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The 2011 HCFC Allocation

Action

On August 5, 2011, EPA issued an interim final rule allocating allowances for consumption and production of two hydrochlorofluorocarbons (HCFCs) for 2011.

The rule was issued in response to a recent decision by the U.S. Court of Appeals for the D.C. Circuit in Arkema v. EPA that vacated in part EPA’s 2009 Final Rule covering HCFC allocations through 2014. 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 inter-pollutant baseline transfers that petitioners had performed during the prior regulatory period.

This rule addresses provisions that were vacated by the D.C. Circuit by establishing company-by-company baselines consistent with the 2008 Notice of Proposed Rulemaking and calendar-year allocations for HCFC-22 and HCFC-142b.

Background

Title VI of the Clean Air Act Amendments of 1990 authorizes EPA to promulgate regulations to phase out ozone-depleting substances. As a Party to the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), the United States is obligated to decrease HCFC consumption and production using stepwise reductions that culminate in a complete HCFC phaseout by 2030.

In 1993, EPA established a chemical-by-chemical, “worst-first” approach to implement the Montreal Protocol’s graduated phaseout in overall HCFC levels. In 2003, EPA established an allowance tracking system for HCFCs to ensure that production and consumption of HCFCs did not exceed the Montreal Protocol caps for production and consumption. In 2009, EPA adjusted the allowance system for HCFCs to comply with the Montreal Protocol’s 2010 stepdown. On January 1, 2010, the U.S. HCFC cap was reduced to 25 percent of baseline HCFC production and consumption. The 2009 Final Rule established HCFC allowances for the 2010-2014 control periods.

In August, 2010, the U.S. Court of Appeals for the D.C. Circuit decided against EPA in Arkema v. EPA. Pending disposition of EPA’s petition for rehearing, the Court withheld issuance of its mandate until February 4, 2011. EPA interprets the Court’s decision as vacating a portion of the 2009 final rule titled “Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export” published December 15, 2009, that establishes company-by-company production and consumption baselines and calendar-year allowances for HCFC-22 and HCFC-142b. All other aspects of the rule are intact.

This interim final rule relieves the regulatory ban on the production and consumption of these two chemicals following the court’s vacatur by establishing new company-by-company HCFC-22 and HCFC-142b baselines and allocating production and consumption allowances for 2011.

How to Comment

EPA will accept written comments on the interim final rule for 30 days after the date of publication.

All comments should be identified by E-Docket No. EPA-HQ-OAR-2010-1040. Comments may be submitted by one of the following methods:

  1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions for submitting comments.
  2. Email: A-and-R-docket@epa.gov
  3. Fax: 202-566-1741
  4.  U.S. Mail: Docket EPA-HQ-OAR-2010-1040, Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Mail code: 6102T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460.
  5. Hand Delivery or Courier. Deliver your comments to: Docket #EPA-HQ-OAR-2010-1040 Air and Radiation Docket at EPA West, 1301 Constitution Avenue, NW, Room B108, Mail Code 6102 T, Washington, D.C. 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.

For Further Information

For further information about this action, contact Liz Whiteley of EPA’s Office of Atmospheric Programs, Stratospheric Protection Division at (202) 343-9310.


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