Vol. 58 No. 51 Thursday, March 18, 1993 p 15014 (Proposed Rule)
1/4697
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL 4604-2]
Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: With this action, EPA is proposing to amend the schedule
for the phaseout of ozone-depleting chemicals, as provided for
under section 606 of the Clean Air Act, as amended in 1990,
(the Act). This action responds to several petitions and comments
submitted by environmental organizations and industry groups
seeking an accelerated phaseout of ozone-depleting substances
under section 606. Today's action also proposes regulations
implementing the amendments, adjustments and decisions adopted
by the Parties to the Montreal Protocol on Substances That Deplete
the Ozone Layer at their November 1992 meeting. In this action,
EPA proposes to add methyl bromide to the list of class I
substances,
in response to new scientific information and a petition submitted
under section 602 of the Act, the decision of the Protocol Parties
to classify methyl bromide as a controlled substance with an
ozone depleting substance with an ozone depleting potential
(ODP) of .7 and to add hydrobromofluorocarbons (HBFCs) to the
list of Class I substances. Finally, in accordance with trade
provisions in article 4 of the Montreal Protocol, EPA proposes
with this action to ban specified trade between the U.S. and
foreign states not party to the Protocol.
DATES: EPA intends to publish a final action in the fall of
1993 with an effective date of January 1, 1994, except for the
Montreal Protocol trade provisions that will take effect 30
days after final promulgation. If requested by March 25, 1993,
EPA will hold a public hearing on this proposed action on April
2, 1993. The contact person listed below may be called regarding
a hearing. Written comments on this action must be submitted
on or before April 19, 1993, if the hearing is not held, or
May 3, 1993, if the hearing is held.
ADDRESSES: Comments on this proposed rulemaking should be submitted
in duplicate to the attention of Air Docket No. A-92-13 at:
U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington,
DC, 20460. A copy should also be sent to Peter Voigt at the
address indicated below. The Docket is located in room M-1500,
First Floor Waterside Mall. Materials relevant to this rulemaking
may be inspected from 8:30 a.m. until noon and from 1:30 p.m.
until 3:30 p.m. Monday through Friday. A reasonable fee may
be charged by EPA for copying docket materials. The proposed
regulatory language is not printed with this action, but may
be obtained through the EPA hotline. The hotline telephone number
is 1-800-296-1996.
FOR FURTHER INFORMATION CONTACT: Peter Voigt, U.S. EPA,
Stratospheric
Protection Division, Office of Atmospheric Programs, Office
of Air and Radiation, 6202J, 401 M Street SW., Washington, DC,
20460, (202) 233-9185.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Scientific Evidence of Ozone Depletion
B. Past Efforts to Control Ozone-Depleting Substances
C. Fourth Meeting of Parties of the Montreal Protocol
a. Summary
b. Adjustments to the Montreal Protocol
c. Amendments to the Montreal Protocol
d. Decisions of the Protocol Parties
D. 1990 CAA Amendment
II. Purpose of Today's Proposal
III. Proposed Amendments to the Regulations
A. Accelerated Phaseout of Class I Substances
1. Legal Authority
2. Proposed Phaseout Schedule
a. Existing Phaseout Schedule
b. Petitioners' and Commenters' Suggested Phaseout Schedules
(i) NRDC/EDF/FOE Petition
(ii) CFC Alliance Petition
(iii) ARI Comments
(iv) BPX Comments
(v) PACC and ALA Comments
(vi) HSIA Comments
c. EPA's Response to Petitions and Comments
(i) Use of section 303 to Accelerate the Phaseout
(ii) Use of Authority under Both Paragraphs of section 606(a)
(iii) The Proposed Schedule
3. Limited Exemptions to Production and Consumption Phaseout
B. Accelerated Phaseout of Class II Substances
1. Today's Proposal
2. Legal Authority
3. Petitioners' and Commenters' Suggested Phaseout Options
4. EPA's Response to Petitions and Comments
C. Addition of Methyl Bromide to the List of Class I Substances
and Phaseout Schedule
1. Summary
2. Legal Authority
3. Petitioners' and Commenters' Suggested Actions
a. NRDC/EDF/FOE Petition
b. Methyl Bromide Working Group Comments
c. Responses to the section 114 Information Request
4. Today's Proposal
5. Group Assignment
6. Ozone Depletion Potential
D. Phaseout Schedule for Methyl Bromide
1. Petitioners' Request
2. Statutory Standards
3. Summary of Proposal and Response to Petitioners
4. Most Stringent Attainable Schedule
5. Today's Proposal
6. Applicability of Section 611 Labeling Requirements
7. Essential Use Exemption
E. Addition of Hydrobromofluorocarbons to the List of Class
I Substances and to the Phaseout Schedule
1. Summary
2. Legal Authority
3. Applicability of Section 611 Labeling Requirements to HBFCs
F. Trade Restrictions
1. Montreal Protocol Trade Requirements
2. Legal Authority
IV. Other Issues
A. Addition of HCFCs to the EPCRA section 313 List
B. Postponement of Labeling of Products Manufactured with
Ozone Depleting Substances
C. Suggestions for the Implementation of section 612
D. Treatment of Recycled and Used Ozone Depleting Substances
When Calculating Consumption
E. Transshipment
F. Destruction and Insignificant Quantities
V. Impact of Proposed Action
VI. Additional Information
A. Executive Order 12291
B. Regulatory Flexibility Act
I. Background
A. Scientific Evidence of Ozone Depletion
A broad scientific consensus has emerged that continuing
depletion of the stratospheric ozone layer will lead to increased
levels of UV-B radiation penetrating to the earth's surface,
resulting in potential health and environmental harm including
increased incidence of certain skin cancers and cataracts,
suppression
of the immune system, damage to crops and aquatic organisms,
increased formation of ground-level ozone, and increased weathering
of outdoor plastics (see the Regulatory Impact Analysis for
the Phaseout of Ozone-Depleting Chemicals and United Nations
Environment Programme Synthesis Report).
The initial hypothesis linking chlorofluorocarbons (CFCs)
and depletion of the stratospheric ozone layer appeared in a
paper by Molina and Rowland in 1974. Since that time, the
scientific
community has made remarkable advances in understanding atmospheric
processes affecting stratospheric ozone and in analyzing data
measuring ozone depletion, both over the polar regions and
globally.
In response to the growing evidence that chlorine and bromine
could destroy stratospheric ozone on a global basis and the
discovery of the ozone hole over Antarctica, the international
community negotiated the Montreal Protocol in 1987, which limited
the production and consumption of a specific set of ozone-depleting
substances.
Also under this agreement, Parties are required to assess
the science, economics and alternative technologies related
to protection of the ozone layer every two years. In response
to this requirement, the Parties issued their first scientific
assessment in 1989. This assessment found that the destruction
of the ozone layer over Antarctica was due to the presence of
high chlorine concentrations linked to CFCs and other chlorinated
and brominated compounds. In addition, the scientific assessment
reported that a three to five percent decrease in ozone levels
had occurred over a twenty-year period in the northern hemisphere
in the winter months that could not be attributed to known natural
processes. At the Second Meeting of the Protocol Parties in
June 1990, the Parties responded to this new evidence by
reassessing
and tightening the restrictions placed on these chemicals.
Significant scientific advances have continued since the
1989 Protocol assessments. Several reports since that time have
indicated a more rapid rate of ozone depletion than previously
believed.
The most recent Protocol Scientific Assessment was issued
on December 17, 1991. The report, entitled Scientific Assessment
of Ozone Depletion: 1991, contained information from ground-
based monitoring instruments as well as from satellite instruments
indicating significant decreases in total-column ozone in winter,
and for the first time also in spring and summer, in both the
northern and southern hemispheres at middle and high latitudes.
It reported no significant depletion in the tropics. The total
ozone measurement spectrometer (TOMS) data indicated that for
the period 1979 to 1991 decreases in total ozone at 45 degrees
south ranged between 4.4 percent in the fall to as much as 6.2
percent in the summer, while depletion at 45 degrees north ranged
between 1.7 percent in the fall to 5.6 percent in the winter.
Data from the ground-based Dobson network confirmed these losses
in total column ozone during the twelve-year period. These findings
show almost twice as much depletion as the average rate measured
by the ground-based network over a twenty-year period. Based
on this new data, scientists have concluded that the ozone in
the stratosphere during the 1980's disappeared at a much faster
rate than experienced in the previous decade.
The recent UNEP Science Assessment also included new data
on the estimated ozone depletion potential (ODP) of ozone-depleting
substances. The assessment placed the ODP of methyl bromide,
a chemical previously thought to have an insignificant effect
on stratospheric ozone, at 0.6, with a range of uncertainty
between 0.44-0.69. The meeting of the Parties in Copenhagen
set the ODP at .7 based on a more inform percent assessment.
The Executive Summary of the Assessment stated that, "if the
anthropogenic sources of methyl bromide are significant and
their emissions can be reduced, then each ten percent reduction
in methyl bromide would rapidly result in a decrease in
stratospheric
bromine of 1.5 pptv [parts per trillion by volume], which is
equivalent to a reduction in chlorine of 0.045 to 0.18 ppbv
[parts per billion by volume]. This gain is comparable to that
of a three-year acceleration of the scheduled phaseout of the
CFCs."
On February 3, 1992, NASA released preliminary data acquired
by the ongoing Arctic Airborne Stratospheric Experiment-II (AASE-
II), a series of high-altitude instrument-laden plane flights
over the northern hemisphere (see Interim Findings: Second Airborne
Arctic Stratospheric Expedition). Additional data were also
obtained from the initial observations by NASA's Upper Atmosphere
Research Satellite (UARS), launched in September 1991. The key
findings were as follows:
1. Northern latitudes:
The measurements showed higher levels of chlorine oxide
(ClO) (the key agent responsible for stratospheric ozone depletion)
over Canada and New England than were observed during any previous
series of aircraft flights.
Levels of hydrogen chloride (HCl), a chemical species that
stores atmospheric chlorine, were observed to be low, providing
new evidence for the occurrence of chemical processes that convert
stable forms of chlorine into ozone-destroying species.
Levels of nitrogen oxides (NOx) were also observed to be
low, providing evidence of reactions that take place on the
surface of aerosols that diminish the ability of the atmosphere
to control the buildup of chlorine radicals.
The observations of high ClO and bromine oxide (BrO) levels
imply human-induced rates of ozone destruction of one to two
percent per day for a short period of time beginning in late
January. Total annual ozone loss in the Arctic will depend upon
how long these chemical perturbations persist.
2. Temperate latitudes:
ClO levels over the United States and Canada and as far
south as the Caribbean were many times greater than gas phase
model predictions. These levels are only partially explainable
by enhanced aerosol surface reactions due to the emissions from
Mount Pinatubo.
New observations of HCl and nitrogen oxide (NO) imply that
chlorine and bromine are more effective in destroying ozone
than previously believed.
Thin horizontal layers of elevated ClO concentrations were
found throughout the Northern Hemisphere.
The NASA findings indicate that in late January, 1992, the
Arctic air was chemically "primed" for the potential formation
of a springtime ozone "hole" similar to that formed each spring
over Antarctica. These findings also are consistent with theories
that ozone depletion may occur on aerosols anywhere around the
globe, and not solely on polar stratospheric clouds as was
previously
believed.
After collecting more data, NASA released an April 30, 1992
"End of Mission Statement," which indicated that while a rise
in stratospheric temperatures in late January apparently prevented
severe ozone depletion from occurring in the Arctic this year,
observed ozone levels were nonetheless lower than had previously
been recorded for this time of year. This information has further
increased the Agency's concern that significant ozone loss may
occur over populated regions of the earth, thus exposing humans,
plants and animals to harmful levels of UV-B radiation, and
adds support to the need for further efforts to limit emissions
of anthropogenic chlorine and bromine.
B. Past Efforts To Control Ozone-Depleting Substances
The United States has been a leader in the development and
implementation of measures to limit the emissions of
ozone-depleting
chemicals. As a leading advocate for, and an original member
of, the Vienna Convention in 1985, and the subsequent Montreal
Protocol in 1987, and strengthening amendments to the Montreal
Protocol in 1990 (the London Amendments) and a leading advocate
again in 1992 (the Copenhagen Amendments), the United States
has demonstrated its long-standing commitment to global
stratospheric
ozone protection.
The 1987 Montreal Protocol has served as the basis to control
the production and consumption, of ozone-depleting chemicals.
Originally, the Montreal Protocol required a 50 percent reduction
from 1986 levels in the production and consumption of CFC-11,
-12, -113, -114, and -115, by 1998 with halons 1211, 1301 and
2402 frozen at their 1986 levels starting in 1992.{1} In addition,
with certain specified exceptions, Article 4 of the Protocol
required the Parties to ban trade with foreign states not Party
to the Protocol as follows: (1) Paragraph 1 required the Parties
to ban bulk imports from foreign states not party of the chemicals
listed in Annex A within one year of entry into force of the
Protocol (i.e. January 1, 1990), (2) paragraph 2 required Parties
operating under Article 5 paragraph 1 (developing countries)
to ban bulk exports to foreign states not party of the chemicals
listed in Annex A by January 1, 1993, and (3) paragraph 3 required
the Parties to ban imports from foreign states not party of
products containing the chemicals listed in Annex A, as specified
in a separate annex to the Protocol to be negotiated by the
Parties within three years of the entry into force of the Protocol.
Currently, 92 foreign states and the United States, representing
over 90 percent of the world's consumption of CFCs and halons,
are Parties to the original Montreal Protocol. (See appendix
C of today's proposal.)
³{1} The chemicals are listed in Appendix A of 40 CFR
³Part 82 as Class I, Group I (CFCs) and Group II
(Halons).
³They also are listed in Annex A to the Montreal
Protocol.
As noted above, during the first scientific assessment required
under the Protocol, scientists examined the data from the land-
based monitoring stations and the TOMS satellite data and found
that there had been global ozone depletion during the winter
and spring over the northern hemisphere. In addition, further
studies of the Antarctic ozone hole implicated chlorine as the
main cause of ozone depletion over the Antarctic.
Responding to this information, the Parties met in London
in 1990 and revised the existing Protocol (the London Amendments)
to require a complete phaseout of the CFCs and halons specified
in the 1987 Montreal Protocol by the year 2000. In addition,
in Annex B to the Protocol as amended, the Parties added CFC-
13, -111, -112, -211, -212, -213, -214, -215, -216, -217 to
the original list of CFCs, as well as two more chemicals, methyl
chloroform and carbon tetrachloride.{2} The Amendments provided
that the last two chemicals were to be phased out by 2005 and
2000, respectively. The London Amendments also expanded the
Article 4 trade restrictions, specifying that the paragraph
1 Annex A chemicals imports ban was to take effect January 1,
1990, extending the Annex A chemicals export ban in paragraph
2 to all Parties to the London Amendments, and banning imports
and exports of the additional new chemicals listed in Annex
B with foreign states that are not Parties to the London Amendments
(paragraphs 1 bis., and 2 bis.) within one year after the
Amendments
enter into force, i.e. beginning August 10, 1993.{3} Currently,
33 foreign states and the United States have become Parties
to the London Amendments. (See Appendix C of today's proposal.)
An exception to the trade bans of the 1987 Montreal Protocol
and the 1990 London Amendments is authorized by Article 4,
paragraph
8 for foreign states not party that are determined by a meeting
of the Parties to be in compliance with the phase-out and trade
provisions of the Protocol.
³{2} The Annex B chemicals are listed in appendix A of
³40 CFR part 82, and identified as Class I, Group III
³(CFCs) and Group IV (carbon tetrachloride), and Group
³V (methyl chloroform).
³{3} See, Decision IV/1 of the Fourth Meeting of the
Parties,
³which confirms the "entry into force" of the London
Amendments.
³In addition, although not pertinent to today's
proposal,
³new paragraph 3 bis. provides (parallel to Article 4
³paragraph 3) for the Parties to develop a list of
products
³containing Annex B substances, and then ban imports of
³such products from foreign states that are not Parties
³to the London Amendments.
Annex D to the Protocol, listing six categories of products
containing Annex A substances which Parties may not import from
foreign states not party was adopted by the Third Meeting of
the Parties on June 21, 1991, and became effective May 27, 1992.
The ban on imports of the Annex D products is to take effect
beginning May 27, 1993. See Decision IV/16 paragraph 1 or the
Fourth Meeting of the Parties to the Montreal Protocol, confirming
entry into force of Annex D.
C. Fourth Meeting of Parties of the Montreal Protocol
a. Summary
At the Fourth Meeting of the Parties to the Montreal Protocol
in Copenhagen, Denmark on November 23-25, 1992, the Parties
adjusted the phase-out schedules for Class I (Annex A and B)
substances to phase out CFCs, methyl chloroform and carbon
tetrachloride
in 1996 and halons in 1994. (see further discussion below).
The Parties also decided a variety of other matters, including
approval of certain destruction technologies, clarification
of the treatment of insignificant quantities of production and
of transshipments for purposes of phase-out accounting, adoption
of essential use criteria and a number of matters pertaining
to the Article 4 trade bans.
In addition, the Parties adopted a package of amendments
to the Protocol. (The "Copenhagen Amendment"; see Decision IV/4
of the Fourth Meeting of the Parties to the Montreal Protocol,
adopting Annex III to the report of the Fourth Meeting of the
Parties). The amendment would, upon entry into force, add HBFCs
as Group II of Annex C, add a schedule for phasing-out Annex
C substances, and establish new Annex E adding methyl bromide
as an ozone depleting substance and requiring its control.
b. Adjustments to the Montreal Protocol
The following adjustment to the phaseout schedules of previously
controlled substances were adopted at the Copenhagen meeting:
(1) Accelerating the phaseout schedule for the originally
controlled CFCs (i.e., class I, group I substances) to require
a 75% reduction in production and consumption (production plus
imports minus exports) from 1986 baseline levels in 1994 and
1995, and a complete phaseout by 1996;
(2) Accelerating the phaseout schedule for halons (class
I, group II substances) to require a complete phaseout of
production
and consumption by 1994;
(3) Accelerating the phaseout schedule for other fully
halogenated
CFCs (class I, group III substances) to require a reduction
from 1989 levels of 75% in 1994 and 1995, and a complete phaseout
of production and consumption by 1996;
(4) Accelerating the phaseout schedule for carbon tetrachloride
(class I, group IV) by requiring a reduction from 1989 levels
of 85% in 1995, and a complete phaseout in 1996;
(5) Accelerating the phaseout schedule for methyl chloroform
(class I, group V) by reducing production and consumption to
50% of 1989 levels in 1994, and phasing out production and
consumption
completely by 1996.
(6) Establishing criteria for identifying essential uses
and a process for excepting limited production and consumption
of the above chemicals from the otherwise applicable phaseout
deadline (see below).
Pursuant to Article 2, paragraph 9, of the Protocol, these
adjustments are to go into effect six months after the United
Nations Depositary circulates the adjustments to the Parties.
c. Amendments to the Montreal Protocol
In addition, the Parties adopted the following amendments
to the Protocol:
(1) Freezing consumption of HCFCs (class II substances)
beginning
in 1996 at a baseline level of 100% of the 1989 ozone depletion
potential (ODP)-weighted level of HCFC consumption plus 3.1%
of the ODP weighted 1989 CFC consumption; reducing consumption
by 35% of the baseline in 2004, 65% by 2010, 90% by 2015, and
99.5% by 2020; and completely phasing out consumption by 2030;
(2) Adding Hydrobromofluorocarbons (HBFCs) to the list of
controlled substances, specifying their ozone depletion potential,
and phasing their production and consumption out completely
by 1996;
(3) Adding methyl bromide to the list of controlled substances,
adopting the ozone depleting potential estimate of the scientific
assessment of 0.7, and freezing production and consumption
beginning
in 1995 at 1991 levels (not including amounts used for quarantine
and pre-shipment uses);
(4) Establishing a procedure for the approval by the Parties
for continued production and consumption of controlled substances
after their phaseout to meet essential use requirements; and
defining essential uses as those necessary for health or safety,
or critical to the functioning of society, and where there are
no available alternatives or existing stocks of banked or recycled
material;
(5) Establishing reporting requirements for HCFCs, HBFCs,
and methyl bromide;
(6) Establishing reporting requirements for imports and exports
of recycled halons and HCFCs;
(7) Amending the Article 4 restrictions on imports and exports
of controlled substances to and from foreign states not party
to the Protocol;
The Amendments are to enter into force by January 1, 1994,
provided twenty Parties have ratified them. If twenty Parties
have not ratified the Amendments by the date, the Amendments
are to go into effect 90 days after the twentieth instrument
of ratification is deposited by a Party.
d. Decisions of the Protocol Parties
The Parties also made a number of decisions regarding procedures
and definitions that affect implementation of the Protocol,
and which are addressed in this proposal. These decisions include:
(1) The approval of certain destruction technologies and
that Parties that plan to operate destruction facilities do
so in accordance with "good housekeeping procedures" developed
by the Parties or their equivalent;
(2) Clarification of the definition of controlled substances
to exclude insignificant quantities under defined circumstances,
and to encourage Parties to minimize emissions of such substances;
(3) Clarification of the reporting requirements and treatment
of international transshipment;
(4) Clarification of the definition of controlled substance
to exclude the import and export of recycled and used controlled
substances from the calculation of consumption, but to require
reporting of data concerning these imports and exports.
D. 1990 CAA Amendments
On November 15, 1990, the President signed the Clean Air
Act Amendments of 1990, Public Law 101-549, including Title
VI, "Stratospheric Ozone Protection." Section 604 of the Act
establishes a phase-out schedule as fast as, and in some instance
faster than, the 1990 Amendments to the Protocol. Specifically
this title requires the United States to phase out production
and consumption of CFCs, halons and carbon tetrachloride by
the turn of the century, and of methyl chloroform by 2002. In
addition, section 605 of the Act requires a freeze on the
production
of HCFCs beginning in 2015, and a phaseout of these chemicals
by 2030. Section 606 authorizes EPA to accelerate these phaseout
schedules if scientific evidence indicates the need for faster
action, if technological advances permit such action, or if
the Montreal Protocol is modified to require faster action.
On July 30, 1992 EPA issued regulations implementing the
phase-out schedules for Class I substances required under Section
604 for 1992 and subsequent control period (57 FR 33754).
Title VI calls for other programs to help protect the ozone
layer as well. It requires EPA to establish both a warning label
program and a national recycling program, to ban non-essential
products, to develop a federal procurement policy, and to implement
a safe alternatives program to evaluate the alternatives to
class I substances (CFCs, halons, carbon tetrachloride, and
methyl chloroform) and class II substances (HCFCs).
U.S. industry has responded to concerns about ozone depletion
by quickly developing substitutes and alternative processes
to replace CFCs, halons and other ozone-depleting compounds.
Due to the rapid development of substitutes and alternatives
to these chemicals, U.S. production of CFCs was 23 percent below
allowable 1986 baseline levels in the first year of regulation
(1989-90), and 42 percent below that level in the second year
(1990-91).
II. Purpose of Today's Proposal
On February 11, 1992, President Bush, responding to recent
scientific findings, announced that the United States would
phase out production of CFCs, carbon tetrachloride, halons,
and methyl chloroform by December 31, 1995. He asked that U.S.
producers of the chemicals voluntarily reduce their 1992 output
to 50 percent of baseline year levels and announced that the
U.S. will re-examine the phaseout schedule of HCFCs. He also
stated that the U.S. will consider recent evidence suggesting
the possible need to phase out methyl bromide. In addition,
the President called on other nations to match the U.S. commitment
by ratifying the Protocol as amended in 1990 and by accelerating
their phaseout schedules. The President further stated that
exemptions would be made for essential uses, and that limited
quantities of the chemicals would continue to be produced in
order to service certain existing equipment, to the extent
allowable
under the Protocol.
In addition, the Agency has received two petitions to accelerate
the phaseout of these chemicals. One petition was submitted
by three environmental groups, the Natural Resources Defense
Council (NRDC), the Environmental Defense Fund (EDF), and Friends
of the Earth (FOE). This petition also asked EPA to add methyl
bromide to the list of class I substances. The other petition
was submitted by the Alliance for Responsible CFC Policy, an
industry group of producers and users of the chemicals. Comments
on these petitions and suggestions for appropriate phaseout
dates were also received from the Methyl Bromide Working Group,
the Halogenated Solvents Industry Alliance (HSIA), the Association
of Home Appliance Manufacturers (AHAM), the Air-Conditioning
and Refrigeration Institute (ARI), BP Exploration (Alaska) Inc.
(BPX), and the Pharmaceutical Aerosol CFC Coalition (PACC) and
the American Lung Association (ALA). In addition, the Agency
received information from the public on methyl bromide in response
to an information request.
Today's action proposes regulations implementing the President's
announcement and the actions taken by the Fourth Meeting of
the Parties to the Montreal Protocol. It includes proposed dates
for interim reductions and the phaseout of Class I and Class
II substances. It also proposes to list and phase out methyl
bromide and HBFCs. It discusses the information submitted in
the petitions and responds to the petitions, as required by
section 602(c)(3) and section 606(b) of the Act. In addition,
today's action proposes to implement the decisions of the Parties
to the Montreal Protocol at their meeting in Copenhagen in
November,
1992. Finally, today's action proposes regulations implementing
the restrictions on trade with foreign states that have not
become Parties to the Montreal Protocol or to the London Amendments
that are to take effect in 1993.{4}
³{4} Additional trade bans set forth in the Copenhagen
³Amendments will be addressed in a subsequent rulemaking
³after those Amendments enter into force.
III. Proposed Amendments to the Regulations
A. Accelerated Phaseout of Class I Substances
1. Legal Authority
Section 606 of the Act provides the Administrator with authority
to accelerate the phaseout of ozone-depleting substances. That
section authorizes the Administrator to promulgate regulations
that establish a schedule for phasing out the production and
consumption of class I and class II substances (or use of class
II substances) that is more stringent than set forth in section
604 or 605, or both, 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 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 achievable,
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.
In making any determination under paragraphs (1) and (2),
the Administrator shall consider the status of the period remaining
under the applicable schedule under this title.
Section 606(b) provides that any person may petition the
Administrator to establish a more stringent phaseout schedule
and requires the Administrator to grant or deny any such petitions
within 180 days of receipt. It also provides that if the
Administrator
denies the petition, the Administrator shall publish an explanation
of why the petition was denied. If the Administrator grants
such petition, such final regulations shall be promulgated within
one year. Finally, section 606(b) states that any petition shall
include a showing by the petitioner that there are data adequate
to support the petition and that if the Administrator finds
that there is insufficient information to make a determination
under section 606, the Administrator shall use any authority
available to the Administrator to acquire such information.
Finally, section 614(b) states that in the case of any conflict
between any provision in Title VI and the Montreal Protocol,
the more stringent provision shall govern. Thus, since the phase-
out schedules adopted by the Fourth Meeting of the Parties are
more stringent than those contained in section 604, the adjustments
adopted by the Parties prevail. However, additional actions
under section 606 to even accelerate further the timetables
agreed to by the Parties are warranted if the conditions set
out in section 606(a) (1) or (2) are satisfied.
2. Proposed Phaseout Schedule
a. Existing Phaseout Schedule. The class I substances are
currently subject to the phaseout schedule laid out in section
604(a) of the Act, which limits production and consumption to
the following percentages of baseline levels each year:
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Group V ³ Other
Date ³ (carbon ³
(methyl ³ class I
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³ loride) ³
orm) ³ ces
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄ
³ ³
³
1991 ..................................... ³ 100 ³
100 ³ 85
1992 ..................................... ³ 90 ³
100 ³ 80
1993 ..................................... ³ 80 ³
90 ³ 75
1994 ..................................... ³ 70 ³
85 ³ 65
1995 ..................................... ³ 15 ³
70 ³ 50
1996 ..................................... ³ 15 ³
50 ³ 40
1997 ..................................... ³ 15 ³
50 ³ 15
1998 ..................................... ³ 15 ³
50 ³ 15
1999 ..................................... ³ 15 ³
50 ³ 15
2000 ..................................... ³ 0 ³
20 ³ 0
2001 ..................................... ³ 0 ³
20 ³ 0
2002{1} .................................. ³ 0 ³
0 ³ 0
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄ
{1}And each year thereafter.
b. Petitioners' and Commenters' Suggested Phaseout Schedules.
(i) NRDC/EDF/FOE Petition. The first petition under section
606 was submitted by NRDC, EDF and FOE on December 3, 1991.
These petitioners requested a complete phaseout of CFCs by January
1, 1995, a complete phaseout of halons and carbon tetrachloride
by January 1, 1992, and a complete phaseout of methyl chloroform
by January 1, 1993, with strict interim reductions specified
for each of the chemicals to be phased out later than 1992.
The petitioners cited recent scientific findings, including
the most recent scientific and environmental effects assessments
conducted under the Montreal Protocol. These assessments, the
petitioners maintained, demonstrate that CFCs and other halocarbon
compounds are causing far more rapid depletion of the stratospheric
ozone layer than was believed when Congress adopted the phaseout
schedule contained in section 604 of the Act. They also stated
that an accelerated phaseout would be technologically feasible
due to the availability of alternatives, a factor that they
contended provides an independent basis for accelerating the
current schedules. This petition also requested that the Agency
use its authority under section 303 of the Clean Air Act to
take emergency action to stop the production and consumption
of halons and methyl bromide in 1992 as "polluting activities
that present imminent and substantial danger to public health,
welfare, and the environment." While section 303 contains no
deadline for response to a petition, the petitioners requested
that the Administrator respond to this portion of the petition
within 30 days.
The phaseout schedule for class I substances suggested by
the petitioners is summarized in the following table:
Class I.-Phaseout Schedule Requested by NRDC/EDF/FOE
[Allowable production and consumption year (begin Jan. 1) as
percentage of
baseline]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄ
Substance ³
Percent ³ Year
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄ
³
³
CFCs ............................................... ³
40 ³ 1992
³
25 ³ 1993
³
15 ³ 1994
³
0 ³ 1995
Halons ............................................. ³
0 ³ 1992
Carbon Tetrachloride ............................... ³
0 ³ 1992
Methyl Chloroform .................................. ³
50 ³ 1992
³
0 ³ 1993
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄ
(ii) CFC Alliance Petition. On February 11, 1992, the Alliance
for a Responsible CFC Policy (the Alliance) also petitioned
the Agency to accelerate the phaseout of ozone-depleting chemicals.
The Alliance petition cited substantial technological advances
in developing alternatives to CFCs, as well as the announcements
over the last year concerning additional measurements of potential
ozone depletion around the globe as the bases for its call for
an accelerated phaseout. The Alliance petition proposed the
following allowable annual production schedule for CFCs:
CFC Phaseout Schedule
Requested by the CFC Alliance
[Allowable annual production
of 1986 quantities]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄ
Year ³ Percent
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄ
³
1993.............. ³ 50
1994.............. ³ 40
1995.............. ³ 25
1996.............. ³ ({1})
1996-1999......... ³ ({2})
2000.............. ³ 0
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄ
{1}0% for new equipment.
{2}Allocation for service of
equipment manufactured before
Jan. 1, 1996 (amount to be
determined).
Although the Alliance recommended an accelerated phaseout
schedule for CFCs, the trade group disagreed with the NRDC/EDF/FOE
petition's reliance on EPA's authority under section 606(a)(1),
which provides for an accelerated phaseout if an acceleration
of the phaseout schedule may be necessary to protect human health
and the environment against such effects. The Alliance stated
that the uncertainty of the science and the possible impacts
on human health and the environment due to ozone depletion would
not provide a solid basis for action solely under section
606(a)(1),
and suggested that the accelerated phaseout also be based on
the authority under section 606(a)(2) of the Act, which provides
for a more stringent schedule based on the availability of
substitutes
taking into account technological achievability, safety, and
other relevant factors. The Alliance petition stated that Congress
intended the Agency to apply the criteria in paragraphs (1)
and (2) jointly, not independently. In support of that contention,
the Alliance pointed to the last sentence in section 606(a)
which states that in making any determination under paragraphs
(1) and (2), the Administrator shall consider the status of
the period remaining under the applicable schedule under this
title. The Alliance suggested that Congress so qualified the
criteria of the two subsections to require EPA to consider the
practicality of accelerating the phaseout of these chemicals.
It stated that the technological progress that has been made
in reducing CFC usage and emissions, recovering and recycling
used CFCs, identifying potential alternative chemicals to assist
in the elimination of the fully halogenated compounds, and in
accelerating the normal commercialization process for these
new compounds and technologies warrants the acceleration of
the phaseout schedule for CFCs. While the Alliance encouraged
EPA to accelerate the phaseout, it believed that, taking
technological
feasibility into account, the phaseout could not be as rapid
as the earlier petitioners had suggested.
(iii) ARI Comments. The Air-Conditioning and Refrigeration
Institute (ARI) commented on the NRDC/EDF/FOE petition through
a letter to the EPA Administrator dated February 5, 1992. Many
of the ARI comments were similar to those voiced by the Alliance.
However, ARI specifically warned that the phaseout of class
I chemicals proposed by the NRDC/EDF/FOE petition would not
provide significant additional ozone protection over other possible
accelerated control schedules, yet could lead to other unintended
consequences such as increased global warming or major operating
disruptions for equipment users and the public. ARI suggested
that most refrigeration equipment manufacturers could not meet
the phaseout dates proposed in the NRDC/EDF/FOE petition, and
recommended the phaseout schedule proposed by the Alliance.
(iv) BPX Comments. BP Exploration (Alaska) Inc. (BPX) submitted
a response to the NRDC/EDF/FOE petition on January 10, 1992.
This company was concerned with the environmental groups' suggested
phaseout schedule for halons.
The company stated that "it may be possible to impose a
production
ban if that ban is deferred until a reliable and effective
mechanism
for banking and recycling halons can be established." It stated,
however, that "if EPA takes regulatory action before the rules
for such a `halon bank' have been worked out, and before the
bank itself has been established, the results will be both
environmentally
and economically counterproductive, as well as posing a safety
hazard."
BPX described the use of halons for oil field fire protection
on the North Slope of Alaska, and stated that no full substitute
for this essential halon use has yet been developed. The statement
contended that the environmental groups' petition "failed to
demonstrate that the essential users of halon can be supplied
with virgin or recycled product if an immediate production ban
is granted." BPX went on to state that such a ban would be
environmentally
counterproductive and stressed the importance of first developing
a full-fledged halon bank. BPX also stated that the phaseout
of HCFCs by 2000 would "only serve to defer the development
of non-ozone depleting chemicals, and would ultimately prolong
the use of CFC's and halons."
(v) PACC and ALA Comments. The Pharmaceutical Aerosol CFC
Coalition (PACC) and the American Lung Association (ALA) also
submitted comments on the Alliance and NRDC/EDF/FOE petitions.
These groups asked that EPA make special allowances for metered
dose inhalers (MDIs) if it accelerates the phaseout schedule
for CFCs.
The commenters stated that "[a]n enormous effort is underway
to find alternatives to CFCs in MDIs. Substantial progress is
being made, but, even with currently identified substitutes,
it will take at least until 1998 to 2000 before CFCs can be
eliminated from most MDIs." The groups cited the UNEP Technical
Options committee report on Aerosol Products, Sterilants,
Miscellaneous
Uses and Carbon Tetrachloride, which states that "CFC free
pressurized
inhalation aerosols will not be available until at least mid
1998, and in some cases not until the end of the century."
The commenters explained that "MDIs are pocket-sized aerosol
devices that deliver precisely-measured doses of therapeutic
drugs directly to the lungs" that are used for treating asthma
and various pulmonary diseases. They stated that one out of
every ten people in the U.S. and Europe use MDIs, and explained
that implementing substitutes is particularly difficult in this
area due to the extensive testing and government approval
procedures
that must be undergone before alternatives may be made available.
The commenters enclosed suggested language for the MDI exemption
and a detailed "Analysis of the Likely Availability of Substitutes
for the Use of CFCs in Metered Dose Inhalers."
(vi) HSIA Comments. The Halogenated Solvents Industry Alliance
(HSIA) also submitted comments on the NRDC/EDF/FOE petition's
phaseout schedule for carbon tetrachloride and methyl chloroform.
In regard to carbon tetrachloride, HSIA stated that perhaps
as little as three percent of the carbon tetrachloride manufactured
in this country is used in non-feedstock applications that are
subject to the phaseout. Moreover, it opposed the NRDC/EDF/FOE
suggested phaseout date of January 1, 1992 for these applications.
According to HSIA, a phaseout by this date would have drastic
adverse consequences for American industry without any significant
environmental benefits. The HSIA response stated that, "NRDC
contends that EPA may not consider technological achievability
in a decision to act under section 606(a)(1), arguing that
feasibility
concerns are limited to a consideration of acceleration under
section 606(a)(2). This argument disregards the language and
the intent of section 606 and the other provisions in Title
VI of the Clean Air Act." HSIA cited other portions of the title
where Congress specifically required that feasibility and the
technological availability of substitutes be considered. HSIA
also opposed the environmental groups' call for EPA to act under
section 303, stating that "legislative history indicates that
EPA may act immediately under section 303 only if a non-speculative
risk of substantial harm exists."
HSIA went on to state that scientific evidence does not support
the phaseout schedule suggested by the NRDC/EDF/FOE petition.
It noted that the most recent UNEP scientific assessment, while
concluding that harmful cumulative chlorine loading could be
reduced by advancing CFC and HCFC phaseout deadlines, did not
address the effect of a 1992 phaseout of carbon tetrachloride.
HSIA added that the regulations proposed under section 604 of
the Clean Air Act (56 FR 49548) would themselves result in an
accelerated phaseout because of the method of calculation of
the baseline consumption allowances, and went on to describe
the uses of carbon tetrachloride that would be affected by an
early phaseout, including its use for explosion prevention during
chlorine production, its use as a solvent or reaction medium
in the production of certain pesticides and pharmaceuticals,
chlorinated rubber, chlorosulfonated polyethylene, and in
laboratories.
HSIA stated that substitution for these applications is problematic
and will require significant research and development, citing
the UNEP Technical Report's statement that "in cases where
alternatives
cannot be found or the time frame for approval is lengthy,
continued
use [after a 1997 phaseout] may be required with appropriate
recovery and recycling controls being implemented." HSIA also
raised the issue of the involuntary production of carbon
tetrachloride
in other processes and warned that if destroyed controlled
substances
are not excluded from the definition of production, "many companies
would be forced to undertake enormously expensive alterations
of their production processes."
Regarding methyl chloroform, HSIA stated that the 1993 phaseout
of methyl chloroform suggested by the NRDC/EDF/FOE petition
is impractical, given the wide range of applications for this
chemical. It stated that this phaseout would seriously jeopardize
the health and safety of workers and consumers who would be
required to shift to alternatives that may prove more toxic,
and contribute to other environmental hazards. Indeed, the
commenter
stated that such a rapid phaseout of these chemicals, and adoption
of alternatives, would be contrary to the policy set out in
section 612 of the Act, which requires that class I and II
substances
be replaced by chemicals, product substitutes, or alternative
manufacturing processes that reduce overall risks to human health
and the environment. HSIA stated that the failure to take into
account the availability of safe alternatives would violate
EPA's responsibility under the Clean Air Act.
HSIA, like the Alliance, disputed the environmental groups'
claim that only section 606(a)(1) need be satisfied for the
Administrator to accelerate the phaseout. It argued that the
uncertainties of current scientific understanding regarding
the relationship between ozone-depleting chemicals and the harmful
effects of ozone depletion are great enough that any action
taken to accelerate the phaseout based on this one subparagraph
would be legally improper. Like the Alliance, HSIA remarked
that subparagraph 606(a)(2) must also be taken into account,
which provides for acceleration if it is practicable based on
the availability of substitutes, taking into account "technological
achievability, safety and other relevant factors." It argued
that the NRDC/EDF/FOE petition failed to consider such factors,
ignoring the possible adverse health and environmental effects
of the proposed phaseout schedule for methyl chloroform.
The HSIA comments cited the UNEP Technical Assessment as
a guide to when it would be possible to phase out methyl
chloroform.
This document discusses the solvent, coatings, and adhesive
uses of methyl chloroform and the technological feasibility
of replacing them with alternative chemicals and processes.
The report notes that for some applications of methyl chloroform,
no alternatives have yet been developed. The report also indicates
that many of the potential alternatives in precision cleaning,
adhesives and coatings and inks are emerging technologies that
are not yet commercially available. The UNEP assessment further
reported that alternative technologies pose significant potential
problems, such as greater flammability, toxicity, and atmospheric
pollution as a result of volatile organic compound (VOC) emissions.
HSIA proposed that the United States review the schedule
for phasing out methyl chloroform that is discussed in the UNEP
Assessment. The UNEP document states that developed countries
that have moved aggressively in this area (termed "head-start"
countries) are on course for a phaseout between 1992 and 1994,
while other developed countries appear capable of phasing out
this chemical between 1995 and 2000. For developing countries,
the assessment concludes that the use of this chemical could
be eliminated between 1992 and 2002. HSIA stated, however, that
the assessment report notes the difficulties of the transition.
The Assessment states that such schedules "require prompt decisions
to enable suppliers and customers time to select, manufacture,
and implement the new processes, equipment or chemicals. It
can take several years for some or many solvent users to form
the process conversion team and to identify, evaluate, select,
specify, purchase, install, start-up, and qualify the equipment
and processes."
c. EPA's Response to Petitions and Comments. (i) Use of section
303 to Accelerate the Phaseout. In a letter to the NRDC/EDF/FOE
petitioners dated December 30, 1991, the Agency declined to
use section 303 to take emergency action (as requested by the
petitioners). Although protection of the stratospheric ozone
layer requires prompt attention, the Agency believes it prudent
to examine different reduction schedules and to receive and
review public comment on the impact that different schedules
may have in terms of environmental protection and social costs.
The Agency believes that section 606(b) provides for a review
process for any petition to accelerate the phaseout schedule.
Under that section, the Administrator must either grant or deny
the petition. If the Administrator grants the petition, final
action must be taken within one year. Given that Congress
anticipated
the possibility of an accelerated phaseout and called for
rulemaking
to effect such a change, EPA believes that use of section 303
to accelerate the phaseout would be inappropriate unless only
immediate action were capable of avoiding the potential harm.
(ii) Use of Authority under Both Paragraphs of section 606(a).
As explained earlier section 606(a) of the Act sets forth the
criteria on which EPA is to base a decision to accelerate the
phaseout schedule for ozone-depleting substances. The accelerated
schedules proposed today are justified under both sections
606(a)(1)
(necessary to protect human and the environment) and 606(a)(2)
(technologically feasible).
Recent scientific evidence, including the latest of the Montreal
Protocol assessments provide ample "credible" evidence of the
need for further reductions. As discussed above, the latest
scientific evidence provided by NASA and the UNEP assessment
demonstrates that ozone depletion is occurring at a far more
rapid rate than was thought to be the case at the time of the
enactment of the 1990 Clean Air Act Amendments. This evidence
clearly warrants an acceleration of the phaseout schedule. With
respect to section 606(a)(2), the substantial reductions in
production of class I substances highlight the progress being
made in shifting to alternatives. Furthermore, the latest UNEP
Technology Assessment provides adequate documentation of the
technological feasibility of accelerating the phaseout of these
chemicals.
Section 606(a)(3) also provides authority for implementing
the adjustments to the Protocol agreed to at the Fourth Meeting
of the Parties, i.e., the acceleration of the phaseouts of CFCs,
halons, carbon tetrachloride, and methyl chloroform. Although
the adjustments have not yet entered into force, under paragraph
9 of Article 2 of the Protocol they will take effect six-months
after the essentially ministerial task of circulating the
adjustments
to the Parties is completed. Unlike amendments, adjustment do
not need to be ratified by a specified number of Parties before
they enter into force. By the time this rule is promulgated,
the adjustments will have been circulated and be due to take
effect by a date certain. Thus, EPA believes that section 606(a)(3)
provides additional authority for accelerating the phaseout
of class I substances at this time.
With respect to amendments that accelerate the phaseout of
substances listed under the CAA, such as HCFCs, section 606(a)(3)
provides additional authority for the acceleration of their
phaseout schedules once the amendments have been ratified by
the necessary 20 Parties and all that remains is the passage
of time before the amendments enter into force.
EPA also notes that section 614 of the CAA, which provides
that in the case of a conflict between Title VI of the CAA and
the Protocol, the more stringent of the two controls, requires
the Agency to establish phaseout schedules at least as stringent
as the accelerated ones agreed to by the Parties. The phaseout
schedules that the Agency is proposing today are at least as
stringent as those required by the adjustments to the Protocol.
The final phaseout dates that are proposed for all class
I substances are the same as those in the new adjustments. The
interim reductions proposed for CFCs and methyl chloroform in
1994 and for carbon tetrachloride in 1995 are also identical
to those contained in the adjustments. The other proposed interim
reductions are more stringent than those contained in the
adjustments.
These are being proposed under the authority granted in section
606 (a)(1) and (2).
EPA believes that an acceleration of the phaseout can be
justified under either paragraph (1) or paragraph (2) of section
606(a)), but that even if EPA determines that an accelerated
schedule is warranted based solely on an assessment of credible
scientific information under paragraph (1), it can take into
account the availability of substitutes in determining the specific
accelerated schedule that it promulgates. Thus, EPA does not
agree with the contention in the NRDC/EDF/FOE petition that
EPA is not "permitted to consider the availability of substitutes
when making" determinations under section 606(a)(1) (see petition
at p. 17 n. 10)
EPA believes that this view is reasonable and supported by
both the language and the legislative history of the 1990 Clean
Air Act Amendments. The last sentence of section 606(a) provides
that in making any determination under paragraphs (1) and (2),
the Administrator shall consider the status of the period remaining
under the applicable schedule under this title (emphasis added).
Implicit in the sentence is the notion that EPA will consider
both environmental need and technological achievability in making
"any" determination to accelerate the phaseout schedule. On
its face, the sentence provides that even when making a decision
regarding acceleration pursuant to paragraph (1), EPA is to
"consider the status of the period remaining under the applicable
schedule." This connotes that EPA is to consider the practicality
of an accelerated schedule, including the availability of
substitutes.
Even apart from the language at the end of section 606(a),
which was added during the House-Senate Conference on the 1990
Clean Air Act Amendments, EPA believes it has the authority
to take into account the technological achievability of a specific
schedule in accelerating a phaseout schedule on the basis of
scientific findings. Congress itself recognized the linkage
between the need to phaseout the production and consumption
ozone-depleting chemicals to protect the environment and human
health and the availability of substitutes for those chemicals.
Even though it was understood that any delay in phasing out
ozone-depleting substances would delay a return to normal ozone
levels, Congress did not require an immediate phaseout. Instead,
Congress established a schedule phasing out the chemicals over
a period of several years to allow time for substitutes to be
developed and for affected industries to adjust.
The Senate Environment and Public Works Committee noted that
the "importance of accelerating the phaseout schedule is reflected
in the estimate, presented by expert witnesses, that a three
to five year delay in the phaseout deadline translates into
an additional 20 to 30 years of elevated chlorine levels in
the atmosphere. An additional 20 years of elevated chlorine
levels presents an unacceptable risk that must be avoided if
it is at all possible to do so." (S. Comm. Rep. No. 101-228
at 394.) Furthermore, with respect to a provision concerning
the phaseout of HCFCs, the Committee Report stated that it must
be recognized "that the goal of eliminating the potent, long-
lived CFCs as rapidly as possible is, to some extent, dependent
on the near-term availability of HCFCs as intermediate substitutes
* * *." (Id. at 395.) Thus, the Senate clearly recognized that
the availability of substitutes had to be taken into account
in determining how quickly CFCs could be phased out,
notwithstanding
the environmental benefits that would result from an even more
rapid phaseout.
Moreover, in explaining the provision of the Senate Committee
Bill concerning the acceleration of the phaseout schedule, which
provided for EPA to accelerate the schedule if any of three
criteria substantially identical to those in the Amendments
were met, the Committee stated that "[i]n keeping with the national
policy of eliminating the production before the year 2000, to
the maximum extent practicable, the Administrator is directed
to determine no less often than every 18 months whether any
of three conditions requiring acceleration of the schedule has
been satisfied." (S. Comm. Rep. No. 101-228, Dec. 20, 1989,
at 393., emphasis added.) The Committee's use of the terms "as
rapidly as possible" and "to the maximum extent practicable,"
demonstrates its recognition of the role of considerations other
than strictly scientific ones in the application of section
606(a).
The dates called for by the NRDC/EDF/FOE petition itself
suggest some consideration of practicality is necessary. Although
the scientific evidence they cite indicates that an immediate
phaseout would benefit the ozone layer and thus human health
and the environment, they call for a phaseout over several years
in the case of some of the more depleting substances. Their
position only confirms the reasonableness of considering
technological
feasibility in setting the phaseout schedule.
This does not mean that the Administrator is limited by the
current availability of substitutes in determining an appropriate
phaseout schedule. In taking the availability of substitutes
into account, the Administrator may consider the future potential
for substitutes and adopt a phaseout schedule that will be
technology
forcing by inducing the development of substitutes on a more
accelerated pace than would otherwise have been the case. This
is confirmed by the same Senate Committee Report that indicated
a role for technological factors in the establishment of a phaseout
schedule. The report notes that a unilateral acceleration of
the phaseout schedule by the Administrator may be necessary
"to accelerate technological developments." (Id. at 393.)
(iii) The Proposed Schedule. The Agency is proposing today
to phase out the production and consumption of all currently-
listed class I substances except halons by January 1, 1996.
Limited exemptions as adopted by the Montreal Protocol Parties
in Copenhagen would be allowed from the phaseout to the extent
permitted by the Act. This proposal effectively implements the
adjustments for these chemicals adopted by the Protocol Parties
at the Copenhagen meeting and President Bush's February 1992
announcement.
The proposal also calls for phaseout of halons by January
1, 1994 and consistent with what was decided during the recent
meeting of the Parties to the Protocol. In addition to these
phaseout dates, EPA is proposing the following interim reductions
for the class I substances based in part on the adjustments
adopted at the Fourth Meeting of the Parties and in part on
the expected shift out of these substances by key use sectors
consistent with requirements of section 606(a)(1) and (2):
Proposed Schedule for CFCs and Halons{1}
[Allowed percentage of baseline production and
consumption]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³
Percent
Year (beginning January 1)
ÃÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄ
³ CFCs
³ Halons
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄ
³
³
1994................................................. ³
25 ³ 0
1995................................................. ³
15 ³ 0
1996................................................. ³
0 ³ 0
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄ
{1}Subject to specified exceptions.
Proposed Schedule for Carbon Tetrachloride and Methyle
Chloroform{1}
[Allowed percentage of baseline production and
consumption]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³
Percent
Year (beginning January 1)
ÃÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ CCL4
³ C2H3CL3
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³
³
1994................................................ ³ 50
³ 50
1995................................................ ³ 15
³ 30
1996................................................ ³ 0
³ 0
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
{1}Subject to specified exceptions for essential uses.
President Bush in his February 1992 announcement called for
voluntary reductions to 50 percent of baseline levels during
1992. The Agency believes that the proposed reductions in
production
and consumption were likely to have been met for CFCs and halons,
but that a 50 percent reduction for methyl chloroform (1,1,1-
trichloroethane, CASRN 79-00-5) and carbon tetrachloride
(tetrachloromethane,
CASRN 56-23-5), which entails much larger cuts from 1991 levels,
would not have been achieved. The percentages allowed in section
604 for 1991 for methyl chloroform and carbon tetrachloride
are 100%. As a result, companies have been producing and using
these materials at higher levels than CFCs and halons. The proposed
schedule envisions that the 50% level would be achieved in 1994
for these two compounds.
To assess the potential impact and cost of various phaseout
schedules, the Agency used a modeling analysis of the available
substitutes and expected phaseout dates for each use sector.
(See the results of the Integrated Assessment Model in the
Regulatory
Impact Analysis and Appendices as prepared for this rulemaking).
The Integrated Assessment Model analyzes the costs of reducing
ozone-depleting substance use in different sectors and ranks
each of these "controls" by cost. The least costly controls
are then selected for each year and the volume reductions for
each control are determined. These volumes are then converted
to percentages of baseline production levels. This analysis
demonstrates the likely feasibility of the proposed phase-out
schedules contained in this proposal.
Based on this analysis and on the UNEP Technical Assessment,
EPA expects technological progress regarding the development
and availability of substitutes to continue. Alternatives are
now being introduced in the market and commitments to shift
to alternatives have already been publicly announced by major
use sectors. This progress makes it feasible, in the case of
CFCs, to require an additional 25 percent reduction in 1994
beyond the 50 percent called for in 1992, and an additional
10 percent reduction in 1995. In the case of carbon tetrachloride
and methyl chloroform, EPA believes that interim cuts cannot
be quite as deep, because of the large number of diverse small
users and the wider range of alternatives these users are likely
to adopt. This is particularly true in the case of methyl
chloroform
as noted earlier, unlike CFCs and halons, these chemicals have
only been regulated since 1991. As a result, users are just
beginning to reduce their use. The following sections describe
the basis for these interim steps.
For CFCs in the foams sector, the "technologically feasible
phaseout" date determined by the Assessment Panel for different
types of foam ranges from 1991 to 1995. The extruded polystyrene
sheet industry has already moved out of CFCs (to HCFC-22 and
pentane), as has the extruded polystyrene boardstock foam industry
(to HCFC-142b/22). Polyurethane foam used in boardstock insulation
and in insulation in refrigeration units remains the largest
single use of CFCs. It constituted 9.2 percent of total CFC
use in 1986. The boardstock industry is anticipating a shift
to HCFCs (generally HCFC-141b) in 1993. The boardstock
manufacturers
anticipate that the shift will be completed by January 1, 1994,
which is also when favorable CFC tax treatment ends for this
sector. The compound HCFC-141b will have completed toxicity
testing and be available in commercial quantities beginning
in 1993. Reductions in the foams sector are expected to be 18.1
percent of baseline year CFC production in 1993, 31.9 percent
in 1994, and 32.3 percent in 1995.
Use of CFC-113 in the United States has already been
substantially
reduced. Many of the largest solvent users have established
ambitious corporate goals for elimination of CFC-113 and are
well along in meeting these goals. For example, Northern Telecom
became the first major company to successfully implement its
commitment to eliminate its use of ozone-depleting solvents
at the end of 1991. Further significant reductions are likely
in the next several years as more firms adopt CFC-free technologies
such as aqueous and semi-aqueous cleaners, no-clean fluxes,
hydrocarbon solvents, and controlled atmosphere soldering. Many
of these processes have now been adopted by industry leaders
with widespread reports of cost savings. This process will be
further accelerated as the Department of Defense continues the
process of modifying its procurement specifications and existing
contracts to allow for additional use of alternatives. EPA
anticipates
an additional reduction in CFC-113 use in 1993 and 1994 with
nearly complete elimination by end of 1994 (Montreal Protocol
1991 Assessment: Report of the Solvents, Coatings and Adhesives
Technical Options Committee). The modelling analysis predicts
reductions from total 1986 use levels in the solvents sector
of 13.3 percent in 1993, 15.1 percent in 1994, and 16.5 percent
in 1995.
Significant reductions are also occurring and planned for
the refrigeration sectors. These are predicted to amount to
7.3 percent of 1986 total use levels in 1993, 9.2 percent in
1994, and 11.2 percent in 1995. For chillers, substitutes including
HCFC-123 and -22 have already been introduced into the market
place for new equipment. In addition, increased recycling, the
use of purge emission reduction equipment, and retrofits to
alternatives are also reducing emissions and demand. In the
motor vehicle sector, the first cars with HFC-134a air conditioning
systems are now being sold. One major automobile manufacturer
(Volvo) has committed to shifting its entire fleet out of CFCs
by the end of 1993 and all U.S. companies have committed to
being out by the end of 1994. Furthermore, emissions at servicing
will be reduced through mandatory recycling as required under
section 609 of the Act.
From discussions with the major producers of the CFCs, the
Agency believes that all intended to comply with the President's
voluntary request to reduce by 50 percent in 1992 (see press
releases from Allied-Signal, Dupont and Elf Atochem). Given
the actions to shift away from CFCs that are planned in 1993,
an additional 25 percent reduction in 1994 beyond the 1992
reduction
should not prove to be problematic. Impact analyses show, however,
that the reductions suggested by the environmental groups (75
percent in 1993, 85 percent in 1994, 100 percent in 1995), would
be inordinately burdensome with little effect on ozone depletion.
EPA believes that the phaseout schedule proposed by the
environmental
groups would not be feasible due to the burdens it would place
on the industry infrastructure necessary to support the deployment
of new technologies.
In total, the Agency believes that an additional drop in
production and consumption in 1994 should not prove difficult.
The Alliance schedule suggests that a drop of an additional
ten percent would not be problematic, and in light of the Agency's
estimates of potential reductions, represents a conservative
estimate of needed ozone-depleting substances in 1994. Assuming
a 50 percent reduction was achieved in 1992, additional reductions
in 1993 and 1994 in the boardstock sector, in new motor vehicle
and building air-conditioning equipment, in further solvent
reductions, and through recycling and recovery will allow total
reductions of 75 percent or more. CFC production shows that
between 1990 and 1991 alone, a drop of 11 percent of baseline
levels occurred (from 64 percent to 53 percent). If such a rapid
reduction rate were to continue, CFC production in 1992 could
be expected to be at 42 percent of baseline levels, 31 percent
in 1993, 20 percent in 1994, and 9 percent in 1995, falling
to zero after that year. Even taking into account possible setbacks
in substitute development in the final stages of the phaseout,
a 75 percent reduction in 1994 and further 10 percent reduction
in 1995 with a complete phaseout in 1996 appears reasonable
for the CFCs. Moreover, the 75 percent reduction in 1994 and
the completed phaseout in 1996 are required as a consequence
of the adjustments to the Protocol. While the Agency believes
that its proposed schedule represents a reasonable judgment
as to the most rapid phaseout feasible, the Agency requests
comments on whether a more rapid phaseout schedule should be
required.
EPA is not requiring a mandatory reduction in 1993 beyond
that already specified in section 604 and the current regulations.
It is not taking this step because the regulated community would
have inadequate action of any further reduction since this
rulemaking
will not be completed until sometime during 1993 control period.
Nonetheless, EPA believes that additional reductions beyond
the 50 percent level called for in 1992 can and will be achieved
this year and are necessary in order to ensure a smooth transition
to the 75 percent reduction required in 1994. For example, EPA
believes that significant reductions will be achieved in 1993
in the insulating foam sector as they complete their shift to
HCFC-141b and in the automobile sector where additional lines
of car models will shift to air conditioning units with HFC-
134a.
In addition to efforts by new equipment manufacturers to
shift out of CFCs, EPA believes that further reductions this
and in future years are essential in the area of servicing existing
equipment in order to minimize economic consequences of a 1996
phase-out of CFC production. Full implementation of recycling
requirements for both vehicle and stationery air conditioning
and refrigeration equipment, as now required by law, will provide
some significant reductions in emissions. Beyond this important
immediate step, firms that own air conditioning and refrigeration
equipment must begin acting now to retrofit this equipment or
to purchase replacement equipment that utilizes substitutes.
Retrofit options and replacements using alternative refrigerants
are now available for virtually all equipment. Failure by equipment
owners to act now will likely cause a bottleneck in replacement
and retrofit equipment delivery and could cause shortages and
unwarranted price increases. EPA has recently initiated a program
to work closely with building and equipment owners to assist
them in their efforts to retrofit or replace equipment that
may not be serviceable after the production phase-out on January
1, 1996.
Halon reductions worldwide also appear to be occurring at
a rapid rate. The worldwide reduction in halon production from
1989 to 1990 was equal to 14 percent of baseline levels (from
108 percent in 1989 to 96 percent in 1990), with further
significant
reductions achieved in 1991 and with reductions of 50 percent
anticipated in 1992.
Due to the rapid fall-off in production and use, the Agency
believes that halon production and consumption may be eliminated
by the end of 1993. The halon sector has made significant progress
in eliminating the unnecessary release of halons through
conservation.
The Agency is working closely with the military and industry
to establish halon banks, potentially large reservoirs of halon
that could service the fire protection business for necessary
applications far into the future.
The 1991 "Report of the Halon Technical Options Committee"
stated that the bank of Halon 1211 should be sufficient to maintain
existing equipment using recycled halon, with minimal difficulty.
The Committee estimated that the bank of Halon 1301 will be
adequate to supply maintenance quantities for equipment for
at least 40 years after production ceases. Although these estimates
are based on a 2000 phaseout, the differences between available
recycled halon with a 2000 phaseout and a 1994 phaseout, relative
to the 1986 baseline, are small. For example, for Halon 1211,
the Committee estimated that 11 percent of the 1986 baseline
will be available after a 2000 phaseout, while slightly less
than 10 percent will be available after a 1994 phaseout. For
Halon 1301, 54 percent will be available after a 2000 phaseout;
around 40 percent of baseline will be available after a 1994
phaseout. The Agency believes that a phaseout is achievable
and appropriately balances the continued need for halons to
protect against fires with their impact on ozone depletion.
The Report of the Halon Technical Options Committee states,
"an orderly transition to alternative fire protection measures,
establishment of procedures to adequately manage the bank of
halons, and increased efforts to develop transitional and eventual
replacement fire extinguishing agents with the beneficial
characteristics
of the present halons are all steps that may minimize the loss
of fire protection capability represented by the phaseout of
halons." The Agency will continue to work to maximize these
efforts but recognizes that a limited essential use exemption
may be necessary depending on the success of halon banking.
Section 3 below discusses the criteria and procedures for
requesting
such an exemption. EPA is also requesting that halon producers
and users reduce to 30 percent of their allowable 1986 baseline
level in 1993. As discussed above, EPA is not mandating this
requirement for 1993 because the timing of the rulemaking would
require that the provision be applied retroactively. Nonetheless,
the Agency is requesting that halon producers and importers
continue to make progress toward an orderly phase-out by 1994
by voluntarily reducing to 30 percent of their baseline in 1993.
This additional reduction beyond the 50 percent requested in
1992 is particularly critical to the early development of halon
banking systems. Only once halon supply from new production
becomes unavailable will users look to alternative sources
including
halon banking programs. Since halon banking systems are critical
to meeting the longer term critical needs of halon users, the
development of these programs at this date is critical to a
successful production phase-out by 1994. EPA is requesting the
producers and importers of halons commit to this voluntary interim
reduction step and will monitor progress toward meeting this
target through the quarterly reporting required by regulation.
Currently, methyl chloroform is used in the following
applications:
Solvent cleaning (64 percent), aerosols (13 percent), adhesives
(ten percent), coatings and inks (six percent), and miscellaneous
uses (six percent) within the United States. Although the Agency
believes that these sectors face obstacles to the elimination
of methyl chloroform by 1996, significant strides have already
been made by these sectors to find alternatives to methyl
chloroform.
The Agency believes that further reductions can be realized
in the near term within the coatings and inks sectors,
miscellaneous
use sectors and adhesives, and in the use of methyl chloroform
in solvent cleaning.
The coatings and inks sectors can readily move toward
commercially
available technologies. Such alternatives include water based
coatings and inks, high solid coatings, and powder coatings.
The 1991 UNEP Technical Assessment reports that alternatives
are available for most miscellaneous applications including
carriers for coating and impregnation, vapor soldering, component
drying, riveting and machining, fabric protection, semiconductor
manufacturing and mold release agents. Although there are some
categories such as pre-surgical skin cleaning and other small
medical applications, motion picture film cleaning and other
small applications for which substitutes are not yet available,
the industry will likely find a alternatives prior to 1996.
The Agency believes that these are minor sectors.
The use of methyl chloroform in degreasing can be significantly
reduced through improved housekeeping and the use of available
alternative technologies such as aqueous and semi-aqueous cleaners,
as well as no-clean fluxes. Finally, the Agency believes that
substitutes for methyl chloroform for adhesives will depend
on a mix of commercially available and developing technologies.
Commercially available alternatives include hydrocarbon solvent-
based, water-based adhesives, hot melt systems, and solvent
recovery systems in continuous operations. Emerging technologies
include radiation-cured adhesives, "high solids" adhesives,
powders, and reactive liquids. In 1991, the 3M Company, a major
producer of adhesives, announced a goal to phase out of its
use of methyl chloroform by the end of 1992.
Based on this information, the Agency believes that the combined
miscellaneous sector, coatings and inks and adhesives sectors,
and metal-cleaning applications can reduce the total use of
methyl chloroform by 50 percent in 1994. Although the controls
mentioned above will not service the entire metal cleaning sectors,
it is likely that these controls will displace a significant
volume of methyl chloroform so that a 50% reduction from baseline
levels can be made in 1994.
Further, the additional 20 percent reductions called for
in 1995 also appear feasible. The largest use of methyl chloroform
is in the solvent cleaning sector. The reductions for this sector
are expected to be 27.9 percent of baseline production levels
in 1993, 37.9 percent in 1994, and 51.0 percent in 1995. There
is a large aqueous cleaning network already supplying the metal
cleaning sector that could expand to absorb some of the current
uses of methyl chloroform. Semi-aqueous systems will provide
a similar option to the aqueous systems. The phaseout of methyl
chloroform may force users to switch to chlorinated substances
and non-halogenated organic solvents. In such cases, the use
of new, low emission equipment will be essential to minimize
worker exposure. As for the electronics sector's use of methyl
chloroform, a wide variety of replacement chemicals now being
employed as substitutes for CFC-113 are available, effective
and affordable. Alternative processes such as aqueous and semi-
aqueous cleaning and alcohol, no-clean fluxes, and controlled
atmosphere are also widely accepted by industry. If work continues
rapidly in these remaining sectors, the Agency believes that
methyl chloroform can be phased out by the end of 1995. Based
on the rapid development of CFC alternatives over the last four
years, the Agency believes that zero production by 1996 is
achievable,
with exemptions as permitted by the CAA for essential uses where
no safe and effective alternative exists. Moreover, the 50 percent
reduction in 1994 and phaseout by January 1, 1996, are required
by the recently adopted adjustments to the Protocol.
In the case of methyl chloroform progress to date in the
reduction of production and consumption has been slower. In
fact, 1992 production during the first 9-months of the year
appears to have remained roughly equal to that of 1991. As a
result, it is critical that efforts be accelerated to shift
to alternatives by sectors using this compound. Failure to make
such a shift in a timely manner will create severe economic
hardship as the 1996 phase-out date approaches. To facilitate
a more orderly transition to alternatives, EPA is requesting
that producers and importers reduce voluntarily their production
and consumption to 60 percent of their allowable levels in 1993.
This reduction will continue to limit the availability of methyl
chloroform to user firms, thus encouraging them to shift to
alternatives at the earliest possible time, rather than postpone
shifting to alternatives until supplies are reduced further
in future years. EPA requests that producers and importers commit
to meeting this 1993 voluntary target. The Agency will monitor
progress toward meeting this voluntary goal through quarterly
reports required by regulation.
For carbon tetrachloride, a 50 percent reduction in 1994,
and an 85 percent reduction in 1995 (the same reduction required
for that year under the Protocol) is expected to be attainable.
As stated in the UNEP Assessment, "most carbon tetrachloride
is used in the manufacture of CFCs or other chemicals.
Non-feedstock
uses such as solvent cleaning, laboratory use and miscellaneous
solvent applications have a number of substitutes." The report
of the Montreal Protocol Technical Options Committee states
that "there are a number of dispersive uses of CTC such as its
use as a cleaning solvent, which can be substituted in the short
term (two to three years) by the use of currently available
alternatives. This should enable some reductions in usage."
It also cites some applications (e.g., use as an inert solvent
in chlorination reactions) in which emissions can be "virtually
eliminated" and thus production curtailed, in spite of the lack
of alternatives.
The UNEP Assessment cites certain "low volume" uses for which
substitutes are still being sought. EPA expects that the 15
percent of baseline levels established by the Clean Air Act
and available until 1996 will be sufficient to supply any such
"minor uses" for which substitute development is problematic.
Some of those may indeed be exempted from the accelerated phaseout
date if deemed essential. The UNEP assessment states that "it
should be possible to phase out carbon tetrachloride use in
non-feedstock applications by the year 1995 and in specialty
use by 1997." Such uses may be classified as "essential uses"
as discussed in section III.A.3. of this document.
EPA believes that the interim reductions and final phase-
out dates proposed here represent an aggressive yet feasible
schedule for reductions in ozone-depleting substance production
and consumption. The Agency requests comment on the proposed
phaseout schedules and on the size and utility of annual interim
reductions contained in this proposal.
3. Limited Exemptions to Production and Consumption Phase-Out
The Parties to the Montreal Protocol agreed at the 1992 meeting
in Copenhagen to exempt essential uses of controlled substances
from the production and consumption limits of Article 2 of the
Protocol. Language regarding essential uses was added to the
Protocol provisions in Article 2 governing the control measures.
(See Decision IV/25 of the Fourth Meeting of the Parties to
the Montreal Protocol). The Parties recognized the importance
of timing in specifying exemptions, especially with regard to
halons, in view of the acceleration of the phaseout dates for
these chemicals. The Parties will decide on essential use
exemptions
for halons at the Fifth Meeting of the Parties anticipated in
the fall of 1993 and essential use exemptions for the remaining
substances at the Sixth Meeting of the Parties in approximately
September 1994 and at subsequent meetings as necessary.
The Parties set out criteria in Copenhagen to identify essential
uses. Decision IV/25 states that a controlled substance should
qualify as "essential" only if "it is necessary for the health,
safety or is critical for the functioning of society (encompassing
cultural and intellectual aspects)" and "there are no available
technically and economically feasible alternatives or substitutes
that are acceptable from the standpoint of environment and health".
In addition, the Parties agreed "that production and consumption,
if any, of a controlled substance, for essential uses should
be permitted only if: all economically feasible steps have been
taken to minimize the essential use and any associated emission
of the controlled substance; and the controlled substance is
not available in sufficient quantity and quality from the existing
stocks of banked or recycled controlled substances."
Any essential use exemptions would also have to comply with
the provisions of the Clean Air Act. Section 604 sets forth
specific exemptions from the phaseout schedules contained in
the Clean Air Act. To the extent that an accelerated phaseout
schedule is adopted, EPA could provide exemptions beyond those
specified in the Act so long as these exemptions do not result
in an exceedence of the schedule contained in section 604(a).
Since section 604(b) specifies the phaseout date for class I
substances, that section effectively limits the authority of
the Agency to provide essential use exemptions for periods after
the termination dates (2000 for all class I substances other
than methyl chloroform and 2002 in the case of methyl chloroform).
The exemptions outlined in section 604 are limited in scope,
amount and time. Section 604(d)(1) allows essential use exemptions
for methyl chloroform beginning in 2002, the first year of its
complete phaseout under section 604(a), and extending through
2004. Section 604(d)(2) allows essential use exemptions for
the use of any class I substance in medical devices, and section
604(d)(3) allows exceptions for limited quantities of halons
solely for purposes of aviation safety. Exceptions under section
604(d) are limited to annual quantities no greater than 10 percent
of the baseline year production of the person receiving the
exception. Section 604(f) permits the President to issue exemptions
for the production and use of CFC-114 and halons if necessary
for national security. (This subsection does not provide such
authority to EPA.) Finally, section 604(g) permits the Agency
to authorize production of halons for fire suppression and
explosion
prevention, but expressly provides that the Administrator may
not grant such exceptions after 1999. However, section 604(g)(3),
provides the authority to grant exceptions through 2004 for
halons used on the North Slope of Alaska.
In sum, for the period between the accelerated phase-out
schedule adopted in Copenhagen and the schedule contained in
Section 604 of the CAA, decisions taken by the Parties to the
Protocol shall govern whether or not exemptions can be granted
in the United States. For the period following the phase-out
schedule in 604 limitations on the grant of exemptions contained
in the CAA must also be satisfied and any such exemptions must
be consistent with both the Montreal Protocol and the CAA.
The need for essential use exemptions for halon will largely
depend on the success of programs to reallocate halons stored
in existing systems where other alternatives are suitable to
more necessary applications. Given that efforts to initiate
such "halon banking" have only recently begun, EPA urges all
halon users to act quickly to assess their current use of these
compounds and to determine if alternative approaches to fire
protection are feasible. If so, the Agency encourages users
to contribute any unneeded halon to one of the banking programs
currently being established. EPA's Stratospheric Ozone Hotline
(1-800-296-1996) should be contacted to obtain information about
halon banking.
If a halon user determines that other alternatives are not
feasible and that sources of future supply are not available,
it should prepare an essential use application to EPA as described
below.
In the case of other Class I substances (i.e., CFCs, methyl
chloroform and carbon tetrachloride), EPA encourages these users
to continue to explore alternatives until applications for
exemptions
are required to initiate the Protocol exemption approval procedures
on approximately January 1, 1994. EPA believes that any essential
use determinations for these compounds would be premature at
this time, and that given the rapid pace of technological progress,
the burden will be upon the petitioner to demonstrate the need
for the exemption. For example, EPA recognizes that the use
of CFCs in metered dose inhalers might represent one example
where alternatives might not be available by January 1, 1996
because of extensive testing and approval requirements. This
use would clearly qualify under the health and safety criteria
established by the Parties of the Protocol and may also qualify
under the CAA's medical device exception. Whether an exemption
would be granted for production to service existing refrigeration
and air conditioning equipment would depend on a number of factors
including: whether adequate supplies were available from recycling
and recovery at disposal, whether economically feasible retrofit
or replacement of equipment were viable; and whether such use
was considered by the Parties to meet the criteria of health,
safety or critical functioning of society. EPA will continue
to work closely with these sectors to ensure the smoothest possible
transition to alternatives and to minimize costs of the phase-
out.
Under the Copenhagen agreements, Parties must submit their
nominations to the Secretariat for halon essential uses at least
six months before the meeting at which the decision will be
taken (e.g., by April 1993 for the Fifth Meeting of the Parties
which may be held as early as October 1993, and nine months
before the Sixth Meeting of the Parties schedule for Fall 1994
for the other chemicals. Thus, the first step in the process
to qualify a use as essential is for a user firm, association
or government agency to notify EPA of its candidate use and
for EPA together with other relevant agencies to evaluate whether
or not that use appears consistent with the criteria adopted
by the Parties in Copenhagen. The U.S. government will review
the candidate for exemption and, through coordination and review
with other relevant federal agencies, determine whether or not
it should be nominated for evaluation by the Protocol Parties.
This assessment will be performed by EPA as the lead agency,
with other agencies and departments providing technical expertise
where appropriate. Based on nominations made by Parties to the
Protocol, the Technology and Economic Assessment Panel will
review such submissions and prepare recommendations to the Parties
for exemptions. The Panel will review these nominations to
determine
whether the eligibility criteria have been satisfied and has
been directed by the Parties to examine the expected duration
for the essential use, emission controls for the essential use
application, sources of already produced controlled substances
for the essential use, and the steps necessary to ensure that
alternatives and substitutes are available as soon as possible
for the proposed essential use. The Parties also instructed
the Technical Panel to consider the environmental acceptability,
health effects, economic feasibility, availability and regulatory
status of alternatives and substitutes.
The Technical Panel must submit its report to the Parties
at least three months before the Parties meet to designate
essential
uses. Thus, the Panel must submit recommendations for halons
by July 1, 1993 and for the other controlled substances by the
summer of 1994.
In order to meet these tight deadlines, the U.S. government
must act quickly, and through this action and an independent
notice issued earlier (57 FR 6786) requests nominations for
the essential use exemptions for halons. Recommendations for
essential use exemptions for halon should be submitted to the
Agency no later than (one month after date of publication) in
order for EPA and other agencies to have adequate time to review
the information prior to the deadline for submitting nominations
to the Secretariat. Nominations for essential uses to be determined
at the Sixth Meeting of the Parties for the other controlled
substances are requested by January 1, 1994.
All nominations should present the following information:
(1) Description and quantification of the specific uses of
the controlled substances;
(2) Demonstration that continued use of that application
is necessary for health and safety reasons or is critical for
the functioning of society;
(3) Demonstration that no alternatives are technically,
economically
or legally available;
(4) Description of the steps taken to date to find alternatives;
(5) Description of future steps to be taken to find
alternatives;
(6) Demonstration that steps have been taken to secure existing
stocks of the chemicals, either from a bank or from recovery
sources, and that necessary quantities of appropriate quality
are not available for this exempted use; and
(7) The expected time period for which this exemption is
required and its consistency with the CAA provisions.
All nominations should be sent to: Program Manager, Essential
Use Exemptions, Mail Stop 6202J, Environmental Protection Agency,
Washington, DC, 20460.
The Agency, together with other agencies, will work with
submitters, other experts and other interested federal agencies
to review this information and forward nominations to the
Protocol's
Secretariat for consideration as appropriate and consistent
with CAA limitations.
B. Accelerated Phaseout of Class II Substances
1. Today's Proposal
EPA is proposing with this action to accelerate the schedule
for phasing out the production and consumption of certain HCFCs.
These proposed provisions accelerate the phaseout provided for
in section 605 of the Clean Air Act, which states: (a) That
effective January 1, 2015, it shall be unlawful for any person
to introduce into interstate commerce or use any class II substance
unless such substance-(1) has been used recovered, and recycled;
(2) is used and entirely consumed (except for trace quantities)
in the production of other chemicals; or (3) is used as a
refrigerant
in appliances manufactured prior to January 1, 2020, and (b)
that effective January 1, 2015, it shall be unlawful for any
person to produce any class II substance in an annual quantity
greater than the quantity of such substance produced by such
person during the baseline year effective January 1, 2030, it
shall be unlawful for any person to produce any class II substance.
At their Fourth Meeting, the Parties to the Montreal Protocol
agreed to phaseout consumption of HCFCs over time. The Agency
believes that the phaseout proposed today will result in compliance
with the schedule agreed upon in Copenhagen, and also responds
to the portion of the NRDC/EDF/FOE and CFC Alliance petitions
that dealt with HCFCs.
The HCFC regulatory regime adopted in Copenhagen places an
overall cap on these compounds and requires increasingly stringent
reductions from the cap until phase-out is reached. The cap
for each of the developed country Parties is equal to the sum
of 3.1 percent of the country's 1989 ozone depletion potential
(ODP) weighted consumption of CFCs in group 1 of Annex A and
the ODP weighted level of HCFCs consumed in that year. To determine
the amount of the cap for the United States, EPA will be requiring
producers, importers and exporters of CFCs and HCFCs to report
data for 1989 through a separate action. Using the specified
formula, EPA's preliminary estimates are that the baseline level
will total approximately 16-17 million kilograms.
The Copenhagen amendments call for cap on HCFCs (i.e., the
level specified by the formula) to apply beginning in 1996.
The amendments further call for a 35 percent cut from the cap
in 2004, followed by a 65 percent reduction in 2010, a 90 percent
reduction in 2015, a 99.5 percent reduction in 2020 and a total
phase-out in 2030.
EPA has considered several different approaches to implementing
the HCFC cap in the United States. One approach would be to
follow the regime proposed in both the NRDC/FOE/EDF and CFC
Alliance petitions whereby limits are placed on the most potent
ozone depleting substances first, with less ozone depleting
HCFCs permitted for use over a longer period of time. This approach
recognizes that different HCFCs have different impacts on the
ozone layer and focuses efforts on developing alternatives for
the most damaging compounds first.
In contrast, EPA could directly implement the HCFC cap approach
through an allowance system tied to the total number of consumption
rights permitted under the cap in any given year. Under this
approach, for example, EPA could allocate consumption allowances
based on 1989 consumption of CFCs. However, while this approach
is consistent with that taken for CFCs and halon, it would create
substantial inequities due to differences in investments and
commitments already made to date by HCFC users and producers.
For example, if 1989 consumption were used as the basis for
allocations, substantial inequities might occur between those
firms that produced large quantities of CFCs in 1989 and those
that have invested in HCFC facilities over the past several
years. While tradeable permits would allow for a rationalization
of the market, such shifts would largely be controlled by a
small number of firms each with vested economic interests and
could adversely affect user industries in need of HCFCs in the
near-term to phase-out of CFCs.
Instead of allocations based on 1989 consumption, EPA could
simply auction off the allowances for HCFC consumption. This
approach would avoid inequities associated with using 1989 as
a base year, but would create substantial uncertainties for
both HCFC producers and users who have already committed
substantial
capital to shift to these interim replacements.
EPA is requesting public comment on the use of an allocation
or auction system to implement the HCFC cap approach adopted
under the Montreal Protocol.
EPA is proposing an acceleration of the phaseout schedule
for certain HCFCs on a compound-specific basis as proposed in
both the CFC Alliance and NRDC/EDF/FOE petitions. As discussed
above, this approach phases out those HCFCs with the highest
ozone depletion potentials at an earlier date than those compounds
with lower ODPs. This approach also recognizes the utility of
phasing out the use of these compounds first in new equipment
and allowing a longer period of use to service existing
refrigeration
and air conditioning equipment.
EPA is proposing today to ban the production and consumption
of HCFC-141b effective January 1, 2003 because of its significantly
higher ODP, 0.12. For HCFC-22 (ODP of .05) and HCFC-142b (ODP
of .06), the Agency is proposing to freeze the production and
consumption of these compounds at baseline levels effective
January 1, 2010; to ban use of these compounds in virgin (i.e.,
not used or recycled) for anything other than feedstocks and
for use in servicing appliances manufactured prior to January
1, 2010; and to ban production and consumption effective January
1, 2020. No change to the statutorily specified timetable would
be imposed on HCFC-123 and HCFC-124 because of their substantially
shorter lifetimes and lower ODPs (around .02). The proposed
restrictions are summarized in the following table:
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ Affected ³
Date ³ compounds ³
³ restriction ³
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ ³
Jan. 1, 2003 ...... ³ HCFC-141b ...... ³ Ban on
production and consumption.
Jan. 1, 2010 ...... ³ HCFC-22, HCFC- ³ Production and
consumption frozen
³ 142b ³ at baseline
levels.
³ HCFC-22, HCFC- ³ Ban on use of
virgin chemical.
³ 142b ³
³ ................ ³ Unless used as
feedstock or
³ ³ refrigerant in
appliance
³ ³ manufactured
prior to Jananuary
³ ³ 1, 2010.
Jan. 1, 2015 ...... ³ all other HCFCs ³ Production and
consumption frozen
³ ³ at baseline
levels.
³ all other HCFCs ³ Ban on use of
virgin chemical
³ ³ unless used as
feedstock or
³ ³ refrigerant
inappliances
³ ³ manufactured
prior to January 1,
³ ³ 2020.
Jan. 1, 2020 ...... ³ HCFC-22, HCFC- ³ Ban on
production and consumption.
³ 142b ³
Jan. 1, 2030 ...... ³ all other HCFCs ³ Ban on
production and consumption.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
EPA notes, however, that substantial efforts are underway
to develop and implement alternatives to the HCFCs and that
these efforts may make it possible to accelerate the phaseout
of HCFC-22 and HCFC-142b. Thus, the Agency will closely monitor
these efforts and will determine whether an acceleration of
the ban on the use of these substances in new equipment is
feasible.
The Agency believes that the acceleration proposed here along
with measure being taken under other Title VI authority will
achieve compliance with the requirements to restrict HCFCs adopted
by the Parties in November of 1992. Based on an assessment of
which use sectors in the United States are likely to shift to
HCFCs, the type of HCFC they are likely to use, and the maximum
amount the sectors could require, EPA believes that the Protocol
cap will not be exceeded in 1996 or thereafter, and that the
Protocol reductions will be satisfied, as well. EPA's analysis
of future HCFC use is included in the docket, "Revised Cap and
Emission Scenario Analysis". To help ensure that the HCFC cap
will not be violated, EPA will implement bans on specific uses
of HCFCs under section 610 of the Clean Air Act and place
additional
restrictions on the use of HCFC-141b in solvents (except for
critical uses where other substitutes are not available) under
section 612 of the CAA.
Again, EPA's analysis of likely HCFC consumption under the
proposed approach outlined above is based on the projected likely
scenario of HCFC use by sector. Since all major sectors have
already determined if they are going to shift to HCFCs and if
so, the specific HCFC they will use, this analysis should represent
an accurate assessment of future use of these compounds. By
restricting use of HCFCs along the lines described in the proposal
for phase-out dates and use restrictions (in new products, and
restrictions under sections 610 (nonessential uses) and 612
(safe alternatives), EPA calculated likely use and compared
that to requirements under the Montreal Protocol limits.
This analysis showed the following results:
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ Percent
reduction
ÃÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ Protocol
³ Proposed
³ requirement
³ rule
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³
³
1996.......................................... ³ 100
³ 75
2004.......................................... ³ 65
³ 51
2010.......................................... ³ 35
³ 15
2015 ......................................... ³ 10
³ 6
2020.......................................... ³ 0.5
³ .5
2030.......................................... ³ 0
³ 0
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
While EPA's analysis suggests that the proposed approach
to implementing the Protocol's HCFC regime should amply provide
for compliance, EPA will closely monitor compliance and will
take additional regulatory action if necessary.
EPA is proposing to require quarterly reporting of all HCFC
production and use soon after the end of each three-month period
as a basis for monitoring compliance with the Protocol's
requirements,
but requests comments on this approach to meeting the Protocol's
HCFC restrictions.
EPA has additional flexibility because its proposed restriction
on HCFC-141b is scheduled for 2003 instead of 2004 when the
first reduction step under the Protocol takes effect. EPA is
proposing 2003 because it believes this date provides adequate
leadtime for shifting to an alternative to HCFC-141b. However,
if additional time for such a shift becomes necessary, EPA will
consider modifying its schedule to allow for the additional
year now permitted under the Protocol.
2. Legal Authority
The authority to accelerate the phaseout of HCFCs is also
contained in section 606 of the Act, which has already been
discussed in connection with the acceleration of the phaseout
of class I substances. In addition, the provisions of section
614 regarding conflicts between the CAA and the Protocol which
have also been discussed previously, apply.
3. Petitioners' and Commenters' Suggested Phaseout Options
The NRDC/EDF/FOE petition requested that EPA accelerate the
phaseout schedule for class II substances. As noted earlier,
under the current schedule in section 605 of the Act, U.S.
production
and consumption of class II chemicals must be frozen at baseline
levels in 2015, with a final phaseout date of January 1, 2030.
In addition, section 605 places a use restriction on the HCFCs,
prohibiting the use of HCFCs on or after January 1, 2015, unless
they (1) have been used, recovered, and recycled, (2) are used
as feedstocks, or (3) are used as a refrigerant in appliances
manufactured prior to January 1, 2020.
The petitioners used this same two-stage reduction approach
in their request for an accelerated schedule, but also
distinguished
between HCFCs with high and low ODPs. They asked that the
production
and consumption of HCFC-22, HCFC-141b, and HCFC-142b (the three
longest-lived commercially useful HCFCs) for use in new equipment
be prohibited by January 1, 2000, while allowing production
of these chemicals for service use until January 1, 2005. This
request was also based on the most recent evidence of the
seriousness
of ozone depletion and the statement that the three long-lived
HCFCs could become important contributors to ozone depletion
if not restricted.
The petition from the Alliance also requested that the phaseout
of HCFC-22, HCFC-141b, and HCFC-142b be accelerated. It suggested
a January 1, 2010 ban on the production and use of the three
compounds in new equipment. It suggested a final phaseout date
for all production of the materials of January 1, 2020. The
petitioners argued that HCFCs are "bridging" compounds whose
use allows both developed and developing countries to phase
out of CFCs more rapidly. According to the petition, these
compounds
allow for the continuation of high priority products and services
such as refrigeration, air conditioning, and insulation materials.
To enable HCFCs to serve their essential function, the Alliance
contended, producers and users must be assured that HCFCs will
be available for a reasonable length of time. The Alliance
petitioners
argued that their proposed phaseout schedule for HCFCs assures
a reasonable lifetime for HCFC technologies that will help sectors
to shift away from CFC technologies in the near term.
AHAM also supported the acceleration of the phaseout of the
three long-lived HCFCs, but to a date no earlier than 2010.
According to AHAM's comments, HCFCs, either alone or as part
of a blend, are among the leading CFC alternatives for the home
appliance sector. It stated that accelerating the phaseout to
a date earlier than 2010 would have a severe impact on the
industry.
In its comments, ARI also recommended a ban on the manufacture
of new equipment using the three long-lived HCFCs and a ban
on the production of these compounds for such equipment as of
January 1, 2010. Under its suggested plan, production of HCFC-
22, HCFC-141b and HCFC-142b would be permitted for the servicing
of existing equipment until January 1, 2020. ARI's correspondence
focused on the importance of finding and proving acceptable
alternatives to HCFC-22, based on the fact that it is a very
important chemical which is used in over 80 percent of the products
produced by the air-conditioning and refrigeration industry.
ARI emphasized that there are yet no proven acceptable alternatives
to HCFC-22, and that the United States relies on HCFC-22 for
essential air conditioning and refrigeration much more than
any other nation.
4. EPA's Response to Petitions and Comments
EPA has continually characterized HCFCs as important
transitional
substances, but has recommended that they be used only where
other substitutes are not viable. The Agency also has encouraged
recycling wherever possible and urged that substitutes be selected
on the basis of the lowest ODP possible. In the Analysis of
the Environmental Implications of the Future Growth in Demand
for Partially-Halogenated Chlorinated Compounds (1989), the
Agency determined that this type of prudent use of the substances
would result in significantly lower levels of atmospheric chlorine
than those associated with more expanded use patterns.
The Agency's proposed accelerated phaseout schedule for HCFC-
22 and HCFC-142b parallels the schedule for the phaseout of
the rest of the HCFCs (the section 605 schedule), but accelerates
the ban on production and consumption by ten years and the freeze
and use restriction by five years. The effect is to prohibit
the use of the chemicals (virgin material only) for any use
except as a feedstock or as a refrigerant in existing equipment
as of January 1, 2010, and to allow a ten-year exemption for
production for use in servicing existing refrigeration and air-
conditioning equipment.
The Agency agrees with both petitions that the seriousness
of the problem of ozone depletion and the potential risks to
human health and the environment warrant an acceleration of
the phaseout of the three long-lived HCFCs. The production and
consumption of these compounds has already begun to increase
as companies move out of CFCs. While their lower ozone depletion
potentials make them preferable to the class I substances, if
their production and consumption is not limited, they could
over the long run cause serious damage to the ozone layer. As
a result, the Agency believes that the HCFCs are strictly interim
substitutes for the more harmful class I substances. EPA wishes
to encourage ongoing research efforts to find substances that
are effective, yet have no detrimental effect on stratospheric
ozone. At the same time, too short a period for the allowable
use of HCFC would further encourage the continued use of CFCs,
which would adversely affect the environment.
As indicated by all of the petitioners and commenters, a
more rapid phaseout of these substances than that adopted in
section 605 of the Clean Air Act is clearly environmentally
desirable and technologically feasible. However, as in the case
of the CFCs, a too-precipitous phaseout could result in excessive
costs with relatively minor benefits in terms of decreased
atmospheric
chlorine loading. In addition, allowances must be made for
servicing
equipment that uses HCFCs. Estimates by ARI, AHAM, and the Alliance
indicate that even with optimal rates of recycling and recovery
of refrigerants, at least ten years worth of production must
be allowed for servicing existing equipment in order to avoid
premature retirement of significant amounts of equipment using
these compounds (assuming no near-drop-in alternative refrigerant
becomes available). Most refrigeration and air-conditioning
units have a useful life of a decade or more. Since work on
substitutes in such sectors as foam and refrigeration has not
yet produced alternatives to the use of HCFCs, the near term
shift out of CFCs is dependent on the commercialization of these
interim substitutes. A 2000 phaseout of HCFCs would make further
investment in these substitutes unlikely, thus prolonging the
need for CFCs. As a result, the Agency believes that on balance
those dates suggested by the NRDC/EDF/FOE petition for phasing
out the long-lived HCFCs may be unattainable. The dates proposed
by EPA balance the costs of shifting to HCFCs by sector and
the environmental impact of the different HCFCs.
On the other hand, EPA believes that the dates suggested
by industry groups are more realistic but represent a somewhat
conservative assumption for when substitutes will become available,
particularly in the case of HCFC-141b. The UNEP Assessment states
that "long advance notice of phaseout regulations would avoid
the sale of equipment dependent on transitional substances *
* *. Based on the impressive record of technical progress to
date, and on the intensity of industry efforts to find final
alternatives to ozone depleting substances, it may be possible
for users to phase out these chemicals relatively quickly."
As a result, the Agency is proposing earlier phaseout dates
for HCFC-141b than those suggested by the Alliance and the other
commenters. The Agency's regulatory impact analysis indicates
that HCFC-141b will primarily be used in certain foam applications,
and can be used without expensive new manufacturing technology.
Given the high ODP of this compound, a further switch in 2003
would have substantial environmental benefits and should be
both technologically and economically feasible. New high-pressure
equipment that must be used for alternatives to HCFC-141b in
foam-blowing applications is currently under development and
could be commercially available by 2003.
The Agency believes that 2010 is a technologically feasible
date for the phaseout of the use of the HCFC-22 and HCFC-142b
in new equipment.
Residential and commercial air conditioning applications
comprise approximately 67 percent of the HCFC-22 use as a
refrigerant.
In this application, promising alternatives have been identified.
These refrigerant alternatives include mixtures based in HFC-
32, HFC-134a, HFC-125, HFC-143a and existing chemicals such
as ammonia and propane. Commercializing products to use
alternatives
will require extensive research in materials compatibility,
long-term durability, performance and safety standards. However,
the necessary research programs have been initiated by both
industry and government in accelerated and coordinated programs.
In January 1992, the Air Conditioning and Refrigeration
Institute
organized a research task group, which identified ten potential
alternatives to HCFC-22. This task group will submit these
alternatives
to system testing to measure their performance and compatibility.
Other organizations, such as the Electric Power Research Institute,
have also made a commitment to accelerate research programs
to identify and test HCFC-22 alternatives.
EPA has also accelerated research into HCFC-22 alternatives,
as well as initiated studies with industry and safety organizations
to address safety and institutional issues associated with the
use of the flammable refrigerants and mixtures with flammable
components.
Preliminary modeling and experimental test results indicate
that some of the HCFC-22 alternatives may be more efficient
than the current systems. The potential efficiency increases
could range from a few percent to as high as 12 percent. Actual
efficiency gains will have to be confirmed with system testing
and optimization.
HFC-32 based systems could be more expensive than HCFC-22
due to the increased cost of the chemicals and potential component
changes required to achieve the full efficiency potential of
mixtures. System testing is required to determine the full range
of compatibility and performance optimization.
At least one air conditioning equipment manufacturer has
been testing propane as a potential replacement for HCFC-22.
While a risk assessment has not been concluded to determine
the safety of using propane in this application, performance
and materials compatibility tests have shown favorable results.
Tests have shown approximately two percent efficiency increases.
The production of equipment using propane should not change
costs because the cost of a slightly larger compressor will
be more than offset by the low cost of refrigerant. If major
system redesign or secondary loops are required, additional
costs will be incurred. This has not yet been determined, however.
The remaining 33 percent of the HCFC-22 use in refrigeration
is in retail refrigeration and cold storage. The amount of HCFC-
22 used in refrigeration is expected to grow in the short term,
due to the replacement of R-502 in low temperature refrigeration
equipment with HCFC-22.
Compressor manufacturers have been testing promising refrigerant
alternatives and some expect to commercialize products using
them by 1994. The alternatives receiving most attention include
blends with HFC-125, HFC-143a, and HFC-32. The most difficult
barrier to the retrofitting of existing HCFC-22 systems is that
the lubricants used in them are not compatible with the new
refrigerants. In order to facilitate the transition from HCFC-
22 to the alternatives, compressor manufacturers are currently
testing new HFC lubricants with HCFC-22 compressor systems in
an attempt to introduce HCFC-22 equipment with the new lubricants.
This would make retrofitting HCFC-22 systems to alternatives
less costly in the field once the alternative refrigerants become
commercially available.
Except for an increase in refrigerant costs, commercializing
new low temperature refrigeration systems with HCFC-22 alternatives
are not expected to significantly increase production costs.
Manufacturers expect that the new alternatives will perform
at least as well as HCFC-22 systems.
Ammonia already dominates the cold storage equipment market
and may be considered an alternative for some of the HCFC-22
cold storage market. Building and fire codes may determine the
actual market penetration of ammonia in this application.
HCFC-22 has also been identified as an inexpensive alternative
to CFC-11 and CFC-12 in some foam applications. A further switch
out of HCFC-22 by 2010 appears feasible.
In 1988, the entire U.S. extruded polystyrene packaging industry
switched from CFC-12 to HCFC-22 as an interim solution. HCFC-
22 has been eliminated in the production process by substituting
with HFC-152a, hydrocarbons or carbon dioxide.
The extruded polystyrene boardstock insulation industry quickly
phased out of CFC-12 to HCFC-142b or HCFC-142b/HCFC-22. The
industry is currently evaluating alternatives to the HCFCs,
including HFC and other blowing agents.
HCFC-22, either alone or in combination with HCFC-142b, may
be used in some CFC-11 polyurethane foam applications. Pour-
in-place sandwich panels and insulation in refrigerated cases
have already switched to HCFC-22. Other polyurethane foam
insulation
applications are testing HCFC-22 as a blowing agent and may
be introduced shortly. Because HCFCs are considered a low-cost
interim solution, there has been accelerated research by the
industry to develop long term alternatives. Compounds currently
under testing include HFCs, ethers, and hexafluorobutane. While
much work is required on evaluating energy efficiency, performance
and materials compatibility, the Agency's regulatory impact
analysis shows that it should be possible to resolve these issues
by 2010.
EPA will continue to monitor the success of the HCFC recycling
program and the search for alternatives to determine the
feasibility
of the proposed dates. The Agency remains confident, however,
in industry's ability to make the transition out of HCFCs in
a timely manner, given the investment of adequate energy and
resources into research to that end. EPA requests comments on
the proposed schedule for the HCFC phaseout and on the schedules
suggested by petitioners.
The Agency also requests comment on the HCFC phaseout's
relationship
to use limits under sections 608, 610 and 612 of the Act. EPA
will take some action to limit HCFC use on a sector-by-sector
basis. For example, section 610(d)(1) bans the sale or distribution
of HCFCs in aerosols and non-insulating foam. EPA also intends
to use its authority under section 612(c) to restrict the use
of the HCFCs in those applications where a substitute clearly
(1) reduces the overall risk to human health and the environment;
and (2) is currently or potentially available. Finally, EPA
is required under section 608 to limit use and emissions of
class I and II substances to their lowest achievable levels,
and may promulgate bans on use to accomplish that. EPA is
considering
whether or not it should limit the uses of HCFCs in this way.
Comment is requested on this possible approach to the HCFC
phaseout.
C. Addition of Methyl Bromide to the List of Class I Substances
and Phaseout Schedule
1. Summary
Methyl bromide is a chemical used primarily as a soil fumigant
in high value crops (e.g., strawberry, tobacco seedling, tree
nurseries, etc.) and to a more limited extent in commodity
quarantine
programs to prevent the spread of pests.
The December 3, 1991 NRDC/EDF/FOE petition requested, pursuant
to section 602(c)(3), that EPA add methyl bromide (bromomethane
CASRN 74-95-3) to the list of class I substances pursuant to
section 602(a). The petition further requested under section
606(b) that EPA act under section 606(a) to establish an
accelerated
schedule for phasing out methyl bromide by January 1, 1993,
with an interim reduction of fifty percent in 1992. The petition
also requested that EPA order this accelerated phaseout of methyl
bromide based on the Administrator's emergency powers under
section 303 of the Act to protect public health or welfare or
the environment.
The Parties to the Montreal Protocol at their Fourth Meeting
agreed to amend the Protocol to include methyl bromide as a
controlled substance, to adopt an ODP of 0.7 for it, and to
freeze its production (with exemptions for quarantine and pre-
shipment use) at 1991 levels beginning in 1995. The Parties
adopted the recent scientific assessment of 0.7 for the ODP,
acknowledging this as the best estimate despite the uncertainties
related to this estimate. The Parties also unanimously adopted
a non-binding resolution urging all steps to be taken to reduce
emissions and use of this compound and urging the Parties to
take further steps to agree on reductions and a phase-out date,
as appropriate based on the next Protocol assessments.
As explained earlier in this action, the Parties' agreements
to list methyl bromide as a controlled substance, to freeze
production based on 1991 levels beginning in 1995, and to adopt
the scientific assessment's best estimate for an ozone depletion
potential of 0.7 are to enter into force by January 1, 1994,
provided that twenty Parties have ratified them. If twenty Parties
have not ratified the amendments by that date, then these
amendments
are to enter into force ninety-days after the twentieth instrument
of ratification is deposited by a Party.
EPA is proposing to add methyl bromide to the list of class
I substances under section 602(a) in response to the action
taken by the Parties to the Protocol, the NRDC/EDF/FOE petition,
and the scientific data discussed in the UNEP Scientific Assessment
of Ozone Depletion and the update of that assessment. In addition,
EPA is proposing to establish 1991 as the baseline year under
section 601(2)(C), but is rejecting the accelerated phaseout
schedule suggested by the petitioners. The proposed phaseout
schedule for methyl bromide is thus that prescribed for class
I substances by section 604(a), as modified pursuant to section
602(d). EPA is also proposing to assign methyl bromide an ODP
of 0.7 as specified in the latest UNEP scientific assessment
and as agreed to in the Copenhagen Amendment by the Parties
to the Protocol.
In a separate action, the Agency is requiring persons that
manufactured, imported, exported or transformed the substance
in 1991 to provide information on their activities during that
year, for the purpose of establishing baseline production and
consumption allowances if methyl bromide is listed as a class
I substance.
2. Legal Authority
Under section 602(a), EPA is to add to the list of class
I substances any substance that the Administrator finds causes
or contributes significantly to harmful effects on the
stratospheric
ozone layer, including all substances which the Administrator
determines have an ozone depletion potential of 0.2 or greater.
Section 602(c) provides that the Administrator may add, by rule,
any substance to the class I list, in accordance with the criteria
in section 602(a).
Under section 602(e), simultaneously with any addition to
the class I list, the Administrator shall assign to each listed
substance a numerical value representing the substance's ozone
depletion potential. In addition, the Administrator shall publish
the chlorine and bromine loading potential and the atmospheric
lifetime of each listed substance. Section 601(10) of the Act
defines ODP as a factor established by the Administrator to
reflect the ozone-depletion potential of a substance on a mass
per kilogram basis, as compared to chlorofluorocarbon-11 (CFC-
11), and goes on to state that such factor shall be based upon
the substance's atmospheric lifetime, the molecular weight of
bromine and chlorine, and the substances ability to be
photolytically
disassociated, and upon other factors determined to be an accurate
measure of relative ozone-depletion potential.
Section 602(e) also states that where the ozone depletion
potential of a substance is specified in the Montreal Protocol,
the ozone-depletion potential specified for that substance under
this subsection shall be consistent with the Montreal Protocol.
When the ODP for methyl bromide enters into force for the United
States, and is listed through the final promulgation of this
rule, it will be set for purposes of the Clean Air Act.
Under section 602(c)(3), any person may petition the
Administrator
to add a substance to the list of class I substances. Such a
petition is to include a showing by the petitioner that there
are data on the substance adequate to support the petition.
Also, sections 604 and 605 authorize EPA to promulgate
regulations
phasing out the production of class I and class II substances
from baseline levels, respectively, in accordance with schedules
specified in those sections. The "baseline year" is defined
in section 601(2)(C) to mean a representative calendar year
selected by the Administrator in the case of substances added
to the class I list. Section 607 authorizes EPA to promulgate
regulations providing for production and consumption allowances
of class I substances.
3. Petitioners' and Commenters' Suggested Actions
a. NRDC/EDF/FOE Petition. As noted above, the NRDC/EDF/FOE
petition requested, among other things, that the Agency add
methyl bromide to the list of class I substances. The petition
cited section 602(c) as authority for such listing, but asked
the Agency to take emergency action under section 303 to
immediately
add the substance to the list and to provide for a 50 percent
cut in its production in 1992, with a total phaseout by 1993.
As discussed below, the petitioners also requested that methyl
bromide be subject to an accelerated phaseout schedule under
section 606.
The petition cited the UNEP Scientific Assessment for support.
(The cited UNEP assessment has been updated since the time of
the petition.) The Assessment referenced in the petition states
that the "best estimate" of the ODP for methyl bromide is 0.6.
The executive summary of that assessment further states that
"if the anthropogenic sources of methyl bromide are significant
and their emissions can be reduced, then each ten percent reduction
in methyl bromide would rapidly result in a decrease in
stratospheric
bromine of 1.5 pptv, which is equivalent to a reduction in chlorine
of 0.045 to 0.18 ppbv. This gain is comparable to that of a
three-year acceleration of the scheduled phaseout of the CFCs."
The report also discussed the uncertainties that could affect
the estimate of the ODP.
b. Methyl Bromide Working Group Comments. Following the
NRDC/EDF/FOE
petition, the Methyl Bromide Working Group, an industry group
of three methyl bromide manufacturers (Ethyl Corporation,
Ameribrom,
Inc., and Great Lakes Chemical Corporation), and one of the
largest U.S. methyl bromide users (Trical), submitted two letters
to the Administrator regarding the addition of methyl bromide
to the list of ozone-depleting substances. The first letter
discussed the Group's opposition to the Agency's use of section
303 to take emergency action, emphasizing that the threat to
the ozone layer posed by anthropogenic sources of methyl bromide
was as yet undetermined. The second letter again discussed the
scientific uncertainty with respect to methyl bromide's effects
in the atmosphere and called for the Agency to deny the
NRDC/EDF/FOE
petition.
The Working Group letter also questioned the degree of certainty
associated with the ODP and whether most emissions of methyl
bromide were anthropogenic or from natural sources. The letter
further discussed uncertainties about the degree to which the
chemical breaks down in the soil versus in the atmosphere.
c. Responses to the section 114 Information Request. To respond
to the petition on methyl bromide, EPA initiated efforts to
determine the extent of current methyl bromide usage in the
U.S. and the availability of substitutes in order to assess
the environmental and economic impacts of a potential phaseout
of methyl bromide. To this end, EPA requested information from
the public on methyl bromide production, application, and
emissions,
along with information on alternatives, under section 114(a)
of the Clean Air Act. (Section 114(a) authorizes the Agency
to obtain information needed to carry out provisions of the
Act from any person who the Administrator believes may have
information necessary for that purpose.) At the request of many
respondents, the deadline for receipt of responses was extended
from April 10, 1992 until May 15, 1992 so that organizations
and individuals could gather more information and conduct more
comprehensive assessments of methyl bromide usage. This was
the longest extension possible that would still allow EPA to
use information it receives in meeting its statutory deadline
for responding to the petition from the environmental groups.
EPA recognizes that the time period is inadequate for many to
develop new information which would be useful to the Agency
in making final decisions concerning methyl bromide. EPA encourages
these groups to continue in their efforts to gather such
information
and assures all interested parties that any new information
submitted during the comment period for this proposal will be
considered before final action is taken.
EPA received responses from the following types of
organizations:
Local farmers and farm cooperatives, dealers and shippers of
agricultural crops, nurseries, agriculture and forest institutes,
state departments of agriculture and natural resources, state
agricultural extension services, agricultural research stations,
and non-profit coalitions and associations. Almost all of the
respondents expressed concern about the impacts of phasing out
methyl bromide because of its importance as a fumigant to control
pathogens, pests, and weeds present in soil, pest infestations
on imported and exported commodities, and pests present in
structures,
such as residential buildings and storage areas.
Among other things, many respondents expressed concern that
the scientific evidence supporting a phaseout of methyl bromide
is still uncertain and that any decision to phase out methyl
bromide based on this preliminary information would be premature.
Specifically, respondents argued that it is still uncertain
whether methyl bromide has an ODP of 0.6 and whether anthropogenic
methyl bromide contributes significant atmospheric levels of
bromine relative to non-anthropogenic (natural) sources.
4. Today's Proposal
The issue of the ODP of methyl bromide was first addressed
in the UNEP Scientific Assessment, which concluded that the
best estimate of the ODP of methyl bromide is 0.6 with an
uncertainty
range of 0.44 to 0.69 (The June 1992 report estimated the ODP
to be .7, and acknowledged. The assessment was conducted by
over a hundred of the world's leading atmospheric scientists,
was co-chaired by leading atmospheric scientists from NASA and
NOAA, and included those international experts directly involved
in the calculations of ODP. This document has been widely peer-
reviewed, and is considered the basis for decision-making by
world governments in the context of ongoing deliberations under
the Montreal Protocol.
Following that assessment, the Methyl Bromide Industry Panel
commissioned a report that suggested that the uncertainty range
associated with the ODP calculation for methyl bromide is a
factor of ten (i.e., the highest possible ODP is ten times the
lowest possible ODP) ("A Literature Survey of Atmospheric Methyl
Bromide and Stratospheric Ozone," November 14, 1991, revised
February 12, 1992). This report surveys the existing literature
regarding those factors that affect the ozone depletion potential
of methyl bromide. It concludes that the uncertainties associated
with computation of the ODP of methyl bromide are large enough
to render the ODP uncertain by a factor of ten.
Unlike the UNEP Assessment, however, the industry's report
had not undergone any formal peer review. In reviewing the report,
the Agency found that a key assumption leading to the estimate
of a large degree of uncertainty in the ODP of methyl bromide-
the uncertainty assigned to the rate constant for destruction
of methyl bromide by hydroxyl radicals-is incorrect by over
a factor of ten (see May 28, 1992 memorandum to docket, Joel
Levy, EPA). Correction of this error substantially reduces the
uncertainty in the ODP of methyl bromide related to this factor.
In fact, recent laboratory remeasurement (Mellouki et al.,
submitted to Geophys. Res. Lett., May, 1992) of the rate constant
for reaction of methyl bromide with hydroxyl radicals indicates
that the rate is slower than that assumed in the UNEP assessment.
This finding, if correct, means that the atmospheric lifetime
of methyl bromide is greater than previously thought and that
the ODP of methyl bromide is higher than the UNEP value of 0.6.
Conversely, a faster reaction rate with the hydroxyl radical
reported in another study (reported by Poulet et al to the Geophys.
Res. lett., November 1992), stated that even after a five to
ten percent HBr branching, which cannot be ruled out in conjunction
with the atmospheric lifetime of 1.3 years (assuming oceanic
uptake), could yield an ODP range of 0.15 to 0.53.
In addition, the industry report derived its error range
by combining computational factors assumed to lie simultaneously
at the extremes of their individual uncertainties. Aside from
the fact that the largest extreme is overstated by an order
of magnitude, as explained above, this methodology derives the
greatest possible uncertainty, rather than the most probable
uncertainty.
In order to review the data and analysis presented in this
report, and any additional information currently available related
to the potential impact of methyl bromide on ozone depletion,
a two-day science workshop was conducted on June 2-3 by the
Methyl Bromide Global Coalition, an international group
representing
primarily producers of this compound. The workshop was attended
by more than 40 international scientific experts including many
of the same participants in the Montreal Protocol's Science
Assessment. Based on the information presented at the workshop,
an update of that assessment was prepared under the chairmanship
of Dr. Robert Watson of NASA and Dr. Daniel Albritton of NOAA.
This report was peer reviewed by the participants in the workshop
and other experts and was made available to governments for
use in the recent negotiations related to the Montreal Protocol.
The report is titled, "Methyl Bromide and the Ozone Layer: A
Summary of Current Understanding," and a copy has been included
in the docket.
The findings of the updated assessment concluded 0.7 is the
current best estimate. The report examines a number of key areas
and uncertainties related to the impact of methyl bromide on
the ozone layer.
One of the key conclusions of the report is that, "these
model results suggest that anthropogenic emissions of CH3Br
[methyl bromide] could have accounted for one-twentieth to one-
tenth of the current observed ozone loss of four to six percent,
and could grow to about one-sixth of the predicted ozone loss
by the year 2000 if emissions continue to increase at the present
rate of five to six percent per year."
The report examines additional information that affects the
ODP of methyl bromide. As mentioned above, new analysis of the
reaction rate between methyl bromide and the hydroxyl radical
shows that the rate may be slower than previously thought which
would increase the atmospheric lifetime and ODP of this compound.
As a result, the best estimate of the ODP of methyl bromide
was revised upward from 0.6 to 0.7.
Several issues related to the ODP of methyl bromide were
also discussed in the Assessment update. First, the 0.7 ODP
is calculated on the basis that loss in the troposphere through
removal by the hydroxy radical is the only significant tropospheric
loss mechanism. This assumes that no significant removal occurs
involving the oceans or any terrestrial sinks (e.g., loss through
absorption by trees). Very limited data were presented which
suggested that the levels of methyl bromide in a coastal region
of the ocean are saturated and therefore that the oceans are
a net source of methyl bromide. No data was available to either
support or negate whether other regions of the oceans represent
a significant net source or sink of methyl bromide. However,
very preliminary calculations suggest that if the oceans were
a significant sink for methyl bromide, that the resulting decrease
in its ODP would not be significant enough to lower the ODP
to less than 0.2. Nor was any data presented concerning the
existence of a significant terrestrial sink for this compound.
Despite these assessments, removal processes in surface water
could be significant, and remain to be quantified.
The second area of uncertainty concerning the ODP of methyl
bromide involves the qualification of the rate of formation
of HBr in the stratosphere and other related reaction rates.
If the rate of HBr formation were to be greater than the ODP,
BrO and ozone loss would be lower. The report also states that
the lack of definitive data for HBr and larger scattering of
observed BrO make it difficult to rule out this possibility.
In contrast, the assessment update states that "if recent
laboratory
measurements indicating a faster rate of HOBr formation (via
BrO plus HO2) are correct, then the ODP would be greater." Under
this scenario, bromine from methyl bromine would be channeled
into a series of reactions that would increase rather than decrease
the rate of destruction of ozone. Because of the limited
information
and large uncertainties associated with each of these
possibilities,
the updated assessment relied on only the reaction with the
hydroxyl radical as the basis for its estimate of ODP.
Finally, the assessment points out that the 0.7 ODP calculation
is based on an analysis of the steady state impact on the ozone
layer calculated over a period of several hundred years. Because
of its short atmospheric lifetime, the impact of methyl bromide
occurs over a period of a decade or so. The ODP of methyl bromide
over the next 20 years, when the risks of ozone depletion appear
to be the largest, would be a factor of four larger (i.e., about
3).
The workshop and assessment update also examined the issue
of the role of methyl bromide emissions from anthropogenic versus
natural sources. A study sponsored by the Methyl Bromide Global
Coalition suggests that somewhere between 30-60 percent of the
methyl bromide used as a soil fumigant (by far its largest use)
may be emitted to the atmosphere with the remainder degrading
in the soil. The amount that degrades in the soil was dependent
upon such factors as soil moisture, temperature, organic
concentrations
in the soil, injection depth, use and thickness of tarp, etc.
EPA is also aware of two studies, H. de Heer, et al. (1983)
and Ph. Hamaker, et al. (1983) that measured the fraction of
methyl bromide used as a soil fumigant that was emitted into
the atmosphere. These studies were done in the Netherlands where
concerns had been raised that ambient levels of methyl bromide
might be creating a health risk for the population living near
treated areas. The first study focussed on emissions from
greenhouses,
and used a mass balance approach to calculate loss of methyl
bromide that had been emitted. Study results presented the
percentage
of methyl bromide that is emitted into the air for a range of
experimental conditions, including methyl bromide dosages of
20 and 102 g/m2, soil cover times of five and ten days, and
air and soil temperatures ranging from eight to 25øC. In
addition,
the study explored the ability of using low density polyethylene
and gas-tight plastic film covers and water-filled tubes laid
down in areas of cover overlap to decrease methyl bromide release.
The study concluded that over a three-week period following
methyl bromide application, depending upon application dose,
temperature, cover type, cover time, and how the cover was laid
down, anywhere from 29 percent to 87 percent of the methyl bromide
was emitted to the air.
The second study focussed on emissions under field conditions,
and used a mass balance approach based upon measurement of bromide
ions in waters released into and discharged from public pumping
stations. The amount of methyl bromide transformed in soil was
determined by using the mass balance equation to calculate bromine
ion contribution from effluent irrigation water. The study
presented
methyl bromide emissions for two different 12-month periods
that varied in methyl bromide dosage (100 and 40 g/m2), cover
time (three and ten days), and the use of low density polyethylene
or gas-tight soil covers. The study concluded that anywhere
from 58 to 85 percent of the methyl bromide dosage was released
to the air depending upon the above indicated conditions. These
studies showed that emissions can be significantly reduced with
reduced application amounts and increased cover time.
Another study conducted by the California Air Resources Board
(CARB) as part of its Pesticide Monitoring Program examined
ambient levels of methyl bromide at a strawberry field that
had been fumigated with this chemical compared to control sites.
The study did not provide information concerning total emissions,
but did provide limited insight into the level of emissions
and when they occur. Samples were taken upwind and downwind
from the site prior to, during, and four days after application
of methyl bromide, which included a three-day cover time using
a plastic tarp. Results showed that the highest concentrations
of methyl bromide for the three sites sampled occurred on the
day of application and ranged from 210 to 900 parts per million
(ppm).
Theoretical calculations of emissions of methyl bromide used
to fumigate soil using models of soil transport and methyl bromide
transformation have been reported at a recent workshop ("Analysis
of the Potential Emissions to the Atmosphere from the Use of
Methyl Bromide in Soil Fumigation," report to USDA, by Center
for Pest Management Research and Extension, Division of Agriculture
and Natural Resources, University of California, April 7, 1992).
Methyl bromide emissions are predicted to vary primarily with
injection depth, organic content of the soil, and longevity
of tarp cover. For representative soil and methyl bromide
fumigation
conditions, a 45 percent loss of methyl bromide to the atmosphere
is predicted for the first 14 days following injection into
the ground. For the range of soil and injection conditions
considered,
methyl bromide emissions are predicted to vary from 28 percent
to 60 percent.
Based on the emission rate suggested in the study sponsored
by the Methyl Bromide Global Coalition, and information provided
by industry on global production and use patterns, the Protocol's
assessment update concluded that roughly half of all anthropogenic
methyl bromide (except feedstock uses) is emitted into the
atmosphere.
Several sets of atmospheric measurements of methyl bromide
have revealed higher levels in the northern than southern
hemisphere.
This is consistent with fumigation use patterns and could be
an indicator of anthropogenic emissions. Also, as pointed out
in the assessment update, oceanographic measurements of methyl
bromide have been shown to be highly correlated with methyl
chloride. However, no interhemispheric gradient is observed
for methyl chloride, whose source is predominantly natural,
and whose lifetime is similar to that of methyl bromide. This
further suggests that the northern hemispheric excess of methyl
bromide might be caused by anthropogenic emissions.
Analysis of the interhemispheric ratio of methyl bromide
results in the conclusion, cited in the assessment update, that
anthropogenic methyl bromide accounts for roughly 25 percent
plus or minus ten percent of methyl bromide emissions. This
calculation is broadly consistent with the results obtained
by comparing the total (anthropogenic plus natural) source of
methyl bromide, derived from the measured atmospheric burden
and an assumed lifetime of two years, with emissions calculated
at 50 percent of reported production. The consistency of the
two approaches also suggests that neither significant sources
nor sinks of methyl bromide are missing from the analysis, and
that the lifetime of methyl bromide is not significantly less
than two years. The EPA acknowledges that one of the uncertainties
related methyl bromide is the quantification of the natural
sources.
Finally, EPA notes that emissions levels are not relevant
to the criteria for listing methyl bromide as a class I substance
under section 602, but are an important consideration in evaluating
the magnitude of the risk that the compound poses to the ozone
layer. It is sufficient for today's proposed listing that the
ODP of methyl bromide is greater than 0.2, the
statutorily-prescribed
trigger for adding substances to the class I list.
Finally, EPA is relying extensively on the Protocol's scientific
assessment as the basis for its listing decision and furthermore,
will be compelled to adopt the ODP for methyl bromide once the
1992 Copenhagen amendments enter into force, as provided in
section 602(e) of the CAA.
5. Group Assignment
For purposes of allowance exchanges, whenever a substance
is added to the list of class I substances, section 602(c)(1)
of the Act provides that it be assigned to an existing group
or be placed in a new group.
The Agency proposes to place methyl bromide in a sixth group
within class I, thus preventing production and consumption
allowances
for other class I substances from being exchanged for methyl
bromide production and consumption allowances. This follows
the historical precedent under the Montreal Protocol and title
VI of the Act whereby newly-listed class I substances have been
added to a new group within the class. While section 602(c)(1)
authorizes the Agency to assign a newly-listed substance to
an existing group to the extent consistent with the Montreal
Protocol, the Agency believes that methyl bromide should be
added in a new group in the same manner it has been dealt with
in the Copenhagen amendments. Placement in a new group will
ensure that the development of substitutes is forced for the
new substance. This is particularly important in the case of
methyl bromide, because its use is entirely different than that
of other class I substances. Were methyl bromide placed in an
existing group, allowances for the production of the substance
in that group could be transferred and used for methyl bromide
production, thus relieving the pressure to develop methyl bromide
substitutes in the near term. At the same time, the users of
the substances for which allowances have been traded for methyl
bromide may not have adequate substitutes available to them.
The phaseout schedules for ozone-depleting substances vary partly
as a result of differences in the expected pace and progress
of the development of substitutes. To allow trading between
substances with different substitutes is thus to risk undermining
the purpose of the prescribed phaseout schedule. A separate
group is thus appropriate, because the proposed phaseout schedule
for this chemical differs from that of the other groups. The
Agency does not wish to allow the accelerated phaseout of the
other class I substances to be circumvented by allowing trading
of methyl bromide allowances for allowances for other chemicals
that would be phased out after 1995.
6. Ozone Depletion Potential
The updated UNEP Scientific Assessment assigned an ODP of
0.7 for methyl bromide. EPA has in the past relied on international
consensus assessments as the basis for its rulemakings. In section
606, Congress specifically cites assessment under the Montreal
Protocol as an example of "credible current scientific information"
which should be used in deciding on the scientific underpinnings
of a decision to accelerate the phaseout schedule. This ODP
is also the value adopted by the Parties to the Protocol at
their November 1992 meeting. As noted earlier, under section
602(e) the ODP assigned by the Parties will be dispositive once
it enters into force. EPA therefore proposes to assign an ODP
of 0.7 to methyl bromide (see discussion of the ODP and its
uncertainty).
D. Phaseout Schedule for Methyl Bromide
1. Petitioners' Request
The NRDC petitioners requested that EPA use its authority
under sections 303 and 606 to accelerate the phaseout schedule
for methyl bromide. The Methyl Bromide Working Group and other
industry participants, on the other hand, have protested both
the listing and any phaseout of the substance whatsoever,
particularly
in the near term.
2. Statutory Standards
A newly listed class I substance is automatically subject
to the section 604(a) phaseout schedule unless: (1) The
Administrator
accelerates that schedule pursuant to section 606; or (2) the
Administrator determines that the section 604(a) schedule is
unattainable and extends that schedule pursuant to section 602(d).
Under section 602(d), in the case of any substance added
to the list of class I or class II substances, the Administrator
may extend any schedule or compliance deadline contained in
section 604 or section 605 to a later date than specified in
such sections if such schedule or deadline is unattainable,
considering when such substance is added to the list. Also,
an extension under section 602(d) may not extend the termination
of production date for a class I substance to a date more than
7 years after January 1 of the year after the year in which
the substance is added to the list of class I substances.
The statute does not specifically define what it means to
"extend any schedule or compliance deadline." Nor does it
explicitly
specify what standard the Agency is to apply in determining
how to extend the phaseout schedule if the section 604 schedule
is unattainable. Based on the statutory scheme, however, the
Agency believes that Congress intended the Agency to replace
the section 604 schedule where unattainable for a newly listed
substance with the most stringent attainable production and
consumption limits.
The Agency believes that section 602(d) reflects an obvious
concern that newly listed substances might not have sufficient
lead-time to meet the section 604 interim reductions immediately
upon being listed. Particularly where a new substance is listed
in the later years of the section 604 schedule, potentially
significant reductions could easily prove unattainable if
immediately
applicable. Under section 602(d), the Agency can avoid application
of the section 604 schedule where unattainable. Once avoided,
the sense of the statutory scheme is that the most stringent
attainable schedule should be applied to the newly listed
substance.
Anything less would be inconsistent with the broad purpose of
the scheme to mandate phase-out of ozonedepletors as fast as
possible. (See, for example, section 606(a)(2).)
The Agency does not believe the "extension" language was
meant to limit the Agency only to "extending" the effectiveness
of the specific interim reductions enumerated for "other class
I substances" in section 604(a). For example, in a case where
even the least stringent enumerated reduction (85 percent) is
unattainable, the Agency believes it may nonetheless require
a less stringent attainable reduction (e.g., a freeze) instead.
3. Summary of Proposal and Response to Petitioners
Based on currently available information, the Agency believes
that the section 604(a) schedule is unattainable. Moreover,
for the reasons explained below, the Agency currently believes
that the most stringent attainable interim phaseout schedule
it can propose is a production and consumption freeze at 1991
levels by January 1, 1994.
As noted above, the petitioners also requested that the Agency
accelerate the schedule for methyl bromide under sections 303
and 606. (The reader should consult the discussion of the statutory
standards under these provisions in the earlier part of this
action.) Given the Agency's finding that the section 604(a)
schedule is unattainable for methyl bromide, a fortiori the
Agency believes an acceleration of that schedule is not warranted
and the acceleration request in the petition should be denied.
At the same time, information continues to be collected and
studies undertaken concerning alternatives for the uses of methyl
bromide. The Agency will docket such information and studies
as they become available, and if warranted, will consider interim
reduction requirements. In particular, EPA notes that sections
606(a) and 615 provide authority to accelerate any previously
extended interim phaseout schedule for methyl bromide if
justifiable
based on future developments.
4. Most Stringent Attainable Schedule
As discussed in detail below, information the Agency now
has indicates that substitutes for the uses of methyl bromide
are currently available only on a very limited basis, but that
a wide range of potential substitutes may be available prior
to the year 2000. This is the case, in part, because U.S.
Department
of Agriculture (USDA) regulations and requirements now effectively
require the use of methyl bromide for quarantine purposes and
because potential substitutes under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) must be registered by
EPA before use. Approval of use of a substitute under both of
these processes can require considerable testing and involve
a lengthy period for review. The data requirements for pesticide
registration under FIFRA are contained in extensive tables in
40 CFR 158.202 through 158.740. Data on the following subjects
are required for most use patterns: Chemical identity, directions
for use, environmental fate, acute and chronic toxicity, and
ecological effects. In addition, a tolerance or clearance under
the FFDCA is required for a food use chemical. Other data may
be required for particular use patterns and under specific
circumstances.
Based on the limited current availability of substitutes
and the regulatory hurdles that must be overcome before new
substances can be used as substitutes, the Agency believes that
at least the near term interim reductions required by section
604(a) are unattainable for methyl bromide. At the same time,
however, in the absence of the results from the tests described
above, the currently available information on alternatives is
insufficient to determine what interim reductions are currently
attainable. The Agency thus currently lacks an adequate basis
for proposing interim reductions and is accordingly at this
time only proposing a freeze on production at baseline levels.
The Agency requests comment on this approach as well as further
information that may become available regarding the availability
of substitutes for methyl bromide which could serve as the basis
for interim reductions.
The Methyl Bromide Working Group provided the Agency with
information regarding methyl bromide uses and the availability
and development of substitutes. As discussed above, the Agency
additionally requested information on these topics pursuant
to section 114 of the Clean Air Act and submissions were due
under that request by May 15, 1992. This and other information
revealed to the Agency that methyl bromide is a pesticide used
primarily in three general areas: Soil fumigation; commodities
fumigation; and commercial and residential space or building
fumigation. Methyl bromide is used as a soil fumigant for the
following crops: Blueberries, strawberries, watermelons, eggplant,
cucumbers, raspberries, peppers, tomatoes, tobacco, and other
winter vegetables as well as other non-food crops such as
ornamentals,
turf, and shrubs. Commodities fumigated with methyl bromide
include: Logs, lumber, processed foods, and a variety of imported
and exported agricultural commodities including pecans, almonds,
other nuts, oranges, nectarines, tangerines, grapefruits, sweet
cherries, apples, cotton, grains, cut flowers, tobacco, and
assorted vegetables and foreign fruits and vegetables. Methyl
bromide also appears to be an important space fumigant for
structures
used in shipment and storage of food items, including warehouses,
trucks, railroad cars, food processing plants, barns, grain
bins, and greenhouses.
The Animal and Plant Health Inspection Service (APHIS) has
approved methyl bromide and in some cases its regulations
effectively
require methyl bromide as a fumigation treatment for import,
export and domestic interstate commerce in food and non-food
commodities. Methyl bromide use is mandated by some USDA
regulations
(7 CFR part 319) (7 CFR 301.38 through 301.96 and 7 CFR 318.13
through 318.82) and substitutes are in some cases restricted
by regulations under the FIFRA.
Information was also submitted to the Agency by the USDA
and others regarding the extent of U.S. markets and non-food
commodities that currently rely on methyl bromide fumigation
and the potential economic costs of its regulation. The Agency
notes, however, that these analyses typically assumed that methyl
bromide would be banned immediately, considered a very limited
range of alternatives, and were inconsistent with information
on substitutes presented at the Technology and Economics Assessment
Workshop in mid-June. EPA believes these shortcomings substantially
undercut the utility of these studies.
Others submitting information regarding methyl bromide to
the Agency also identified the following concerns. Regarding
soil fumigation, many warned that unavailability of methyl bromide
would result in the application of greater quantities of less
potent alternative herbicides and fungicides which could present
other environmental hazards, such as ground and surface water
contamination. Also, some were concerned that unavailability
of methyl bromide for commodity fumigation would lead to a
significant
increase in invasions of foreign pests.
Based on currently available information, the Agency believes
that much work remains to be done to identify acceptable
substitutes
for methyl bromide. On June 16-18th, the United States hosted
a conference of over 90 experts from over 20 countries on issues
related to the use and possible substitutes for methyl bromide.
This workshop was held under the auspices of the Montreal Protocol
and was convened for the purposes of providing an update on
technical and economic issues related to the use of methyl bromide
for the Parties to the Protocol in upcoming negotiations. The
meeting was co-chaired by Dr. Stephen Andersen and Mr. Steven
Lee-Bapty, who had co-chaired the Technical and Economic Assessment
Report prepared this past year under the Protocol.
The assessment update concluded that methyl bromide is an
economically important chemical widely used as a soil and commodity
fumigant and that no one single compound would likely be an
appropriate substitute. A number of potential alternatives were
identified in each of the major use categories. In addition,
near-term steps to reduce emissions through changes in such
measures as utilization rates, application techniques, and
recycling
and recovery may offer significant opportunities for reductions.
The assessment highlighted that there is no single alternative
to methyl bromide in the broad spectrum of applications for
which it is currently used and there are some applications for
which there are limited or alternatives.
In the area of structural fumigation, the information available
indicates that sulfuryl fluoride is available as one alternative.
However, the information provided regarding this substitute
indicates that overuse of a single chemical for such a particular
application could increase pest resistance to that chemical,
and usefulness of such a single alternative as a substitute
for methyl bromide may therefore be limited. Other non-chemical
alternatives include the use of heat and cold treatments, modified
atmospheres, inert dust, and microwave treatments. Each of these
methods appear to have some potential applicability, but also
have their limitations. Additional research will be required
to determine the extent to which they can substantially reduce
the current use of methyl bromide in this application.
The area of soil fumigation is particularly critical because
it represents the single largest use of methyl bromide. Other
chemical fumigants may be possible for some crops in some areas.
For example, Dazomet has the potential for substituting widely
for methyl bromide but several issues must be resolved before
the extent of such substitution becomes clear. For example,
although it is approved for use in food crops in over 70 other
countries, it is not approved for such application in the United
States. Its current use in the U.S. is limited to non-food items,
which currently represent only a small fraction of methyl bromide
use. The registrant announced at the workshop that it would
seek expanded registration in the near future, but this process
could take a year or longer. As cited above, numerous tests
are required for registration of a pesticide under FIFRA and
associated food tolerances under the FFDCA. Even after the testing
has been completed and submitted to the Agency, the review period
may be extensive.
The reason for the extent of testing and the lengthy review
period is that extensive data are needed for evaluating the
risk posed through exposure in food: Various subchronic and
chronic toxicity studies and data on the level of residues in
each individual treated crop (in the case of a soil fumigant,
each crop grown in treated soil). Residue chemistry data are
generated in a tiered fashion, proceeding from identification
of plant and animal metabolites through analytical methods to
determine the residues, to measures of the magnitude of the
residue in the individual crops. Magnitude of residue data can
be collected only on a crop season basis.
After the data are collected, the Agency reviews the toxicity
and residue data and conducts a dietary risk assessment to
determine
whether residues in food which would be permitted by the proposed
use meet the applicable statutory standards. Inadequate data
or analytical methods for enforcement, or dietary risk concerns
can delay the review process. Additionally, the person seeking
the registration (usually the producer of the pesticide) must
petition the Agency to establish the tolerance or exemption,
a formal regulatory process culminating in rulemaking.
While limited field tests on strawberries (Strawberry Research
Board), tobacco (G.S. Miner and D.A. Worsham, "Fumigation of
Tobacco Plantbeds with Dazomet") and tree seedlings (letter
to David Lee from Thomas D. Landis, with enclosure "Soil fumigation
in bareroot tree nurseries") suggest that Dazomet may be as
effective against a wide range of pests as methyl bromide,
additional
experience is needed to identify what if any limitations exist
to its use. Other chemical fumigants include Telone and Telone
C-17 which may have significant potential as substitutes, but
the registration of these compounds has been suspended in
California
due to ambient air quality concerns and these compounds undergoing
special review by the Office of Pesticide Programs at EPA.
Resolution
of issues concerning the safety of their use is essential before
expanded use to replace methyl bromide would be possible.
A number of non-chemical alternatives were also presented
at the assessment workshop. These included such options as:
Soil solarization, biological control agents (e.g., plant growth
promoting rhizobacteria and fungal antagonists of nematodes);
changes in cultural systems; and such emerging technologies
as sodium azides and furfuraldehyde. It is important to recognize
that additional research related to each of these options is
critical to determine the extent to which they may become
significant
alternatives to the current use of methyl bromide.
Finally, in the area of commodity fumigation and quarantine
applications, concerns were voiced about the limited availability
of alternatives for certain applications, particularly related
to quarantine use. Alternatives discussed included increased
use of phosphine for those commodities where it is an acceptable
alternative, the use of controlled atmospheres, heat and cold
treatments, and irradiation. Each of these options also requires
additional analysis to determine the extent that they are viable
alternatives for methyl bromide.
Although the synthesis report did point out potential
alternatives,
and that there could be substantial anthropogenic emissions
of methyl bromide, it did highlight that there is no single
alternative for methyl bromide in the broad spectrum of
applications
and no apparent alternatives for some applications. Further,
the introduction of some alternatives may require government
approval that could be a lengthy process.
5. Today's Proposal
EPA believes that the preliminary evidence available within
the time frame for this proposal demonstrates the unattainability
of the environmental groups' suggested phaseout schedule for
methyl bromide, and also points to the unattainability of at
least the near-term reductions in the section 604(a) phaseout
schedule for class I substances. Due to current data limitations
and significant uncertainties regarding the availability of
substitutes for methyl bromide, EPA believes under these
circumstances
that a production and consumption freeze at 1991 baseline levels,
is the most stringent schedule for the phaseout of methyl bromide
that it can propose to establish in place of the section 604(a)
schedule.
EPA believes that a freeze at a designated baseline year
level would limit the potential environmental harm from increased
use of methyl bromide. Moreover, given recent growth in the
use of methyl bromide, a freeze at this time would require that
near-term reductions steps (including reduced application rates,
recovery and recycling, deeper injection and less permeable
tarps) that are currently available would be employed and that
efforts to develop and commercialize substitutes would be
accelerated.
Given the unique circumstances (the existing restrictions on
substitutes because of their agricultural use) that surround
the need for regulatory approvals for many of the substitutes
of methyl bromide, further reductions absent further developments
on the timing of acceptance of substitutes would be premature.
EPA is therefore proposing to extend the section 604(a) schedule
to a freeze at 1991 baseline levels beginning January 1, 1994
along with a January 1, 2000 phaseout date.
EPA recognizes that the Clean Air Act specifically limits
extensions under section 602(d) to seven years after January
1 of the year after the year in which the substance is added
to the list of class I substances. The earliest year in which
methyl bromide can be listed is 1993. If listed in 1993, EPA
may not extend the phaseout schedule beyond January 1, 2001.
Nevertheless, while EPA believes-based on current information-
that a production and consumption freeze is the most stringent
schedule it can propose, EPA proposes that this extension continue
until January 1, 2000 as specified in 604(b).
While EPA believes that current information suggests near-
term reductions are unattainable and does not, in any event,
provide an adequate basis to propose specific interim reductions,
neither does EPA have data to indicate that termination after
January 1, 2000 will be unattainable.
EPA believes that January 1, 2000 is the appropriate phase-
out date at this time for two reasons. First, EPA does not believe
it should extend the schedule beyond the final termination date
specified in the Clean Air Act for class I substances absent
an affirmative basis to believe that termination will be
unattainable
at that time.
Second, were EPA able to comply with the Clean Air Act schedule
for responding to the December 3, 1991 petition to list methyl
bromide and thereafter for promulgating a final rule adding
methyl bromide to the list, no extension could have been provided
past January 1, 2000. (Section 602(c) provides that in a case
where the Administrator proposes to add a substance to the list,
he or she shall add, by rule, (or make a final determination
not to add) such substance to such list within 1 year after
receiving such petition.) In this case, EPA believes it should
therefore conservatively propose to extend the schedule only
until January 1, 2000. If listed in 1993, EPA will consider
further extending the phaseout schedule until January 1, 2001,
if appropriate based on information that becomes available in
the coming years.
EPA is proposing to establish 1991 as the "representative"
baseline year under section 601(2)(C) as the most recently
completed
year during which methyl bromide was produced. This is also
the base year adopted by the Parties to the Montreal Protocol.
The Agency is publishing a request for information on 1991
production
and consumption levels in a separate action and anticipates
setting baseline production and consumption allowances based
on that information. As a class I controlled substance, methyl
bromide would also be subject to the recordkeeping and reporting
requirements under 40 CFR 82.13.
While the Clean Air Act mandates that-if methyl bromide is
added to the class I list in 1993-no extension under section
602(d) may extend the termination date beyond January 1, 2001,
EPA is concerned about the possibility that this period may
not ultimately provide adequate lead time for the development
and approval of substitutes for all of the current uses of methyl
bromide. This is particularly true in the case of quarantine
and pre-shipment uses of methyl bromide where substitutes may
be the most difficult to develop and take the longest time to
be accepted by the international community. The Agency believes
that an essential use provision which allows the continued
production
of this compound after the termination date if no substitutes
have become available would be highly desirable.
Such an essential use provision was incorporated into the
Montreal Protocol for all substances scheduled for phase-out.
Furthermore, in listing and freezing production of methyl bromide,
the Parties recognized that methyl bromide is essential for
quarantine and pre-shipment purposes and specifically exempted
these uses from any restrictions. Because methyl bromide was
not specifically considered in the CAA, Title VI does not
explicitly
authorize any essential use exemptions for this compound unlike
other Class I substances. In light of this, EPA seeks comment
on whether authority currently exists for the Agency to implement
an essential use provision for methyl bromide.
The Agency will continue to work closely with researchers,
environmentalists, and industry to evaluate new information
on the ODP of methyl bromide and to encourage the development
of substitutes for this compound. If it appears in the future
that a more rapid phaseout of methyl bromide is attainable or
practicable, the Agency may then propose to accelerate the phaseout
dates as authorized under sections 606 and 615 of the Act.
The Agency recognizes that its proposal under section 602(d)
to extend the section 604 phaseout schedule is based on limited
information available at the time of this rulemaking. While
the Agency believes that currently available information supports
the proposed extension as the most stringent phaseout schedule
it can propose, the Agency understands that future developments
could change this conclusion. The Agency believes that section
606(a) provides authority to accelerate a phaseout schedule
that has been extended under section 602(d), if justifiable
based on future information. Further, the Agency believes that
the petition provision of section 606(b) continues to be applicable
to such extended phaseout schedules. Using this authority or
general authority under section 615, EPA could accelerate any
previously extended phaseout schedule in light of future
developments.
Furthermore, EPA believes that it has authority under section
602 of the Clean Air Act to reconsider its decision to list
and phaseout methyl bromide in the event that scientific
information
becomes available indicating that the ODP proposed to be assigned
today is incorrect. In section 602(a), Congress provided for
listing of substances specifically named in that section and
already known to be potent ozone depletors, and also set out
criteria for EPA to add substances to the list. The criteria
for additions to the class I list are as follows: First, pursuant
to subsection (c), EPA is authorized to add to the list substances
the Administrator finds causes or contributes significantly
to harmful effects on the stratospheric ozone layer; and second,
EPA shall, pursuant to subsection (c), add to such list all
substances that the Administrator determines have an ODP of
0.2 or greater. Section 602(c)(1) specifically authorizes EPA
to add substances to the list by rule in accordance with the
criteria set forth in subsection (a).
Section 602(c)(4) states that no substance referred to in
subsection (a), including methyl chloroform, may be removed
from the list of class I substances. EPA believes that Congress
intended the "substances referred to in subsection (a)" only
to include those substances specifically identified in subsection
(a) itself. Newly listed substances such as methyl bromide would
actually be listed under subsection (c), whereas subsection
(a) only sets out the criteria for listing new substances. Unlike
newly listed substances, those known ozone depletors specifically
identified in subsection (a) are to be listed under subsection
(a) and not subsection (c). These explicitly identified substances
are clearly referenced in subsection (a). However, it seems
reasonable to conclude that the specification of criteria for
listing in subsection (a) does not constitute a "reference"
to all those substances which may satisfy these criteria and
hence be listed under subsection (c) in the future.
EPA believes it is reasonable to conclude that Congress intended
to limit the Agency's discretion to remove from the list of
class I substances only those that Congress itself expressly
identified. EPA's decision whether to list a new substance must
be based on the Agency's assessment of the substance's contribution
to stratospheric ozone depletion and ODP. In making this
assessment,
the Agency must rely on the most current scientific evidence,
which is always developing and never absolutely certain. A rule
that the listing decision cannot be reversed might chill the
Agency from controlling newly identified substances for which
there is much evidence of their danger, since the Agency would
be unable to respond to perhaps unexpected new evidence that
the danger was previously overstated. The certainty demanded
to make an irreversible decision would be increased without
reason. Therefore, it is reasonable that the Agency be able
to consider changes in scientific evidence is deciding whether
to add the substance to the list. The Agency requests comment
on this reasoning and its legal authority to delist a substance
such as methyl bromide if future scientific developments warrant
such action.
The Agency requests comment on the proposed baseline year
and phaseout schedule for methyl bromide. EPA also requests
comment on whether based on the current availability of
substitutes,
a 50 percent cut by 1997 or other interim reductions should
be required, section 604 phaseout schedule should be maintained
or, the environmental groups' suggested schedule should be adopted.
6. Applicability of section 611 Labeling Requirements
In the response to comments document to the final rule on
labeling, the Agency responded to questions regarding whether
products grown with methyl bromide should be labeled. In its
document, the Agency stated that it considers the processes
involved in growing, harvesting, storing, and transporting of
food such as fruits and vegetables, to be an agricultural process
rather than a manufacturing process. As a result of its revised
interpretation of "manufactured with," EPA's intention is to
not include these processes under the definition of manufactured
with. For purposes of section 611, EPA defines "manufacture"
as "the mechanical or chemical transformation of materials or
substances into new products or to assemble component products."
EPA believes that the agricultural processes mentioned above
are excluded from the definition of manufacture, and therefore
not subject to the labeling requirements.
7. Essential Use Exemption
Congress had recognized the need to exempt certain ozone
depleting substances as essential uses in section 604 of the
Amended Clean Air Act. At the time of passage of the Act, Congress
had not anticipated the listing and control of methyl bromide.
However, with methyl bromide's listing as a class I substance,
the Agency recognizes its current important role as a pesticide,
and that there are certain applications for which there are
currently no replacements. Given that there may be "essential
uses" for methyl bromide in the future, the Agency requests
comment on its authority under the Clean Air Act to exempt
"essential
uses" for this chemical, and comments on the timing of when
such a review process should occur. In addition, the agency
asks comments on specific use exemptions for this chemical.
E. Addition of Hydrobromofluorocarbons to the List of Class
I Substances and to the Phaseout Schedule
1. Summary
At the fourth meeting or the Parties to the Montreal Protocol,
the Parties agreed to amend the Protocol to require termination
of production and consumption of HBFCs, beginning January 1,
1996. These chemicals added as Group II of Annex C to the Protocol,
have generally parallel chemical structures to the HCFCs listed
in Group I of Annex C to the Protocol, with bromine atoms taking
the place of chlorine atoms. The ODP's for many HCFCs are
identified
in Group II of Annex C as a range and are based on estimates.
The ODPs for these substances are less certain than where the
ODP is listed as a single number based on laboratory measurements.
The upper value in the ODP range is the estimate of the ODP
for the isomer with the highest ODP, and the lower value is
the estimate of the ODP for the isomer with the lowest ODP.
The Parties to the Protocol agreed, however, that the ODPs under
the Protocol for the HBFCs shall be the upper value in the range.
In every case for the HBFCs listed in Group II of Annex C, the
upper value exceeds 0.2.
As with the Parties' agreement regarding methyl bromide,
the Parties' agreement to amend the Protocol to list the identified
HBFCs as controlled substances, to assign the specific ODPs,
and to phase out production beginning in 1996, will enter into
force by January 1, 1994, provided that twenty Parties have
ratified the amendments. If twenty Parties have not ratified
the amendments by that date, then these amendments will enter
into force ninety days after the twentieth instrument of
ratification
is deposited by a Party.
As explained with respect to methyl bromide, section 602(e)
of the Clean Air Act provides that the ODP of a substance specified
under section 602 of the Clean Air Act shall be consistent with
the ODP specified for that substance under the Protocol. Also,
section 602(a) provides that the Administrator shall, pursuant
to subsection (c), add to the class I list all substances that
the Administrator determines have an ODP of 0.2 or greater.
As the Parties agreed to ODPs for the HBFCs that are all above
0.2, once the Protocol amendments specifying these ODPs enter
into force, these ODPs will control listing under the Clean
Air Act. Also, for the same reasons explained with respect to
methyl bromide, EPA believes it has authority to remove any
of these HBFCs from the class I list if future scientific
developments
warrant such action.
EPA is preceding now to list these compounds as class I
substances
because of the information presented at Copenhagen on behalf
of the Scientific Assessment Panel, that the ODPs of these
compounds
are above 0.2.
Once listed, class I substances are automatically subject
to the phaseout schedule specified in section 604 of the Clean
Air Act. As explained earlier in this action, section 606(a)(3)
provides authority for accelerating the phaseout of class I
substances on the grounds that the Montreal Protocol is modified
to include a schedule that is more stringent than the schedule
otherwise applicable under title VI. Moreover, section 614 of
the Clean Air Act provides that in the case of conflict between
any provision of this title and any provision of the Montreal
Protocol, the more stringent provision shall govern. Therefore,
the Agency must establish phaseout schedules at least as stringent
as those agreed to by the Parties, once those agreements enter
into force. Hence, the January 1, 1996 phaseout date agreed
to by the Parties is the least stringent phaseout date EPA may
propose to be effective when the Parties' agreement enters into
force.
However, EPA proposes to freeze production and consumption
of HBFCs beginning January 1, 1994, in addition to the January
1, 1996 phaseout date. EPA is aware of only one HBFC that is
commercially produced. This substance-CHF2Br, also referred
to as HBFC-22B1-is used as a fire suppressant and has been
evaluated
as a substitute for certain halon uses. It has an ODP of 0.74,
which is higher than some of the other substances already on
the class I list and subject to the accelerated phaseout proposed
elsewhere in this action. Furthermore, use of this substance
is quite limited, and it is manufactured by only one company
and has a limited market potential. In addition, it appears
likely that there will be suitable and economically acceptable
substitutes available for all uses of this substance prior to
phase-out in 1996. EPA requests comment on the need for interim
reductions prior to the January 1, 1996 termination date.
Further, EPA believes it has authority to provide for a limited
exception to the production and consumption limits for essential
uses of this substance, if they arise. EPA believes this authority
derives not from the essential use provisions of section 604,
but from its authority to adjust phaseout schedules under section
602(d). As explained with respect to methyl bromide, EPA is
authorized under section 602(d) to extend the phaseout schedule
for newly listed substances if the statutory schedule is
unattainable.
But no extension may extend the termination date more than 7
years after January 1 of the year after the year in which the
substance is added to the list.
Assuming this substance is listed in 1993, the termination
date may not be extended past January 1, 2001. EPA believes
it may allow for essential uses of this HBFC as an exercise
of this extension authority, but only until the latest possible
termination date under the Clean Air Act. Also, since the phaseout
schedule must be no less stringent than that specified in the
Montreal Protocol, any limited essential use exception must
be no less stringent than any such exceptions provided in the
Montreal Protocol, once the listing of this substance enters
into force under the Protocol. EPA requests comment on this
reasoning, and the legal authority for an essential use exemption
for such newly listed substances.
EPA proposes 1991 as the baseline year for establishing
production
and consumption allowances for the HBFCs, including HBFC-22B1.
EPA requests comment on this choice of baseline year, particularly
since HBFCs have generally not been produced except for the
one substance identified. EPA is proposing that HBFCs constitute
a separate group within class I substances because of the different
schedule of this compound to HCFCs or halons, and because of
the unique circumstance concerning the limited production and
use of compounds within this class. By assigning it to a separate
group, efforts will be focussed on developing alternatives by
1996 for these compounds.
In a separate action, EPA is requiring persons that
manufactured,
imported, exported or transformed HBFC-22B1 or any other HBFC,
in 1991 to provide information on their activities during that
year, for purposes of establishing the allowances for HBFCs
that are listed as class I substances.
The Agency requests comment on the proposed 1991 baseline
year and phaseout schedule for HBFCs, in light of available
substitutes, and on the attainability of the schedule.
2. Legal Authority
The authority to add substances to the list of class I
controlled
substances is contained in section 602 of the Clean Air Act,
which has been discussed extensively in connection with the
listing of methyl bromide. The authority to accelerate the phaseout
of class I substances is contained in section 606 of the Act,
which has already been discussed in connection with the phaseout
of other class I substances.
3. Applicability of section 611 labeling requirement to HBFCs
As discussed above under the section on labeling of methyl
bromide, any newly listed class I or class II substance will
fall within the CAA requirements for labeling under section
611. Given that the only known use of an HBFC is for fire fighting
purposes, a use which is the same as that of halons, the Agency
does not anticipate any new or unanticipated issues not dealt
within the context of its previous rulemaking establishing its
labeling program. Nonetheless, EPA is asking comments on any
issues related to the applicability of section 611 to HBFCs,
including a proposed effective date for labeling of one year
after a final action to add the compounds to the list of Class
I substances.
F. Trade Restrictions
1. Montreal Protocol Trade Requirements
Article 4 of the Montreal Protocol, as amended, requires
Parties to the Protocol to implement certain trade restrictions
with regard to foreign states that are not Parties to the Protocol
as originally agreed to in 1987, or as subsequently amended.
Paragraph 8 of Article 4 provides that the trade bans are not
to be applied to foreign states not party that have been
determined,
by a meeting of the Parties, to be in compliance with the phase-
out and trade provisions of the Protocol.
a. 1987 Montreal Protocol Trade Provisions. Article 4 paragraph
1 of the Montreal Protocol, as adopted in 1987, requires the
Parties to ban bulk imports of the chemicals listed in Annex
A of the Protocol{5} from foreign states that are not Parties
to the 1987 Montreal Protocol within one year of the Protocol's
entry into force.{6} Accordingly, EPA promulgated final regulations
implementing this provision at 40 CFR 82.4(d). (See 56 FR 9528,
March 6, 1990).
³{5} Annex A chemicals are listed in 40 CFR part 82,
appendix
³A, as Class I, Groups I and II.
³{6} The 1987 Montreal Protocol entered into force on
³January 1, 1989.
The Montreal Protocol as adopted in 1987 also contained
provisions
in paragraph 2 of Article 4, that required Parties operating
under Article 5 paragraph 1 (pertaining to developing countries)
to ban bulk exports of the Annex A chemicals to foreign states
not party beginning January 1, 1993. Finally, Article 4 paragraph
3 of the 1987 Montreal Protocol required the Parties to develop
an annex listing products containing the Annex A chemicals within
three years of the date of entry into force of the Protocol,
and to ban imports of those products from foreign states not
Party to the Protocol within one year of the effective date
of the Annex.{7} (The obligation to ban the imports of products
would not apply to any Party that objected to the annex.)
³{7} Although not covered by today's proposal, Article
³4, paragraph 4 of the Protocol provides for the Parties
³to determine the feasibility of restricting the import
³of products produced with Annex A controlled
substances.
³This determination must be made within five years of
³the Protocol's entry into force, i.e. by January 1,
1994.
b. Trade Provisions Added by the 1990 London Amendments to
the Montreal Protocol. The Protocol's Article 4 trade bans were
revisited and amended at the Second Meeting of the Parties to
the Montreal Protocol held in London in June 1990. The London
Amendments, which entered into force on August 10, 1992, revised
the Article 4 trade restrictions agreed to in 1987 in several
respects: (1) Paragraph 1 was amended to specify January 1,
1990 as the date the ban on bulk imports from foreign states
not party of Annex A substances was to go into effect, (2)
paragraph
2, as amended, extends the ban on exports to foreign states
not party of Annex A substances to all Parties (not just the
Article 5, paragraph 1 "developing countries"), (3) paragraph
3 was amended to specify January 1, 1992, as the date by which
the list of products containing Annex A substances must be
developed
by the Parties. In addition, the London Amendments require the
Parties to the London Amendments to ban bulk imports from
(paragraph
1 bis.) and exports to (paragraph 2 bis.) foreign states that
are not Parties to the London Amendments of twelve additional
ozone depleting chemicals (listed in Annex B to the Protocol,
as amended).{8} These last Annex B trade restrictions are required
to take effect one year after the date of entry into force of
the London Amendments, i.e. August 10, 1993.{9}
³{8} The Annex B chemicals are listed in 40 CFR part 82,
³appendix A, as Class I, Groups III, IV, and V.
³{9} See Decisions IV/1 and IV/16 paragraph 2(b) of the
³Fourth Meeting of the Parties to the Montreal Protocol.
³Other provisions added to Article 4 of the Montreal
Protocol
³by the London Amendments, not pertinent to today's
proposal,
³include: elaboration of an annex of products containing
³Annex B substances, a study on the feasibility of
restricting
³trade in products made with controlled substances, and
³obligations to discourage exports to non-Parties of
technology
³to produce and utilize controlled substances.
c. Elaboration of the List of Products Containing Annex A
Substances. On June 21, 1991, the Third Meeting of the Parties
in Nairobi adopted "A List of Products Containing Controlled
Substances Specified in Annex A" (Annex D to the Protocol),
in accordance with Article 4, paragraph 3 of the Montreal Protocol,
as amended. Annex D, which became effective on May 27, 1992
(with one Party objecting),{10} specifies the following six
product categories:
³{10} See Decision IV/15 paragraph 1 of the Fourth
Meeting
³of the Parties to the Montreal Protocol.
1. Automobile and truck air conditioning units (whether
incorporated
in vehicles or not),
2. Domestic (i.e. residential use) and commercial refrigeration
and air conditioning/heat pump equipment (when containing
controlled
substances in Annex A as a refrigerant and/or in insulating
material of the product),
3. Aerosol products, except medical aerosols,
4. Portable fire extinguishers,
5. Insulation boards, panels and pipe covers, and
6. Pre-polymers.{11}
³{11} EPA considered whether the ban applies to all
imports
³of products on the list, or only to the listed products
³when they are charged with a controlled substance. This
³issue arises because the "refrigeration/air
conditioning/heat
³pump" category has a notation specifying that the ban
³applies to those products when they contain the
controlled
³substance "as a refrigerant and/or in insulating
material".
³This could be read to imply that imports from
non-parties
³of the other 5 categories are banned, regardless of
whether
³the product actually contains a controlled substance.
³EPA believes, however, that such a reading would be
inconsistent
³with the intent of paragraph 3. The ban, therefore, is
³proposed to apply only to products actually containing
³an Annex A controlled substance at the time they are
³imported.
The ban on importation from foreign states not party of products
from these categories is required to begin one year from the
effective date of Annex D, or May 27, 1993.{12}
³{12} See Decision IV/16 paragraph 1 of the Fourth
Meeting
³of the Parties to the Montreal Protocol. Article 10 of
³the Vienna Convention specifies how the effective dates
³of annexes are calculated. Pursuant to those provisions
³Annex D was circulated to the parties by the UN
Directorate
³on November 27, 1991, and became automatically
effective
³six months thereafter on May 27, 1992, for those
Parties
³that did not object. The United States did not object.
d. Revisions to the Trade Provisions by the Copenhagen
Amendments.
At the Fourth Meeting of the Parties in Copenhagen on November
23-25, 1992, the Parties adopted the following decisions pertaining
to the Montreal Protocol Article 4 trade bans:
(1) Decisions IV/1 and IV/17 paragraph 2(b) confirm August
10, 1992 as the date the London Amendments "enter into force",
and the August 10, 1993 deadline specified in today's proposal
for the Class I Groups III, IV, and V bulk imports and exports
trade bans.
(2) Decision IV/5 adopts, among other matters, a procedure
for dealing with non-compliance by Parties with Protocol
requirements
(Annex IV to the Fourth Meeting of the Parties), and an indicative
list of measures that might be taken in respect of non-compliance
(Annex VI to the Fourth Meeting of the Parties). Among other
matters these annexes indicate that non-compliance could result
in "suspension of the operation of * * * specific rights and
privileges under the Protocol, * * * including * * * trade *
* *."
(3) Decision IV/16, paragraph 1, confirms that Annex D of
the Protocol ("A List of Products Containing Controlled Substances
Specified in Annex A") entered into force on May 27, 1992. This
means that the deadline for the imports ban on such products
specified in today's proposal of May 27, 1993.
(4) Decision IV/16, paragraph 3, adopts the conclusions in
document UNEP/OzL.Pro.4/3 distributed prior to the Fourth Meeting
of the Parties, regarding the Harmonized System (HS) customs
code numbers for the products listed in Annex D of the Montreal
Protocol. That document contains the following two conclusions
pertinent to the ban on imports of controlled products proposed
today, and the inclusion of Appendix D of the proposed rule:
[a. A] set of the HS customs code numbers have been compiled
for the products containing controlled substances as listed
in Annex D to the Montreal Protocol, so as to facilitate the
implementation of the Protocol * * *.
[b.] While some products can be readily associated with HS
codes, many products cannot be tied to HS classifications unless
their exact composition and the presentation are known. It should
be noted that the specified HS classifications represent the
most likely headings and subheadings which may contain substances
controlled by the Montreal Protocol. The codes given should
only be used as a starting point; further verification is needed
to ascertain whether or not the products actually contain
controlled
substances.
(Emphasis added).
(5) Decision IV/17 paragraph 2(a) clarifies that Article
4 paragraph 2 (Annex A bulk export ban) applies only to states
not parties to the 1987 Montreal Protocol. This interpretation
of Article 4 paragraph 9 of the Protocol clarifies that a foreign
state's "Party" or "non-Party" status is dependent on whether
the state has ratified the original "Montreal Protocol", the
"London Amendments", or the "Copenhagen Amendments" out of which
the particular trade ban in question arises.
(6) Decision IV/17B sets forth the determination of the Parties
that Colombia (a non-Party) has made a demonstration of compliance
under Article 4 paragraph 8, and is, therefore, exempt from
the Article 4 trade bans.
(7) Decision IV/17C constitutes a provisional determination
of compliance, pursuant to Article 4 and 8, until the fifth
meeting authorizes the Parties to suspend the trade bans in
paragraphs 2 and 2 bis of Article 4 (Class I exports) in October/
November 1993,{13} with regard to any non-Party that submits
a demonstration of compliance with the Protocol to the Secretariat
by March 31, 1993.
³{13} See Decision IV/29 regarding the Fifth Meeting of
³the Parties.
(8) Decision IV/27 directs the Technology and Economic
Assessment
Panel to study the feasibility, as required by Article 4 paragraph
4, of banning or restricting the imports of products made with
Annex A substances (Class I, Groups I and II), and to report
its findings to the Secretariat by March 31, 1993, for
consideration
by the Fifth meeting of the Parties.
(9) Finally, Decision IV/28 directs the Technology and Economic
Assessment Panel to develop a list of products containing Annex
B (Class I, Groups III, IV, and V) substances for consideration
by the Sixth Meeting of the Parties in 1994 as required by Article
4 paragraph 3 bis.
These decisions are discussed elsewhere in this package to
the extent they are pertinent to today's proposal.
The Parties also adopted a number of amendments to the Article
4 trade bans of the Protocol (the "Copenhagen Amendments"; see
Decision IV/4 of the Parties, adopting Annex III to the report
of the Fourth Meeting of the Parties) as follows:
(1) New paragraph 1 ter would ban imports from foreign states
not party of Annex C, Group II ozone depleting substances (HBFCs)
within 1 year of the date the Copenhagen Amendments enter into
force.{14}
³{14} The Copenhagen Amendments would add two new lists
³of ozone depleting substances Annex C Group I (HCFCs)
³and Group II (HBFCs (C+H+F+Br chemicals)), and Annex
³E (methyl bromide).
(2) New paragraph 2 ter would ban exports to foreign states
not party of HBFCs commencing 1 year of the Copenhagen Amendments
entry into force.
(3) New paragraph 3 ter would require that the Parties elaborate
an annex listing products containing HBFCs within 3 years of
the date the Copenhagen Amendments enter into force; and would
require all Parties to the Copenhagen Amendments that do not
object to the list to ban imports of such products from foreign
states not party within 1 year of said annex becoming effective.
(4) New paragraph 4 ter would require that the Parties to
the Copenhagen Amendments determine the feasibility of banning
or restricting imports of products produced with, but not
containing,
HBFCs within 5 years of the date the Copenhagen Amendments enter
into force. In addition, if the Parties determine that such
a ban is feasible, this paragraph would require the Parties
to elaborate an annex listing products made with HBFCs, and,
except for Parties objecting, to ban or restrict imports of
the products within 1 year of the annex becoming effective.
(5) Amendments to Article 4, paragraph 8 would ensure that
the trade ban exemptions for foreign states not party determined
by the Parties to be complying with the Protocol, would cover
all of the Article 4 bans (including any new bans resulting
from future amendments to the Protocol).
(6) Finally, new paragraph 10, would require the Parties
to decide whether to extend the Article 4 trade bans to Annex
C, Group I and Annex E ozone depleting substances (i.e. HCFCs
and Methyl Bromide, respectively) by January 1, 1996. Article
3 of Annex 3 provides that the Copenhagen Amendments will "enter
into force" on January 1, 1994, if ratified by 20 Parties to
the Protocol, or 90 days following ratification by 20 Parties.
EPA will propose implementing regulations at that time for the
trade restrictions embodied in those amendments.
e. Trade Bans in Today's Proposal. The regulations in today's
proposal would extend the prohibitions on trade with respect
to foreign states not party specified in the existing rules
at 40 CFR 82.4(d), in several respects. First, bulk exports
from the U.S. to foreign states that are not Party to the 1987
Montreal Protocol of Annex A substances (Class I, Groups I and
II) would be banned as of the effective date of the final rule.
However, EPA has advised all exporters of the Protocol
Restriction's
on bulk exports, and is requesting that all exporters refrain
from exporting bulk chemical to non-papers beginning March 31,
1993. Currently U.S. exports to foreign states not party of
Annex A chemicals constitute less than 15% of total U.S. exports
of these chemicals. The impact of this ban on U.S. trade is,
therefore, expected to be minimal.
Also, pursuant to the provisions of Article 4 added by the
London Amendments, today's proposal would amend 40 CFR 82.4(d)
to ban bulk imports and exports of chemicals listed in Annex
B to the Protocol (see Class I, Groups III, IV, and V in Appendix
A of 40 CFR Part 82, subpart A), beginning August 10, 1993,
between the U.S. and foreign states not Party to the 1990 London
Amendments. Current U.S. exports of Annex B chemicals to foreign
states not party comprise less than 15% of total U.S. exports
in this category. Moreover, there have been no U.S. imports
of Annex B chemicals from foreign states not party over the
last three years. The domestic impact of today's proposal is,
therefore, expected to be minimal.
Finally, the regulations proposed today would also ban imports
into the U.S. from foreign states that are not Party to the
1987 Montreal Protocol of products containing controlled substances
listed in Annex D ("controlled products") beginning May 27,
1993. Today's action includes, in revised Appendix D to this
subpart, a proposed non-inclusive list of harmonized tariff
schedule classifications for items that may fall within one
of the six Annex D product categories. It would be difficult
to elaborate a definitive list of products for several reasons:
(1) Harmonized Schedule Classification System. The Harmonized
Schedule classification system, which is used by over 100
countries,
is standardized up to the 6-digit or "international level" (e.g.
8415.00). At the international-level, the classification system
is fairly stable, subject to review only once every four years.
Each country may, however, independently further classify products.
The United States classifies products at the 8-digit or "legal
level" (e.g. 8415.00.04) to implement the U.S. Customs duty
functions. This level of classification may be changed by Congress
or the President at any time, or pursuant to a bi-lateral free-
trade agreement. In addition, products are classified further
to the 10-digit or "statistical" level, and reported to the
U.S. Census based on U.S. Customs Entry Form information. EPA
will rely on the Census information to implement the imports
ban requirements.
(2) There are no independent International Harmonized Schedule
classifications for the six product categories in Annex D, although
they have been proposed by the Parties through appropriate avenues.
Moreover, because Annex D products are manufactured in many
different forms, and subject to innovation, there is no single
classification system that could be easily applied. Appendix
D, therefore, elaborates a suggestive list of products that
have been classified under the Harmonized Schedule system and
that appear to fall within one of the six Annex D categories.
Any of the products included in Appendix D may contain class
I, Group I or II, controlled substances, and if one does contain
such a substance it may not be imported from a non-Party. As
was noted above, the difficulties in identifying Harmonized
Schedule codes were discussed at the recent meeting of the Parties
in Copenhagen. See Decision IV/16 paragraph 3. Consistent with
the conclusions of the Parties reached at the Copenhagen meeting,
the import from a non-Party of a product that, although not
included in appendix D of today's proposal, falls within one
of the six Annex D product categories and contains a Group I
or II controlled substance, is also banned. Under today's proposal
it would be the importer's responsibility to ensure that any
Annex D product (whether listed in Appendix D or not) imported
from a non-Party in fact does not contain a Group I or II
controlled
substance.
Information currently available to EPA indicates that imports
from foreign states not party in each of the Annex D product
categories, are small or non-existent.{15} Given the large number
of Parties to the 1987 Montreal Protocol (see, below), the apparent
limited volume of imports to the U.S. from foreign states not
party of Annex D products, and the apparent wide availability
of the controlled products from U.S. manufacturers, the impact
of this ban on the U.S. economy is expected to be nominal. EPA
asks for comment on Appendix D of today's proposal, including
the extent of any trade with foreign states not party and
information
about additional products that could be referred to under the
six specified categories.
³{15} Source: According to information provided by the
³Air-Conditioning, Refrigeration, and Heating Institute
³(ARI) more than 95% of total imports of refrigeration
³and air conditioning products (category 2) comes from
³Parties. Similarly, according to the Polyisocyanurate
³Insulation Manufacturers Association (PIMA), there is
³no current trade with non-Parties in insulation
products
³(category 5).
e. Parties to the 1987 Montreal Protocol and 1990 London
Amendments. In accordance with Article 4, paragraph 9, the trade
restrictions of the Montreal Protocol apply to any foreign state
that has not "agreed to be bound by the control measures in
effect for that substance". Whether a foreign state is subject
to some or all of the trade bans proposed today will, therefore,
depend upon the extent to which it has accepted the pertinent
provisions of the Protocol. (See Decision IV/17A paragraph 2(a)
of the Fourth Meeting of the Parties to the Montreal Protocol.)
Specifically, a foreign state that has ratified the Montreal
Protocol as adopted by the Parties in 1987, but not the 1990
London Amendments, would be a non-Party for purposes of the
Annex B bulk chemicals imports and exports ban. EPA, therefore,
proposes to amend 40 CFR part 82, appendix C from part 82, and
the definition of "Party" to distinguish between Parties to
the 1987 Montreal Protocol and to the London or Copenhagen
Amendments.
In addition, EPA is amending appendix C to add references to
several foreign states that became Parties since the appendix
was first published. EPA intends to update Appendix C periodically.
These changes will help ensure against the unintended imposition
of the trade bans on trade with foreign states that become Parties
after the rules are promulgated.{16}
³{16} Pursuant to the provisions of the Vienna
Convention
³and the Montreal Protocol, the official record of
United
³Nations treaty ratification is maintained by and
available
³from the Depositary of the United Nations Secretariat,
³Office of Legal Affairs, New York. In addition, up to
³date information on the status of ratification of the
³Montreal Protocol and its amendments is published every
³three months, and can be obtained from, the United
Nations
³Environment Programme (UNEP), P.O. Box 30552, Nairobi,
³Kenya, or by calling the U.S. EPA Stratospheric Ozone
³Program Hotline. A copy of the most recent issue is
available
³for viewing in the docket for this rulemaking.
The following foreign states are currently Parties to the
Montreal Protocol as initially agreed to in 1987 (excludes the
Annex B bulk chemical trade restrictions): Algeria, Argentina,
Australia, Austria, Bahrain, Bangladesh, Barbados, Belarus,
Belgium, Botswana, Brazil, Bulgaria, Burkina Faso, Cameroon,
Canada, Chile, China, Costa Rica, Croatia, Cuba, Cyprus, Czech
and Slovak Federal Republic, Denmark, Ecuador, Egypt, El Salvador,
Fiji, Finland, France, Gambia, Germany, Ghana, Greece, Guatemala,
Guinea, Hungary, Iceland, India, Indonesia, Iran, Ireland, Israel,
Italy, Japan, Jordan, Kenya, Republic of Korea, Libyan Arab
Jamahiriya, Liechtenstein, Luxembourg, Macaw, Malawi, Malaysia,
Maldives, Malta, Mauritius, Mexico, Netherlands (including
Netherlands
Antilles and Aruba), New Zealand (not including Cook Islands
and Niue), Niger, Nigeria, Norway, Panama, Papua New Guinea,
Philippines, Poland, Portugal, Russian Federation (i.e. former
USSR), Saint Kitts and Nevis, Singapore, Slovenia, South Africa,
Spain, Sri Lanka, Sweden, Switzerland, Syrian Arab Republic,
Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda,
Ukraine, United Arab Emirates, United Kingdom,{17} Uruguay,
U.S., Venezuela, Yugoslavia, Zambia, and the European Economic
Community (EEC). Except as is explained further below regarding
foreign states not party that are complying with the Protocol,
foreign states not listed above are foreign states not party
to the 1987 Montreal Protocol and will be subject to the trade
bans proposed today pursuant to that authority unless and until
they become Parties.
³{17} See Status of
Ratification/Accession/Acceptance/Approval
³of: I. The Vienna Convention for the Protection of the
³Ozone Layer (1985), II. The Montreal Protocol on
Substances
³that Deplete the Ozone Layer (1987), III. The Amendment
³to the Montreal Protocol (1990), October 1992
(Eighteenth
³Issue), prepared by the United Nations Environment
Programme
³(UNEP/OxL.Rat.18, 31 October 1992).
The following foreign states are currently Parties to the
London Amendments (including the Annex B bulk chemical trade
restrictions): Australia, Cameroon, Canada, Chile, China, Denmark,
Finland, France, Germany, Ghana, Guinea, India, Indonesia, Ireland,
Israel, Italy, Japan, Luxembourg, Maldives, Mauritius, Mexico,
Netherlands (including Aruba), New Zealand (not including Cook
Islands and Niue), Norway, Russian Federation (i.e. former USSR),
South Africa, Spain, Sweden, Switzerland, Thailand, United
Kingdom,{18}
U.S., and the European Economic Community (EEC). Except as is
explained further below regarding, foreign states not party
that are complying with the Protocol, foreign states not listed
above are foreign states not party to the London Amendments
and will be subject to the trade bans proposed today pursuant
to that authority unless and until they become Parties.
³{18} See Status of
Ratification/Accession/Acceptance/Approval
³of: I. The Vienna Convention for the Protection of the
³Ozone Layer (1985), II. The Montreal Protocol on
Substances
³that Deplete the Ozone Layer (1987), III. The Amendment
³to the Montreal Protocol (1990), October 1992
(Eighteenth
³Issue), prepared by the United Nations Environment
Programme
³(UNEP/OxL.Rat.18, 31 October 1992).
Article 4, paragraph 8, of the Montreal Protocol specifies
one exception to the restrictions on trade with foreign states
not party. Specifically, paragraph 8 provides that the trade
prohibitions of Article 4 do not apply to any non-Party that
is determined by a meeting of the Parties to be complying with
Articles 2, 2A to 2E and 4 of the Protocol.
Appendix D of the current rule was previously reserved for
the listing any such foreign state. EPA proposes to redesignate
Appendix D and use it to specify the list of products containing
Annex A substances. In addition, in the event of any determinations
by the Parties under Article 4 paragraph 8, that information
will be added to the rule as an amendment to the table of states
listed in appendix C.
At the recent meeting of the Parties in Copenhagen two decisions
were reached pertaining to this Article 4, paragraph 8 of the
Protocol. Specifically, Decision IV/17B bis sets forth the
determination
of the Parties that Colombia (a non-Party) has made a demonstration
of compliance under Article 4 paragraph 8, and is, therefore,
exempt from the Article 4 trade bans. In addition, by Decision
IV/17C, the Parties may suspend the trade bans in paragraphs
2 and 2 bis of Article 4 (Class I exports) until the Fifth Meeting
of the Parties in October/November 1993,{19} with regard to
any non-Party that submits a demonstration of compliance with
the Protocol to the Secretariat by March 31, 1993.
³{19} See Decision IV/29 regarding the Fifth Meeting of
³the Parties.
Accordingly, the trade bans of part 82 will not apply to
Colombia. In addition, EPA proposes that it will give public
action as to any country that submits a demonstration as provided
in Decision IV/17C. Since the determination specified by that
decision is, however, temporary in nature EPA proposes that
it would not amend Appendix C in the event of any such showing.
These trade restrictions under the Protocol only apply to
a "State not party" to the Protocol. As such, they do not apply
to Taiwan. The U.S. has data indicating that Taiwan is in
compliance
with the reduction provisions of the Protocol.
f. Compliance. Section 82.13 of the existing regulations
specifies recordkeeping and reporting requirements for trade
in all Class I bulk chemicals, as part of the stratospheric
ozone allowance and phase-out scheme. Because those information
requirements are expected to be adequate to enforce the trade
restrictions on bulk chemicals proposed today, no additional
information requirements are proposed.
With regard to the new provisions on trade in controlled
products, today's proposal does not specify any recordkeeping
or reporting requirements. Under this approach compliance with
the ban on imports of such products from foreign states not
party would be enforced, in cooperation with U.S. Customs, relying
on standard import documentation (e.g. U.S. Customs Entry Form
3361 and Entry Summary Form 7501, which among other things includes
the Harmonized Schedule Commodity codes and the country of origin
for the import).
EPA, however, asks for comment on whether the information
requirements contained in 40 CFR 82.13 for bulk chemicals should
be required for controlled products in the final rules. Although
the ban only applies to controlled products when they actually
contain the listed substance, requiring recordkeeping and reporting
of all imports from foreign states not party of products within
the six appendix D product categories would provide a mechanism
to focus compliance investigations, as well as an added incentive
for the foreign states not party to ratify the Protocol.
Under such an approach 82.13(g) would be revised to require
each person that imports a product included in one of the six
product categories specified in new appendix D, from a non-Party
to the 1987 Montreal Protocol, to comply with specified
recordkeeping
and reporting requirements during each control period. Among
these, importers would be required to maintain records of the
quantity and dollar value of each product within the six controlled
product categories imported from a non-Party, information verifying
whether the product contains a controlled substance and, if
so, which controlled substance the product contains; the date
on which the product was imported; the port of entry through
which the product passed into the United States; the country
from which the product was imported; and the Harmonized Schedule
commodity code for the product. In addition each calendar quarter,
any such importer would be required to submit report to the
Administrator specifying the quantity of the product imported
from the non-Party (in dollar value), for the previous calendar
quarter and a certification that the product did not contain
a Group I or II controlled substance. EPA asks for comment on
what the burden of these requirements would be.
g. Definitions. Several new definitions and revisions are
proposed today to conform the scope of the bans to the Montreal
Protocol, as amended. (In the event these definitions are adopted,
technical amendments will be made to this part in the final
as needed.) For example, the definition of "Party" in 40 CFR
part 82 is revised to (1) distinguish between Annex A parties
and Annex B parties, (2) make specific reference to unusual
situations and (3) refer to Appendix C for a comprehensive list
of all countries in the world and the status of each country's
ratification of the agreements. Under the Montreal Protocol
the UN Directorate as the official record of what foreign states
are "Parties". EPA intends to periodically update Appendix C
to help ensure against the unintended imposition of the trade
bans proposed today to trade with any foreign state that becomes
a Party after today's proposal is promulgated in final.
In addition, today's proposal would amend the definition
of "importer" found at 40 CFR 82.3(l) to conform to the definition
used in regulations promulgated pursuant to the Toxic Substances
Control Act, see 40 CFR parts 720 and 763. This revision would
broaden the definition of "importer", currently limited to the
"importer of record", to include the actual owner, the cosigner,
and the transferee, of the import. This change is being proposed
to ensure that requirements imposed on importers are not
incorrectly
applied only to import agents but to those Parties most directly
responsible for these activities. Public comment is requested
on the need for this change and any potential consequences.
2. Legal Authority
The ratification by the United States of international
agreements
obligates the United States to implement their mandatory
provisions.
The Vienna Convention, signed by the United States in 1985,
was ratified by the United States Senate and brought into force
for the United States on August 27, 1986. This agreement
establishes
the legal framework for the development of international protocols
on ozone protection. The Montreal Protocol, as signed by the
Parties in 1987, was ratified by the United States on April
21, 1988, and entered into force (following ratification by
11 Parties) on January 1, 1989. The London Amendments to the
Montreal Protocol, signed by the Parties in 1990, were ratified
by United States on December 18, 1991, and entered into force
on August 10, 1992.
Section 615 of the Act provide EPA with the authority to
promulgate the proposed trade restrictions. That section authorizes
the Agency to promulgate regulations if, in the Administrator's
judgment, any substance, practice, process, or activity may
reasonably be anticipated to affect the stratosphere. This language
is substantially similar to that contained in pre-1990 Clean
Air Act section 157(b), which was the statutory basis of EPA's
original rules implementing the 1987 Montreal Protocol (including
trade restrictions similar to those being proposed here).
The 1990 Amendments added title VI to the Act, which prescribes
many specific measures for protecting stratospheric ozone (e.g.,
the section 604 phaseout of ozone-depleting substances, the
section 608 recycling requirements, and the section 610
nonessential
products ban). In the context of these new provisions, the carry-
over of the section 157(b) language in section 615 provides
gap-filling authority to permit the Agency to take actions in
addition to those prescribed elsewhere in the title. Thus, while
title VI does not itself prescribe trade restrictions, the Agency
believes that section 615 provides authority for the Administrator
to implement the trade provisions of the Montreal Protocol.
Implementation of the Protocol's trade provisions through
the regulations proposed here, will help safeguard the ozone
layer in several ways. First, the bans would prevent shipments
of ozone-depleting substances (ODS) from the U.S., which fully
regulates ODS production and consumption, to foreign states
not party with no regulatory infrastructure to control their
use. Limiting access to ODS in this way, will reduce opportunities
for their release into the atmosphere. Moreover, the bans on
imports to the U.S. from foreign states not party of controlled
substances and controlled products would help discourage shifts
of ODS production to foreign states not party by eliminating
the U.S. as a market for such production. Such shifts, if not
deterred, could undermine the production, consumption and phaseout
regime contemplated by both the Clean Air Act and the Montreal
Protocol. Ultimately, the Protocol trade restrictions provide
a strong encouragement for foreign states not party to participate
in the global initiative established by the Protocol for
controlling
the short-term use and ultimate phaseout of ozone-depleting
substances. Accordingly, EPA has authority to implement the
Protocol's trade restrictions by virtue of its authority. Under
section 615 to promulgate regulations controlling substance
practices and activities that may reasonably be anticipated
to effect the stratosphere.
Section 614(b) of the Clean Air Act, as amended, clarifies
and confirms the authority and responsibility of the EPA
Administrator
to implement the United States' obligations under the Montreal
Protocol, specifically addressing the Administrator's authority
to implement the Protocol's trade provisions. As a conflict
of laws provisions, section 614(b) provides in relevant part
that in the case of conflict between any of the Clean Air Act
and the Montreal Protocol, the more stringent provision shall
govern. In addition, that subsection indicates that nothing
in title VI of the Act shall detract from the Administrator's
authority to implement the Article 4 trade restrictions. Thus,
section 614(b) implicitly assumes that the Agency has the authority
to implement the trade provisions of the Protocol.
IV. Other Issues
A. Addition of HCFCs to the EPCRA Section 313 List
The NRDC/EDF/FOE petition requested that the Agency add the
HCFCs and methyl bromide to section 313 of the Emergency Response
and Community Right to Know Act. The current list of chemicals
includes all current class I ozone-depleting chemicals under
section 313(e). Any person may petition for the addition of
other chemicals to the list. The Administrator is required to
respond to the petition within 180 days by initiating a rulemaking
to list the chemical or by publishing an explanation as to why
the petition is denied.
The Alliance requested that HCFCs not be listed. According
to this group, the presumed toxic health and environmental effects
of these compounds derive from a complex and delayed chain of
events that are not fully understood. Also according to the
Alliance, the ozone depletion problems of the HCFCs can and
are being addressed by the specific provisions of the Clean
Air Act, such as section 608, that can reduce the emissions
of these chemicals.
The Agency is dealing with the NRDC/EDF/FOE petition to add
the HCFCs to the EPCRA section 313 list in a separate proceeding.
A Federal Register action proposing to list the HCFCs was published
on June 24, 1992 (57 FR 28159).
B. Postponement of Labeling of Products Manufactured With Ozone-
Depleting Substances
The Alliance requested that EPA's rulemaking under section
611 of the Act require only labeling of containers or products
containing CFCs. The petition stated that EPA should not promulgate
requirements to label any products manufactured with CFCs or
containing or manufactured with HCFCs until at least 1995. The
petitioners argued that the purpose of the labeling provisions
is to accelerate the phaseout of these chemicals and stated
that, with an accelerated phaseout schedule, these labeling
provisions serve no purpose except to misallocate resources
without any environmental benefit. EPA will be addressing these
issues in the context of its final action on labelling.
C. Suggestions for the Implementation of Section 612
AHAM, the Alliance, and other commenters also had suggestions
concerning the application of the significant new alternatives
program (SNAP) implementing section 612. These issues will be
dealt with in a separate notice dealing with that section of
the Act. EPA recognizes the need to provide decisions as to
the acceptability of various substitutes as quickly as possible
and has taken steps to inform the public about its likely
activities
under this section.
D. Treatment of Recycled and Used Ozone Depleting Substances
When Calculating Consumption
Decision IV/24 of the Fourth Meeting of the Parties to the
Montreal Protocol, provides that recycled and used bulk chemicals
should not be included when calculating consumption of controlled
substances. That Decision also specifically annuls Decision
I/12H of the First Meeting of the Parties, which read "Imports
and exports of bulk used controlled substances should be treated
and recorded in the same manner as virgin controlled substances
and included in the calculation of the Party's consumption limits".
EPA is proposing to modify its definition to exclude recycled
substances from the requirement of expending consumption allowances
for imports. Moreover, consistent with the interpretation, the
public should note that consistent with that decision, exports
of recycled and used bulk chemicals are not creditable toward
consumption allowances under 82.10. EPA asks for comment as
to whether any further revisions to part 82 would be helpful
to effectuate this intent of the Parties.
The Parties to the Protocol have requested that data on imports
and exports of recycled HCFCs and halons be reported on an annual
basis to UNEP. Therefore, EPA proposes that companies report
imports and exports of recycled HCFCs and halons on an annual
basis.
E. Transshipment
Pursuant to Decision IV/14 of the Fourth Meeting of the Parties
to the Montreal Protocol, transshipments of bulk controlled
substances from one foreign state, through the United States
or one of its territories, to a foreign state of final destination
should not be included when calculating consumption of controlled
substances. This situation is distinguished in Decision IV/14
from imports and subsequent re-exports of controlled substances,
which must be accounted for. Transshipments can be distinguished
from imports that are re-exported with the former applicable
to bulk import that are not repackaged prior to export. EPA
proposes to revise the rules to clarify this treatment. Today's
revisions would not amend the definition of "import", which
is broadly defined in section 601(7) of the Clean Air Act, since
such a revision would inadvertently change the scope of the
Stratospheric Ozone Program with regard to matters other than
consumption accounting. Instead the revisions define the term
"transshipment" and specifically except transshipments, as
appropriate,
from pertinent consumption allowance provisions of the part
82, subpart A. This approach is consistent with section 602(b)
of the Act, which provides that the term consumption "shall
be construed in a manner consistent with the Montreal Protocol."
F. Destruction and Insignificant Quantities
In today's action, the Agency proposes to eliminate 82.40(e)
of its phaseout regulation that allowed for an exemption from
production restrictions for any controlled substance that is
a coincidental, unavoidable byproduct (CUBP) and is subsequently
contained and destroyed by the maximum achievable control
technology
or MACT. Section 82.40(e) gave effect to the Joint Explanatory
Statement of the Committee of the Conference of the 1990 Clean
Air Act Amendments (Conference Report) that indicated that Congress
wanted the Agency to implement an exemption of such production.
The Agency is proposing to eliminate the CUBP regulation. The
Agency is also proposing to implement in its regulation the
recent decisions of the Parties in Copenhagen that addressed
both destruction (Decision IV/11) and "insignificant quantities"
(Decision IV/12). As will be described below, EPA believes that
the implementation of these two decisions is consistent with
Conference Report and will provide more clarity as to the
definition
of production and the conditions under which destruction is
allowed. Today's proposal allows credit for destruction of ozone
depleting chemicals similar to credit received for the
transformation
of such chemicals, and exempts from any control ozone depleting
chemicals produced in "insignificant quantities". The Agency
believes that these changes pose insignificant harm and lessen
the administrative burden of 82.4.
Under the existing Protocol, "production" of controlled
substances
is defined as "the amount of controlled substances produced,
minus the amount destroyed by technologies to be approved by
the Parties." At the Fourth Meeting of the Parties to the Montreal
Protocol, the Parties approved five destruction technologies
to be used for destroying controlled substances.
With the approval of the five destruction technologies-liquid
injection incineration, reactor cracking, gaseous/fume oxidation,
rotary kiln incinerators, and cement kilns, Parties to the Protocol
can now subtract from the definition of production that amount
of controlled substance(s) that is destroyed by these means,
under certain conditions discussed below.
The Agency proposes the definition of "destruction" to be
technologies approved for destruction by the Parties that result
in expiration of the chemical without any commercially useful
end product being produced. The Agency proposes this definition
to distinguish destruction from transformation, which requires
that the resulting endproduct serve a commercial purpose. The
Agency requests comment on this definition of destruction.
The Agency believes that with the adoption of this definition
of destruction, a modified definition of production consistent
with the Protocol, and proposed recordkeeping and reporting
requirements described below, the concern for destruction expressed
in the Conference Report language is minimized.
The Agency believes it has the authority to modify this
definition
to be consistent with the Protocol. While section 601(11) of
the CAA does not require EPA to exclude quantities of controlled
substances that are destroyed from the definition of "production,"
EPA believes it has the discretionary authority to exclude from
the definition of "production" controlled substances that are
destroyed through the use of the technologies approved by the
Protocol Parties at the Copenhagen meeting. Section 601(11)
provides that the "terms `produce', `produced', and `production',
refer to the manufacture of a substance from any raw material
or feedstock chemical, but such terms do not include" amounts
of substances that are transformed or reused.
EPA notes that the Conference Report of the 1990 Clean Air
Act Amendments stated that the "conference agreement does not
include a requirement to construe the term `production' `in
a manner consistent with the Protocol.' The Protocol's exclusion
for manufactured substances that are subsequently destroyed
is too broad and does not include adequate safeguards to preclude
abuse." (Emphasis added.) The Conference Report then proceeded
to state that "[i]n the course of implementing this Act, however
EPA shall consider whether an exclusion will be allowed on a
case-by-case basis for the manufacture of controlled substances
that are (1) coincidental, unavoidable byproducts of a
manufacturing
process and (2) immediately contained and destroyed by the producer
using maximum available control technologies." EPA proceeded
to establish a process that exempted such production as CUBP
in the July 30, 1992 Final rule. [57 FR 33754]
While section 601(11) of the CAA does not contain language
requiring EPA to follow the Protocol in terms of excluding
destroyed
controlled substances from production, it also does not contain
language precluding EPA from following the Protocol Parties'
approach to destruction. Moreover, the Conference Report assumes
that EPA has the authority to exclude quantities that are destroyed
from production. Otherwise, Congress could not have directed
EPA to consider excluding certain types of destroyed production.
EPA believes that while it is not required to follow the approach
of the Protocol Parties regarding destruction, it has the authority
to do so at this juncture because, as explained below, the approach
adopted by the Parties adequately satisfies the concerns expressed
in the conference report. Those concerns were expressed at a
time when it was not known how the Parties would treat destruction;
the Parties have now treated destruction in a manner that satisfies
them, however. Furthermore, by requiring reliable documentation
of the amount destroyed, EPA's proposed implementing regulations
address the concerns raised in the conference language. EPA
requests comment on its authority to adopt the Protocol Parties'
approach to destruction.
The Agency believes that the implementation of these decisions
will result in insignificant environmental damage yet will minimize
disruptions for companies that require controlled substances
past the phaseout date. Companies will be allowed to use these
chemicals past the phaseout provided that they are either used
in essential uses, transformed, as is currently allowed under
the regulations, or destroyed. Companies will only receive credit
for the volume of controlled substances that have been destroyed
by one of these five destruction technologies.
Section 82.4(e)(1)(v) defines MACT, for the purposes of
destroying
CUBP product, as a destruction process with 99.99% efficiency.
Under the current regulations, companies could only claim the
CUBP exemption for carbon tetrachloride and methyl chloroform
destroyed at this efficiency rating. The Agency had developed
this efficiency rating for these two chemicals, as well as others,
when they were characterized as hazardous wastes under section
343(a) and 40 CFR 266.104. In the July 30, 1992 rulemaking for
the protection of stratospheric ozone (57 FR 33754), the Agency
adopted this definition of MACT in 82.4(e)(1)(iv) to exempt
CUBP from production limits. Since this destruction rating
currently
applies only to CUBP, the Agency is proposing today to grant
full credit for the destruction of these two commercially produced
chemicals when they are covered by RCRA section 343(a) and 40
CFR 266.104 in order to receive 100 percent credit. The Agency
believes that this destruction efficiency represents MACT, and
is the highest destruction efficiency that industry can achieve
for these chemicals in these situations. If the Agency were
only to grant allowances equal to 99.99 percent of the volume
intended to be destroyed, the company would never be able to
redeem the full amount of the chemical used, and would eventually
be unable to obtain sufficient volumes to operate efficiently.
The 99.99 percent efficiency applies to the destruction of
methyl chloroform and carbon tetrachloride when these chemicals
are regulated by RCRA. However, under some situations these
chemicals are not covered by RCRA, but by regulations to be
promulgated under section 112 of the Clean Air Act. Companies
are required to control air emissions under section 112 of the
Clean Air Act. In a recently proposed rule published on December
31, 1992 (57 FR 62608), the Agency proposed that when organic
hazardous air pollutants are released through process vents,
companies may route these emissions to a gaseous/fume oxidation
incinerator for destruction. The Agency has proposed that such
incinerators may operate with an efficiency of 98 percent. For
the purposes of this rulemaking, the Agency proposes that when
regulations promulgated under section 112 of the Clean Air Act
apply rather than RCRA, and the 98 percent destruction efficiency
is achieved by incinerators to which emissions of carbon
tetrachloride
and methyl chloroform are routed, the Agency proposes to grant
the full allotment of allowances to replace chemicals that are
destroyed under these conditions. In situations where section
112 regulations apply, but a destruction efficiency of less
than 98 percent is achieved, the Agency proposes to approve
only those allowances only to the portion destroyed. (The
consequences
of this are discussed below in the connection with the destruction
of controlled substances other than methyl chloroform and carbon
tetrachloride.) The Agency requests comments on these approaches
and whether these conditions could apply to other controlled
substances.
The Agency is concerned that these five approved destruction
technologies, although capable under test situations of destroying
controlled substances at a 99.99% efficiency rate, may not be
as efficient as is required for carbon tetrachloride and methyl
chloroform under either RCRA or section 112 of the Clean Air
Act. If existing regulations under other environmental statutes
do not cover the destruction of these controlled substances,
then EPA proposes to grant allowances only for those volumes
that have indeed been destroyed. For example, if an approved
technology destroys only 80% of the chemical, then the Agency
will only approve allowances equal to that portion destroyed.
Under such a program, companies that do not completely destroy
their controlled substances would be unable to recoup, through
allowances, their full volume of controlled substances needed
to operate. Once the phaseout occurs, such companies will need
to destroy close to 100 percent of the controlled substance,
depending on technical limitations, in order to continue to
operate at intended capacity. Furthermore, to release controlled
substances to the environment (through emissions of controlled
substances that had not been destroyed) for uses not deemed
"essential" would constitute a violation of the phaseout since
companies will only be able to produce or obtain these chemicals
after 1995 for essential uses, transformation, or for uses where
the controlled substance is subsequently destroyed.
EPA is today proposing that persons who destroy controlled
substances through the use of these approved technologies be
granted production and consumption allowances equal to the verified
amount destroyed.
The Agency proposes to treat credit for destruction of
controlled
substances similarly to credit granted for the transformation
under 82.9 and 82.10. Persons who do not produce controlled
substances but who destroy carbon tetrachloride, may receive
both production and consumption allowances, depending whether
the controlled substance had been produced in the United States
or imported, equal to the volume destroyed if such persons submit
a request for allowances. This request should include the following
information: the identity and address of the person; the quantity
and level of controlled substance destroyed; a copy of the invoice
or receipt documenting the sale of the controlled substance;
the name of the person from whom the controlled substance were
purchased; the type of destruction process used to destroy the
controlled substance; the citation of federal or state regulations
that may apply to the destruction process; and the method used
to determine the volume destroyed. The Agency believes that
this information, similar to the information required for receipt
of allowances for transformation, is necessary to ensure that
destruction has occurred.
Companies that receive allowances for destruction may then
trade those allowances under the regulatory provisions established
in 82.12 of the current regulations. In the past, companies
that received allowances for transformation traded those allowances
to the producers of the feedstock controlled substances.
Such persons who request allowances for destruction must
also maintain the following records: Dated records of the quantity
and the level of controlled substance destroyed; description
of measurements taken to indicate volume destroyed; and copies
of invoices or receipts documenting the sale of the controlled
substance to the person. The Agency requires this recordkeeping
in order to verify any requests for allowances due to destruction.
The Agency intends to treat destruction of carbon tetrachloride,
a Class I, Group IV chemical, in a manner similar to the
transformation
of carbon tetrachloride. The primary use of carbon tetrachloride
is as a feedstock in the production of other chemicals. In the
past, the Agency found it burdensome to require companies that
transformed carbon tetrachloride to request allowances, receive
those allowances from EPA, and then trade those allowances back
to the producers. Such a process did affect the chemical industry,
and slowed and even stopped at times, the production of other
chemicals for which carbon tetrachloride is a feedstock. To
alleviate this problem, the Agency promulgated regulations that
allowed producers of carbon tetrachloride to manufacture this
chemical without consuming allowances provided that such production
served as a feedstock in the production of another chemical.
Producers that manufactured carbon tetrachloride are required
to report with their quarterly production report those volumes
sold for transformation and the companies to whom they sold
the chemical. Non-producers who transform carbon tetrachloride
must also report and keep dated records. In this action, the
Agency proposes a similar regime. The Agency believes that the
non-transformed quantities of carbon tetrachloride that are
produced are used in processes where they are destroyed. Carbon
tetrachloride is used as a specialty chemical and solvent, but
poses significant health hazards and, therefore, ambient emissions
are tightly controlled, either under RCRA or section 112 of
the Clean Air Act. In many cases, destruction is the control
process to minimize or eliminate these emissions. The Agency
is concerned that treatment of carbon tetrachloride similarly
to the other controlled substances could significantly affect
this market. For this reason, the Agency proposes to treat credit
for destruction in a manner similar to treatment of transformation
of this chemical.
Producers and importers of carbon tetrachloride must report
the amount of carbon tetrachloride sold to each person who then
subsequently destroys the chemical and the Internal Revenue
Service Certificates showing that the purchaser of carbon
tetrachloride
intends to destroy the chemical. The producer and importer must
also keep these records on file.
Companies that purchase carbon tetrachloride and who then
destroy the chemical must keep the following records: the identity
and address of the person; the quantity and level of controlled
substance destroyed; a copy of the invoice or receipt documenting
the sale of the controlled substance; the name of the person
from whom the controlled substance were purchased; the type
of destruction process used to destroy the controlled substance;
the name of other relevant federal or state regulations that
may apply to the destruction process; and the method used to
determine the volume destroyed. These same companies must report
every quarter the following information: the name and address
of the person and the name and telephone number of a contact
person; the names and addresses of the persons that produced
or imported the Group IV controlled substance purchased and
destroyed and the name and telephone number of the contact person;
the address of the facility at which destruction took place;
the type of approved destruction technology used to destroy
the carbon tetrachloride; the citations of other relevant federal
or state regulations that may apply to the destruction process;
and the method used to determine the volume destroyed.
Companies who produce controlled substances and who then
destroy those chemicals must report the volume destroyed on
their quarterly production report in a similar manner as
transformation,
but also keep the applicable recordkeeping requirements of the
Non-producers.
The Agency requests comments on these data requirements.
Although the Agency believes that these are adequate requirements,
more stringent requirements could be considered. For example,
these approved destruction technologies are regulated under
other statutes, such as RCRA, or section 112 of the Clean Air
Act. The implementing regulations for these statutes have detailed
recordkeeping and reporting requirements to ensure that destruction
has taken place. The Agency requests comment on whether such
recordkeeping and reporting should be part of Title VI regulations,
or should the Agency develop more detailed requirements. For
example, Ad-Hoc Technical Advisory Committee on ODS Destruction
Technologies, presents a list of minimum standards for pollutants
emitted during destruction with stack concentrations for
hydrochloric
acid, hydrofluoric acid, particulate, and carbon monoxide. The
Agency requests comments on whether the Agency should adopt
such standards, or whether existing regulations minimize such
emissions.
The Ad-Hoc Technical Advisory Committee on ODS Destruction
Technologies recommends that atmospheric releases of controlled
substances shall be monitored at all facilities with air emission
discharges. For controlled substances, this report recommends
flow meters or continuously recording weighing equipment for
individual containers should be used. At a minimum, containers
should be weighed "full" and "empty" to establish quantities
destroyed. In today's Action, the Agency is proposing this minimum
standard to determine the volume destroyed, but requests comment
on whether more sophisticated monitoring devices such as flow
meters should be required. In addition, the Agency requests
comments on whether all companies that intend to destroy controlled
substances should submit a one time report to the Agency describing
their methods used to record the volume destroyed and to determine
destruction efficiency ratings.
The Parties to the Protocol in Copenhagen agreed that all
Parties were to submit annual data on ozone depleting chemicals
destroyed. To comply with this agreement, the Agency requests
comments on an annual reporting requirement that all persons
who destroy Class I and Class II chemicals report to EPA the
volume destroyed if such a report had not been submitted to
the Agency.
Insignificant Quantities
EPA is also proposing to implement the Parties decision on
insignificant quantities. During the Fourth meeting of the Parties
to the Montreal Protocol held in Copenhagen November 23-25,
1992, the Parties approved a decision (Decision IV/12) stating
that the definition of "controlled substance" will not include
insignificant quantities of controlled substances under certain
conditions. Specifically, it stated that in the following
situations,
insignificant quantities of controlled substances shall not
be considered to be covered by the definition of controlled
substances:
Insignificant quantities originating from inadvertent or
coincidental production during a manufacturing process; or,
Insignificant quantities originating from use of controlled
substances as process agents (including unreacted feedstocks)
which are present in chemical substances or products as trace
impurities
In either of these situations, the Parties recognized that
insignificant quantities of controlled substances may be emitted
during product manufacture or handling. In taking this decision,
the Parties understood that the existence or creation of controlled
substances in these contexts were an essential consequence of
continued production of various products, (section 2.10.4, UNEP
report of the Technology and Economic Assessment Panel) were
likely to be insignificant in quantity, and in fact, had not
heretofore been included in the definition of controlled substance,
or taken into account by countries in their implementation of
the current definition. Thus, the decision clarified the fact
that CFCs and other compounds covered by the Montreal Protocol
as controlled substances that are created or found in these
contexts are not included within the scope of the Protocol's
definition of controlled substance. Nevertheless, the Decision
calls on the parties to endeavor to take steps to minimize such
emissions.
Pursuant to the decision of the Parties, EPA today is proposing
to exempt from the definition of "controlled substances"
insignificant
quantities of controlled substances that originate from inadvertent
or coincidental production during a manufacturing process, from
unreacted feedstock, or from their use as a process agents and
resulting presence in chemical substances or products as trace
impurities. This exemption will apply so long as the substances
produced in this manner are not themselves, as distinct products,
offered for commercial sale. EPA has not previously included
controlled substances produced or used in these contexts either
in baseline calculations or in the calculation of production
and consumption. As a result, this clarification should have
no impact on past or future allocations.
EPA carefully considered the environmental implications of
this decision and its relationship to current regulations. First,
as it relates to environmental protection, EPA has studied
available
information, and has determined that the quantities of controlled
substance emissions associated with the above noted situations
are small. Estimates indicate that they are on the order of
500 ODP weighted metric tons worldwide. In the US, in many cases,
these small emissions are reduced even further by regulatory
treatment under other EPA requirements. An example of the size
of related production can be found in trace impurities of carbon
tetrachloride remaining in finished products made in the U.S.
This residual is estimated to amount to 32 metric tons per year.
Levels of inadvertent production of controlled substances are
also very small. For example, some carbon- tetrachloride is
produced during the manufacture of chloroethanes. The worldwide
estimate of levels expected to be emitted during these processes
are estimated to be on the order of 100-200 ODP MT. However,
carbon-tetrachloride produced in this manner is generally not
emitted; rather it is recycled within the plant, or, as required
by RCRA, destroyed by an appropriate technology. A further factor
which will help to reduce related emissions is the phaseout
itself. By the year 2000, they are expected to constitute less
then .1% of the amount of controlled substances produced in
their baseline year. The realization of the small quantities
involved was a factor in the Parties Decision to exclude the
insignificant quantities resulting from these processes from
the definition of controlled substances. (UNEP OzL Pro. 4 CRP
2ter).
Regarding present regulatory treatment, 82.40 of EPA's current
regulations provided an exemption from control for Group IV
or V substances, if those substances were produced as a
coincidental
unavoidable byproduct of a manufacturing process, and were
immediately
contained and destroyed. In light of the Parties decision on
this matter and on destruction, and the presently available
information on the very small quantities of substances involved
relative to the 1989 production of ozone depleting substances,
EPA is today proposing to repeal the requirements of 82.40.
This action is being taken to align EPA regulations with Montreal
Protocol requirements that will be adhered to internationally,
and to eliminate the ambiguity of certain situations that may
or may not have met the requirements of 82.40. With this proposal,
all companies that meet these conditions are exempt from production
and consumption control and do not need to file exemption requests
under 82.40. Finally, it fashions a more workable allowance
system that will be necessary as we move forward toward a more
rapid phaseout.
In proposing these actions, EPA is mindful of the portion
of the Parties decision which urges all Parties to take steps
to minimize emissions associated with inadvertent and trace
quantity production. In this regard, EPA reserves the right
to implement measures to reduce such emissions in the event
it finds that they have become significant.
Today's proposal also covers inadvertent production of methyl
bromide. While, at present, EPA is aware that substantial emissions
of methyl bromide are inadvertently produced during the manufacture
of polyethylene, EPA is working with these manufacturers to
ensure that these emissions are substantially reduced. Also,
of specific relevance are the proposed organic hazardous air
pollutants (57 FR 62608) regulations designed to restrict air
emissions of hazardous organic chemicals which are likely to
result in major reductions of these emissions. EPA will monitor
the progress of related manufacturers to ensure that residual
emissions are indeed insignificant.
V. Impact of Proposed Action
The Agency developed a cost benefit analysis of various possible
phaseout schedules presented in the petitions as well as the
schedule for an accelerated phaseout of ozone depleting compounds
proposed by EPA today. In all the scenarios analyzing the various
reduction schedules, the analysis yielded net incremental benefits
of the same order of magnitude for all the options with the
Alliance schedule yielding the least net incremental benefits
over the current 2000 year phaseout, and the NRDC and EPA's
proposed schedule yielding the most net incremental benefits,
depending on the valuation of benefits. Given the uncertainties
implicit in any cost benefit analysis of this kind, the incremental
benefits of these scenarios are approximately equal with the
lower bound estimate of $160 billion to a higher bound estimate
of $680 billion.
As such analysis indicates that various schedules yield
comparable
net benefits, the Agency chose the schedule that it is proposing
today the schedule adopted in Copenhagen over both the NRDC
schedule and the Alliance schedule based on EPA's judgement
on the availability of technologies and infrastructure support.
Although the cost benefit analysis suggests that the NRDC schedule
is a possible option, the analysis performed on that scenario
assumes the widespread use of various technologies that are
dependent on a supporting industry infrastructure that may not
be present. It is the Agency's judgement that although such
technologies are available, the deployment of these technologies
may incur significant but unaccounted for costs, as industry
would need to adopt controls quickly without full knowledge
of possible cost implications of their actions, and full support
of an infrastructure necessary to support that technology.
For example, the RIA analysis indicates that retrofit of
air-conditioning and refrigeration equipment must occur under
all schedules. However, the NRDC schedule requires extensive
retrofitting with total costs approaching $9 billion. The retrofit
cost under EPA's proposed schedule is lower, approximately $2
billion. Retrofitting within the air-conditioning and refrigeration
sectors is extremely disruptive, requiring users to examine
their current inventory of equipment to determine where
retrofitting
is needed. The Regulatory Impact Analysis did not consider the
cost of obtaining the information necessary for owners to proceed
with retrofitting of equipment. Owners must inventory existing
equipment, plan for the appropriate retrofits, determine when
the retrofits must occur, have knowledge of the available
refrigerants
due to allowable production and recycling, and plan to purchase
new equipment containing the alternatives in the future. In
addition, the servicing sector may be strained to accommodate
the necessary retrofits to meet the phaseout schedule. Under
a less stringent reduction schedule, these sectors would require
less retrofitting because they would be able to purchase more
new equipment to meet the less stringent reductions.
Furthermore, all of the phaseout schedules considered would
require significant recycling. Although this will occur, the
infrastructure necessary to provide recycling services, as well
as to establish the bank of halons and CFCs, is under development,
and would be severely strained under any accelerated phaseout.
However, the Agency believes that its proposed schedule provides
sufficient lead time for this infrastructure to develop.
The Agency is also proposing a less stringent schedule for
the phaseout of HCFCs rather than the proposed NRDC schedule
for these chemicals. Although the cost benefit analysis indicates
that the NRDC schedule may yield higher net benefits, assuming
different valuation of benefits, the RIA does not calculate
the possible adverse effects of the rapid phaseout of HCFCs
proposed by NRDC. The Agency believes that too short a period
for the allowable use of HCFCs would further encourage the
continued
use of CFCs in the short term by making the use of HCFCs as
an alternative unattractive. It could also force the industry
to move to untested alternatives that may pose unknown adverse
environmental and health effects. For this reason the Agency
is proposing today a less stringent phaseout of HCFCs than that
requested by NRDC. The cost of the Alliance petition and EPA's
proposed schedule for HCFCs are comparable.
VI. Additional Information
A. Executive Order 12291
Executive Order (E.O.) 12291 requires preparation of a
Regulatory
Impact Analysis for major rules, defined by the order as those
likely to result in:
(1) An annual effect on the economy of $100 million or more;
(2) A major increase in costs or prices for consumers,
individual
industries, Federal, State or local government agencies, or
geographic industries; or
(3) Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based industry to compete with foreign based enterprises
in domestic or export markets.
EPA has determined that these regulations meet the criteria
of a major rule. The Agency estimates that annual industry costs
will exceed $100 million. A regulatory impact analysis has been
prepared to analyze these costs and has been submitted to the
Office of Management and Budget for review.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires
that federal agencies examine the impacts of regulations on
small entities. Under 5 U.S.C. section 601(a), whenever an agency
is required to publish a general notice of rulemaking, it must
prepare and make available a regulatory flexibility analysis
(RFA).
The Agency originally published an RFA to accompany the August
12, 1988 final rule (53 FR 30566) that placed the initial limits
on the production and consumption of CFCs and halons. That RFA
analysis was also updated as Appendix G of the Regulatory Impact
Analysis for the regulations implementing the section 604 Clean
Air Act phaseout schedule. For this rulemaking an addendum to
that appendix was prepared to examine the impact of the
acceleration
of the phaseout and the phaseout of HCFCs on small businesses.
The analysis indicates that these actions are not expected to
have a substantial impact on small entities.
Major changes in control plans are only required in a few
sectors. For two of the sectors, household refrigeration and
motor vehicle air-conditioning, the impact on small entities
of additional recycling is examined in the regulatory flexibility
analysis for the Agency's regulations under section 608 of the
Clean Air Act. Although the control measures required by that
section also contribute to the acceleration of the phaseout
of the ozone-depleting substances, the costs of recycling to
small businesses are not due to today's rule, but rather to
the regulations promulgated pursuant to section 608. It is likely
that motor vehicle air-conditioning retrofits will be carried
out as a result of today's rule in ten percent of the existing
stock and costs will be borne by the automobile owner, thus
resulting in no costs to small businesses. Even in the worst
case scenario, however, where automobile owners simply decide
to forego air- conditioning, it is likely that this will have
only a small impact on small businesses because only ten percent
of the existing market is involved and air-conditioning repairs
account for only a small portion of the services provided by
an automobile repair shop.
Chillers and process refrigeration will also require retrofits,
but these costs are expected to be borne again by the end-user,
and will only be a small fraction of the total cost of operating
the building or refinery. Due to the nature of the market for
sterilization, solvent cleaning and portable extinguishers,
the impacts of the additional controls in these sectors are
expected to be minimal. The analysis shows that in the foam-
blowing sector, industry is moving in the direction of using
substitute blowing agent. Because of this rapid switch and high
expected growth rates, it is unlikely that significant small
business closures will result from the accelerated phaseout
of CFCs. In addition, because of the large amount of time available
for companies to plan for the HCFC phaseout, it is unlikely
that large impacts on small entities will result from this portion
of the proposed rules.
Under section 605 of the Regulatory Flexibility Act, 5 U.S.C.
605, I certify that the regulation promulgated in this notice
will not have a significant impact on a substantial number of
small entities.
List of Subjects in 40 CFR Part 82
Administrative practice and procedure, Air pollution control,
Chemicals, Chlorofluorocarbons, Exports, Imports, Ozone layer,
Reporting and recordkeeping requirements, Stratospheric ozone.
Dated: January 19, 1993.
William K. Reilly,
Administrator.
[FR Doc. 93-6130 Filed 3-17-93; 8:45 am]
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