Vol. 58 No. 249 Thursday, December 30, 1993 p 69638 (Rule)
1/4095
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-4819-8]
Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: This final rule establishes regulations that implement
the statutory ban on nonessential products containing or
manufactured
with class II ozone-depleting substances under section 610(d)
of the Clean Air Act, as amended. This final rule was developed
by EPA in order to clarify definitions and provide exemptions,
as authorized under section 610(d). The substances affected
by this rulemaking are certain products made with
hydrochlorofluorocarbons
(HCFCs). This action will facilitate implementation of the ban,
with a statutory effective date of January 1, 1994, and provide
guidance and exceptions to the ban that are authorized by the
statute.
EFFECTIVE DATE: This final rule is effective January 1, 1994.
For additional information concerning the effective date see
section VI in Supplementary Information.
ADDRESSES: Comments and materials supporting this rulemaking
are contained in Public Docket No. A-93-20, in room M-1500,
Waterside Mall (Ground Floor), Environmental Protection Agency,
401 M Street, SW., Washington, DC 20460. Dockets may be inspected
from 8:30 a.m. until 12 noon, and from 1:30 p.m. until 3 p.m.,
Monday through Friday. A reasonable fee may be charged for copying
docket materials.
FOR FURTHER INFORMATION CONTACT: Cynthia Newberg, Program
Implementation
Branch, Stratospheric Protection Division, Office of Atmospheric
Programs, Office of Air and Radiation (6205-J), 401 M Street,
SW., Washington, DC 20460. (202) 233-9729. The Stratospheric
Ozone Information Hotline at 1-800-296-1996 can also be contacted
for further information.
SUPPLEMENTARY INFORMATION: The contents of today's preamble
are listed in the following outline:
I. Background
II. Notice of Proposed Rulemaking
A. Medical Products
B. Aerosol Products and Pressurized Dispensers Containing
Class II Substances
1. Definition of Aerosol Products and Pressurized Dispensers
2. Proposed Exemptions
C. Foam Products Containing or Manufactured with Class II
Substances
1. Insulating Foam Products
2. Foam Used to Meet Federal Motor Vehicle Safety Standards
D. Temporary Exemptions
E. Ban On Sale and Distribution in Interstate Commerce
F. Scope of Interstate Commerce
G. Resale of Used Products
H. Imports and Exports
I. The Use of Affected Products Purchased Before the Effective
Date of the Ban
J. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment
III. Summary of Major Public Comments
IV. Response to Comments
A. Aerosol Products and Pressurized Dispensers
1. Products Using Class II Substances As Replacements For
Class I Substances That Include Methyl Chloroform, Carbon
Tetrachloride or Halons
a. Wasp and Hornet Sprays
b. Hydraulic Brake Cleaners
c. Portable Fire Extinguishers
2. Products Requiring Both Class I and Class II Exemptions
a. Aircraft Pesticides
b. Dusters
c. Tire Inflators/tire sealer
3. Aerosol Products and Pressurized Dispensers Exempted By
The Class I Ban
a. Lubricants for pharmaceutical and tablet manufacture
b. Solvent uses in lubricants, coatings and cleaning fluids
for electrical or electronic equipment
c. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance
d. Solvent uses in mold release agents
e. Solvent uses in spinnerette lubricant/cleaning sprays
f. Document Preservation Sprays
B. Foams
1. Definition of ``Plastic Foam Product''
2. Definition of ``insulating products''
a. Closed Cell Rigid Polyurethane Foam
i. Foam Used As Flotation Foam
ii. Taxidermy
iii. Aerosol Polyurethane Foam
b. Closed Cell Rigid Polystyrene Boardstock Foam
c. Closed Cell Rigid Polystyrene Sheet Foam
d. Closed Cell Polyethylene Foam
i. Backer Rods
ii. Pipe Wrap
iii. Aerosol Polyurethane Foam
e. Inomer Foam
f. Polyvinyl Chloride
3. Foam Needed To Meet Motor Vehicle Safety Standards
4. Use Of a Class II Substance As A Startup Gas in Foam
Production
C. Temporary Exemptions
1. Existing Inventories
2. Products Requiring Federal Approvals
D. Interstate Commerce
E. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment
V. Summary of Changes From Proposal
VI. Effective Dates
VII. Summary of Supporting Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
VIII. Judicial Review
IX. References
I. Background
The Class II Nonessential Products Ban proposal, published
on September 27, 1993 (58 FR 50464), contains a detailed background
of the issues relating to the proposed ban. That background
section includes information on the ozone depletion problem,
the 1978 aerosol ban, the Montreal Protocol, the excise tax
on certain ozone-depleting substances, the Clean Air Act as
amended in 1990 (the Act), the proposed accelerated phaseout
of ozone-depleting substances, and the labeling rule. Rather
than repeat this background discussion, EPA refers readers of
this final rule to 58 FR 50464 for such background.
II. Notice of Proposed Rulemaking
On September 27, 1993, EPA published a notice of proposed
rulemaking (NPRM) (58 FR 50463) addressing issues related to
the statutory prohibition against the sale or distribution,
or offer for sale or distribution in interstate commerce of
nonessential products containing or manufactured with a class
II substance, imposed by section 610(d) of the Act.
During the development of that NPRM, EPA met with
representatives
from various industries and environmental organizations. The
Agency also conducted two advisory meetings held in the EPA
auditorium, on February 19, 1993, and March 29, 1993, in order
to allow the public to review draft background documents on
products containing or manufactured with class II substances
and to offer comments and technical expertise on the development
of the NPRM. Minutes of these meetings and copies of the background
documents are contained in Docket A-93-20. The Agency used these
forums as appropriate venues for hearing the concerns of various
stakeholders potentially affected by the class II ban.
Title VI of the Act divides ozone-depleting chemicals into
two distinct classes. Class I is comprised of chlorofluorocarbons
(CFCs), halons, carbon tetrachloride and methyl chloroform,
Methyl Bromide and hydrobromofluorocarbons. Class II is comprised
of hydrochlorofluorocarbons (HCFCs). (See listing notice January
22, 1991; 56 FR 2420.) Section 610(b) of the Act, as amended,
requires EPA to promulgate regulations banning nonessential
products releasing class I substances. EPA published its final
rule for the Class I Nonessential Products Ban on January 15,
1993 (58 FR 4768).
In the September 27 NPRM, EPA proposed regulations to implement
the statutory prohibition imposed by section 610(d) on the sale
or distribution in interstate commerce of specified class II
products. Since many aspects of the proposed regulations were
similar in structure to the section 610(b) final rule banning
class I substances published on January 15, 1993, EPA proposed
to revise the regulations promulgated under 40 CFR part 82 subpart
C to incorporate the class II ban.
Section 610(d)(1) states that after January 1, 1994, ``it
shall be unlawful for any person to sell or distribute, or offer
for sale or distribution, in interstate commerce-(A) any aerosol
product or other pressurized dispenser which contains a class
II substance; or (B) any plastic foam product which contains,
or is manufactured with, a class II substance.'' Section 610(d)(2)
authorizes EPA to grant certain exceptions and section 610(d)(3)
creates exclusions from the class II ban in certain circumstances.
Section 610(d)(2) authorizes the Administrator to grant
exceptions
from the class II ban for aerosols and other pressurized dispensers
where ``the use of the aerosol product or pressurized dispenser
is determined by the Administrator to be essential as a result
of flammability or worker safety concerns,'' and where ``the
only available alternative to use of a class II substance is
use of a class I substance which legally could be substituted
for such class II substance.''
Section 610(d)(3) states that the ban of class II substances
in plastic foam products shall not apply to ``foam insulation
products'' or ``an integral skin, rigid, or semi-rigid foam
utilized to provide for motor vehicle safety in accordance with
Federal Motor Vehicle Safety Standards where no adequate substitute
substance (other than a class I or class II substance) is
practicable
for effectively meeting such standards.''
EPA believes that, unlike the class I ban, the class II ban
is self-executing.{1} Section 610(d) bans the sale of the specified
class II products by its own terms, without any reference to
required EPA regulations. Consequently, EPA concluded that it
was not required to promulgate regulations within one year of
enactment under section 610(a) to implement the class II ban.
EPA believes that the statutory text clearly establishes this
obligation only with respect to regulations under section 610(b)
to implement the class I ban.{2} EPA issued proposed regulations
and is today issuing final regulations implementing the class
II ban in order to better define the products banned under section
610(d) and to grant authorized exceptions under section 610(d)(2).
Section 301(a) of the Act gives EPA the authority to promulgate
such regulations as are necessary to carry out its functions
under the Act. EPA believes that it is necessary within the
meaning of section 301 to promulgate regulations more clearly
defining the products subject to the class II ban and granting
exceptions to the ban under section 610(d)(2). The following
sections discuss the NPRM in more detail.
³ {1} The Congressional Record statement by
Representative
³Ralph Hall (D-Texas) regarding the Congressional intent
³of the legislation as passed states ``any failure of
³the Administrator to promulgate regulations as required
³by this title, or any court order delaying the
effective
³date of such regulations, shall not alter the effective
³dates of the statutory requirements and prohibitions
³that are set forth in this title'' (October 26, 1990,
³136 Congressional Record H12907). Thus, EPA clearly
stated
³in the NPRM that the Agency has no authority to alter
³the effective date of the statutory ban.
³ {2} Although the legislative history of section 610
³is unclear on this point, the Senate Statement of
Managers
³specifically states that the section 608 ban on the
venting
³of refrigerants, which like the class II ban is an
outright
³prohibition, is self-executing and will take effect on
³the stated date even if that date is in advance of EPA
³regulations implementing the ban. EPA believes that
this
³analysis applies similarly to the class II ban. See 136
³Congressional Record S16948, October 27, 1990.
A. Medical Products
Section 610(e) states that ``nothing in this section shall
apply to any medical devices as defined in section 601(8).''
Section 601(8) defines ``medical device'' as ``any device (as
defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
321)), diagnostic product, drug (as defined in the Federal Food,
Drug, and Cosmetic Act), and drug delivery system-(A) if such
device, product, drug, or drug delivery system utilizes a class
I or class II substance for which no safe and effective alternative
has been developed, and where necessary, approved by the
Commissioner
of the Food and Drug Administration; and (B) if such device,
product, drug, or drug delivery system, has, after notice and
opportunity for public comment, been approved and determined
to be essential by the Commissioner in consultation with the
Administrator.''
EPA proposed exempting medical devices that the FDA considers
essential by exempting all devices listed under 21 CFR section
2.125(e).
B. Aerosol Products and Pressurized Dispensers Containing Class
II Substances
1. Definition of Aerosol Products and Pressurized Dispensers
Section 610(d) bans the sale of all aerosol products and
pressurized dispensers containing class II substances not
specifically
excepted by the EPA under section 610(d)(2). Consistent with
the class I ban, EPA proposed that the phrase ``aerosol product
or other pressurized dispenser'' should not be interpreted as
applying to pressurized containers (``bulk containers'') used
to distribute materials for use into other products because
these materials generally are self-pressurized when so
contained.{3}
³ {3} As explained in the class I ban, such an
interpretation
³would have had a devastating and unintended impact on
³the air-conditioning and refrigeration industry.
The final rulemaking for the Class I Nonessential Products
Ban clarified EPA's interpretation of this language (58 FR 4790).
EPA believes that the phrase ``aerosol product or other pressurized
dispenser'' was meant to include non-aerosol products such as
CFC-12 dusters and freeze sprays. However, the Agency does not
believe that the term ``other pressurized dispenser'' applies
to pressurized containment vessels such as small containers
of motor vehicle refrigerant or containment vessels for recycled,
recovered, or reclaimed refrigerant. Under EPA's interpretation,
the phrase ``aerosol products or pressurized dispenser'' does
not include bulk pressurized containers which are used solely
for the transportation or storage of controlled substances to
be later integrated into a use system. As described in 40 CFR
82.3(i) and the December 10, 1993 final rule implementing section
606 and related provisions of sections 603, 607, and 616 of
the Act (58 FR 65018), a ``controlled substance means any substance
listed in appendix A or appendix B to [subpart A] whether existing
alone or in a mixture, but excluding any such substance or mixture
that is in a manufactured product other than a container used
for the transportation or storage of the substance or mixture''
(58 FR 65063). A bulk container, also described in 40 CFR 82.3(i),
means a container in which ``a listed substance or mixture must
first be transferred from [and transferred] to another container,
vessel, or piece of equipment in order to realize [the controlled
substance's] intended use'' (58 FR 65063). EPA distinguishes
between manufactured products and bulk containers, where
manufactured
products are subject to the ban and bulk containers are not.
2. Proposed Exemptions
The products that EPA proposed to exempt are actually product
categories rather than particular products manufactured and
marketed by individual companies, relying upon the definition
of ``product'' developed in the Class I Nonessential Products
Ban rulemaking. EPA reiterated its belief that in section 610
of the statute, Congress applied this term to any type or category
of merchandise or commodity offered for sale, as well as any
use of an ozone-depleting substance in the manufacture or packaging
of any such merchandise or commodity. Consequently, when granting
exceptions today, EPA is taking action with regard to entire
product categories rather than individual products in this
rulemaking.
(EPA recognized that in the case of certain niche markets, there
may be only one individual product that falls within a particular
category; in such a case, EPA could consider an exception for
that specific product.)
EPA carefully considered requests for exceptions and exemptions
received prior to the publication of the NPRM in order to determine
which foam or aerosol products may meet the criteria for exceptions
and exemptions set out in the statute. EPA stated in the NPRM
that there was legal authority to consider exempting any of
the eleven products that received class I exemptions, as well
as any product that was using an HCFC to replace methyl chloroform,
carbon tetrachloride or halons. EPA put forth a list of proposed
exemptions, asked for additional information concerning several
products for which the Agency could not adequately determine
if an exemption was authorized and discussed several possible
revisions to the class I ban that would result in creating the
potential for additional exemptions.
EPA proposed to exempt the following aerosol products:
. Medical devices listed in 21 CFR 2.125(e);
. Lubricants, coatings or cleaning fluids for electrical
or electronic equipment, which contain class II substances for
solvent purposes, but which contain no other class II substances;
. Lubricants, coatings or cleaning fluids used for aircraft
maintenance, which contain class II substances for solvent purposes
but which contain no other class II substances;
. Mold release agents used in the production of plastic and
elastomeric materials, which contain class II substances for
solvent purposes but which contain no other class II substances;
and
. Spinnerette lubricants/cleaning sprays used in the production
of synthetic fibers, which contain class II substances for solvent
purposes but which contain no other class II substances.
Based on the restriction regarding the sale and distribution
of certain cleaning fluids containing class I substances to
commercial purchasers, EPA also proposed exempting sales or
distribution to commercial purchasers of any aerosol or pressurized
dispenser cleaning fluid for electronic and photographic equipment
which contains a class II substance.
EPA requested additional comment to determine if exemptions
were warranted based on worker safety or flammability concerns
regarding the use of a substitute for class II substances in
the products listed below, as well as comment on current and
potential uses of class II substances in the following products:
. Lubricants for pharmaceutical and tablet manufacture;
. Gauze bandage adhesives and adhesive removers;
. Topical anesthetic and vapocoolant products;
. Plasma etching;
. Solvent uses in document preservation sprays;
. Solvent uses in red pepper bear repellent sprays.
In order to grant an exception to the class II ban, the only
available alternative to the use of the class II substance must
be a legal use of a class I substance and the Agency must determine
that the aerosol product or pressurized dispenser is essential
as a result of flammability or worker safety concerns.
Consequently,
EPA was generally limited to considering products that were
exempted under the class I ban or products that use HCFCs as
substitutes for methyl chloroform, carbon tetrachloride or halons.
EPA discussed in the NPRM that the class II exemptions are
integrally
linked to the Class I Nonessential Products Ban. EPA believes
that the class I ban and the Act gave ample notice to the public
through the class I rulemaking process that future exemptions
from the class II ban would not be available. The NPRM notes,
however, that there are a number of products that do not use
class I substances, but do use class II substances. Some of
the manufacturers of these products may not have commented on
the need for a class I exemption, because they were not aware
of the connection between the two bans (e.g. that class II
exemptions
could only be obtained where class I use was legal). As stated
above, without a legal class I use, the Agency does not have
authority under section 610(d) to grant exemptions under the
class II ban. EPA proposed considering the need to revise the
class I ban to provide exemptions for several products brought
to the Agency's attention prior to the issuance of the NPRM.
For the most part, these were products that no longer used class
I substances and therefore did not submit comments to EPA during
that rulemaking. Therefore, since these products were not
sufficiently
considered in the earlier rulemaking, these products could not
meet the statutory requirement regarding the only legal substitute
being the use of a class I substance. The Agency requested comment
on the need to revisit the Class I Nonessential Products Ban
through this rulemaking with respect to any product for which
there is no substitute for the class II use other than the use
of a class I substance, where that use would no longer be legal.
EPA specifically discussed two products:
. pesticides used in aircraft; and
. antispatter products used by welders.
In addition, EPA discussed the possibility of considering
other factors not specified in the Act, such as economic
feasibility
or availability of the alternatives. EPA stated, however, that
it did not believe it had such authority, but requested comment
regarding the economic feasibility and availability of alternatives
relative to dusters and safety sprays and whether EPA could
consider these factors.
Finally, the Agency discussed granting exemptions based on
the legal use of methyl chloroform, carbon tetrachloride and
halons. The NPRM specifically mentioned two products. The first
product was a pesticide, used to kill wasps and hornets nesting
near high-voltage power lines, that may require an exception
based on the solvent use of HCFC-141b in a new formulation,
replacing the current formulation that uses methyl chloroform.
The second product described in the NPRM is a parts cleaner
for hydraulic and electronic parts in aircraft, automotive and
marine maintenance. EPA requested comment on worker safety or
flammability concerns regarding the manufacturing and use of
these products, as well as comment on current and potential
uses of class II substances in both products. In addition, EPA
requested comment on whether the only available alternative
to the use of a class II substance in the wasp and hornet pesticide
and the hydraulic parts cleaner is the use of a class I substance.
EPA was unaware of any other products for which manufacturers,
distributors or retailers are substituting or planning to
substitute
class II substances, where the only legal substitute for the
class II substance is the use of a class I substance; however,
EPA requested comment on the need to grant additional exceptions
based on worker safety or flammability concerns for products
containing or manufactured with class II substances where the
only alternative is the legal use of a class I substance.
C. Foam Products Containing Or Manufactured With Class II
Substances
Section 610(d) prohibits the sale, distribution, or offer
of sale or distribution in interstate commerce of all plastic
foam products which contain, or are manufactured with, class
II substances, and which are not specifically excluded from
the ban under section 610(d)(3), as of January 1, 1994. Certain
types of plastic foam products, specifically foam insulation
products and integral skin, rigid, or semi-rigid foams necessary
to meet the Federal Motor Vehicle Safety Standards, are excluded
from the ban by the statute. However, in this rulemaking, EPA
has determined which plastic foam products qualify as ``foam
insulation products,'' and whether adequate substitutes for
certain HCFC-blown foams are practicable for effectively meeting
the Federal Motor Vehicle Safety Standards.
The NPRM states that for the purposes of this rulemaking,
EPA interprets the term ``plastic foam product'' to mean any
product (as defined in 40 CFR 82.62) composed in whole or in
part of material that can be described as ``foam plastic'' or
``plastic foam.'' EPA interprets ``foam plastic'' or ``plastic
foam'' to mean a type of plastic such as polyurethane or
polystyrene
which has been produced using blowing agents to create bubbles
or ``cells'' in the material's structure.
The foam plastics manufacturing industries, the markets their
products serve, and their uses of CFCs and HCFCs are extremely
varied. CFC-11, CFC-12, CFC-113, CFC-114, HCFC-22, HCFC-141b,
and HCFC-142b have all been used to some extent as blowing agents
in the manufacture of plastic foam products, which include building
and appliance insulation, cushioning foams, packaging materials,
flotation devices and shoe soles.
1. Insulating Foam Products
There are two basic types of foam produced with halocarbons:
thermosetting foams and thermoplastic foams. In the production
of thermosetting foams, a blowing agent is mixed with chemicals
which react to form the plastic foam product. With thermoplastic
foams, the blowing agent is injected into a molten plastic resin
which hardens upon cooling.
The NPRM discusses an important distinction between foam
plastics where the cells are closed, trapping the blowing agent
inside, and those with open cells which release the blowing
agent during the manufacturing process. The gas trapped in closed
cell foams can, if it possesses a low thermal conductivity,
provide significant thermal insulation. All of the foam products
used as thermal insulation are closed cell foams. Open cell
foams are not good thermal insulators.
CFCs had been commonly used as blowing agents in the
manufacturing
process of many foam products because they have suitable boiling
points and vapor pressures, low toxicity, very low thermal
conductivity,
are non-flammable, non-reactive, and, until the imposition of
the excise tax on ozone-depleting substances, they had been
very cost-effective. Among the many commonly used substitutes
for CFCs in foam production are HCFCs, CO2, hydrocarbons and
methylene chloride. In addition, HFCs and fluorinated ethers
may offer long-term substitutes for plastic foam production.
Section 610(d)(3) states that the ban on plastic foam products
containing or manufactured with HCFCs shall not apply to ``foam
insulation products.'' EPA identified two possible interpretations
of this phrase. ``Foam insulation products'' could be interpreted
to mean products containing foam that are used for insulating
some object. This phrase could also mean products containing
``insulating foam.''
In addition, the NPRM considered different possible
interpretations
of the word ``insulation.'' The largest use of plastic foams
produced with CFCs and HCFCs is in products that provide thermal
insulation for buildings, equipment, and a host of different
objects, but comments received during the development of the
NPRM suggested that the word ``insulation'' could also conceivably
refer to a product or material that protects or ``insulates''
some object from other phenomena, such as noise, shock, or
electromagnetic
radiation. Several commenters have suggested to EPA that the
word ``insulation'' should be interpreted to mean a product
or material that protects some object from physical impacts
or vibration. EPA examined each of these options in preparing
the proposed rulemaking.
The NPRM states that EPA believes that the word ``insulation''
should be interpreted to mean thermal insulation exclusively.
The primary uses of plastic foam products consist of thermal
insulation, cushioning, and packaging applications.
Because the statutory language is ambiguous, EPA has the
authority to reach a reasonable interpretation in developing
a definition of foam insulation. (See Chevron v. NRDC, 467 U.S.
837 (1984)). Reviewing the provisions of section 610 as a whole,
EPA proposed that the exemption in section 610(d)(3)(A) should
apply only to thermal insulation products. In section 610(d)(3),
Congress provided two statutory exemptions, one for foam insulation
and one for certain types of motor vehicle safety foam under
specified circumstances. Under a broad interpretation of foam
insulation including all insulating uses, such as physical shock
or impact insulation, motor vehicle safety foams would be included
in the definition of foam insulation, since motor vehicle safety
foams serve to insulate vehicle occupants from crash impact.
Therefore, the second exemption provided by Congress would be
entirely unnecessary if the first exemption were broad enough
to include the products covered by the second exemption.
Furthermore,
it would not be necessary for Congress to limit motor vehicle
safety foams to specific circumstances where substitutes were
unavailable. A broad interpretation of the definition of foam
insulation would exempt motor vehicle safety foams from the
class II ban even where substitutes were easily available, contrary
to the explicit provisions of the second exemption. EPA concluded
that since a broad interpretation of insulating foam would render
the second exemption superfluous, the better reading of the
statute would limit the first exemption to thermal insulation
foams. See the NPRM for a full discussion of this issue (58
FR 50481).
For the purposes of this rule, EPA proposed defining ``foam
insulation product'' as any product containing the following
materials:
(1) Closed cell rigid polyurethane foam,
(2) Closed cell rigid polystyrene boardstock foam, and
(3) Closed cell rigid phenolic foam.
In addition, EPA proposed to define pipe insulation (also
referred to as ``pipe wrap'') made out of closed cell rigid
polyethylene foam as a foam insulation product. As explained
in the NPRM, EPA concluded that all of these products were thermal
foam insulation products and that no other products were thermal
foam insulation products (58 FR 50481).
2. Foam Used To Meet Federal Motor Vehicle Safety Standards
Section 610(d)(3) states that the ban on class II substances
in plastic foam products shall not apply to any ``foam insulation
product'' or ``an integral skin, rigid, or semi-rigid foam utilized
to provide for motor vehicle safety in accordance with Federal
Motor Vehicle Safety Standards where no adequate substitute
substance (other than a class I or class II substance) is
practicable
for effectively meeting such Standards.''
Section 103 of the National Traffic and Motor Vehicle Safety
Act of 1966 authorized the National Highway Traffic Safety
Administration
(NHTSA) to promulgate Federal Motor Vehicle Safety Standards,
which have subsequently been published in 49 CFR part 571. The
Federal Motor Vehicle Safety Standards are, for the most part,
performance standards. The use of particular materials is generally
not specified in the standards in 49 CFR part 571 affected by
this rulemaking. Consequently, to the best of the EPA's knowledge,
no HCFC-blown foams are specifically required by the NHTSA
regulations.
However, since the enactment of the laws requiring these standards
beginning in the late 1960s, the motor vehicle manufacturing
industry has relied almost exclusively on foams to meet the
part 571 impact protection standards (the only exception EPA
is aware of consists of leather-wrapped steering wheels and
leather-covered dash boards, and the Agency understands that
even these products have foam underneath).
After conducting its own research and consulting with officials
at the NHTSA and industry sources, EPA proposed applying the
statutory ban on the sale, distribution, or offer of sale or
distribution in interstate commerce to all foam components used
in motor vehicles except those made out of integral skin foam
and those which qualify as foam insulation products as defined
in . 82.62(h) effective January 1, 1994. Based on the Agency's
understanding of when substitutes to HCFC use in integral skin
foam used to meet Federal Motor Vehicle Safety Standards would
be available, EPA proposed exempting integral skin foam made
with HCFCs used to meet Federal Motor Vehicle Safety Standards
under the provisions of section 610(d)(3)(B) from the class
II ban on plastic foam products only until January 1, 1996.
At that time, the exemption for HCFC-blown integral skin foam
will ``sunset.'' In addition, EPA proposed to permanently exempt
from the class II ban existing inventories of integral skin
products needed to meet the Federal Motor Vehicle Safety Standards
manufactured prior to January 1, 1996.
EPA indicated that the Agency will revisit the sunset provision
for this exemption at a future date if the Agency receives a
request from the public for extending the exemption based on
the unavailability of substitutes.
D. Temporary Exemptions
EPA proposed certain limited exemptions from the statutory
ban on class II substances. Administrative creation of exemptions
from statutory requirements are authorized only in limited
circumstances,
outlined in Alabama Power Co., et al. v. Costle, et al., 636
F. 2d 323 (D.C. Cir 1979). Agencies can create such exemptions
only where necessary based on administrative feasibility or
the de minimis nature of the exemption. EPA proposed providing
a ``grandfather'' exemption for existing inventories, based
on the de minimis rationale, as well as a temporary exemption
for products requiring federal approval for reformulation, based
on administrative feasibility.
EPA proposed exempting existing inventories of products
otherwise
subject to the class II ban based on the de minimis environmental
impact of such an exemption. Many of the products covered by
the class II ban, particularly many of the foam products, release
class II substances either during manufacture or disposal, rather
than during use. Thus, banning the sale of existing inventories
of such products would have a de minimis environmental impact.
While there are also cases where the class II substance is released
in the use of the product, especially with the aerosol products,
EPA stated its conclusion in the NPRM that emissions to the
environment from these products, once manufactured, will be
little or no different from the releases from these products
if removed from commerce and subsequently disposed of.
The proposed exemption would cover all products placed into
initial inventory by December 27, 1993, the date ninety days
after publication of the NPRM. EPA believes that this is adequate
time for manufacturers to alter manufacturing processes to exclude
class II substances. Under the proposal, to continue selling
products after January 1, 1994, the manufacturer or distributor
must be able to show, upon request by EPA, that the product
was in fact manufactured, and thus placed into initial inventory
by December 27, 1993. Shipping forms, lot numbers, manufacturer
date stamps or codes, invoices, or the like, may be used to
identify the date the product was placed into initial inventory.
EPA believes these types of records are normally kept by
manufacturers
and distributors of products affected by this rulemaking and
that no additional recordkeeping will be required by this rule.
In addition, EPA proposed exempting from the class II ban
those products requiring federal approval prior to reformulation,
provided that manufacturers of such products have made a request
of the appropriate federal agency for such federal approval
prior to January 1, 1994. Alabama Power authorizes creation
of administrative exemptions where necessary, based on
administrative
feasibility.
EPA proposed allowing manufacturers that require federal
approval for reformulations of a product or approval of a specific
substitute product to continue to sell or distribute, or offer
for sale or distribution in interstate commerce, their existing
formulations until ninety days after receiving all appropriate
federal agency approvals, providing the request for approval
from the appropriate federal agency had been submitted by January
1, 1994. EPA proposed allowing manufacturers that are ultimately
denied federal approval for reformulations of a product or approval
of a specific substitute product to continue to sell or distribute,
or offer for sale or distribution in interstate commerce, their
existing formulations until thirty days after receiving notice
of denial from the federal agency. EPA felt this shorter period
was appropriate since in this case, manufacturers need merely
cease using class II substances rather than altering manufacturing
processes to accommodate the new formulation or substitute.
Consistent with the temporary exemption for products placed
in initial inventory prior to December 27, 1993, products put
into initial inventory by the manufacturer, before thirty days
after receipt of denial or ninety days after receiving an approval
by the appropriate federal agency, would be grandfathered. To
continue selling after January 1, 1994, the manufacturer or
distributor would be required to show, upon request, that the
pertinent federal approvals were applied for prior to January
1, 1994 and that the product was in fact manufactured by ninety
days following the receipt of all appropriate federal approvals
or thirty days following denial.
E. Ban on Sale or Distribution in Interstate Commerce
EPA proposed that the term ``interstate commerce'' in section
610(d) refer to the product's entire distribution chain up to
and including the point of sale to the ultimate consumer. Under
section 610, the statute prohibits all sale, distribution, or
offer of sale or distribution in interstate commerce after the
January 1, 1994 effective date. As such, all sales and distribution
of banned products, including retail sales, would be prohibited
as of January 1, 1994, as required by the Act, unless otherwise
specified.
F. Scope of Interstate Commerce
EPA's interpretation of interstate commerce does not cover
the sale, distribution, or offer of sale or distribution, of
nonessential products within the boundaries of a single state.
Thus, EPA believes that the Act does not ban the sale,
distribution,
or offer of sale or distribution of a product otherwise affected
by this rulemaking that is completely manufactured, distributed,
and sold without ever crossing state lines. However, the Agency
stated in the NPRM that to avoid coverage by this proposed
rulemaking,
an affected party must provide adequate documentation that not
only was the product manufactured, distributed, and/or sold
exclusively within a particular state, but also that all of
the raw materials, components, equipment, and labor that went
into manufacturing, distributing, selling, and/or offering to
sell or distribute such a product originated within that state
as well. The sale of the affected product includes every sale
up to and including the sale to the ultimate consumer, and all
these sales must take place without ever crossing a state line
for the product to be considered not part of interstate commerce.
G. Resale of Used Products
EPA proposed an interpretation of sale, distribution, or
offer of sale or distribution in interstate commerce which does
not cover the resale of used products. Resale of used products
means a sale, by a person after a period of use other than
demonstration
use. The Agency recognizes that more than one consumer often
derives utility from owning and using certain durable goods
affected by this rulemaking, such as automobiles and boats.
Restricting the resale of such used durable goods before the
end of their productive lifetimes would provide little, if any,
environmental benefit. Because restricting the resale of such
used durable goods would impose significant economic hardship
on a great many consumers without providing any associated
environmental
benefits, EPA does not believe that Congress intended to ban
their resale. Consequently, while EPA's interpretation of
``interstate
commerce'' is such that interstate commerce includes the entire
chain of sale and distribution from the manufacturer of a new
product to its ultimate consumer, the Agency recognized in the
NPRM that in the case of durable consumer goods such as boats
and motor vehicles, resale of the product to additional consumers
may occur after the original sale of the new product to the
ultimate consumer after some period of use by the original ultimate
consumer. In such cases, EPA proposed to not consider the resale
of these banned products to constitute sale, distribution, or
offer of sale or distribution, of a new product in interstate
commerce for the purposes of this rulemaking.
H. Imports and Exports
The NPRM states that EPA believes that both the import of
any product for sale or distribution within the United States,
or the sale or distribution of any product intended for ultimate
export from the United States, are acts of interstate commerce
within the meaning of section 610 and would, accordingly, be
affected by this regulation. The import or export of products
affected by today's rulemaking would be subject to the same
restrictions as the sale, distribution, or offer of sale or
distribution of these products in the United States. EPA did
not by these provisions intend to extend its authority to regulate
foreign commerce. The class II ban applies only to interstate
commerce and EPA intended in the NPRM to regulate imports and
exports only while they were in interstate commerce. EPA did
not intend to regulate the foreign commerce aspects of imports
and exports. EPA intended only that the manufacture of products
for ultimate export and the distribution of imported products
be subject to these rules to the extent they fell within interstate
commerce as defined in section II.F., above.
I. The Use of Affected Products Purchased Before the Effective
Date of the Ban
The NPRM discusses EPA's confirmation in the final class
I ban rulemaking that nonessential products purchased before
the effective date of the ban may still be used, and that the
Agency is not regulating the use of nonessential products, merely
their sale and distribution as authorized by the statutory language
(58 FR 4782). Consistent with that rulemaking, the class II
ban proposal states that EPA is not regulating the use of affected
products, only the sale and distribution of affected products
in interstate commerce.
J. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment
Section 610(b)(2) required EPA to ban the sale of
chlorofluorocarbon-
containing cleaning fluids for electronic and photographic
equipment
to non-commercial users. EPA estimates that non-commercial sales
of such fluids represent a small fraction of the total use of
these products. Nevertheless, the statute specifically required
EPA to ban the sale of these products containing CFCs for non-
commercial use. Consequently, EPA proposed, and the final rule
included, a ban on the sale, distribution, or offer of sale
or distribution of these products to non-commercial users. As
a result of this statutory mandate, there is no remaining
chlorofluorocarbon
which legally could be substituted for class II substances in
non-commercial cleaning fluids for electronic and photographic
equipment.
EPA stated in the class II ban NPRM that aerosol cleaning
fluids for electronic and photographic equipment sold to commercial
users are often used at work benches in industrial situations.
Flammability is a concern in such environments. In addition,
these cleaning fluids may be used on electronic or electrical
equipment that must be serviced while electrical current is
turned on. Therefore, the Agency believes flammability is a
concern associated with the use of aerosol cleaning fluids for
electronic and photographic equipment. Accordingly, EPA proposed
providing an exemption for the sale of aerosol cleaning fluids
for electronic and photographic equipment containing class II
substances to commercial users.
In the class I ban, EPA required sellers and distributors
to post signs stating that sale, distribution, or offer of sale
or distribution, in interstate commerce of these products to
non-commercial users is prohibited and that purchasers of these
products must provide verification that they are commercial
users. In addition, sellers and distributors were required to
verify that purchasers of these products are commercial users.
Purchasers could fulfill this requirement by presenting any
number of existing documents generally issued to commercial
entities as a condition for conducting business. Sellers and
distributors would have to have a reasonable basis for believing
that the information presented by the purchaser is accurate
and thus that the purchaser is in fact a commercial user. These
documents could include a federal employer identification number,
a state tax exemption number, a local business license number
and a government contract number. EPA believes that these
requirements
impose the least burden while still meeting the statutory
requirement
to prevent non-commercial users from purchasing CFC-containing
cleaning fluids.
EPA stated in the NPRM that the statutory language in section
610(d) compels the Agency to adopt similar verification provisions
with regard to cleaning fluids containing class II substances.
Consequently, the Agency proposed verification and public notice
requirements similar to those in the class I ban final rule.
Included in the proposal was an option allowing the sellers
and distributors to use one sign to provide the proper
notification.
III. Summary of Major Public Comments
A public hearing on the proposed rule was held on October
12, 1993. Nine groups presented oral comments on the NPRM. A
transcript of the hearing is contained in Docket A-93-20.
EPA received a total of 91 written comments on the proposed
rule during the forty-five day public comment period, and these
comments are also contained in Docket A-20-93. Many commenters
expressed support for EPA's definition of ``insulating products''
while a few commenters suggested EPA modify the definition.
Many comments requested that EPA re-examine the use of HCFC-
22 in aerosols, specifically in mold release agents, document
preservation sprays and spinnerette lubricant/cleaning sprays.
A number of commenters requested that EPA consider providing
an exemption for the solvent and propellant uses of class II
substances in document preservation sprays. Several commenters
put forth requests to exempt class II substances in certain
circumstances based on worker safety and flammability concerns,
where the only legal alternatives are halons. Finally, a few
commenters discussed the benefits of EPA's proposed grandfathering
provisions.
IV. Response to Comments
EPA received several comments indicating that there were
errors in the published version of the regulatory text. EPA
has reviewed and updated that text.
A. Aerosol Products and Pressurized Dispensers
EPA received one comment indicating that the Agency should
clarify the definition of ``other pressurized dispenser.'' The
commenter was particularly concerned with how the Agency would
treat a container used solely to transport class II substances.
In the class I ban final rules and in the class II ban NPRM,
EPA discussed bulk containers used to transport class I and
class II substances, including small containers of CFC-12 used
in the automotive industry. EPA would like to clarify that these
are bulk containers, used solely to transport the controlled
substance, and are not considered to be pressurized dispensers
for the purposes of section 610.
Product which may contain only a class I or class II substance
or mixture of class I and class II substances and other substances,
are subject to the bans promulgated under section 610. Products
are different from bulk containers in that to perform its function,
products are directly applied from the container in which they
are sold. Furthermore, products to be added into a system, such
as an air conditioner, that contain a class I or class II
substance,
but that do not function as part of the use system (e.g. some
function other than cooling in an air-conditioner) are considered
products, not bulk containers. One example of this is a leak
repair product that is transferred into an air-conditioning
system under pressure provided by a refrigerant. The primary
function of the product is to repair a leak rather than to charge
the system with refrigerant. Another example is a duster, whose
inherent function is to remove dust through forced air. The
controlled substance is used as pressure to force the air from
the container. A bulk refrigerant, on the other hand, is
transferred
under its own pressure and provides refrigerant qualities to
the system to which it is transferred. Furthermore, in the final
regulations implementing section 606, published on December
10, 1993, EPA clearly delineates between manufactured products
and bulk containers used to transport substances.
EPA received one comment from a manufacturer that employs
an alternative technology in the production of various aerosol
products and pressurized dispensers. This commenter stated that
a patent-pending process is available that allows the manufacturing
of formulations without ozone-depleting substances. The commenter
indicated that this technology is being widely used and considered
in many fields and provides a safe nonflammable alternative
to class I and class II substances. EPA applauds the efforts
of this commenter to develop a technology that does not contribute
to stratospheric ozone depletion. As the phaseout dates for
class I and class II substances approaches EPA is pleased to
learn that alternatives will be available. However, the commenter
did not provide enough information to allow EPA to judge where
this new technology can effectively replace the need for EPA
to provide specific exceptions or exemptions to the statutory
ban. Therefore, EPA cannot consider this technology as an
alternative
sufficient to allow the Agency to alter any of the exemptions
in this final rulemaking.
EPA received comments concerning the relationship between
the class I and class II bans and the Significant New Alternatives
Program (SNAP) being promulgated under section 612 of the Act.
The SNAP final rule will provide industries with lists of
``acceptable''
and ``unacceptable'' alternatives for use as substitutes for
ozone-depleting substances. In addition, the use of acceptable
alternatives may be subject to other restrictions promulgated
under Title VI, as well as other federal, state, and local
requirements.
EPA received several comments describing the positive and
negative aspects of various alternatives that could be used
or considered in different applications. Many commenters described
factors that should be considered where a given alternative
is considered. EPA has reviewed this information.
1. Products Using Class II Substances As Replacements For Class
I Substances That Include Methyl Chloroform, Carbon Tetrachloride
or Halons
EPA has authority to consider granting exceptions for products
containing one or more class II substances, where the only
available
alternative for the class II substance(s) is legally available
class I substances and the use of the class II substance is
essential based on flammability or worker safety concerns. This
section discusses cases where the only alternative within class
I may be methyl chloroform, carbon tetrachloride or halons.
Although EPA was not aware of any situations justifying these
exemptions, EPA indicated in the NPRM that a manufacturer,
distributor,
or retailer of a product containing one or more class II substances
could request, through the public comment process, an exception
from EPA, citing methyl chloroform, carbon tetrachloride or
halons as the only legal alternative(s). EPA stated in the NPRM
that the Agency would consider such requests received during
the comment period, but may require significant proof that such
claims were not attempts to circumvent the intent of the ban.
Moreover, EPA would consider the similarity of the class I
substances
and the corresponding class II alternatives to ensure the
substances
have parallel uses.
a. Wasp and hornet sprays. Just prior to issuing the NPRM,
EPA learned of a product, a pesticide used to kill wasps and
hornets nesting near high-voltage power lines, that may require
an exception based on the solvent use of HCFC-141b in a new
formulation, replacing the current formulation that uses methyl
chloroform. EPA did not have enough information to determine
what if any substitutes, other than methyl chloroform, exist,
and whether or not worker safety or flammability concerns affect
the use of alternatives in these products. Furthermore, EPA
did not have confirmation that an application for formulations
using HCFC-141b had been submitted under the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA) for these HCFC formulations.
Therefore, the Agency did not propose to exempt the use of class
II substances in wasp and hornet sprays used near high-voltage
power lines. However, EPA requested comment on worker safety
or flammability concerns regarding the manufacturing or use
of these products, as well as comment on current and potential
uses of class II substances in these products. In addition,
EPA requested comment on whether the only available alternative
to the use of a class II substance in wasp and hornet pesticides
used near high-voltage power lines is the use of a class I
substance.
EPA received two comments addressing this issue. One comment,
from the manufacturer of wasp and hornets sprays, stated that
many electric utility employees use wasp and hornet sprays while
on ladders to work on high-tension power equipment. Sometimes
these employees are fifty feet or more above ground. Solvent
alternatives to class I and class II substances in these
insecticides
are flammable. Therefore, without using a class I or class II
substance as the solvent, the utility worker would either be
unable to destroy the wasps or hornets, or would be forced to
spray a flammable product near a potentially charged line.
Recently,
an application for registration under FIFRA for a wasp and hornet
spray formulation including HCFC-141b was submitted to EPA.
EPA agrees with the concerns raised by this commenter. The class
I ban exempted methyl chloroform. Therefore, manufacturers could
continue to use methyl chloroform until methyl chloroform is
no longer available. Based on this information, EPA believes
it is appropriate, and in this action is providing an exemption
for the sale and distribution of products using HCFC-141b as
a solvent to replace methyl chloroform in wasp and hornet sprays
used by private and public utility employees near high-tension
power lines. EPA is further requiring that the seller of a wasp
and hornet spray containing an HCFC as a solvent provide
notification
of the requirements to ensure that the exempted wasp and hornet
spray is sold either to an organization that employs personnel
who work near high-tension power lines and requires use of an
HCFC-pesticide, or that the seller is selling the product only
for eventual resale to such an organization. This notification
will take the form of written notification of the requirements
prior to any sale that occurs after January 1, 1994, by including
this information on sales brochures, order forms, invoices and
the like. The seller must notify the purchaser that ``it is
a violation of federal law to sell or distribute wasp and hornet
sprays containing hydrochlorofluorocarbons as solvents to anyone,
except for use near high-tension power lines where no other
alternative except a class I substance is available. The penalty
for violating this prohibition can be up to $25,000 per unit
sold.'' EPA understands that at least one major manufacturer
intends to label this product to accurately reflect this
requirement.
The Agency would like to clarify that this exemption is only
for the sale and distribution of the product used near high-
tension power lines; other consumer wasp and hornet sprays,
including those used near electrical lines and cables, as well
as other pesticides, are in no way affected by this exemption.
A second commenter suggested that EPA provide an exemption
for HCFC-22 used as a propellant in wasp and hornet sprays because
HCFC-22 is non-flammable and non-conductive. In the NPRM, EPA
only discussed an exemption based on the use of methyl chloroform.
EPA believes that while the solvent properties of methyl chloroform
are similar to HCFC-141b, EPA does not believe this situation
is true for HCFC-22. HCFC-22 is generally considered to be a
propellant, while methyl chloroform is considered a solvent.
Therefore, EPA does not believe that HCFC-22 in this product
would be considered a substitute for methyl chloroform. It is
possible that the commenter was making this request for an
exemption
based on the propellant uses of a different class I substance,
such as CFC-12; however, the commenter did not provide such
information, nor did the commenter demonstrate that the legal
use of a class I substance is the only alternative for the use
of HCFC-22 for this product. EPA believes there are adequate
propellant substitutes available for use in wasp and hornet
sprays. Therefore, EPA is not providing an exemption for the
use of HCFC-22 in this product.
b. Hydraulic Brake Cleaners. EPA requested comments on the
need to provide an exemption for the solvent uses of hydraulic
brake cleaners. While the NPRM proposed an exemption for the
solvent uses of class II substances in lubricants, coatings,
or cleaning fluids used to clean electrical and electronic
equipment,
and for lubricants, coatings or cleaning fluids used to maintain
aircraft, EPA did not propose an exemption for all hydraulic
equipment. EPA received several comments concerning this issue.
One commenter stated that it favored an exemption for hydraulic
parts cleaning products for aircraft maintenance. EPA would
like to clarify that the proposed exemption for the solvent
uses of class II substances in aircraft maintenance was in no
way limited to non-hydraulic applications, but applied to all
aircraft maintenance cleaning including hydraulic applications.
A second commenter requested that EPA include marine and
automotive cleaning as well as aircraft cleaning. The commenter
manufactured a product using methyl chloroform. The commenter's
new formulation includes a class II substance. The commenter
stated that automotive cleaning applications, particularly in
the area of brake cleaning, require a nonflammable product because
the work is often performed in close proximity to high-temperature
exhaust systems. The commenter states that nonflammable, safe
solvents are necessary where there is an extremely high heat
potential and the environment is enclosed. Potentially the products
could be used near open flames and electrical equipment. While
EPA agrees that a safe working environment is essential, EPA
does not agree that an exemption for the solvent uses of class
II substances is necessary for these products. The automotive
maintenance industry employs a variety of flammable products
and therefore, routinely provides an appropriate working
environment
for the use of these products. Moreover, there are many flammable
brake cleaners regularly used by both professionals and do-it-
yourselfers. In addition, nonflammable products that do not
contain class II substances are available. These products may
contain perchloroethylene and may therefore require particular
worker safety conditions. However, EPA believes that these products
represent adequate substitutes already accepted by the marketplace.
Based on this information, EPA does not believe that the worker
safety or flammability concerns raised by this commenter justify
the requested exemption. Therefore, this final action will not
provide an exemption for hydraulic brake cleaners, other than
those used for aircraft maintenance as proposed.
c. Portable fire extinguishers. While in the NPRM, EPA discussed
the legal authority to consider exemptions where the only available
alternative for the class II substance(s) is halons, EPA did
not propose any such exemptions. Prior to the issuance of the
NPRM, EPA did not receive any comments regarding the substitution
of HCFCs for halons as it relates to this rulemaking. During
EPA's public meeting held to discuss the upcoming ban with affected
stakeholders on March 29, 1993, EPA discussed the definition
of the terms ``aerosol products'' and ``pressurized dispensers''
as well as the requirements under section 610(d). While
representatives
of the fire equipment manufacturing industry and chemical suppliers
to that industry were present at this meeting, no information
regarding the use of HCFCs as halon replacements or the potential
need for exemptions was brought to the Agency's attention.
Therefore,
EPA did not propose any exemptions for halon replacements. However,
during the public comment period, EPA received several comments
requesting exemptions for HCFCs used as halon replacements.
In the Significant New Alternatives Program (SNAP) NPRM (58
FR 28093) being promulgated under section 612 of the Act, EPA
discusses fire extinguishing streaming agents and total flooding
agents. Halocarbons represent only a portion of the agents
available
for fire protection, and in fact appear to be a decreasing portion
as more and more users are choosing to install ``alternative''
systems. However, a number of HCFCs have been suggested as halon
replacements, including HCFC-22, HCFC-123 and HCFC-124 for both
streaming and total flooding applications. Commenters claimed
that there are particular situations where the only legal
alternative
would be the use of either a halon or a class II substance.
Two comments regarding the treatment of halon replacements
indicated that the Agency should not consider any fire
extinguishing
equipment under the class II ban rulemaking. Another commenter
suggested that EPA should add an exemption under this rule for
``all pressurized fire extinguishers and fire extinguishing
systems containing class II substances.'' This commenter also
further stated that EPA treated fire extinguishing systems
separately
during the class I rulemaking and that the Agency should therefore
take a consistent approach. EPA disagrees with both of these
commenters. Fire extinguishing equipment was not treated separately
or exempted under the class I ban rulemaking, but rather halons
were not included in the class I ban. Portable fire extinguishers
using CFCs were in fact banned.
Another commenter, also referring to the class I rulemaking,
notes that in the final rule EPA defines chlorofluorocarbons
to include Class I, Group I and III substances, but not Group
II substances (halons). Therefore, while CFC-fire extinguishing
equipment was banned, halon-fire extinguishing equipment was
exempted. Furthermore, the commenter reviewed the preamble
discussion
for the proposed SNAP rule, published in the Federal Register
on May 12, 1993 (58 FR 28093), suggesting that EPA consider
a method to provide a consistent and complementary approach
under this rule. The commenter also stated that it had expended
substantial effort and resources in the search for, and development
of, an environmentally acceptable halon replacement. A prohibition
on the general use of class II substances as halon replacements
in fire protection applications could result in deeming this
commenter's efforts as useless. EPA agrees that halons were
not included in the class I ban. EPA only banned the use of
CFCs in aerosol products or pressurized dispensers. EPA further
agrees that an outright prohibition on the use of class II
substances
could have an adverse economic impact on this industry; however,
EPA does not have authority under section 610 to consider economic
impacts. EPA may exempt products based only on flammability
and worker safety concerns where a legal class I alternative
exists, which would be the case with halon replacements, as
they were not covered in the class I ban. Cases such as these
are discussed below.
A third commenter stated that EPA is incorrect in its
interpretation
of section 610(d). Referring to the requirements under the 1978
ban on aerosol propellants and under other sections of Title
VI, the commenter states that ``the ban on CFC and HCFC use
in aerosol products was clearly intended to cover its use as
an aerosol propellant.'' The commenter further stated that
``although
HCFCs used as fire protection agents would in most cases be
used in `pressurized dispensers,' the HCFC is not the propellant,
but is instead the active ingredient * * * (the commenter does
not believe) that section 610(d) was intended to cover the use
of HCFCs as active ingredients in essential products such as
fire protection equipment or extinguishers.'' EPA disagrees
with this commenter. Congress in no way restricted consideration
under this rulemaking to only the use of class II substances
as propellants. Rather, Congress banned all class II uses of
aerosols and pressurized dispensers unless qualifying for an
exclusion. Moreover, the authority for all Title VI rulemakings
is wholly separate in mandate and intent from the 1978 aerosol
propellant ban.
A fourth commenter states that all fire extinguishers are
pressurized to some extent, but that the Agency should consider
categorizing them as equivalent to bulk containers. This commenter
believes that the NPRM is in conflict with the SNAP NPRM and
that banning the use of HCFCs in fire extinguishers would cause
great economic hardship. EPA recognizes the need to consider
decisions made under the SNAP rulemaking; however, SNAP
determinations
in no way restrict EPA authority under section 610. EPA believes
that all portable fire extinguishers are pressurized dispensers,
since pressure is necessary to propel the fire extinguishant
and such extinguishant is dispensed directly from the fire
extinguisher
via a self-contained apparatus. Moreover, fire extinguishers
are products, not bulk containers transporting chemicals.
EPA would like to clarify that all aerosol products and
pressurized
dispensers, regardless of their use, are encompassed under the
statutory language that appears in section 610(d). Moreover,
the use of all HCFCs, whether as propellants, solvents, or active
ingredients are covered by the self-executing statutory ban.
Congress in no way limited the types of products to be banned
or the types of uses for HCFCs to be banned. Furthermore, while
EPA had authority to consider which products would be banned
under the rulemaking for the class I ban, the Act clearly bans
aerosol products and pressurized dispensers containing HCFCs.
Therefore, if EPA had not chosen to promulgate regulations at
this time, on January 1, 1994, all aerosol products and pressurized
dispensers, including fire extinguishing equipment, would have
been automatically banned regardless of any SNAP determinations.
While EPA does attempt to coordinate decisions made under various
rulemakings, regulations promulgated under section 612 only
determine which replacements are acceptable; however, the use
of class II substances in aerosols and pressurized dispensers
regardless of the application are still subject to the section
610(d) ban. This situation was discussed in various parts of
the SNAP NPRM.
Nevertheless, it has come to EPA's attention that the situation
may not have been thoroughly reviewed in the Class II Nonessential
Products Ban NPRM as it relates to halon alternatives. EPA realizes
that some extinguishants may be appropriate in certain environments
on certain types of fires, whereas others would be appropriate
in different situations. There may be cases where an HCFC is
the only appropriate alternative to halons given the circumstances
of the environment and fire potential.
EPA has authority under section 610(d)(2) to grant exemptions
for the use of HCFCs where the only alternative is the use of
a class I substance, which includes halons. As stated above,
the equipment using streaming agents is consistent with the
definition of an ``aerosol product'' or ``pressurized dispenser''
and therefore subject to this rulemaking. However, EPA recognizes
that total flooding agents contained in total fire suppression
systems used to extinguish fires are different from a portable
device used to extinguish fires. These total flooding systems
differ from an aerosol product or pressurized dispenser in that
total flooding systems are ``systems'' that are completely
installed
and can be triggered to be automatically activated during an
emergency situation. The extinguishant is incorporated into
the system from bulk containers. Such systems thus do not
constitute
a pressurized dispenser or aerosol product within the meaning
of section 610. Portable fire extinguishers, on the other hand,
do constitute a pressurized dispenser, as they provide the product
and dispensing apparatus in a self-contained portable unit.
With this distinction, EPA believes that flooding systems and
fixed automatic extinguishing systems are not included within
the scope of the class II ban.
EPA discusses the Halon 1211 substitutes and alternatives
for streaming applications in the SNAP NPRM. Halocarbon substitutes
on the SNAP Proposed Acceptable list include class I agents
(HBFC-22B1, CFC blends), class II agents (HCFC-22, HCFC-123,
and HCFC-124) and perfluorocarbons (PFCs). Alternative technologies
on the Proposed Acceptable list include dry chemical, carbon
dioxide, water, and foam. Technical constraints restricts the
applicability of several substitutes and alternatives in specific
applications. In addition, due to environmental or health concerns,
SNAP places further use restrictions on some of the substitute
agents, such as restricting their use to non-residential
applications
only. Finally, other regulatory constraints limit the potential
use of certain alternatives, as discussed below.
Regulatory restrictions being promulgated under section 612
may limit the availability of certain ``acceptable'' alternatives
to the use of halons. For example, the SNAP NPRM includes several
use restrictions based on various health and environmental
concerns.
Some restrictions are in keeping with the Climate Change Action
Plan released by the President in October 1993, which directs
EPA to use section 612 to control emissions of global warming
gases.
Other regulatory constraints not fully discussed in the SNAP
NPRM limit the situations in which certain ``acceptable''
alternatives
may be considered. At least one alternative deemed ``acceptable''
under the SNAP NPRM uses CFCs in an application that was clearly
banned in the class I rulemaking. The use of CFCs in portable
fire extinguishers was banned in the class I final rulemaking
and therefore, while the SNAP NPRM proposes that CFCs are
acceptable
alternatives, it is not legal to sell or distribute or offer
for sale or distribution aerosol products or pressurized dispensers
containing CFCs after January 17, 1994, unless specifically
exempted by the class I ban rulemaking. CFCs in this application
were not exempted under the class I ban.
HCFCs could potentially be used in portable fire extinguishing
equipment for both the residential and commercial markets; however,
in residential applications, EPA has determined that there are
alternatives available that can be used effectively to suppress
any fire that may occur. In commercial and industrial applications,
there are situations in which portable fire extinguishers
containing
HCFCs meet the criteria for granting an exemption as set forth
in section 610(d)-the use of the product is deemed essential
as a result of flammability or worker safety concerns and the
only alternative is the use of a class I substance that can
be legally substituted. Therefore, EPA believes that in many
applications, the only alternative to the use of a class II
substance may be the use of a class I substance that can be
legally substituted in fire extinguishing equipment. The reasons
why other substitutes may not be suitable are discussed below.
Non-halocarbon alternatives to Halon 1211 are already in
widespread use in selected commercial applications because of
their effectiveness, and due to the current regulatory climate,
their use has been increasingly adopted wherever possible. However,
unlike Halon 1211, which is gaseous, these non-halocarbon
alternatives
are not ``clean agents'' and may cause secondary damage to the
property being protected. In addition, in many commercial or
industrial applications the types of fires that may occur, the
confined environments in which the fires may exist, and the
kinds of equipment or chemicals that may be involved will limit
the effectiveness of many alternatives in commercial and industrial
use. Therefore, the only alternative to the use of a class II
substance in these situations may be the legal use of a class
I substance (halons).
One alternative, CO2, is adopted most frequently because
it is the only non-halocarbon clean agent and in many applications,
it will not cause any secondary damage. There are, however,
several limitations that restrict its use. When used in confined
spaces, CO2 poses a significant risk of asphyxiation to occupants
and thus, may only be used where sufficient ventilation exists.
CO2 requires six times the weight and storage volume of Halon
1211, and thus is not suitable where weight and storage constraints
are a factor. In addition, there is some controversy about whether
CO2 contributes to thermal shock of electric components.
Furthermore,
CO2 may not be used on Class A fires.
Water and foam are both very effective agents, but cannot
be used on Class C electrical fires since they contribute to
electrical shock hazards. In addition, they may cause significant
secondary damage and thus are not suitable because the
extinguishant
can otherwise irreparably damage that which it is intended to
protect.
Multi-purpose dry chemical is effective on Class A, B, and
C fires, but, like water and foam, can cause considerable secondary
damage to certain equipment and could result in greater health
and environmental damage. For example, if the multi-purpose
dry chemical damaged a critical component on a marine vessel
or aircraft, it could threaten the safety of the crew and
passengers.
Use of water, foam or CO2 on hot metals is limited, as uneven
cooling may lead to warping of costly components.
EPA does not believe a suitable alternative extinguishant
would include a substance that would damage beyond repair the
item the extinguishant is employed to protect. Therefore, EPA
believes that to provide adequate fire protection in some
circumstances,
HCFCs may be the only available alternative to halons that can
provide sufficient protection without creating a human hazard
or irreparable damage from the original threat of flammability.
Such cases might include, but are not limited to the following:
. Certain industrial settings, e.g. chemical/refinery
processing;
. Certain electric utility facilities, e.g. nuclear power
stations;
. Libraries and museums;
. aviation and marine vehicles;
. commercial settings containing types of high value electronic
equipment.
For applications like these, halons or HCFCs may be the only
suitable fire extinguishant to suppress a fire in progress without
further damaging the equipment requiring protection and without
creating a human hazard. The suitability of the agent implies
that an agent is commercially available, that a fire will be
extinguished quickly, and will result in minimum degradation
of the products being protected from the fire. Some HCFCs, because
of their chemical composition, may tend to suppress fires and
reduce explosions in a shorter time and with smaller amounts
of agent than do other alternatives, including some HFCs. The
smaller amount of agents needed result in smaller amounts of
acid gases, thus reducing risks to human health and safety.
In light of this, EPA would consider a class II fire extinguishant
as suitable in those cases where other alternatives are not
commercially available and/or the chemical composition of the
other alterative cannot be shown by accepted fire protection
standards to be efficient in extinguishing fires in the relevant
situations/applications. The selection of agents usually requires
input from a fire protection professional who can assess the
situation and the potential use of alternatives to class I and
class II substances. EPA wishes to clarify that commercial
availability
in this of an alternative in this context does not consider
the relative cost of that alternative or the convenience associated
with its purchase.
The high cost associated with the use of class I and class
II substances will likely influence the decision-making process
whenever other alternatives are suitable and legal. EPA is aware
that an industry infrastructure exists that can aid a commercial
or industrial user in appropriate risk assessment and
determinations
of appropriate fire extinguishants. Furthermore, state and local
fire codes in many cases require that the purchasers of fire
protection equipment comply with widely accepted industry
practices.
The National Fire Protection Association (NFPA) has developed
many standards that the industry regularly relies upon, as well
as guidance on compatibility of certain extinguishants with
certain types of potential fires and environments.
Class II substances may be the only available alternative
for use in water vessels and in both non-commercial and commercial
aircraft. Circumstances that involve the potential use of an
extinguishant in a confined environment, where even limited
damage to equipment may leave the water vessel or aircraft
inoperable,
may limit the feasibility of alternatives to class I and class
II substances.
In light of the above discussion, EPA will exempt from the
class II ban HCFC fire extinguishant alternatives for applications
where HCFCs are the only suitable alternative to halon use other
than alternatives that are subject to other regulatory constraints
that effectively limit their legal use, including the final
SNAP regulations, once promulgated. This includes situations
where a clean agent is necessary to avoid irreparable damage
to an area or the equipment being protected in that area or
where other alternatives can cause a hazard to persons in the
area. Prior to promulgation of the final SNAP rule under section
612, which is anticipated by February 15, 1994, those HCFC fire
extinguishant alternatives found acceptable under the proposed
SNAP regulations will be exempted from the class II ban, where
a determination can be made consistent with industry fire
extinguishant
standards that there are no other acceptable alternatives for
commercial and industrial use that can be substituted for halons.
EPA is requiring that distributors as defined in . 82.62(d)
of portable fire extinguishers must verify that the purchasers
of HCFC portable fire extinguishers are commercial entities
as defined in . 82.62(b) or that the purchaser is the owner
of a water vessel or non-commercial aircraft and that distributors
make a good faith effort to ensure that the HCFC portable fire
extinguisher is being purchased for use in a commercial or
industrial
establishment, or for use in a water vessel (as defined in 33
CFR part 177) or aircraft. In order to meet this requirement,
EPA is requiring that the seller provide written notification
of the requirements of this rule to the purchaser. This
notification
will take the form of a sign clearly posted where the portable
fire extinguishers are displayed for sale. In cases where the
purchaser does not physically come into contact with product
at the point of sale, EPA requires that the seller provide prior
written notification of the restrictions concerning the sale
of HCFC portable fire extinguishers on sales brochures, order
forms, invoices and the like. EPA reviewed the standards developed
by NFPA and has based this requirement on those standards.
The seller must indicate to the purchaser that ``it is a
violation of federal law to sell portable fire extinguishers
containing hydrochlorofluorocarbons to anyone, except for use
in applications where necessary to extinguish fire efficiently
without irreparably damaging the equipment or area being protected
or where the use of other alternatives can cause a hazard to
persons in the area. The penalty for violating this prohibition
can be up to $25,000 per unit sold. Individuals purchasing such
products must present proof of their commercial status in
accordance
with 40 CFR 82.68(a) or of ownership of a marine vessel or boat
as defined in accordance with 40 CFR 82.62(j), or of ownership
of a noncommercial aircraft in accordance with 40 CFR 82.68(k).''
EPA would like to clarify that the servicing of existing
portable fire extinguishers is in no way affected by the class
II ban. If after a discharge, a portable fire extinguisher is
serviced and recharged, where ownership of the recharged product
remains the same (e.g. not sold or distributed in interstate
commerce), the servicing procedure, including recharging, is
not affected by the class II ban.
2. Products Requiring Both Class I and Class II Exemptions
EPA realizes that the class II ban exemptions are integrally
linked to the Class I Nonessential Products Ban. EPA believes
the class I ban and the Act gave sufficient notice to the public,
and through the class I rulemaking process, addressed all of
the comments received by the Agency. EPA realizes that there
are a number of products that do not use class I substances,
but do use class II substances for which no other substitutes
are workable and worker safety or flammability concerns exist.
Some of the manufacturers of these products may not have commented
on the need for a class I exemption, because they were not aware
of the connection between the two bans (e.g. that class II
exemptions
could only be obtained where class I use was legal). Without
a legal class I use, the Agency does not have authority under
section 610(d) to grant exemptions under the class II ban. EPA
proposed considering revisions to the class I ban to provide
exemptions, such that appropriate class II exemptions could
be granted for several products brought to the Agency's attention
prior to the issuance of the NPRM. The Agency requested comment
on the need to revisit the Class I Nonessential Products Ban
through this rulemaking with respect to any other product for
which there is no substitute for class II use other than a class
I use which is no longer legal.
a. Aircraft pesticides. EPA specifically requested comment
on the need to revise the class I ban to provide an exception
for aircraft pesticides, with the intent that the class I
substances
would not actually be used. The class I exception would merely
provide the basis upon which to grant a class II exception,
where no other acceptable alternatives are available. In addition,
EPA requested comment on worker safety or flammability concerns
regarding the use of substitutes for class II substances that
may be used or considered for use in aircraft pesticides.
EPA received comment from the Department of Defense (DOD),
one of the primary users of aircraft pesticides. DOD stated
that a nonflammable product is required in three areas: for
the disinsection of aircraft for potential vectors of disease;
for the treatment of pests aboard naval vessels, particularly
submarines; and for the airlifting of pesticides to military
forces deployed in specific regions. The military uses a formula
with two percent d-phenothrin and requested a temporary exception
for the continued manufacturing and sale of the present
formulations
until suitable substitutes are available. EPA agrees with DOD,
that in many situations a nonflammable pesticide is essential
and should be available for particular uses. EPA's determination
regarding the aircraft pesticide product used by DOD is discussed
below. EPA understands that DOD would be able to use the same
product in all the situations discussed in their comments.
Comments were also submitted by the Air Transport Association
Of America (ATA), representing many air carriers. The ATA stated
that to the best of their knowledge they knew of only one producer
of an aerosol insecticide that meets legal requirements for
safe disinfection of aircraft during flights. Airlines operating
internationally are legally required to abide by the Convention
on International Civil Aviation to which the United States is
a party, and the standards of the International Civil Aviation
Organization. In conformance with recommended practices of the
World Health Organization, aircraft insecticides must be
effectively
dispersed throughout all aircraft compartments after the aircraft
has been closed for departure from the takeoff location. ATA
stated that currently the only available product that meets
all the requirements its members must adhere to contains either
a class I or class II substance. ATA is aware of a new product
that will be available shortly. Therefore, ATA requested that
EPA consider a temporary exemption for this product.
EPA also received comment from a manufacturer who believes
that a solvent recently developed that contains class II substances
would be appropriate for use in aircraft pesticides. This product
would represent a new pesticide, requiring registration under
FIFRA. To the extent of EPA's knowledge, this formulation has
not been submitted for review in accordance with FIFRA.
EPA received comments from two aircraft pesticide manufacturers.
The first commenter stated that overseas flights have always
used fogging insecticides to destroy pests while the plane is
in the air. The commenter stated that there are no alternatives
to the use of a class II substance in these products other than
the use of a class I substance; therefore, EPA should revise
the class I ban to provide the legal authority to consider an
exemption for the use of HCFCs in this product, and then
simultaneously
provide an exemption under the class II ban.
EPA received a comment from a different manufacturer, the
manufacturer that originally raised this issue with EPA. This
manufacturer stated that they did not obtain a class I exemption
because they were in the process of converting to the use of
HCFCs. The manufacturer unsuccessfully tested several possible
HFC formulations. At that point the manufacturer approached
EPA and requested an exemption under the class II ban based
on the need to manufacture a product that could meet the pressure
standards put forth by the Department of Transportation (DOT)
and still meet the flammability requirements put forth by DOD.
However, the manufacturer states that recent findings lead the
manufacturer to believe that a possible substitute that contains
no ozone-depleting substances has been located. This product
will include an element that will decrease the pressure of the
HFC-134a, thus meeting DOT's standards. In order to register
the product under FIFRA, the manufacturer will need to complete
toxicological studies. Tests of this nature often take long
periods of time. This manufacturer notes that they are aware
of another product being used in Australia for aircraft
disinfection;
however, that product is not registered under FIFRA and would
therefore need to complete the same toxicological testing to
be approved for use in the United States.
EPA is pleased to learn that while this manufacturer was
pursuing a potential exemption, the manufacturer continued to
also investigate moving entirely away from class I and class
II substances. In light of the manufacturer's determination
that an alternative might exist, EPA cannot provide an outright
exemption for the use of class II substances in aircraft
pesticides.
EPA recognized in the NPRM that products that require federal
approval prior to using a new reformulation are often subjected
to a lengthy review process. EPA proposed and is today exempting
from the class II ban those products requiring federal approval
prior to reformulation, provided that manufacturers of such
products have made a request of the appropriate federal agency
for such federal approval prior to January 1, 1994. EPA understands
that at least one manufacturer will make the appropriate request
prior to that date. The time frames associated with federal
approval processes represent the amount of time necessary for
the federal agency to conduct a responsible review of the
formulations
and determine the acceptability of the formulation under applicable
statutes and regulations. The federal agencies cannot expedite
their internal processing procedures simply because a formulation
would otherwise be subject to a ban without compromising the
integrity of their own program reviews.
To the best of EPA's knowledge, there is only one manufacturer
that has a product available for use as an airline pesticide
today, and that particular product contains a class I substance.
EPA believes that a replacement product containing class II
substances will be available shortly, following federal approval,
followed by a replacement that contains no ozone-depleting
substances.
Therefore, EPA is establishing a temporary exemption for aircraft
pesticides releasing class I substances to expire upon federal
approvals of any substitute product. EPA would like to clarify
that if the substitute contains HCFCs, and if an application
for an alternative formulation is filed by January 1, 1994,
the use of class II substances will be exempt from the ban in
accordance with . 82.65(b) and (c). Therefore, until the review
process is complete, all aircraft insecticides that have applied
for appropriate federal approvals will be able to legally use
class II substances in their formulations under . 82.65(b).
This exemption will expire after an alternative aircraft pesticide
that does not contain class I or class II substances becomes
available.
b. Dusters. Prior to issuing the NPRM, EPA was contacted
by manufacturers concerned about the availability and economic
feasibility of using substitutes to class II products. In
particular,
manufacturers of dusters and safety sprays had commented on
the possible need for a class I exception based on the
unavailability
and the high cost of alternatives. EPA requested comment on
the need to revise the Class I Nonessential Products Ban to
provide a potential exception for these products. In addition,
EPA requested comment on worker safety or flammability concerns
regarding the use of substitutes for class II substances that
may be used or considered for use in dusters and safety sprays.
Two commenters stated that problems regarding the supply and
availability of substitutes for class I substances were corrected
earlier this year. These commenters were among those that raised
the original concerns with EPA. In addition, one commenter noted
that as a result of the need to reduce the levels of ozone
depletion,
the manufacturer began utilizing flammable propellants in 1989.
The commenter believes that in certain duster and noise horn
applications, flammable propellants are acceptable to the
consumers.
According to the commenter, these flammable products do not
pose an extreme safety hazard. At the same time, non-flammable
products are also available, albeit at a higher price. EPA received
one comment suggesting that the only available substitutes to
class I or class II dusters are hydrocarbons. The commenter
believes that EPA should provide an exemption based on the
increased
risks associated with flammability. EPA disagrees with this
commenter based on the information supplied by the other
commenters,
as outlined above.
EPA is not exempting dusters or safety sprays using class
II substances in this final rule. The first two commenters clearly
state that both flammable and nonflammable alternatives are
currently available. EPA agrees with these commenters, recognizing
that alternatives include HFC-134a and HFC-152a. Therefore,
EPA agrees that there is no need to revise the class I ban with
regard to dusters and safety sprays to facilitate continued
class II use. EPA further notes that numerous other consumer
products are flammable; however, the potential of an accident
often can be greatly minimized by taking prescribed precautions.
Moreover, EPA wishes to clarify that taking economic factors
into account in its exemption determinations is not consistent
with the statutory language in section 610(d).
c. Tire Inflators/tire sealer. EPA received comments from
the manufacturer of tire inflator/sealer products. The commenter
stated that it is within EPA's discretion to reopen the review
period for consideration of additional ``essential use'' exemption
applications for products containing or manufactured with class
I ozone-depleting substances. The commenter stated that the
alternatives to the use of a class I or class II substance for
this product are either hydrocarbons or HFCs. The commenter
further stated that the hydrocarbons are flammable and are volatile
organic compounds that are precursors to formation of tropospheric
ozone. The commenter stated that additional federal controls
on hydrocarbons in consumer products potentially include use
prohibitions in the future. The commenter noted that SNAP lists
HCFCs as proposed ``acceptable'' alternatives in the regulations
to be promulgated under section 612. In addition, the commenter
believes that HFC-134a and HFC-152a are currently in short supply
and are significantly more costly than HCFCs.
EPA does not believe that this commenter demonstrated a
compelling
need for EPA to revise the class I ban. As the commenter points
out, alternatives are available. Several tire inflators and
sealants are being sold today that contain hydrocarbons. Used
as advised, precautions can be and are currently taken to prevent
accidents. While future regulations may limit the availability
of hydrocarbons, EPA cannot base its decisions today on what
may happen in the future. Moreover, both HFC substitutes and
not-in-kind substitutes (e.g. changing the tire) represent other
alternatives to tire inflator/tire sealer products. Consideration
of market conditions, including cost of substitutes, is not
within EPA's discretion under section 610(d). Regulations
promulgated
under section 612 merely identify which substances are
``acceptable''
or ``unacceptable'' alternatives; they do not speak to the ban
mandated under section 610(d) and cannot alter its effectiveness.
The use of particular substances in the manufacture of aerosol
or pressurized dispensers is still clearly subject to the class
II ban. As noted above, taking the cost-effectiveness of
substitutes
into account is not consistent with the statutory language in
section 610(d). Therefore, this final action will not include
a reopening of the class I ban to consider the need to provide
exemptions for tire inflator/tire sealer products. EPA will
consider reopening the class I ban in the future should new
regulations limit all available alternatives to class I or class
II use.
The same commenter referred to an exemption under section
610 as an ``essential use'' exemption. EPA would like to clarify
the distinction between exemptions under the nonessential products
bans and essential use exemptions. Exemptions granted under
the class II ban are for continued sale and distribution of
products ozone-depleting substances that are currently produced
and imported in the United States. These domestic regulations
only impact the manufacturers, distributors, retailers and users
of aerosol products, pressurized dispensers and foam products
sold in the United States. On the other hand, under the Montreal
Protocol process, member countries can put forth nominations
for essential use exemptions that would allow for continued
production of ozone-depleting substances after the production
phaseout to be used in an application for which there are no
suitable substitutes. The Parties receive and review these
applications
individually and may decide to grant particular exemption requests.
If the Parties agree that a particular application is essential,
additional production of an ozone-depleting substance will be
authorized for that particular application after the phaseout
has taken effect. The Parties will review essential uses on
a yearly basis to evaluate if the essential use exemptions are
still appropriate. EPA understands that this same commenter
submitted a request for an essential use exemption, but that
the commenter subsequently withdrew the application, since the
commenter's apparent intention was to receive an exemption under
the class I ban rather than the Montreal Protocol.
3. Aerosol Products and Pressurized Dispensers Exempted By The
Class I Ban
The following eleven products were exempted from the class
I ban:
. Medical devices listed in 21 CFR 2.125(e)
. Lubricants for pharmaceutical and tablet manufacture
. Gauze bandage adhesives and adhesive removers
. Topical anesthetic and vapocoolant products
. Solvent uses in lubricants, coatings or cleaning fluids
for electrical or electronic equipment
. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance
. Solvent uses in mold release agents
. Solvent uses in spinnerette lubricant/cleaning sprays
. Plasma etching
. Solvent uses in document preservation sprays
. Solvent uses in red pepper bear repellent sprays
Because of the differing mandates in, and statutory constraints
of, section 610(a)(b) and (c) and section 610(d), EPA did not
propose exemptions for all of these products in the NPRM for
the class II ban; however, in all cases EPA requested comment
on the need for and appropriateness of potential exemptions
for these uses. Comments received by the Agency are discussed
below.
a. Lubricants for pharmaceutical and tablet manufacture.
EPA received one comment regarding a lubricant used in
pharmaceutical
manufacturing. This commenter stated that HCFC-141b has replaced
CFC-113 as the lubricant carrier for the manufacture of hypodermic
needles. The commenter notes that an exemption for HCFC-141b
is consistent with the intent of section 610(d) to allow the
use of HCFCs in medical devices, although in this particular
application the exemption would be for the manufacturing process,
not the product. The commenter indicates its belief that while
such an exemption is not consistent with the statutory language,
it may be consistent with Congressional intent. EPA agrees that
the use of class II substances in the manufacturing of hypodermic
needles is not consistent with the statutory language regarding
the exemption for medical devices. However, EPA believes that
under the class I ban's exemption for lubricants for pharmaceutical
and tablet manufacture, EPA has authority to consider exemptions
under the class II ban for hypodermic needle production, where
the class II substances are used to replace CFC-113 as the only
legally available alternative, and where there is a clear
demonstration
of flammability or worker safety concerns. However, in the absence
of a demonstration of worker safety or flammability concerns
in the production of hypodermic needles, which the commenter
did not submit, the fact that the only legal alternative to
the use of the class II substance is a class I substance, by
itself, is not enough to allow EPA to include an exemption for
the use of lubricant carriers for the manufacture of hypodermic
needles in the final rule. EPA may reconsider an exemption for
this use at a later date if presented with appropriate
documentation.
b. Solvent uses in lubricants, coatings and cleaning fluids
for electrical or electronic equipment. EPA proposed exempting
the solvent uses of class II substances in lubricants, coatings,
and cleaning fluids for electrical or electronic equipment.
EPA received several comments favoring such an exemption. One
commenter stated that the cleaners are often sprayed to ensure
that the electrical contacts are free of dirt and other
contaminants.
In addition, one commenter stated that the only available
substitutes
contain hydrocarbons that pose increased risks associated with
using a flammable product on electronic or electric equipment.
The commenter claims that chemicals used in these cleaners must
be nonflammable, nonconductive, nontoxic, odorless, quick-drying
and effective, because the individuals using them are in very
close proximity to the cleaner spray. Another commenter stated
that in both these applications and in applications associated
with aircraft maintenance discussed below, the products are
used in ``clean-in-place'' situations, often near energized
circuits, welding or soldering equipment, hot motors, engines
or other hot surfaces.
EPA believes that the use of a product near a hot motor does
not necessarily constitute a flammability concern; however,
in cases where the product is used in close proximity to ignition
sources, and where the user cannot provide adequate safety
precautions,
a nonflammable product is essential. Therefore, EPA agrees with
these commenters. This final action adopts the proposed exemption
for the solvent uses of a class II substance in lubricants,
coatings and cleaning fluids for electrical or electronic
equipment.
c. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance. EPA received comments concerning
the uses of class II substances in lubricants, coatings or cleaning
fluids used for aircraft maintenance. One commenter stated that
the only known substitute for the use of a class I or class
II substance was a hydrocarbon. A second commenter stated that
while the amount of class II compounds used in aircraft maintenance
activities is low, until environmentally preferable alternatives
become available, the use of class II compounds is necessary.
The commenter stated that the concerns over worker safety and
flammability raised in the NPRM are valid. The materials are
often used inside the aircraft, which acts as a confined space.
It is often difficult to ventilate these spaces, making the
toxicity and flammability of the materials used particularly
critical. As stated above, one commenter that provides products
for both aircraft maintenance and electronic or electrical
equipment
cleaning noted that the products must often be used in ``clean-
in-place'' situations. Several comments indicated that the physical
characteristics of HCFC-141b are similar to CFC-113, exempted
under the class I ban. EPA agrees with the concerns raised by
many commenters. There are worker safety and flammability concerns
that render the legal use of a class I substance as the only
alternative to the solvent uses of HCFCs. Therefore, this final
rulemaking will provide an exemption for the solvent uses of
class II substances in lubricants, coatings, or cleaning fluids
used in aircraft maintenance.
One commenter stated that aircraft maintenance should include
all aircraft uses of the class II substances in aerosol lubricants,
coatings and cleaning fluids because the same materials are
used in manufacturing, flight tests, and in-service maintenance.
EPA agrees that the exemption for the solvent uses of class
II substances in lubricants, coating or cleaning fluids used
for aircraft maintenance covers the use of these products during
manufacturing, flight tests, and in-service maintenance.
d. Solvent uses in mold release agents. EPA received many
comments regarding the uses of class II substances in mold release
agents. All of these commenters supported EPA's proposed exemption
for the solvent uses of class II substances in mold release
agents. One commenter asked that EPA clarify that the use of
HCFC-22 and HCFC-141b in the NPRM were merely examples of potential
formulations for mold release agents. EPA agrees with this
commenter.
The Background Document on Aerosol Products and Pressurized
Dispensers Containing Class II Substances and other information
contained in the Air Docket for this rulemaking (A-93-20) provides
additional information concerning various formulations of mold
release agents.
Several of the comments stated that HCFC-22 was the solvent
in their formulation or that since HCFC-22 has some solvent
characteristics, it should be exempted. Among the characteristics
categorized as ``solvent'' by the commenters were: compatibility
with co-solvents; nonflammability, fast evaporation rate, low
boiling points, and good carrier capacity. One commenter stated
that in order to use dimethyl ether (DME) as a propellant in
mold release agents, the DME must be in solution to avoid
collection
of DME vapor that could collect and ignite. Several commenters
indicated that they use DME to lower the amount of ozone-depleting
substances needed in their mold release agents. One commenter
stated that HCFC-22 dissolves the solvent or similar lubricant
and suppresses the flammability of the mold release agent.
Additionally,
commenters stated that the use of HFC-134a or other like substances
requires that the mold release agent be shaken routinely before
use. If the user neglects to shake the product, the DME vapor
could collect and ignite.
EPA has considered these comments very carefully and disagrees
with many of the commenters. The Agency has previously stated
on several occasions, including in the NPRM for this rulemaking,
that HCFC-22 is generally used as a propellant in aerosol products
and pressurized dispensers. ``Carriers'' and ``dissolvers''
are not necessarily characteristics of solvents. Since many
solvents are flammable, nonflammability is not necessarily a
characteristic of solvents. HCFC-22's quick evaporation rate
leads EPA to question whether the HCFC-22 ever directly reacts
with the molds. While mold release agents are often used at
high temperatures, without an ignition source, the temperatures
are not sufficiently high for DME to become combustible. EPA
is aware of flammable and water-based mold release agents that
are currently available that do not contain ozone-depleting
substances. While HFC-134a may not be appropriate in combination
with DME, EPA believes it is an adequate substitute for other
formulations. However, EPA believes that the HCFC-22 and DME
formulations may represent the only compatible formulation for
particular molds.
In response to the claim that HCFC-22 may act as a solvent,
EPA believes it should nevertheless be categorized as a propellant
wherever it serves that purpose as well. In the final regulations
promulgating the 1978 aerosol propellant ban, FDA stated in
a decision to regulate the use of an ozone-depleting substance
in a particular case, that ``the propellants have other functions,
but many propellants have dual function. As previously explained
in the final rule to require a warning statement, if all
propellants
with dual functions were excluded, many products might be excluded,
or might claim to be excluded * * *. Thus, this products [sic]
is subject to the regulation because of the propellant use of
the chlorofluorocarbon'' (43 FR 11313). Based on this earlier
ruling, EPA believes that it is appropriate to treat
solvent/propellants
as propellants under this rule because EPA concludes that
substitutes
are available. Where HCFC-22 is used as a propellant, its use
generally is banned under the final rule. Furthermore, EPA does
not believe that the commenters have demonstrated when HCFC-
22 in mold release agents is acting solely as a solvent; could
this demonstration be made, such use would be permitted under
the exemption for solvent use where substitutes are not available.
Therefore, HCFC-22 will in most case be banned as a propellant
under this final rulemaking.
However, after careful consideration, EPA believes there
are many cases where the use of HCFC-22 as a propellant may
be essential based on worker safety or flammability concerns
where there are no legal substitutes. EPA believes that some
commenters did sufficiently demonstrate that while there are
many different formulations for mold release agents, there are
cases where the use of HCFC-22 is essential based on worker
safety or flammability concerns. While EPA is limited to
considering
an exemption only where the sole substitute is the legal use
of a class I substance, EPA did propose to revise the class
I ban as necessary where a particular product may not have been
sufficiently considered in that rulemaking.
EPA believes that solvent uses of class I substances were
sufficiently considered; however, propellant functions in this
product may not have been sufficiently considered. There are
a wide variety of molds that require differing formulations
of mold release agents in order to be compatible. In the case
of mold release agents, EPA believes there are cases where the
only substitute to HCFC-22 is CFC-12 due to worker safety and
flammability concerns. Therefore, through this final action,
EPA will revise the class I ban to provide the legal authority
to consider a class II propellant exemption for mold release
agents using HCFC-22 as a CFC-12 substitute, and will
simultaneously
provide such an exemption under the class II ban. EPA believes
that the industry will choose to continue using class II substances
instead of class I substances, realizing that the revision to
the class I ban was solely performed to provide the required
authority for a class II exemption and the pending phaseout
date for CFCs. The final . 86.66(d)(2)(vii) of the class I ban
is revised to read:
* * * mold release agents used in the production of plastic
and elastomeric materials, which contain CFC-11 or CFC-113 as
a solvent, but which contain no other CFCs, and/or mold release
agents that contain CFC-12 as a propellant, but which contain
no other CFCs.
Based on this action, EPA will simultaneously exempt under
the class II ban the use of HCFC-22 as a propellant in mold
release agents where evidence of good faith efforts to secure
alternatives indicates that, other than CFC-12, there are no
technically feasible alternatives; and the solvent uses of HCFCs
in mold release agents, where a solvent/propellant is to be
considered a propellant. EPA would like to clarify that suitable
alternatives include use of other mold release agent formulations.
The suitability of mold release alternatives in this context
does not consider the relative cost of that alternative or the
convenience associated with its purchase.
EPA will further require that the seller of HCFC mold release
agents provide notification to the purchaser concerning this
restriction on sale of HCFCs where no other alternative is
available.
This notification will take the form of a sign clearly posted
where the HCFC mold release agents are displayed for sale or
written notification of the requirements if the purchaser does
not physically come in contact with a display at the point of
sale. Written notification will be provided prior to the sale
occurring by including the information on sales brochures, order
forms, invoices and the like. The seller must indicate to the
purchaser that ``it is a violation of federal law to sell mold
release agents containing hydrochlorofluorocarbons as propellants
to anyone, except for use in applications where no other
alternative
except a class I substance is available. The penalty for violating
this prohibition can be up to $25,000 per unit sold.''
e. Solvent uses in spinnerette lubricant/cleaning sprays.
EPA received six comments regarding spinnerette lubricant/cleaning
sprays. One commenter stated that EPA should interpret 610(d)(2)(B)
which states that EPA should provide an exemption where ``the
only available alternative to use of a class II substance is
use of a class I substance which legally could be substituted
for such class II substance'' to mean that EPA should not allow
an exception for a class II substance in any situation where
``an alternative other than a class I substance was available.''
Therefore, the commenter believes that EPA should grant an
exemption
for all propellants in spinnerette lubricant/cleaning sprays
because, other than the use of a class I substance (that could
not be legally substituted), there are no alternatives to the
use of a class II substance. EPA strongly disagrees with this
commenter. EPA discussed in the NPRM that the two bans are
integrally
linked. In order to have an exemption to the class I ban, the
only alternative must be the legal use of a class I substance.
When the Clean Act Amendments were developed, clearly class
II substances were viewed as merely interim substitutes for
CFCs and would be available for a limited time after production
of the class I substances ceased. Therefore, Congress appropriately
limited the use of class II substances to situations where EPA
already determined the use of a class I substance was essential,
and where substitutes for ozone depleting substances were still
unavailable. Therefore, EPA does not agree with the commenter's
legal interpretation of section 610(d)(2)(B).
However, commenters stated that there are no available
substitutes
for all class II substances other than a class I substance in
these uses. These commenters believe that there are class II
substances that will be legally substituted for CFC-114 as a
solvent; however, the commenters are concerned about class II
propellants. Some commenters stated that EPA should exempt the
solvents and propellants used as spinnerette lubricant/cleaning
sprays, including HCFC-22, HCFC-142b, and HCFC-141b, noting
that the worker safety and flammability concerns EPA discussed
in the NPRM make it essential that a nonflammable formulation
be used. One commenter believes that to meet worker safety and
fire protection standards, the use of class I or class II
substances
is necessary for both propellants and solvents. All the commenters
believe that sufficient alternatives to the propellant uses
of class II substances, other than class I substances, have
not yet been developed.
EPA agrees that spinnerette lubricants/cleaning sprays require
a safe formulation. EPA is concerned that since these products
are used by employees to wipe the spinnerette faces whenever
a spinning machine is started or whenever a position breaks
during operation, there are serious worker safety concerns.
EPA believes that consistent with the mold release agents situation
described above, EPA has sufficient reason to, through this
final action, revise the class I ban with respect to propellants
and simultaneously revise the class II proposed ban. Again,
EPA believes that the industry will recognize the need to continue
using class II substances instead of class I substances, realizing
that the revision to the class I ban was solely performed to
provide authority to consider an exemption to the class II ban
and the pending phaseout date for CFCs. Therefore, EPA is revising
. 82.66(d)(2)(viii) of the class I ban to read:
Spinnerette lubricant/cleaning sprays used in the production
of synthetic fibers, which contain CFC-114 as a solvent, but
which contain no other CFCs, and/or spinnerette lubricant/cleaning
sprays which contain CFC-12 as a propellant, but which contain
no other CFCs.
Based on this action, EPA will simultaneously exempt the
propellant uses of HCFC-22 and HCFC-142b, in addition to the
solvent uses of class II substances in spinnerette
lubricants/cleaning
fluids under the final class II ban.
f. Document preservation sprays. EPA received thirteen comments
concerning document preservation sprays. Most of the comments
simply asked for an exemption based on the need to continue
using the formulation that they currently purchase or sell.
EPA received a series of comments from the one manufacturer
of such sprays stating various reasons why EPA should provide
an exemption for the use of HCFC-22 and HCFC-141b in their product.
The manufacturer produces both aerosol and non-aerosol products.
The manufacturer distinguishes between mass deacidification
and deacidification by small institutions preserving a few
documents
per year. However, the manufacturer believes that the various
potential not-in-kind substitutes are not always economically
feasible or appropriate for very fragile papers. Originally
documents were dipped into liquid solutions or the solutions
were brushed onto the documents. These methods have various
deficiencies relating to the need to ensure an even coat of
the preserving chemicals. The manufacturer provided information
concerning attempts to use propellants other than class I or
class II substances. Nitrogen has successfully been used in
larger containers; however, due to worker safety concerns involving
improperly closed cylinders, these formulations do not represent
a solution in all cases. DME's solvent properties caused the
product to be too powerful, damaging what it was to preserve.
Hydrocarbons alone or together with ether were evaluated but
were found to be unsuccessful. The manufacturer further states
that the HCFC-22 acts as both solvent and propellant in the
aerosol product. The HCFC-22 is needed to lessen the solvent
strength of HCFC-141b. Without HCFC-22, HCFC-141b would damage
the document instead of preserving it. The manufacturer also
provided EPA with information about the various alternatives
used or considered both domestically and abroad. In every case,
the manufacturer believes that either the product will damage
the paper, will not create an adequate deacidification solution,
or is not workable in every situation.
EPA reviewed these comments and other information gathered
during this rulemaking. EPA believes that in almost every case,
the not-in-kind substitutes are workable alternatives to the
use of HCFC-141b and HCFC-22 in aerosol containers and pressurized
dispensers. The manufacturer who provided extensive comments
on the need for an exemption from the class II ban indicated
that their own not-in-kind substitute was an appropriate
alternative
in many cases. Moveover, the manufacturer indicated that the
not-in-kind alternative provided the added quality of strengthening
the documents. However, as the manufacturer indicated, there
are some situations in which their own substitute will not be
effective. EPA considered the alternative products used both
domestically and abroad. One alternative, involving a reaction
of ammonia and ethylene oxide to form ethanolamine, uses di-
and triethanolamine which are known to form a reaction product
that is carcinogenic. Another alternative uses magnesium
butyltriglycolate
dissolved in either toluene or CFC-113. According to the submitted
comments, initial results indicate that formulation may deface
the documents and may have an unpleasant odor. EPA is aware
of another potential substitute that contains perfluorocarbons
(PFCs). The use of PFCs may be subject to restricts based on
global warming potential and long atmospheric lifetimes under
regulations promulgated under section 612. Moreover, the comments
the Agency has received indicate that the PFC-based product
may not be appropriate for treating thick books, books with
coated or dense paper, or tightly bound books.
EPA believes that in almost every case, either a not-in-kind
substitute or a substitute formulation can be successfully used
for preserving documents. However, EPA does not believe that
all of the alternative formulations have been successfully tested
to determine the degree of worker safety or flammability concerns.
Therefore, EPA agrees that for treating thick books, books with
coated or dense paper, and tightly bound documents, an exemption
for propellant uses under the class II ban is required.
Based on worker safety and flammability concerns associated
with the use of alternatives, and since the only alternative
is the legal use of CFC-113, EPA will provide a solvent exemption
for HCFC-141b. Furthermore, HCFC-22 is being used predominately
as a propellant in document preservation. While it may also
have some limited solvent capabilities in this product, as
discussed
above, solvents/propellants will be considered propellants under
this rulemaking. Therefore, EPA will revise the class I ban
and will today provide simultaneous exemptions under the class
II ban for propellant uses in treating thick books, books with
coated or dense paper, and tightly bound documents. .
82.66(d)(2)(x)
of the class I ban will be revised to read:
* * * document preservation sprays which contain CFC-113
as a solvent, but which contain no other CFCs; and document
preservation sprays which contain CFC-12 as a propellant, but
which contain no other CFCs, and which are used solely on thick
books, books with coated or dense paper and tightly bound
documents.
EPA will provide a simultaneous exemption under the class
II ban for HCFC-22 used as a propellant in document preservation
sprays used solely to preserve thick books, books with coated
or denser paper and tightly bound documents.
B. Foams
1. Definition of ``Plastic Foam Product''
One commenter questioned EPA's definition of a ``plastic
foam product.'' EPA stated in the NPRM that the Agency interprets
the term ``plastic foam product'' to mean any product composed
in whole or in part of material that can be described as ``foam
plastic'' or ``plastic foam.'' The commenter believes that within
the meaning of section 610(d) a plastic foam product should
apply only to products such as cups, containers, and packaging
where the product is wholly or primarily constructed of plastic
foam or derives its essential purpose or functionality from
the foam. The commenter bases this interpretation on the criteria
for nonessentiality put forth in section 610(b). The commenter
further believes that Congress did not explicitly require EPA
to consider the essentiality of the product as it relates to
section 610(d) because that language appears in section 610(b).
EPA strongly disagrees with this commenter. Clearly Congress
intended to ban products that are not wholly or primarily
constructed
of plastic foam or derive purpose or functionality from the
foam itself. If Congress intended to only include the products
suggested by the commenter, section 610(d)(3)(B) would not be
necessary. Certainly an automobile does not derive purpose or
functionality from the foam within the vehicle. Congress would
not need to provide an exemption for foam needed to meet automobile
safety standards if only products that were wholly or primarily
constructed of plastic foam were to be banned. Moreover, Congress
banned these products in their own terms, without requiring
EPA to promulgate regulations. Therefore, since this ban does
not require action on the part of the Agency, Congress could
not foresee an explicit need for this final rulemaking; thus,
it cannot be assumed that the standards put forth in section
610(b) (that require EPA to promulgate regulations) would apply
to this self-executing ban. The section 610(b) criteria apply
to EPA identification of additional nonessential products. They
do not apply to EPA interpretation of the products Congress
identified as nonessential in section 610(d).
EPA received one comment stating that an agency must construe
the statute in a way that is consistent with the underlying
purpose of the statute. (See Batterton v. Francis, 432 U.S.,
416, 425 (1977), and Gelman v. Federal Election Commission,
432 F.2d 939, 943 (D.C. Cir. 1980)). The commenter further stated
that Congress did not intend for Section 610(d) to cause
manufacturers
to switch to CFCs as a foam blowing agent. EPA agrees with this
commenter and believes that where the use of HCFCs are banned,
alternative blowing agents exist, alternative products that
can perform the same function exist, or the product is not
essential
for the functioning of society. EPA has exempted HCFC use from
the ban wherever a legal use of a CFC is the only available
alternative.
2. Definition of ``insulating products''
EPA ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Ozone Layer Depletion - Regulatory Programs
- You are here: EPA Home
- Ozone Layer Depletion
- Regulatory Programs
- 58 FR 69638