
the SNAP program (59 FR 13044), EPA believes that notice-and-comment 
rulemaking is required to place any alternative on the list of 
prohibited substitutes, to list a substitute as acceptable only under 
certain use conditions or narrowed use limits, or to remove an 
alternative from either the list of prohibited or acceptable 
    EPA does not believe that rulemaking procedures are required to 
list alternatives as acceptable with no limitations. Such listings do 
not impose any sanction, nor do they remove any prior license to use a 
substitute. Consequently, EPA adds substitutes to the list of 
acceptable alternatives without first requesting comment on new 
listings. Updates to the acceptable and pending lists are published as 
separate Notices of Acceptability in the Federal Register.
    Part A. below presents a detailed discussion of the proposed 
substitute listing determinations by major use sector. Tables 
summarizing listing decisions in this Notice of Proposed Rulemaking are 
in Appendix F. The comments contained in Appendix F to Subpart G of 40 
CFR Part 82, provide additional information on a substitute. Since 
comments are not part of the regulatory decision, they are not 
mandatory for use of a substitute. Nor should the comments be 
considered comprehensive with respect to other legal obligations 
pertaining to the use of the substitute. However, EPA encourages users 
of acceptable substitutes to apply all comments in their application of 
these substitutes. In many instances, the comments simply allude to 
sound operating practices that have already been identified in existing 
industry and/or building-code standards. Thus, many of the comments, if 
adopted, would not require significant changes in existing operating 
practices for the affected industry.

A. Refrigeration and Air Conditioning

1. Unacceptable Substitutes
    a. CFC-12, R-502, and HCFC-22 Household Refrigeration, Transport 
Refrigeration, Vending Machines, Cold Storage Warehouses, and Retail 
Food Refrigeration, Retrofit and New.
    (i) Self-chilling Cans Using HFC-134a or HFC-152a.
    This technology represents a product substitute intended to replace 
several types of refrigeration equipment. A self-chilling can includes 
a heat transfer unit that performs the same function as one half of the 
traditional vapor-compression refrigeration cycle. The unit contains a 
charge of pressurized refrigerant that is released to the atmosphere 
when the user activates the cooling unit. As the refrigerant's pressure 
drops to atmospheric pressure, it absorbs heat from the can's contents 
and evaporates, cooling the can. Because this process provides the same 
cooling effect as household refrigeration, transport refrigeration, 
vending machines, cold storage warehouses, or retail food 
refrigeration, it is a substitute for CFC-12, R-502, or HCFC-22 in 
these systems. The Agency requests comment on the approach of defining 
self-chilling cans as a product substitute for a variety of types of 
refrigeration equipment.
    HFCs have played a major role in the phaseout of CFC refrigerants, 
and EPA expects this responsible use to continue. HFC-134a is an 
acceptable substitute for ozone-depleting refrigerants in a wide 
variety of refrigeration systems. In addition, both HFC-134a and HFC-
152a are components in refrigerant blends that are themselves 
acceptable substitutes. These refrigeration systems are closed, meaning 
that refrigerant recirculates, and there are EPA regulations requiring 
their recovery and reuse. The only source of refrigerant emissions is 
leaks, and EPA regulations require the repair of large leaks from these 
systems. In contrast, however, self-chilling cans work by releasing 
    In assessing the risks of proposed substitutes under the SNAP 
program, EPA considers all environmental impacts a substitute may 
produce. HFC-134a and HFC-152a have no ozone depletion potential, are 
low in toxicity, and are not volatile organic compounds. HFC-152a is 
flammable, but the primary area of concern for both HFC-134a and HFC-
152a is their potential to contribute to global warming; both compounds 
are powerful greenhouse gases.
    EPA has assessed the possible contribution of self-chilling can 
technology to U.S. emissions of global warming gases when HFC-134a and 
HFC-152a are used. EPA included several possible market penetration 
values in this assessment, ranging from 1% to 25%. A one percent 
penetration would amount to sales of roughly one billion cans annually. 
The resultant emissions estimates are directly proportional to the 
market penetration; to estimate the effects of market penetrations 
other than those evaluated here, scale appropriately. For purposes of 
illustration, the discussion below uses market penetration scenarios of 

[[Page 5493]]

and 25%. Because the product has not yet been introduced, it is not 
possible to know actual market penetration, and the Agency is not aware 
of any projections of market penetration in the trade press. EPA 
invites comment on both the expected cost of producing and sales price 
of self-chilling cans and on their possible market penetration.
    Because the total US market for beer and soft drinks is 
approximately 100 billion cans per year, even a small market 
penetration could substantially increase US emissions of greenhouse 
gases. Based on industry estimates appearing in trade journals for the 
beverage canning industry and a basic understanding of the physical 
properties of refrigerants, EPA assumed that a 12 ounce beverage can 
requires 2 ounces of refrigerant and a 16 ounce beverage can requires 
2.7 ounces of refrigerant. EPA used values from the Intergovernmental 
Panel on Climate Change for the global warming potential (GWP) of HFC-
134a (1300) and HFC-152a (140), based on a 100-year integrated time 
horizon. This analysis is conservative for two reasons: (1) EPA assumed 
that the refrigerant absorbs heat only from the beverage and not from 
the surrounding air, thereby reducing the refrigerant charge required, 
and (2) several articles in canning industry trade journals have 
indicated that the likely usage would be 3-4 oz. of refrigerant per 12 
ounce can instead of the 2 ounces assumed here. Under this scenario, 5% 
market penetration of cans using HFC-134a results in emissions of 96 
million metric tons of carbon equivalent (MMTCE).
    To provide perspective, this value is 25% higher than 76.5 MMTCE, 
the reductions in greenhouse gas emissions currently estimated in the 
year 2000 under President Clinton's Climate Change Action Plan 
published in October, 1993 (CCAP). At 25% market penetration of cans 
using HFC-134a, the emissions are 479 MMTCE, nearly one third of the 
total emissions from all US power generation. Using HFC-152a, a 5% 
market penetration results in emissions of 10 MMTCE and a 25% market 
penetration yields emissions of 52 MMTCE, or more than 2/3 the total 
expected reductions under the CCAP.
    Under the SNAP program, EPA compares the risks of a given 
substitute to what it is replacing, as well as to the risks of other 
substitutes available for the same use. Therefore, EPA also analyzed 
the effect of replacing systems with new equipment using new 
refrigerants in the end-uses listed above with self-chilling cans. Like 
chilling cans, refrigeration systems have a direct effect on greenhouse 
gas emissions related to emissions, but leakage from refrigeration 
systems is minimal. They also have an indirect effect because the 
production of electricity to power the systems results in the release 
of carbon dioxide. Self-chilling cans have only a direct effect, namely 
the release of refrigerant to the atmosphere. However, cans using HFC-
134a exceed the combined direct and indirect effects of equivalent 
refrigeration systems by a factor of more than 40. Cans using HFC-152a 
exceed refrigeration systems by a factor of 4. Again, these are 
conservative estimates, because EPA assumes that these systems are 
dedicated solely to cooling beverages, while in reality much of this 
capacity is devoted to cooling other products.
    Today's proposal has no implications for high value medical 
emissive uses, such as the use of HFC-134a as a propellant in metered 
dose inhalers. Information from trade journals and the company 
developing self-chilling cans indicates that the predominant use of 
this technology will be to cool beverages. EPA has always distinguished 
between critical uses of substitutes and more general use, and 
therefore invites comment on other potential uses of self-chilling 
cans. In addition, EPA has long recognized the difference between uses 
designed to be emissive and those designed to be closed systems. For 
example, this determination has no bearing on continued, responsible 
use of HFC-134a and HFC-152a in non-emissive uses such as retail food 
    Under the SNAP program, EPA has encouraged the introduction of 
innovative technology designed to reduce emissions of ozone depleting 
substances. In pursuit of such developments, we have promoted the use 
of substitutes for ozone-depleting substances (ODS) with lower overall 
risk. Guided by this policy, we have stressed the importance of 
examining all the environmental effects a substitute may produce, 
including global warming. EPA has restricted the use of several 
greenhouse gases through narrowed use limits and unacceptability 
determinations. For example, PFCs may only be used in new heat transfer 
systems after a study has demonstrated that no other substitute will 
work. Similarly, EPA proposed several refrigerant blends as 
unacceptable on May 21, 1997 (62 FR 27873) because they contain HFC-23, 
a gas with an extremely high GWP. Today's proposal is consistent with 
EPA's ongoing efforts to assure that as the transition away from ODS 
continues, we do not contribute to significant new use of high-GWP 
greenhouse gases.
    Therefore, EPA proposes self-chilling cans using HFC-134a or HFC-
152a to be unacceptable substitutes for CFC-12, R-502, or HCFC-22 in 
the end-uses listed above.

IV. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735; October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlement, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.''
    Pursuant to the terms of Executive Order 12866, OMB notified EPA 
that it considers this a ``significant regulatory action'' within the 
meaning of the Executive Order and EPA submitted this action to OMB for 
review. Changes made in response to OMB suggestions or recommendations 
have been documented in the public record.

B. Unfunded Mandates Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
EPA to prepare a budgetary impact statement before promulgating a rule 
that includes a Federal mandate that may result in expenditure by 
state, local, and tribal governments, in aggregate, or by the private 
sector, of $100 million or more in any one year. Section 203 requires 
the Agency to establish a plan for obtaining input from and informing 
any small governments that may be significantly or uniquely affected by 
the rule. Section 205 requires that regulatory alternatives be 
considered before promulgating a rule for which a budgetary impact 
statement is prepared. The Agency must select the least costly, most 
cost-effective, or least burdensome alternative that achieves the 
rule's objectives, unless there is an explanation why this alternative 
is not

[[Page 5494]]

selected or this alternative is inconsistent with law.
    Because this proposed rule is estimated to result in the 
expenditure by State, local, and tribal governments or the private 
sector of less than $100 million in any one year, the Agency has not 
prepared a budgetary impact statement or specifically addressed the 
selection of the least costly, most cost-effective, or least burdensome 
alternative. Because small governments will not be significantly or 
uniquely affected by this rule, the Agency is not required to develop a 
plan with regard to small governments. However, this proposed rule has 
the net effect of reducing burden from part 82, Stratospheric 
Protection regulations, on regulated entities.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This proposed rule would not have a significant impact 
on a substantial number of small entities because costs of the SNAP 
requirements as a whole are expected to be minor. In fact, this 
proposed rule offers regulatory relief to small businesses by providing 
acceptable alternatives to phased-out ozone-depleting substances. 
Additionally, the SNAP rule exempts small sectors and end-uses from 
reporting requirements and formal agency review. To the extent that 
information gathering is more expensive and time-consuming for small 
companies, the actions proposed herein may well provide benefits for 
small businesses anxious to examine potential substitutes to any ozone-
depleting class I and class II substances they may be using, by 
requiring manufacturers to make information on such substitutes 
available. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

    EPA has determined that this proposed rule contains no information 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., that are not already approved by the Office of Management and 
Budget (OMB). OMB has reviewed and approved two Information Collection 
Requests by EPA which are described in the March 18, 1994 rulemaking 
(59 FR 13044, at 13121, 13146-13147) and in the October 16, 1996 
rulemaking (61 FR 54030, at 54038-54039). The OMB Control Numbers are 
2060-0226 and 2060-0350.

V. Additional Information

    For copies of the comprehensive SNAP lists or additional 
information on SNAP, contact the Stratospheric Protection Hotline at 1-
800-296-1996, Monday-Friday, between the hours of 10:00 a.m. and 4:00 
p.m. (EST).
    For more information on the Agency's process for administering the 
SNAP program or criteria for evaluation of substitutes, refer to the 
SNAP final rulemaking published in the Federal Register on March 18, 
1994 (59 FR 13044). Federal Register notices can be ordered from the 
Government Printing Office Order Desk (202) 783-3238; the citation is 
the date of publication. Notices and rulemakings under the SNAP program 
are available from the Ozone Depletion World Wide Web site at ``http://
www.epa.gov/ozone/title6/snap'' .

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements.

    Dated: January 28, 1998.
Carol M. Browner,

    For the reasons set out in the preamble, 40 CFR part 82 is proposed 
to be amended as follows:


    1. The authority citation for part 82 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7601, 7671--7671q.

Subpart G--Significant New Alternatives Policy Program

    2. Subpart G is amended by adding Appendix F to read as follows:

Appendix F to Subpart G--Substitutes Subject to Use Restrictions 
and Unacceptable Substitutes

                                     Refrigerants--Unacceptable Substitutes                                     
               End-use                       Substitute                 Decision                 Comments       
CFC-12, R-502, and HCFC-22 Household  Self-Chilling Cans       Unacceptable.............  Unacceptably high     
 Refrigeration, Transport              Using HFC-134a or HFC-                              greenhouse gas       
 Refrigeration, Vending Machines,      152a.                                               emissions from direct
 Cold Storage Warehouses, and Retail                                                       release of           
 Food Refrigeration, Retrofit and                                                          refrigerant to the   
 New.                                                                                      atmosphere.          

[FR Doc. 98-2617 Filed 2-2-98; 8:45 am]