Vol. 58 No. 10 Friday, January 15, 1993 p 4768 (Rule)
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-4553-4]
Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: This final rule establishes regulations to ban
nonessential
products releasing Class I ozone-depleting substances under
section 610 of the Clean Air Act (the Act), as amended. This
rulemaking prohibits the sale, distribution, or offer of sale
or distribution, in interstate commerce of certain products
containing or produced with CFCs after specified dates. In
addition,
it restricts the sale of chlorofluorocarbon-containing cleaning
fluids for electronic and photographic equipment to commercial
entities.
The products affected by this rulemaking use or contain
chlorofluorocarbons
(CFCs), the chemicals designated as Group I or Group III substances
by the Clean Air Act, as amended in 1990. The products affected
by this rulemaking include chlorofluorocarbon-propelled plastic
party streamers and noise horns; chlorofluorocarbon-containing
cleaning fluids for electronic and photographic equipment; plastic
flexible and packaging foams produced with CFCs, except foam
used in coaxial cable; and all aerosol products and pressurized
dispensers containing chlorofluorocarbons except the following
products: certain medical devices, lubricants, coatings or cleaning
fluids for electrical or electronic equipment that contain CFC-
11, CFC-12, or CFC-113, but no other CFCs, for nonpropellant
purposes only; lubricants, coatings or cleaning fluids for aircraft
maintenance that contain CFC-11 or CFC-113, but no other CFCs;
mold release agents that contain CFC-11 or CFC-113, but no other
CFCs, and that are used in the production of plastic and
elastomeric
materials; spinnerette lubricant/cleaning sprays that contain
CFC-114, but no other CFCs, and that are used for synthetic
fiber production; containers of CFCs used in plasma etching;
document preservation sprays that contain CFC-113, but no other
CFCs; and red pepper bear repellent sprays that contain CFC-
113, but no other CFCs.
DATES: This final rule bans the sale, distribution, or offer
of sale or distribution, in interstate commerce of the products
specifically mentioned in .82.66(a) effective on February 16,
1993. This rulemaking also bans the sale or distribution of
the products specifically mentioned in .82.66(b) effective on
February 16, 1993. Finally, this rulemaking bans the sale,
distribution,
or offer of sale or distribution, in interstate commerce of
the other products identified in this rulemaking as nonessential
effective January 17, 1994.
ADDRESSES: Comments and materials supporting this rulemaking
are contained in Air Docket No. A-91-39 (Docket) at: U.S.
Environmental
Protection Agency (LE-131), 401 M Street, SW., Washington, DC
20460. The Docket is located in room M-1500, First Floor Waterside
Mall. Materials relevant to this rulemaking may be inspected
from 8:30 a.m. to 12 noon and from 1:30 to 3:30 p.m. Monday
through Friday.
FOR FURTHER INFORMATION CONTACT: Matthew C. Dinkel at (202)
233-9200, Stratospheric Protection Division, Office of Atmospheric
Programs, Office of Air and Radiation, 6202J, 401 M Street SW.,
Washington, DC 20460.
SUPPLEMENTARY INFORMATION: The contents of today's preamble
are listed in the following outline:
I. Background
A. Overview of Problem
B. Aerosol Ban in 1978
C. Montreal Protocol
D. Excise Tax
E. London Amendments to the Montreal Protocol
F. Clean Air Act Amendments of 1990, Title VI
G. Accelerated Phaseout of CFC Production
H. Requirements of Section 610
1. Class I Products
2. Class II Products
3. Medical Products
I. Notice of Proposed Rulemaking
1. Specified Class I Products
a. CFC-propelled Plastic Party Streamers
b. CFC-propelled Noise Horns
c. CFC-containing Cleaning Fluids for Noncommercial Electronic
and Photographic Equipment
2. Criteria
a. Criteria in the 1978 ban
b. Criteria in the Clean Air Act Amendments of 1990
1. Purpose or Intended Use of the Product
2. Technological Availability of Substitutes
3. Safety and Health
4. Other Relevant Factors
3. Other Products
a. Flexible and Packaging Foams Containing CFCs
b. Aerosols and Pressurized Dispensers Containing CFCs
4. Recordkeeping Requirements
II. Summary of Public Participation
III. Responses to Major Public Comments
A. Scope and Specific Provisions of Nonessential Rule
1. Support for the Proposed Rule
2. Scope of Regulation
3. President's Moratorium on Regulation
4. Section 608 and EPA Authority
5. Criteria for Determining Nonessentiality
6. Definition of the Term "Product"
7. Definition of Interstate Commerce and Grandfathering Existing
Product Inventories
8. Verification, Recordkeeping and Public Notice Requirements
9. Imports and Exports
10. Future Regulation
11. Regulatory Impact Analysis
B. Specific End Uses
1. Statutorily Mandated Products
2. Foams
a. Distinction Between Insulating Foams and Flexible and
Packaging
Foams
b. Flexible Polyurethane Slabstock Foam
c. Integral Skin Foam
d. Closed Cell Polyurethane Foam Used As Flotation Foam
e. Coaxial Cable
f. Aerosol Polyurethane Foam
3. Aerosols and Pressurized Dispensers
a. Impact of 1994 Class II Nonessential Products Ban
b. Clarification of "Aerosols and Other Pressurized Dispensers"
c. Dusters and Freeze Sprays
d. Lubricants, Coatings, and Cleaning Fluids for Electrical
or Electronic Equipment
e. Spinnerette Lubricant/Cleaning Sprays
f. Plasma Etching
g. Red Pepper Bear Repellent Sprays
h. Document Preservation Sprays
4. Medical Products
5. Halon Fire Extinguishers for Residential Use
6. Other Products
IV. Summary of Today's Final Rule
A. Authority
B. Purpose
C. Definitions
D. Prohibitions
E. Nonessential Products and Exceptions
F. Verification and Public Notice Requirements
V. Effective Dates
VI. Judicial Review
VII. Summary of Supporting Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
VIII. References
I. Background
A. Overview of the Problem
The stratospheric ozone layer protects the earth from
ultraviolet
(UV-B) radiation. Research conducted in the 1970s indicated
that when certain industrially produced halocarbons (including
chlorofluorocarbons, halons, carbon tetrachloride and methyl
chloroform) are released into the environment, they migrate
into the stratosphere, where they contribute to the depletion
of the ozone layer. To the extent depletion occurs, penetration
of the atmosphere by UV-B radiation increases. Increased exposure
to UV-B radiation produces health and environmental damage,
including increased incidence of skin cancer and cataracts,
suppression of the immune system, damage to crops and aquatic
organisms, increased formation of ground-level ozone and increased
weathering of outdoor plastics.
B. Aerosol Ban in 1978
The initial hypothesis linking chlorofluorocarbons and depletion
of the stratospheric ozone layer appeared in a paper by Mario
J. Molina and F.S. Rowland in 1974. Since that time, the scientific
community has made remarkable advances in understanding atmospheric
processes affecting stratospheric ozone and in analyzing data
measuring ozone depletion, both over the polar regions and
globally.
In response to the initial research indicating that CFCs could
cause stratospheric ozone depletion, EPA, the Consumer Product
Safety Commission, and the Food and Drug Administration (FDA)
acted on March 17, 1978 (43 FR 11301; 43 FR 11318) to ban the
use of CFCs as aerosol propellants in all but "essential
applications."
During the mid-1970s, the use of CFCs as aerosol propellants
constituted over 50 percent of total CFC consumption in the
United States. The 1978 ban reduced the use of CFCs in aerosols
in this country by approximately 95 percent, eliminating nearly
half of the total U.S. consumption of these chemicals.
Some CFC aerosol products were specifically exempted from
the ban based on a determination of "essentiality" (See Essential
Use Determinations-Revised, 1978). Other pressurized dispensers
containing CFCs were excluded from the ban because they did
not fit the narrow definition of "aerosol propellant."
In the years following the aerosol ban, CFC use increased
significantly in refrigeration, foam and solvent applications.
By 1985, CFC use in the United States had surpassed pre-1974
levels and represented 29 percent of total global CFC consumption.
C. Montreal Protocol
Scientific research in the late 1970s and early 1980s produced
additional evidence that chlorine and bromine could destroy
stratospheric ozone on a global basis. In 1985, scientists
discovered
the existence of a substantial seasonal reduction in stratospheric
ozone (an ozone "hole") over Antarctica each year. Subsequent
studies linked this phenomenon to CFCs and suggested that some
depletion of global stratospheric ozone levels had already
occurred.
In response to this research, many members of the international
community began discussing the need for an international agreement
to reduce global production of ozone-depleting substances. Because
releases of CFCs from all areas mix in the atmosphere to affect
stratospheric ozone globally, efforts to reduce emissions from
specific products by only a few nations could quickly be offset
by increases in emissions from other nations, leaving the risks
to the ozone layer unchanged. EPA evaluated the risks of ozone
depletion in Assessing the Risks of Trade Gases That Can Modify
the Stratosphere (1987) and concluded that an international
approach was necessary to effectively safeguard the ozone layer.
EPA participated in negotiations organized by the United
Nations Environment Programme (UNEP) to achieve an international
agreement to protect the ozone layer. In September 1987, the
United States and 22 other countries signed the Montreal Protocol
on Substances that Deplete the Ozone Layer. The 1987 Protocol
called for a freeze in the production and consumption (defined
as production plus imports minus exports of bulk chemicals)
of CFC-11, -12, -113, -114, -115, and halon 1211, 1301 and 2402
at 1986 levels beginning in 1989, and a phased reduction of
the CFCs to 50 percent of 1986 levels by 1998. Currently, 83
nations representing over 90 percent of the world's consumption
are parties to the Protocol.
In its August 12, 1988 final rulemaking (53 FR 30566) EPA
promulgated regulations implementing the requirements of the
1987 Protocol through a system of tradable allowances. EPA
apportioned
these allowances to producers and importers of these "controlled
substances" based on their 1986 levels. To monitor industry's
compliance with the production and consumption limits, EPA required
recordkeeping and quarterly reporting and conducted periodic
compliance reviews and inspections. This regulation took effect
July 1, 1989.
D. Excise Tax
As part of the Omnibus Budget Reconciliation Act of 1989,
the United States Congress levied an excise tax on the sale
of CFCs and other chemicals which deplete the ozone layer, with
specific exemptions for exports and recycling. The tax went
into effect on January 1, 1990, and increases annually. By raising
the cost of virgin controlled substances, the tax has created
an incentive for industry to shift out of these substances and
increase recycling activities, and it has encouraged the
development
of a market for alternative chemicals and processes. The original
excise tax was amended by the Omnibus Budget Reconciliation
Act of 1990 to include methyl chloroform, carbon tetrachloride
and the other CFCs regulated by the amended Montreal Protocol
and title VI of the Clean Air Act, as amended in 1990. The Energy
Policy Act of 1992 revised and further increased the excise
tax effective January 1, 1993.
E. London Amendments to the Montreal Protocol
Under the Montreal Protocol, the Parties are required to
assess the science, economics and alternative technologies related
to protection of the ozone layer every two years. In response
to this requirement, the Parties issued their first scientific
assessment in 1989 (see Environmental Effects Panel Report).
In preparing the first scientific assessment required under
the Protocol, scientists examined the data from the land-based
monitoring stations and the total ozone measurement spectrometer
(TOMS) satellite data and concluded that there had been global
ozone depletion over the northern hemisphere as well. The
scientific
assessment reported that a three to five percent decrease in
ozone levels had occurred between 1969 and 1986 in the northern
hemisphere in the winter months that could not be attributed
to known natural processes. In addition, further studies of
the Antarctic ozone hole implicated chlorine as the main cause
of ozone depletion over the Antarctic, and linked high chlorine
concentrations to CFCs and other chlorinated and brominated
compounds.
At the Second Meeting of the Protocol Parties, held in London
on June 29, 1990, the Parties responded to this new evidence
by reassessing and tightening the restrictions placed on these
chemicals. The Parties to the Protocol passed amendments and
adjustments which called for a full phaseout of the regulated
CFCs and halons by 2000, a phaseout of carbon tetrachloride
and "other CFCs" by 2000 and a phaseout of methyl chloroform
by 2005. The Parties also passed a non-binding resolution regarding
the use of hydrochlorofluorocarbons (HCFCs) as interim substitutes
for CFCs. Partially halogenated HCFCs add much less chlorine
to the stratosphere than the fully halogenated CFCs, but still
pose a significant threat to the ozone layer (See 56 FR 2420,
January 22, 1991 for more information on the relative effects
of different ozone-depleting substances).
F. Clean Air Act Amendments of 1990, Title VI
On November 15, 1990 the Clean Air Act Amendments of 1990
were signed into law. The Act required EPA to publish two lists
of ozone-depleting substances, based on their ozone-depleting
potentials (ODPs). The Act categorized CFCs, halons, carbon
tetrachloride and methyl chloroform as Class I substances,
substances
that possess a high potential for destroying stratospheric ozone
molecules. It also designated hydrochlorofluorocarbons as Class
II substances, substances with a lesser, but still significant
ozone depletion potential.
The other requirements in title VI of the amended Act include
phaseout controls similar to those in the London Amendments,
although the interim targets are more stringent and the phaseout
date for methyl chloroform is earlier (2002). EPA has already
promulgated regulations implementing the phaseout provisions
contained in section 604 of the Act (57 FR 33754, July 30, 1992).
Unlike the amended Montreal Protocol, the Clean Air Act, as
amended, also restricts the uses of controlled ozone-depleting
substances, including provisions to reduce emissions of controlled
substances to the "lowest achievable level" in all use sectors
(section 608); requires the recovery and recycling of refrigerant
when servicing motor vehicle air conditioners (section 609);
bans nonessential products (section 610); mandates warning labels
(section 611); establishes a safe alternatives program (section
612); and requires revision of federal procurement policies
to minimize government use of ozone-depleting substances (section
613). With the exception of the rulemakings implementing the
phaseout (57 FR 33754, July 30, 1992) and section 609 (57 FR
31242, July 14, 1992), EPA is currently in the process of
promulgating
regulations pursuant to these statutory provisions.
One of the provisions of the Act which complements the
nonessential
products ban under section 610 is the Significant New Alternatives
Policy (SNAP) program established under section 612. The SNAP
program has been established to evaluate the overall effects
on human health and the environment of the potential substitutes
for ozone-depleting substances. The SNAP program is a powerful
tool to identify substitutes that may pose unnecessary
environmental
hazards. Through review of substitutes, the Agency can ensure
that environmentally preferable alternatives will be developed.
Rules promulgated under SNAP will render it unlawful to replace
on ozone-depleting substance with a substitute chemical or
technology
that may present adverse effects to human health and the
environment
if the Administrator determines that some other alternative
is commercially available and that this alternative poses a
lower overall threat to human health and the environment.
It is important to note that the SNAP program will promote
the widest range of environmentally acceptable substitutes.
The SNAP program will in no case ban all of the available
substitutes.
Under section 612, the SNAP program is only authorized to prohibit
a particular substitute for a Class I or Class II substance
when another, less environmentally harmful substitute is available.
Consequently, there is no possibility that the effect of today's
rulemaking and subsequent regulatory action under section 612
will be to ban the use of all available substitutes in a particular
application.
G. Accelerated Phaseout
Significant scientific advances have continued since the
1989 Protocol assessments. Several reports since that time have
indicated that ozone depletion is occurring more rapidly than
was previously believed. The most recent Protocol Scientific
Assessment was issued on December 17, 1991. The report, entitled
Scientific Assessment of Ozone Depletion: 1991, analyzed
information
collected from ground- and satellite-based monitoring instruments.
This information indicated that there had been significant
decreases
in total-column ozone in winter, in both the northern and southern
hemispheres at middle and high latitudes. This data also indicated,
for the first time, the depletion of stratospheric ozone in
these latitudes in spring and summer as well. The study reported
no significant depletion in the tropics. The TOMS data indicated
that for the period 1979 to 1991, decreases in total ozone at
45 degrees south ranged between 4.4 percent in the fall to as
much as 6.2 percent in the summer, while depletion at 45 degrees
north ranged between 1.7 percent in the fall to 5.6 percent
in the winter. Data from the ground-based Dobson network confirmed
these losses in total column ozone during the twelve-year period,
but these findings show almost twice as much depletion as the
average rate measured by the ground-based network alone over
a twenty-year period. Based on this new data, scientists have
concluded that the ozone in the stratosphere during the 1980s
disappeared at a much faster rate than experienced in the previous
decade.
The recent UNEP Scientific Assessment also included new data
on the estimated ozone depletion potentials (ODPs) of ozone-
depleting substances. The assessment placed the ODP of methyl
bromide, a chemical previously thought to have an insignificant
effect on stratospheric ozone, at 0.6, with a range of uncertainty
between 0.44-0.69. The Executive Summary of the Assessment stated
that, "if the anthropogenic sources of methyl bromide are
significant
and their emissions can be reduced, then each ten percent reduction
in methyl bromide would rapidly result in a decrease in
stratospheric
bromide of 1.5 pptv (parts per trillion by volume), which is
equivalent to a reduction in chlorine of 0.045 to 0.18 ppbv
(parts per billion by volume). This gain is comparable to that
of a three-year acceleration of the scheduled phaseout of the
CFCs."
Several months after the release of the Scientific Assessment,
on February 3, 1992, NASA released preliminary data acquired
by the ongoing Arctic Airborne Stratospheric Experiment-II (AASE-
II), a series of high-altitude instrument-laden plane flights
over the northern hemisphere (see Interim Findings: Second Airborne
Arctic Stratospheric Expedition). Additional data were also
obtained from the initial observations by NASA's Upper Atmosphere
Research Satellite (UARS), launched in September 1991. The
measurements
showed higher levels of chlorine oxide (ClO) (the key agent
responsible for stratospheric ozone depletion) over Canada and
New England than were observed during any previous series of
aircraft flights. These levels are only partially explainable
by enhanced aerosol surface reactions due to the emissions from
the Mount Pinatubo volcano. The expedition also found that the
levels of hydrogen chloride (HCl), a chemical species that stores
atmospheric chlorine, were observed to be low, providing new
evidence for the existence of chemical processes that convert
stable forms of chlorine into ozone-destroying species. The
high ClO and bromide oxide (BrO) levels observed indicated that
human-induced rates of ozone destruction could be as high as
one to two percent per day for short periods of time beginning
in late January.
In addition, the levels of nitrogen oxides (NOx) were also
observed to be low, providing evidence of reactions that take
place on the surface of aerosols that diminish the ability of
the atmosphere to control the buildup of chlorine radicals.
New observations of HCl and nitrogen oxide (NO) imply that chlorine
and bromide are more effective in destroying ozone than previously
believed.
The NASA findings indicate that in late January of 1992,
the Arctic air was chemically "primed" for the potential formation
of a springtime ozone "hole" similar to that formed each spring
over Antarctica. These findings also are consistent with theories
that ozone depletion may occur on aerosols anywhere around the
globe, and not only on polar stratospheric clouds as was previously
believed.
After collecting more data, NASA released an April 30, 1992
"End of Mission Statement," which indicated that while a rise
in stratospheric temperatures in late January apparently prevented
severe ozone depletion from occurring in the Arctic this year,
observed ozone levels were nonetheless lower than had previously
been recorded for this time of year. This information has further
increased the Agency's concern that significant ozone loss may
occur over populated regions of the earth, thus exposing humans,
plants and animals to harmful levels of UV-B radiation, and
adds support to the need for further efforts to limit emissions
of anthropogenic chlorine and bromide.
In response to these findings, President Bush announced on
February 11, 1992 that the United States would unilaterally
accelerate the phaseout schedule for ozone-depleting substances,
and he called upon other nations to agree to an accelerated
phaseout schedule as well. At the Fourth Meeting of the Parties
to the Montreal Protocol, held in Copenhagen, Denmark on November
25, 1992, the Parties adopted a more stringent phaseout schedule.
Under the new agreement, CFC production will be capped at 25
percent of the 1986 baseline in 1994, and production of CFCs,
carbon tetrachloride, and methyl chloroform for all but essential
uses will be completely phased out by 1996. Production of halons,
except for essential uses, will be phased out by 1994. EPA has
begun the rulemaking process for implementing this accelerated
phaseout.
The accelerated phaseout will have a significant impact upon
the products affected by today's rulemaking. The combined effects
of the excise tax and the original phaseout schedule have already
created strong incentives for industry to find substitutes for
Class I substances. In fact, current U.S. production of Class
I substances is more than 40 percent below the levels set by
the Montreal Protocol. The accelerated phaseout will significantly
increase the incentives for Class I substance users to switch
to alternatives. Consequently, even where a particular use of
a Class I substance is not included in the nonessential products
ban, the substance in question will rapidly become scarce and
expensive, and industry will be forced to find alternative
chemicals
or processes.
The accelerated phaseout dramatically reduces the need for
aggressive EPA action under section 610. When Congress passed
the Clean Air Act Amendments of 1990, it required the phaseout
of the production of Class I substances by the year 2000.
Consequently,
there was a period of eight years in which the Class I nonessential
products ban would have had an effect on manufacturers of these
products. However, the Montreal Protocol Parties' decision to
end production of CFCs by January 1, 1996 means that the ban
on nonessential products authorized in section 610(b)(3) will
only be in effect for two years before the complete phaseout
takes effect. As a result, EPA believes that other provisions
of title VI provide more effective and efficient means of
implementing
the Act's goals of protecting the earth's stratospheric ozone
layer.
The final rule reflects this belief by banning only those
products specified in sections 610(b) and 610(d) that contain
Class I substances. Section 610(d)(1) is self-executing and
bans the sale or distribution of foam and aerosol products
containing
or produced with Class II substances after January 1, 1994 unless
an exception is granted under paragraph 610(d)(2). The Agency
believes that aerosols and plastic flexible and packaging foams
containing or produced with Class I substances should also be
subject to the nonessential products ban to avoid providing
incentives for manufacturers to revert to CFC use when the less
environmentally harmful Class II substances are banned in these
applications after January 1, 1994 under section 610(d). Moreover,
the Agency believes that the use of CFCs in these two sectors
is nonessential; as discussed elsewhere in this preamble, a
number of substitutes for CFCs have already been adopted in
these sectors. The fact that the affected industries have already
largely made the transition out of CFCs may have encouraged
Congress to ban the use of Class II substances in aerosols and
noninsulating foams under section 610(d) of the statute.
H. Requirements Under Section 610
1. Class I Products
Title VI of the Act divides ozone-depleting chemicals into
two distinct classes based on their ability to destroy ozone
in the stratosphere. Class I substances are those substances
identified as such in section 602, as well as any substance
subsequently identified that has an ozone depletion potential
(ODP) of 0.2 or greater (ozone depletion potential reflects
the destructiveness of an ozone-depleting substance relative
to CFC-11). Class I is comprised of CFCs, halons, carbon
tetrachloride
and methyl chloroform. Class II substances have ODPs lower than
0.2; at this time, Class II consists exclusively of HCFCs (see
listing notice, January 22, 1991; 56 FR 2420). EPA is currently
evaluating other substances to determine whether they meet the
criteria for Class I or Class II substances.
Section 610(b) of the Act calls on EPA to identify nonessential
products that release Class I substances into the environment
(including any release during manufacture, use, storage, or
disposal) and to prohibit any person from selling or distributing
any such product, or offering any such product for sale or
distribution,
in interstate commerce.
Section 610(b) (1) and (2) specifies products to be prohibited
under this requirement, including "chlorofluorocarbon-propelled
plastic party streamers and noise horns" and "chlorofluorocarbon-
containing cleaning fluids for noncommercial electronic and
photographic equipment."
Section 610(b)(3) extends the prohibition to other products
determined by EPA to release Class I substances and to be
nonessential.
In determining whether a product is nonessential, EPA is to
consider the following criteria: the purpose or intended use
of the product, the technological availability of substitutes
for such product and for such Class I substance, safety, health,
and other relevant factors.
Section 610(a) provides that EPA is to promulgate final
regulations
for the Class I products ban within one year after enactment
of the Clean Air Act Amendments of 1990 (November 15, 1991).
Section 610(b) provides that 24 months after enactment (November
15, 1992), it shall be unlawful to sell or distribute any
nonessential
product to which regulations under section 610 apply. Since
this rulemaking implementing section 610(b) has been published
after November 15, 1992, there were no prohibitions on nonessential
products in effect. This regulation will take effect on February
16, 1993.
2. Class II Products
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)
authorized EPA to grant exceptions to the Class II ban in certain
circumstances.
EPA believes that, unlike the Class I ban, the Class II ban
is self-executing and that, consequently, EPA is not required
to promulgate regulations within one year of enactment under
section 610 to implement the Class II ban.{1} Section 610(d)
bans the sale of the specified Class II products without any
reference to required regulations. EPA believes it has the
authority
to issue regulations as necessary to implement the Class II
ban under sections 610 and 301 of the Clean Air Act, as amended,
and intends to do so at a later date in order to establish a
procedure for granting exceptions under section 610(d)(2). This
will not, however, affect the effective date of the Class II
ban. EPA is currently in the process of drafting proposed
regulations
for this purpose.
³{1} Although the legislative history of section 610 is
³unclear 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. See Congressional
Record,
³page S16948, October 27, 1990.
3. 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 (FDA); 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.
The FDA currently lists 12 medical devices for human use
as essential uses of CFCs in 21 CFR 2.125. These devices consist
of certain metered dose inhalers (MDIs), contraceptive vaginal
foams, intrarectal hydrocortisone acetate, polymyxin B sulfate-
bacitracin-zinc-neomycin sulfate soluble antibiotic powder without
excipients for topical use, and anesthetic drugs for topical
use on accessible mucous membranes where a cannula is used for
application.
No medical products as defined above are banned by the
provisions
of today's rulemaking. Today's regulation specifically exempts
medical products contained in the FDA's list of essential uses
(21 CFR 2.125), as well as gauze bandage adhesives and adhesive
removers, lubricants for pharmaceutical and tablet manufacture,
and topical anesthetic and vapocoolant products. Regulation
of medical products may be considered at a later date under
the conditions in section 610(e) and section 601(8).
I. Notice of Proposed Rulemaking
On January 16, 1992, EPA published a notice of proposed
rulemaking
(NPRM 57 FR 1992) addressing issues related to the prohibition
required by section 610 of the Act on the sale or distribution
in interstate commerce of nonessential Class I products.
In developing the proposed rule, EPA was assisted by a
subcommittee
of the standing Stratospheric Ozone Protection Advisory Committee
(STOPAC). The STOPAC consists of members selected on the basis
of their professional qualifications and diversity of perspectives
and provides balanced representation from the following sectors:
industry and business; academic and educational institutions;
federal, state and local government agencies; and environmental
groups. Since its formation, the STOPAC has provided advice
and counsel to the Agency on policy and technical issues related
to the protection of the stratospheric ozone layer.
In 1990, members were asked to participate in subgroups of
the STOPAC to assist the Agency in developing regulations under
the new requirements of title VI of the Clean Air Act, as amended
in 1990. To date, the Subcommittee on Nonessential Products
has met twice, reviewing two in-depth briefing packets (contained
in Docket A-91-39) and offering comments and technical expertise
on the January 16 proposed rule.
In its NPRM, EPA proposed definitions for the terms
"chlorofluorocarbon,"
"commercial," "consumer," "distributor," "product," and "release."
These proposed definitions would apply only to regulations under
section 610. In describing these definitions, EPA discussed
the legal and policy aspects of the various options considered.
The NPRM also discussed at great length the criteria used to
determine whether a product was nonessential under section
610(b)(3).
The proposed rule listed the products identified as nonessential
by the statute, as well as the products which the Agency proposed
to identify as nonessential. The proposed rule called for banning
the sale or distribution of the CFC-containing products
specifically
mentioned in the statute, and, in addition, plastic flexible
or packaging foams and all aerosol products except seven uses
which were specifically identified. The NPRM also explained
EPA's decision to include aerosols and pressurized dispensers
containing CFCs, as well as plastic flexible and packaging foams
produced with CFCs in the Class I nonessential products ban.
Finally, the NPRM requested comments on whether halon fire
extinguishers
for residential use should be banned as nonessential products.
1. Specified Class I Products
a. CFC-propelled plastic party streamers. EPA found only
one type of product that fits the description "chlorofluorocarbon-
propelled plastic party streamers" as set forth in section
601(b)(1).
String confetti is a household novelty product comprised of
a plastic resin, a solvent, and a propellant mixed together
in a pressurized can. When the dispensing nozzle is depressed,
blowing action converts the resin into plastic foam streamers
and propels them a few feet. Once popular at children's parties,
string confetti was commonly known by its commercial name "silly
string."
String confetti was originally manufactured using CFC-12
as the blowing agent. However, EPA is unaware of any company
that currently uses CFCs in this type of product. The use of
CFC-12 in string confetti was not prohibited by EPA's 1978 aerosol
ban because technically the CFC also served as an active ingredient
in the product and not exclusively as an aerosol propellant.
Manufacturers switched initially to hydrocarbon systems but,
due to flammability concerns, have since moved to HCFC-22 systems.
HCFC-22 is a Class II substance with an ozone depletion potential
of 0.05 (one twentieth that of CFC-12) (see listing notice of
ozone depleting substances 56 FR 2420; January 22, 1991).
EPA believes that since the excise tax and production limits
on CFCs will continue to raise their cost, it is unlikely that
they would again be used to propel string confetti. Nonetheless,
as required by the statute, the proposed rule called for a
prohibition
on the sale or distribution of any CFC-propelled plastic party
streamers.
b. CFC-propelled noise horns. A noise horn is generally regarded
as a product from which the high dispensing pressure of a
propellant
produces a loud piercing sound that can travel long distances.
EPA is aware of several products that could fit the description
of "noise horns" in section 610(b)(10), including marine safety
noise horns, sporting event noise horns, personal safety noise
horns, wall-mounted industrial noise horns used as alarms in
factories and other work areas, and intruder noise horns used
as alarms in homes and cars.
In the past, many boaters used noise horns propelled by CFC-
12 to meet U.S. Coast Guard regulations requiring vessels of
all sizes to carry a noise-making signalling device. One of
the largest manufacturers of such "marine safety" noise horns
reported that all of its horn products except for the smallest
canister (2.1 ounces) had either been reformulated to use HCFC-
22 or dropped from its product line. According to this
manufacturer,
the reason that CFC-12 is still used in its smallest canister
is that the Department of Transportation (DOT) has not yet approved
a canister of that size to accommodate the different pressure
of HCFC-22.
The use of CFC-12 in noise horns was not prohibited by the
1978 aerosol ban because the CFC served as the sole ingredient
in the product and not merely as a propellant. EPA's report
Alternative Formulations to Reduce CFC Use in U.S. Exempted
and Excluded Aerosol Products (Alternative Formulations) states
that as of September 1989, "several manufacturers" of noise
horns had switched from CFC-12 to HCFC-22. Noise horns propelled
with HCFC-22 meet or exceed all Coast Guard requirements and
are available in canisters as small as 4.5 ounces. EPA believes
that 4.5 ounce canisters are sufficiently small to satisfy consumer
needs for all recreational, boating, automotive and home uses,
and should not cost significantly more than the currently available
2.1 ounces size that uses CFC-12. Other alternative propellants
for noise horns include HCFC-142b (in a mixture with HCFC-22),
hydrocarbons, and hydrofluorocarbon (HFC)-134a. Hydrocarbons
have not been commonly used due to flammability concerns. HFC-
134a appears promising as a non-chlorinated substitute that
unlike HCFC-22 poses no threat to the ozone layer. HFC-134a
has recently become available in limited commercial quantities.
EPA believes that the current and potential availability of
effective substitutes (including either the use of a different
propellant or a slightly larger canister pending DOT approval
of the smallest) indicates Congressional intent to prohibit
the sale and distribution of any CFC-propelled noise horns,
including those which serve as safety devices.
Other products propelled with CFCs that appear to fit the
description "noise horns" in section 610(b)(1) include sporting
event noise horns, personal safety noise horns, wall-mounted
industrial noise horns used as alarms in factories and other
work areas, and intruder noise horns used as alarms in homes
and cars. The availability of substitutes for these other noise
horn products is similar to that of the marine safety noise
horns. In fact, the same noise horn product may perform several
of the uses listed above.
As with the party streamers, EPA believes that the excise
tax and the limits on supply have raised the prices of CFCs
so much that it may already be more economical to use substitutes
in noise horns. Nevertheless, in the January 16, 1992 NPRM,
EPA proposed to ban all noise horns propelled with CFCs, as
required by the statute.
c. CFC-containing cleaning fluids for noncommercial electronic
and photographic equipment. Cleaning fluids are generally used
to remove oxides, contaminants, dust, dirt, oil, airborne
chemicals,
fingerprints, and fluxes (the waste produced during soldering)
from electronic and photographic equipment. These fluids are
currently comprised of CFCs, HCFCs, methyl chloroform or alcohols,
either alone or in mixtures.
EPA identified several products that it considered to be
CFC-containing cleaning fluids for the uses described in section
610(b)(2). These products fall into four broad categories: solvent
wipes containing CFC-113 (pre-moistened cloths), liquid packaging
containing CFC-113 (applied with a cloth or other applicator),
solvent sprays containing CFC-113 and/or CFC-11 (sprayed from
a pressurized container through a nozzle or tube), and gas sprays
containing CFC-12 (pressurized fluid released as a gas to
physically
blow particles from a surface). These cleaning fluid products
include tape and computer disk head cleaners, electronic circuit
and contact cleaners, film and negative cleaners, flux removers,
and camera lens and computer keyboard dusters.
EPA believes that the tax and the limits on supply are providing
an ever-increasing incentive for users of noncommercial cleaning
fluids to switch from products containing CFCs to alternatives.
Nevertheless, the January 16, 1992 NPRM proposed to ban the
noncommercial use of these products, as required by the statute.
2. Criteria
Section 610 authorizes the Administrator to identify and
ban nonessential products in addition to those specifically
addressed in the Act. In keeping with Congressional intent,
EPA examined products that were not specifically addressed in
the statute. Section 610(b)(3) provides that in examining these
products, the Administrator consider the purpose or intended
use of the product, the technological availability of substitutes
for such product and for such Class I substance, safety, health,
and other relevant factors. The statute requires EPA to consider
each criterion but does not outline either a ranking or a
methodology
for comparing their relative importance, not does it require
that any minimum standard within each criterion be met. EPA
considered all of these criteria in determining whether a product
was nonessential. In addition, EPA reviewed the criteria used
in the development of its 1978 ban on aerosol propellant uses
of CFCs under the Toxic Substances Control Act (TSCA). All of
these criteria are discussed below.
a. Criteria in the 1978 Ban. The criteria used by EPA to
determine which products should be exempted from the 1978 ban
as "essential uses" were: (1) "Nonavailability" of alternative
products; (2) economic significance of the product, including
the economic effects of removing the product from the market;
(3) environmental and health significance of the product; and
(4) effects on the "quality of life" resulting from no longer
having the product available or from using an alternative produce
(See Essential Use Determinations-Revised, 1978). These criteria
are in many ways comparable to those included in section 610.
The background document supporting the 1978 ban states that
when granting "essential use" exemptions, EPA believed that
no single factor was sufficient to determine that a product
or particular use was essential. The lack of available substitutes
alone, for example, was not sufficient for EPA to exempt a product.
The product also had to provide an important societal benefit
to obtain an "essential use" exemption. If an alternative did
exist, however, EPA decided that this product or use was not
"essential," and that it was not necessary to make any judgements
concerning the other criteria.
In other words, if EPA determined that an aerosol product
had an available alternative, EPA did not need to make a
determination
on whether its purpose was or was not important in order to
deny any petition for exemption for that product under the 1978
rule.
b. Criteria in the Clean Air Act Amendments of 1990-1. The
Purpose of Intended Use of the Product. EPA interprets this
criterion as relating to the importance of the product,
specifically
whether the product is sufficiently important that the benefits
of its continued production outweigh the associated danger from
the continued use of a Class I ozone-depleting substance in
it, or alternatively, whether the product is so unimportant
that even a lack of available substitutes might not prevent
the product from being considered nonessential. For example,
the statute seems to indicate that the purpose or intended use
of medical products is important enough to preclude EPA from
banning as nonessential any medical product without an "effective
alternative," and that, conversely, party streamers are not
important enough to warrant the continued use of CFCs regardless
of the availability of substitutes.
However, the other examples of nonessential products cited
by Congress for EPA to ban at a minimum do not provide as clear-
cut an illustration of this criterion. Noise horns, for example,
are primarily used for safety reasons. Nor is the use of cleaning
fluids on noncommercial photographic and electronic equipment
generally considered to be frivolous. EPA believes that these
examples of nonessential products provided by Congress show
that while it is critical to consider the purpose or intended
use of a product along with the other specified criteria, Congress
did not intend to limit EPA's authority to consideration of
only the intended use.
A possible corresponding criterion from the 1978 aerosol
ban is the effect on the "quality of life" of no longer having
the product available or of using an alternative. As discussed
above, the product had to provide an important societal benefit
for EPA to grant an exemption from the 1978 ban, even if the
product did not have an available alternative. Consequently,
in the Class I nonessential products ban under section 610(b)(3),
EPA considered the contribution to the quality of life of a
product using a Class I substance, the impact of compelling
a transition to a substitute chemical or process, and the impact
of the product's removal from the market altogether, in evaluating
this criterion.
The distinction between a "nonessential product" and a
"nonessential
use of Class I substances in a product" is also relevant to
this criterion. While foam cushioning products for beds and
furniture are not "frivolous," for example, the use of a Class
I substance in the process of manufacturing foam cushioning
where substitutes are readily available could be considered
nonessential. EPA believes that the extent to which manufacturers
of a product have already switched out of Class I substances
is a relevant indicator for this criterion. For example, the
Agency believes that in sectors where the grant majority of
manufacturers had already shifted to substitutes, the use of
a Class I substance in that product may very well be nonessential;
EPA is also aware that in certain subsectors, the continued
use of CFCs, despite the imposition of the excise tax and the
impending production phaseout, may indicate failure to meet
one or more of the criteria for nonessentiality, such as the
technological availability of substitutes. Consequently, EPA
carefully examined sectors in which most of the market had switched
out of CFCs.
2. The Technological Availability of Substitutes. EPA interprets
this criterion to mean the existence and accessibility of
alternative
products or alternative chemicals for use in, or in place of,
products releasing Class I substances. EPA believes that the
phrase "technological availability" may include both currently
available substitutes (i.e., presently produced and sold in
commercial quantities) and potentially available substitutes
(i.e., determined to be technologically feasible, environmentally
acceptable and economically viable, but not yet produced and
sold in commercial quantities). However, EPA considered the
current availability of substitutes more compelling than the
potential availability of substitutes in determining whether
a product was nonessential.
The corresponding criterion from the 1978 ban is the
"nonavailability
of alternative products." In its supporting documentation, EPA
stated that this was the primary criterion for determining if
a product has an "essential use" under the 1978 rule. EPA
emphasized,
however, that the absence of an available alternative did not
alone disqualify a product from being banned.
The availability of substitutes is clearly a critical criterion
for determining if a product is nonessential. In certain cases,
a substitute that is technologically feasible, environmentally
acceptable and economically viable, but not yet produced and
sold in commercial quantities, may meet this criterion. EPA
believes that, where substitutes are readily available, the
use of controlled substances could be considered nonessential
even in a product that is extremely important.
It should be noted, however, that EPA does not necessarily
advocate all substitutes that are currently being used in place
of CFCs in the products EPA identifies as nonessential. Some
manufacturers have switched from CFCs to substitutes that may
have serious health and safety concerns. EPA will be looking
carefully at the relative risks and merits of different substitutes
for ozone-depleting substances as it implements section 612
(SNAP). On the other hand, EPA wants to reassure the public
that the section 610 and the section 612 rulemakings will not,
either intentionally or inadvertently, leave manufacturers or
consumers without appropriate substances for each essential
use.
3. Safety and Health. EPA interprets these two criteria to
mean the effects on human health and the environment of the
products releasing Class I substances or their substitutes.
In evaluating these criteria, EPA considered the direct and
indirect effects of product use, and the direct and indirect
effects of alternatives, such as ozone-depletion potential,
flammability, toxicity, corrosiveness, energy efficiency, ground
level air hazards, and other environmental factors.
If any safety or health issues prevented a substitute from
being used in a given product, EPA then considered that substitute
to be "unavailable" at this time for that specific product or
use. As new information becomes available on the health and
safety effects of possible substitutes, EPA may re-evaluate
determinations made regarding the nonessentiality of products
not covered in today's rulemaking or, as stated above, the Agency
may take action under section 612.
4. Other Relevant Factors. Section 610(b)(3) does not specify
that EPA must consider the economic impact of banning a product,
as in the 1978 ban, but the Agency did consider the economic
impact of such an action as an "other relevant factor." EPA
believes that it has the authority under section 610(b)(3) to
consider any relevant factors, including costs, in determining
whether products are nonessential.
In considering the immediate economic impact of banning the
use of a Class I substance in a product, EPA attempted to compare
the cost of the possible substitutes and the cost of the Class
I substance, including the effects of the excise tax and the
limits on production and importation under the Clean Air Act,
when this information was available. EPA believes that in many
cases the tax and supply limits have already provided a compelling
incentive for manufacturers using Class I substances to switch
to substitutes. EPA also considered the available information
on manufacturing costs associated with using substitutes or
switching to alternative market lines. Finally, EPA attempted
to assess the societal costs of eliminating the product altogether
where appropriate.
Another relevant factor that EPA considered was the impact
of state or local laws prohibiting the use of certain substances
commonly used as substitutes for ozone-depleting chemicals.
For example, Massachusetts, New Jersey and California all
specifically
limit the use of methylene chloride, which is used as a CFC-
substitute for some flexible foam products. Other areas have
limits on the general emissions of volatile organic compounds
(VOCs). If the only available substitute for the use of a Class
I substance in a product-including both alternative chemicals
and product substitutes-was a chemical whose use was prohibited
in certain areas, EPA considered substitutes to be unavailable
for that product in those areas. As stated above, however, the
lack of available substitutes did not automatically disqualify
a product from being prohibited as nonessential.
Finally, after publication of the proposed rule, EPA received
comments on a number of products not specifically covered in
the proposed rule. A number of these products, such as tobacco
expanded with CFCs and closed cell polyurethane foam used as
a flotation foam, may meet the criteria for designation as
nonessential
products subject to the Class I nonessential products ban. EPA
believes, however, that it would be inappropriate to include
new product categories in the ban which were not considered
by the proposed rule. Consequently, today's rulemaking covers
only products included in the January 16, 1992 proposed rule.
EPA has the authority to consider designating as nonessential
other products which release ozone-depleting substances in future
rulemakings, however, and the Agency may consider such action
if at a later date EPA determines that these products satisfy
the criteria for nonessentiality.
In evaluating products for inclusion in the Class I nonessential
products ban, EPA considered all of the criteria described above.
Any one of the criteria outlined above could be the deciding
factor in relation to all other factors in determining whether
a product was, or was not, covered under the ban.
3. Other Products
In determining which products to prohibit under section
610(b)(3),
the Agency considered every major use sector (although not each
individual product or brand) of each Class I substance (CFCs,
halons, carbon tetrachloride and methyl chloroform), including
refrigeration and air conditioning, solvent use, fire
extinguishing,
foam blowing, and aerosol uses. Based on this review, the Agency
identified three broadly defined products for further preliminary
evaluation: aerosol products and pressurized dispensers containing
CFCs, plastic flexible and packaging foams, and halon fire
extinguishers
for residential use. EPA then analyzed these three sectors in
more detail before preparing the January 16, 1992 NPRM.
EPA had reason to believe that in each of these sectors two
important conditions existed: substitutes were already available
for the product or the Class I substance used or contained in
that product; and, either the affected industry had, for the
most part, moved out of the Class I substances or the market
share of products using or containing Class I substances was
small and shrinking.
In addition, in the case of aerosols and plastic flexible
and packaging foams, section 610(d) imposes a self-effectuating
ban on the sale or distribution of such products containing
or produced with Class II substances after January 1, 1994.
The Agency was concerned that failure to ban nonessential products
containing or produced with Class I substances in these use
sectors would provide an incentive for the affected industries
to switch back to the use of Class I substances after that date,
resulting in increased damage to the environment.
In the January 16, 1992 NPRM, EPA proposed to ban the sale
or distribution of aerosols and pressurized dispensers containing
CFCs and plastic flexible and packaging foams manufactured with
CFCs. In addition, it requested public comment on the advantages
and disadvantages of including residential home fire extinguishers
in the ban, but it did not propose including these products
in this rulemaking. The reasoning behind EPA's decision is
described
in greater detail below.
Refrigeration and air-conditioning, including mobile air-
conditioning, represent the largest total use of Class I substances
in the United States (31.8 percent weighted by ozone-depletion
potential in 1987). Substances are available for some refrigeration
and air-conditioning products. EPA believes that substitutes
for some uses, like refrigerant in motor vehicle air conditioners,
are already available, and that the affected industries are
switching to these alternatives (the major automobile companies,
for example, are introducing new models which use HFC-134a rather
than CFC-12 in their air conditioning systems). However, potential
substitutes for other refrigeration and air-conditioning uses
are still being evaluated. For example, HCFC-123 has been proposed
as a replacement for CFC-11, but toxicity testing of HCFC-123
has only recently been completed.
EPA did not include prohibitions on the use of Class I
substances
in refrigeration or air conditioning in the proposed rule because
conclusions on the appropriate substitutes were not anticipated
to be available within the time-frame of this rulemaking.
Accordingly,
EPA could not conclude that any refrigeration or air conditioning
uses were nonessential at the time of proposal. The industry
continues to investigate chemical substitutes for CFCs in deep
freeze applications, as well as substitutes for CFC-114 and
CFC-115. EPA plans to specifically address refrigeration and
air-conditioning uses of Class I substances under its upcoming
section 608 regulations to require the recovery and reuse of
refrigerants in these applications.
Solvent uses of Class I substances, including commercial
electronics de-fluxing, precision cleaning, metal cleaning and
dry cleaning, also represent a significant use in the U.S. (21.7
percent weighted by ODP in 1987). Industry has identified
potentially
available substitutes for nearly all of the thousands of products
currently manufactured with Class I solvents, and many companies
have already phased out the use of CFCs in certain products.
EPA did not address solvent use in the proposed regulations
because the sheer number of products and the range of potential
substitutes (each with specific technical and health and safety
issues) made it impossible for EPA to conclude that substitutes
are currently available for any of these specific uses, and
thus that such uses were nonessential, within the short statutory
time-frame of this rulemaking. However, the Agency recognizes
that the solvent industry is also making significant progress
toward the elimination of ozone-depleting chemicals as solvents.
EPA considered the use of Class I substances in fire
extinguishing
applications in its initial review as well. Halons are widely
used in fire extinguishing systems today. These fire extinguishing
systems include both total flooding systems (such as stationary
fire suppression systems in large computer facilities) and
streaming
systems (such as hand-held fire extinguishers). In evaluating
possible nonessential uses of halons in fire fighting, the Agency
divided the fire protection sector into six broad end uses:
(1) Residential/Consumer Streaming Agents, (2)
Commercial/Industrial
Streaming Agents, (3) Military Streaming Agents, (4) Total Flooding
Agents for Occupied Areas, (5) Total Flooding Agents for Unoccupied
Areas, and (6) Explosion Inertion.
Although halons are extremely effective at fighting fires,
they have extremely high ODPs. In fact, although total halon
production (measured in metric tons) comprised just 2 percent
of the total production of Class I substances in 1986, halons
represented 23 percent of the total estimated ozone depletion
potential of CFCs and halons combined. Consequently, halons
in fire extinguishing equipment represent a significant use
sector in terms of ozone depleting potential, and the Agency
has worked closely with industry and the military to minimize
halon emissions and encourage a rapid transition to acceptable
substitutes. Halon recycling and banking is instrumental in
reducing halon emissions and will extend the availability of
these chemicals past the phaseout.
The fire protection community has made considerable progress
in adopting alternatives to halons in fire protection applications.
Most recent efforts to develop substitutes for halon have focused
primarily on halocarbon chemicals, but several "alternative"
agents such as water, carbon dioxide, foam, and dry chemical
are already in widespread use as fire extinguishants and can
be expected to find use as substitutes for halons in many
applications.
Substitutes for halons, whether other halocarbons or
alternatives
such as water, should meet four general criteria to provide
a basis for determining that the use of halon in residential
fire extinguishers is nonessential. They must be effective fire
protection agents, they must have an acceptable environmental
impact, they must have a low toxicity, and they must be relatively
clean or volatile. In addition, they must be commercially available
as a halon replacement in the near future.
The excise tax on halons is scheduled to rise from $0.25
per pound to $13.05 per pound for halon 1211 and $43.50 per
pound for halon 1301 in 1994. EPA anticipates that this dramatic
increase in the price of halons will provide a significant economic
incentive for consumers to shift from halons to available
substitutes,
and for producers to develop halon substitutes and substitute
products.
After its initial review of this use sector, EPA concluded
that while satisfactory substitutes were not yet available in
most commercial and military applications within the short
statutory
time-frame of this rulemaking, certain substitutes were already
commercially available for hand-held halon fire extinguishers
in residential settings. Consequently, the Agency decided to
evaluate this application more closely in order to determine
whether residential fire extinguishers containing halon should
be designated nonessential products, or whether the continued
use of halons, despite the imposition of the excise tax and
the impending production phaseout, indicated that this application
did not meet the criteria for nonessentiality. With this end
in mind, the proposed rule requested comments on whether these
products met the criteria for nonessentiality as well as whether,
due to the excise tax on ozone-depleting substances, banning
these products would be unnecessary in order to effectuate the
statutory goal of removing such products from interstate commerce.
EPA considered aerosols and pressurized dispensers likely
candidates for designation as nonessential products because
a great deal of information on substitutes for CFCs in these
applications already existed. Research on substitutes for CFCs
in aerosol applications began in the 1970s in response to the
early studies on stratospheric ozone depletion and the 1978
ban on the use of CFCs as aerosol propellants. Consequently,
extensive data already existed on possible substitutes for most
remaining aerosol uses. EPA's evaluation concentrated on products
which had been exempted or excluded from the 1978 ban on CFC
propellants because these products were the only remaining legal
applications of CFCs in this use sector.
The 1978 aerosol ban prohibited the manufacture of aerosol
products using CFCs as propellants. Other uses of CFCs in aerosols
(such as solvents, active ingredients, or sole ingredients)
were not included in the ban. In addition, certain "essential
uses" of CFCs as aerosol propellants were exempted from the
ban because no adequate substitutes were available at the time.
Consequently, although the use of CFCs in aerosols was reduced
dramatically by the 1978 ban, the production of a number of
specific aerosol products containing CFCs is still legal. These
products include: metered dose inhalant drugs; contraceptive
vaginal foam; lubricants for the production of pharmaceutical
tablets; medical solvents such as bandage adhesives and adhesive
removers; skin chillers for medical purposes; aerosol tire
inflators;
mold release agents; lubricants, coatings, and cleaning fluids
for industrial/institutional applications to electronic or
electrical
equipment; special-use pesticides; aerosols for the maintenance
and operation of aircraft; aerosols necessary for the military
preparedness of the United States of America; diamond grit spray;
single-ingredient dusters and freeze sprays; noise horns; mercaptan
stench warning devices; pressurized drain openers; aerosol
polyurethane
foam dispensers; and whipped topping stabilizers. After examining
the available information (see Background Document on
Identification
of Nonessential Products that Release Class I Substances and
Alternative Formulations in Docket), EPA concluded that
satisfactory
substitutes were available for most uses of CFCs in aerosols
and pressurized dispensers. As a result, the Agency proposed
banning all uses of CFCs in aerosols and pressurized dispensers
except for certain products, such as medical devices, that it
specifically exempted.
EPA examined the use of Class I substances in foam products,
relying heavily on the research conducted for the 1991 United
Nations Environment Programme (UNEP) technical options report
on foams (see Technical Options Report). The UNEP report divided
polyurethane foam into three major categories: rigid foam, flexible
foam, and integral skin foam. It further subdivided rigid
polyurethane
foams into functional categories: open cell packaging foam and
closed cell insulating foam. EPA used the same categories in
the section 610 rulemaking. Based on this research, the Agency
proposed prohibiting the use of CFCs in flexible and packaging
foams in the NPRM. The Agency focused on these foam sectors
due to the clear availability of substitutes such as water-blown
foam, reformulated foams, and alternative chemicals such as
HCFC-22 and methylene chloride. EPA did not propose to prohibit
the use of CFCs in insulating foam, expanded polystyrene foam,
polyvinyl chloride foam, or integral skin foam. The reasons
for this decision are described below.
EPA did not propose the inclusion of insulating foams
manufactured
with CFCs in the Class I nonessential products ban. Although
flexible and packaging foams have currently available substitutes,
the UNEP technical options report estimated that the elimination
of CFCs in insulating foams would not be technical feasible
until 1995 in developed countries. Rigid insulating foams using
CFCs were exempt from the excise tax in 1990, and they are subject
to a reduced tax until 1994. The required ban on the use of
Class II substances in foam products in section 610(d) also
specifically exempts insulating foams. As a result, EPA proposed
banning only flexible and packaging foams in the NPRM. The Agency
intends to address insulating foams under the section 612
rulemaking.
While polyvinyl chloride foam and expanded polystyrene foam
could be considered flexible and packaging foams, EPA did not
propose banning products made with expanded polystyrene foam
or polyvinyl chloride foam in the NPRM because the 1991 UNEP
report indicates that CFCs were never used in the production
of either expanded polystyrene or polyvinyl chloride foams.
As a result, EPA believes that it is unnecessary to formally
prohibit the use of CFCs in these products, and the Agency did
not include them in the proposed Class I nonessential products
ban. However, EPA reserves the right to take action in the future
under this section to prohibit as nonessential the use of CFCs
in these products should it appear appropriate.
EPA also considered including integral skin foam in the Class
I nonessential products ban. The UNEP report treated polyurethane
integral skin foam as a separate category distinct from rigid
insulating, rigid packaging, and flexible foams. In preparing
the proposed rule, EPA utilized the same categories as the 1991
UNEP technical options report on foams. Consequently, EPA does
not consider integral skin foam to be a "flexible or packaging
foam." Integral skin foam is used in a number of applications,
including motor vehicle safety applications, as suggested by
section 610(d)(3)(B). EPA was not able to conclusively determine
in the time available that adequate substitutes for integral
skin foam, or for the use of CFCs in the production of integral
skin foam, were available. As a result, EPA did not include
them in the proposed Class I nonessential products ban. However,
EPA must address integral skin foams in its rulemaking for the
Class II nonessential products ban. Section 610(d)(2)(B) exempts
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 from the nonessential products ban on
foams containing, or manufactured with, Class II substances.
The Agency reserves the right to take action under section 610
to prohibit the use of CFCs in integral skin foams at that time,
or some other future time, if necessary.
EPA did not propose banning any products releasing the other
Class I substances (halons, carbon tetrachloride and methyl
chloroform) in the NPRM, although it requested comments on the
need to ban halon fire extinguishers for residential use (for
a discussion of halons, see the preceding discussion in this
section, as well as section III.B.5. in today's preamble). EPA
estimates that in the United States today, most carbon
tetrachloride
is consumed in the production of CFCs. The nonessential products
ban is directed at specific end uses, not feedstocks, and
therefore,
the Agency has decided not to take action on this chemical under
section 610. Methyl chloroform, also a Class I chemical, is
widely used as a solvent for metal cleaning, in adhesives and
coatings, and in aerosols. Methyl chloroform is used in thousands
of different products. EPA believes that substitutes are available
for many of the current uses of methyl chloroform, but these
substitutes could not be thoroughly evaluated within the time
constraints established in the Act. Consequently, EPA could
not conclude that any such uses were nonessential. Thus, EPA's
proposed rule did not cover many use sectors or products which
use methyl chloroform. Nevertheless, EPA has reason to believe
that substitutes exist for a number of these applications, and
many of these uses of methyl chloroform may be addressed in
the Agency's section 612 rulemaking.
EPA will further analyze the sectors described above on which
it has insufficient information at this time and may take further
regulatory action to ban uses in such sectors as appropriate
once the agency obtains sufficient data.
EPA selected the product sectors identified in today's notice
for the following reasons. First, EPA believes that they all
clearly fit the criteria specified by section 610(b)(3) based
upon information and analysis the Agency already had or could
obtain within the tight regulatory time-frame required by the
statute. In fact, all the identified products are relatively
well-defined, have commercially available alternatives, and
have been the subject of prior federal or state-level rulemakings
or voluntary agreements to limit the use of ozone-depleting
substances.
EPA also took into consideration the prohibition required
by section 610(d) on certain products releasing Class II
substances,
which goes into effect in 1994. EPA is concerned that banning
the use of Class II substances in certain products in 1994,
while permitting the use of the more harmful Class I substances
in the same products, could provide an environmentally harmful
incentive that encourages the use of Class I substances over
Class II substances. Thus, the statutory prohibition in section
610(d) provided further direction in choosing products on which
to focus at this time under section 610.
As a result of this process, the NPRM proposed prohibiting
the sale and distribution of flexible and packaging foam using
CFCs and aerosols and other pressurized dispensers containing
CFCs. Below, EPA defines these product categories and then presents
an overview of how each one meets the criteria specified by
section 610(b)(3) and discussed above in section I.I.1. More
detailed analyses of the "other" products to be prohibited are
provided in the background documents accompanying this rulemaking
(see Docket A-91-39).
a. Flexible and packaging foam using CFCs. CFCs have been
widely used in the production of a variety of foam plastics.
CFC-11, -12, -113, and -114 have all been used as blowing agents
in the manufacture of foam products such as building and appliance
insulation, cushioning products, packaging materials, and flotation
devices. According to the 1991 UNEP Flexible and Rigid Foams
Technical Options Report, the foam plastics industry used
approximately
174,000 metric tons of CFCs worldwide in 1990, a 35 percent
drop from the industry's estimated CFC consumption in 1986.
The UNEP report also estimates that, of the CFCs consumed by
the foam plastics industry, approximately 80 percent were used
in building and appliance insulation while the remaining 20
percent found use as blowing agents in applications such as
packaging, cushioning and flotation. In the United States, CFC
use in many foam types has decreased dramatically since 1986.
In some applications, especially in flexible and packaging foams,
most manufacturers have already phased out the use of CFCs
completely.
CFCs have been widely used as blowing agents in the
manufacturing
process of many foam products because they possess suitable
boiling points and vapor pressures, low toxicity, and very low
thermal conductivity; in addition, they are non-flammable, non-
reactive, and, until the introduction of the excise tax and
production limits, cost-effective. The excise tax levied by
Congress in 1989 significantly raised the price of CFCs (except
for use in the manufacture of rigid insulating foam, which was
exempt from the tax in 1990 and is subject to a greatly reduced
tax of approximately $0.25 per pound until 1994), and as a result,
foam manufacturers have switched to non-CFC substitutes in many
areas.
Even before the tax went into effect, several groups of foam
manufacturers, including the Foodservice and Packaging Industry
and the Polyurethane Foam Association, made significant voluntary
efforts in cooperation with the Agency and several environmental
groups to eliminate or reduce the use of CFCs in their products
ahead of the required phaseout timetable. In addition, one industry
group has worked with the Agency to develop and make available
an in-depth description of technical options to achieve these
reductions (see Handbook for Eliminating and Reducing
Chlorofluorocarbons
in Flexible Foams). Among the many commonly used substitutes
for CFCs in flexible and packaging foam are HCFCs, hydrocarbons
and methylene chloride (See below for further discussion of
these substitutes).
The 1991 UNEP technical options report provides information
on potential substitutes for the entire foam industry by foam
type. Each type of foam has a distinct set of product and process
application needs; for example, an important distinction exists
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.
For the purposes of today's rulemaking, EPA identifies the
following categories as "flexible and packaging foam:" Polyurethane
flexible slabstock and molded foams, open cell rigid polyurethane
packaging foam, polyethylene foam, polypropylene foam, and extruded
polystyrene sheet foams. The included polyurethane foams are
open cell thermosetting foams, where the blowing agent is mixed
with chemicals which react to form the plastic. The other included
foams are closed cell thermoplastic foams, where the blowing
agent is injected into a molten plastic resin which hardens
upon cooling.
EPA first suggested the possibility of banning flexible and
packaging foams in its December 14, 1987 Proposed Rule (52 FR
47489) and again in its August 12, 1988 Advanced Notice of Proposed
Rulemaking (53 FR 30604). Of the foam types identified as "flexible
and packaging," EPA believes that the producers of polyurethane
flexible molded foam, open cell rigid polyurethane poured foam,
polyethylene foam, polypropylene foam and extruded polystyrene
sheet foam have already eliminated the use of CFCs. EPA also
believes that CFC emissions from the manufacture of flexible
polyurethane slabstock foam can be reduced to zero because
manufacturers
have largely converted from CFCs to readily available substitutes
and are currently exploring alternative technologies.
EPA proposed prohibiting the sale and distribution of flexible
and packaging foams using CFCs in the January 16, 1992 NPRM
primarily because CFC use has already largely stopped in these
foam types following voluntary efforts and the imposition of
the excise tax. In addition, the Agency believes that if CFCs
are not prohibited in flexible and packaging foams, the self-
effectuating 1994 ban on noninsulating foam products made with
or containing Class II substances could set up an environmentally
harmful incentive for foam manufacturers who have not switched
out of CFCs to continue to use them, or for those using HCFCs
to switch back to CFCs.
In making its determination that flexible and packaging foams
are nonessential, EPA examined their purpose and intended use.
Flexible and packaging foams are used in furniture and upholstery,
transport and protective packaging, cushioning, protective wrap,
food containers, and flotation devices. EPA does no consider
the purposes of flexible and packaging foams "frivolous."
EPA determined, however, that adequate substitutes for CFCs
in the production of flexible and packaging foams were indeed
available. Substitute options currently being used in flexible
and packaging foams vary depending on the foam type in question.
Options for flexible polyurethane slabstock foam production
include increased foam density or the use of more water in the
production process, as well as the substitution of acetone,
HCFCs, methyl chloroform, and methylene chloride. Other near-
term alternatives available to eliminate CFCs in flexible
polyurethane
slabstock foam include new polyol technology which increases
softness with little or no CFC use and "AB" technology which
uses formic acid to double the quantity of gas generated in
the reaction of isocyanate with water. Alternatives for the
production of other flexible and packaging foams include
hydrocarbons,
carbon dioxide, or HCFCs. EPA believes that the fact that the
great majority of manufacturers of these products have already
switched our of CFCs to commercially available substitutes
indicates
that the use of CFCs in this product area is nonessential.
There are a number of safety and health issues associated
with the possible substitutes for CFCs in the production of
plastic flexible and packaging foams; however, EPA believes
that with the proper precautions, each of these alternatives
can be used safely.
Methylene chloride is classified by EPA as a B2 (probable
human) carcinogen with an Occupational Safety and Health
Administration
Permissible Exposure Limit (OSHA PEL) of 25 parts per million.
Appropriate worker health and safety practices must be followed
by flexible foam manufactures in those states that allow the
use of this chemical.
Hydrocarbons and acetone are flammable. Manufacturers must
take special safety precautions, including appropriate ventilation,
when using these substances. Hydrocarbons and acetone are also
volatile organic compounds (VOCs) which can contribute to the
formation of ground-level air pollution. States must consider
VOC emissions in meeting requirements of State Implementation
Plans (SIPs) to attain the ground-level ozone National Ambient
Air Quality Standards (NAAQS).
HCFCs (particularly-141b) and methyl chloroform, although
they have much less effect on stratospheric ozone than do CFCs,
have measurable ozone-depletion potentials (see listing notice
56 FR 2420; January 22, 1991). In addition, these substances
may be regulated elsewhere in title VI (sections 604, 605, 606,
608, 609, 611, 612, and 613).
The formic acid used in AB technology creates carbon monoxide
and has a Ph of 3, so it too requires special care in handling.
EPA believes that none of the health and safety issues described
above should preclude the prohibition of CFC use in flexible
and packaging foams under section 610. Each technology presents
its own associated set of hazards, including the use of CFCs.
The Agency believes, however, that if the proper precautionary
steps are taken, these alternatives can be used safely. EPA
does not necessarily endorse all of the substitutes currently
being used by manufacturers in place of CFCs and intends to
carefully examine the issue of safe alternatives under section
612.
In making its determination to classify flexible and packaging
foams as nonessential, EPA also considered several other relevant
factors. As noted earlier, the majority of flexible and packaging
foam manufacturers have already phased out the use of CFCs.
The excise tax and the phaseout of CFR production provide
significant
incentives for those manufacturers still using CFCs to switch
to substitutes. In addition, the accelerated phaseout should
provide manufacturers with an additional incentive to move out
of the use of Class I substances as rapidly as possible. As
a result, EPA anticipates that the future economic impact from
today's rulemaking will be minimal, even for small businesses
(see Background Document).
Finally, EPA recognizes that some states limit the use of
methylene chloride. Flexible foam manufacturers still using
CFCs in these areas would be unable to use this particular
substitute
in the production of super-soft and low-density flexible foams.
EPA recognizes, however, that several substitute options apart
from methylene chloride (e.g., modified polyols and water-blown
foam) are currently in use or will be available in the near
future as substitutes for these foam types (production of flexible
slabstock foam is discussed in greater detail in section
III.B.2.b.).
Therefore, EPA proposed banning the use of CFCs in areas where
methylene chloride use is restricted, as well as in areas where
it is not.
b. Aerosols and other pressurized dispensers containing CFCs.
In the past, CFCs have been used extensively in aerosol products
worldwide, mainly as propellants, but also as solvents and
diluents,
and as the active ingredients in some products. In the mid-1970s
the use of CFC-11 and -12 in aerosols accounted for 60 percent
of the total use of these chemicals worldwide. Due to mandatory
and voluntary reduction programs in several countries, including
the 1978 ban in the United States, this use has been significantly
reduced. However, in 1986, aerosol use was still substantial,
accounting for 300,000 metric tons, representing 27 percent
of the global use of CFCs. In the United States, 9870 metric
tons were used in aerosols exempted or excluded from the 1978
ban, representing approximately 2.5 percent of all Class I
substances
(weighted by ozone-depletion potential) in 1988.
In the January 16, 1992 NPRM, EPA defined "aerosols and other
pressurized dispensers containing CFCs" to include both propellant
and non-propellant uses of CFCs. Propellant uses of CFCs were
banned by EPA in 1978, except for essential uses. Non-propellant
uses of CFCs, such as solvent use, were excluded from the 1978
ban. EPA has re-examined all of the products excluded from the
1978 ban, as well as those specifically exempted from the 1978
ban. EPA has also examined products identified by commenters
to the proposed rule. As EPA stated in its August 12, 1988 Advanced
Notice of Proposed Rulemaking (53 FR 30604), several alternative
propellants and delivery systems have been developed since the
original aerosol exemptions were granted. In addition, many
previously exempted or excluded products no longer use CFCs
(see Alternative Formulations).
EPA proposed banning CFCs in aerosols and other pressurized
dispensers primarily because a variety of substitutes for CFCs
are now widely available and currently in use. In addition,
the Agency believes that it is important to ban the use of CFCs
in aerosols and pressurized dispensers due to the ban on the
use of Class II substances in such products under section 610(d).
Section 610(d) bans the sale, distribution, or offer of sale
or distribution in interstate commerce of aerosols or pressurized
dispensers containing a Class II substance effective January
1, 1994. EPA believes that if the aerosols and other pressurized
dispensers containing CFCs are not included in the Class I
nonessential
products ban, the ban on aerosols and pressurized dispensers
containing Class II substances in 1994 could set up an
environmentally
harmful incentive for manufacturers who have not switched out
of CFCs to continue to use them, or for those using HCFCs to
switch back to CFCs. Because the ozone depletion potentials
of CFCs are so much greater than those of HCFCs, the continued
use of CFCs in this application would have a significant adverse
impact on the environment.
In making its determination that the use of CFCs in aerosols
and pressurized containers was nonessential, EPA looked at the
purpose or intended use of these products. CFCs have been used
in aerosol products and other pressurized dispenser products
as propellants, solvents, diluents, and active ingredients.
Those uses exempted or excluded from the 1978 ban included:
metered dose inhalant drugs; contraceptive vaginal foam; lubricants
for the production of pharmaceutical tablets; medical solvents
such as bandage adhesives and adhesive removers; skin chillers
for medical purposes; aerosol tire inflators; mold release agents;
lubricants, coatings, and cleaning fluids for
industrial/institutional
applications to electronic or electrical equipment; special-
use pesticides; aerosols for the maintenance and operation of
aircraft; aerosols necessary for the military preparedness of
the United States of America (primarily pesticides, aircraft
and electronics maintenance products, and specialty lubricants);
diamond grit spray; single ingredient dusters and freeze sprays;
noise horns; mercaptan stench warning devices; pressurized drain
openers; aerosol polyurethane foam dispensers; and whipped topping
stabilizers. EPA believes that the purposes of these aerosols
and pressurized dispensers are generally not "frivolous."
However, EPA determined that adequate substitutes for CFCs
in the production of most aerosol products and pressurized
dispensers
were indeed available. EPA believes that the fact that the great
majority of manufacturers of these products have switched out
of CFCs (see Background Document) indicates that the use of
CFCs in this product area is nonessential.
Currently available substitutes for aerosols and other
pressurized
dispensers include: hydrocarbons (predominantly propane and
butane); other higher priced/special use flammable gases (dimethyl
ether, HCFC-142b, and HFC-152a); nonflammable compressed gases
(such as carbon dioxide, nitrogen oxide, and HCFC-22, alone
or in mixtures); solvent substitutes (methylene chloride and
dimethyl ether/water mixtures); non-aerosol spray dispensers
(finger pumps, trigger pumps, and mechanical pressure dispensers);
and non-spray dispensers (solid sticks, roll-ons, brushes, pads,
shakers, and powders). Potentially available substitutes for
propellant and solvent uses of CFCs in aerosols and other
pressurized
dispensers include HCFCs-123, -124, -141b, 142b, and HFC-134a.
In evaluating possible substitutes for CFCs in aerosols and
other pressurized dispensers, EPA relied heavily on existing
Agency research due to the short statutory timeframe for this
rulemaking, especially its 1989 report Alternative Formulations
to Reduce CFC Use in U.S. Exempted and Excluded Aerosol Products.
The UNEP Technical Options Committee report on aerosols, sterilants
and miscellaneous uses of CFCs also provided valuable information
on possible substitutes for CFCs in these applications (see
Aerosols). In addition, many commenters requesting exemptions
for specific products provided information on possible substitutes,
as did several commenters opposed to exemptions for specific
products.
EPA believes that manufacturers have been working to identify
substitutes for CFCs in all of their product areas. However,
there are several products for which EPA has not identified
satisfactory substitutes, and which, in its January 16, 1992
NPRM, EPA proposed to exclude from the ban on aerosols and other
pressurized dispensers containing CFCs. These products are:
contraceptive vaginal foams; lubricants for pharmaceutical and
tablet manufacture; metered dose inhalation devices; gauze bandage
adhesives and adhesive removers; commercial products using CFC-
11 or CFC-113, but no other CFCs, as lubricants, coatings and
cleaners for electrical or electronic equipment; commercial
products using CFC-11 or CFC-113, but no other CFCs, as lubricants,
coatings and cleaners for aircraft maintenance uses; and commercial
products using CFC-11 and CFC-113 as release agents for molds
used in the production of plastic and elastomeric materials.
In addition, EPA received information during the public comment
period about the lack of available substitutes for certain products
of which the Agency had previously been unaware, such as red
pepper safety sprays and document preservation sprays. EPA
considered
requests for exemptions for these products while preparing the
final rule, and on the basis of this information excluded certain
additional aerospace applications of CFCs from coverage in today's
rulemaking (for additional information on the products mentioned
above, see Alternative Formulations and Background Document).
There are a number of safety and health issues associated
with the possible substitutes for CFCs in the production of
aerosol products and other pressurized dispensers; however,
EPA believes that with the proper precautions these alternatives
can be used safely.
Hydrocarbons are flammable. Manufacturers and consumers must
take special safety precautions, including appropriate ventilation,
when using these substances. Hydrocarbons are also volatile
organic compounds (VOC)s which can contribute to the formation
of ground-level air pollution. States must consider VOC emissions
in meeting the requirements of State Implementation Plans to
attain the ground-level ozone National Ambient Air Quality
Standards.
HCFCs (particularly -141b) and methyl chloroform, although
they have much less effect on stratospheric ozone than CFCs,
do have measurable ozone-depletion potentials (see listing notice
56 FR 2420; January 22, 1991). In addition, these substances
may be regulated elsewhere in title VI (sections 604, 605, 606,
608, 609, 611, 612, and 613).
Methylene chloride is classified by EPA as a B2 (probable
human) carcinogen, with an Occupational Safety and Health
Administration
Permissible Exposure Limit (OSHA PEL) of 25 parts per million.
Appropriate worker health and safety practices must be followed
by aerosol and pressurized dispenser manufacturers in those
states that allow the use of this chemical.
EPA believes that none of the health and safety issues described
above are persuasive enough to preclude the identification of
CFC-use in aerosols and other pressurized dispensers as a
nonessential
product under the requirements of section 610. However, EPA
does not necessarily advocate all substitutes currently being
used by manufacturers in place of CFCs. EPA intends to carefully
examine the issue of safe alternatives under regulations to
implement section 612.
In making its determination to classify aerosols and other
pressurized dispensers as nonessential, EPA also considered
several other relevant factors. First, most propellant uses
of CFCs have been banned already under the Toxic Substances
Control Act (TSCA) since 1978. Today, aerosols and pressurized
dispensers containing CFCs make up only a small percentage of
existing aerosol products; consequently, EPA estimates that
the economic impact of banning CFC use in these applications
will be minimal (see Background Document). Second, the excise
tax provides an ever-increasing economic incentive for
manufacturers
of aerosol and pressurized dispenser products which were exempted
or excluded from the 1978 ban to switch to substitutes. In
addition,
the accelerated phaseout of CFC production will force most
manufacturers
to convert to substitutes as quickly as possible. As a result,
EPA anticipates minimal future economic impact from banning
aerosols and other pressurized dispensers containing CFCs under
section 610.
4. Recordkeeping Requirements
In the NPRM, EPA proposed recordkeeping requirements to monitor
compliance with the ban on the sale or distribution of
chlorofluorocarbon-
containing cleaning fluids for noncommercial electronic and
photographic equipment. Recordkeeping was one of four options
considered by EPA for restricting the sale of these products
to commercial users. These options were described in the January
16, 1992 NPRM.
The first option would have required that CFC-containing
cleaning fluids be sold in bulk. However, EPA recognized that
some commercial users needed only small quantities of these
products, and that the bulk sales requirement would impose a
significant burden on such entities. Moreover, this restriction
would raise the cost of these products for noncommercial users,
but it would not prevent noncommercial users from purchasing
them.
The second option EPA proposed was to prohibit the sale of
CFC-containing cleaning fluids by outlets which primarily serve
noncommercial users. However, as with the first option, this
restriction would not prevent noncommercial users from purchasing
these products. In addition, it would be a burden on commercial
users who purchase these products at retail outlets. Moreover,
it would be difficult to adequately define retail stores that
are predominantly oriented to noncommercial users.
The third option EPA proposed would have required that stores
post notices stating that the sale of these products to
noncommercial
users was prohibited; alternatively, EPA considered requiring
warning labels on containers of these cleaning fluids indicating
that they were intended for commercial use only. EPA did not
include either of these provisions in the proposed regulatory
language because neither of these alternatives by itself would
have promoted effective EPA enforcement of the ban on the sale
of these cleaning fluids to noncommercial users. In addition,
the EPA was concerned that the labeling requirement would be
costly and unnecessarily burdensome, given that such products
are already also subject to section 611 of the Act. Section
611 requires warning labels on containers of Class I or Class
II substances and products containing or manufactured with Class
I substances. Consequently, in its NPRM, EPA opted for the fourth,
more restrictive option presented, which proposed recordkeeping
requirements, because this was the only option considered which
EPA believed would allow the Agency to effectively enforce the
prohibition on the sale of these products to noncommercial users.
The NPRM discussed two potential recordkeeping regimes, one
requiring annual records of sales to commercial users and one
which was transaction-specific. In each case, sellers would
require purchasers to provide identifying information, as well
as a commercial identification number, in order to verify that
the products were being purchased for commercial use; consumers
without commercial identification numbers would be unable to
purchase CFC-containing cleaning fluids. Commercial identification
numbers were defined in the proposed rule as federal employer
identification numbers, state sales tax exemption numbers, or
local business license numbers. In a transaction-specific system,
distributors would be required to record the purchaser's
identifying
information, transaction dates, and the quantities of cleaning
fluids which were purchased; in addition, distributors would
be required to maintain records of their own purchases of these
products. In this way, EPA could compare distributors' sales
and purchases of these products to ensure compliance. Under
an annual recordkeeping system, distributors would be required
to maintain records of commercial purchasers but not of individual
transactions. As a result, EPA would be unable to verify through
annual recordkeeping that a distributor had sold these products
exclusively to commercial users. EPA proposed a transaction-
specific recordkeeping requirement in the proposed rule, but
it requested comment on the advantages and disadvantages of
annual and transaction-specific recordkeeping requirements in
the preamble.
In connection with the exemptions from the 1978 ban, EPA
imposed reporting requirements under 40 CFR 712.4 for those
products which used a CFC propellant. These reporting requirements
expired in 1982. Since that time, the 1978 ban has functioned
effectively without specific reporting requirements concerning
the commercial uses of these substances. EPA believes that,
as a result of the 1978 ban, noncommercial use of CFC-containing
aerosol lubricants, coatings, aircraft maintenance products
and mold release agents is currently negligible. Therefore,
EPA did not propose recordkeeping requirements in these areas.
II. Summary of Comments
A public hearing on the proposed rule was held on January
31, 1992. Six groups presented oral comments on the proposed
requirements, and five of them submitted written comments to
the Agency as well. A transcript of the hearing is contained
in the public docket (see Docket).
The Agency received a total of 190 comments on the proposed
rule (see Docket). Many commenters expressed support for the
proposed rule, and some suggested expanding the types of products
covered. Other commenters criticized the scope of the rule,
the criteria for determining whether products are nonessential,
and the citation of section 608 as additional authority for
restricting the use of Class I substances. A number of commenters
made suggestions regarding record-keeping requirements, and
several requested clarification of the definition of "interstate
commerce." Finally, a number of commenters objected to the possible
inclusion of a number of products in the ban, such as
self-pressurized
containers, medical devices, and residential halon fire
extinguishers.
III. Responses to Major Public Comments
A document summarizing the public comments to this rulemaking
and responding fully to all significant comments is available
in the public docket for this final rule (see Response to Comments
for Proposed Rule on Nonessential Products Made with Class I
Substances). The major issues raised by the commenters and the
Agency's responses to them are described below.
A. Scope and Specific Provisions of Nonessential Rule
1. Support for the Proposed Rule
A number of commenters expressed their support for the proposed
rule. One commenter, an industry group, supported the proposed
rule in its treatment of available substitutes, consideration
of other relevant factors, and the selection of other products.
Another industry group supported the Agency's general approach
and actions in proposing to ban the products listed in the NPRM.
Many commenters wrote to urge EPA to ban the sale or distribution
of all nonessential Class I and Class II substances as soon
as possible.
2. Scope of Regulation
Several commenters expressed the opinion that the scope of
the proposed rule was too great. In several sections of the
regulations, EPA used the language "including but not limited
to" in describing the products subject to the nonessential products
ban. See sections 82.66 (a), (b), (c), and (d). Several commenters
indicated that this language was not sufficiently specific to
describe the products subject to the ban, especially in light
of detailed descriptions of certain subcategories that followed
such language in those sections. These commenters suggested
that the phrase be deleted and that only specifically listed
product subtypes be subject to the ban.
EPA believes that it is appropriate to use the phrase "including
but not limited to" in describing the products subject to the
ban. Section 610 clearly gives EPA the authority to ban all
products within a certain category, such as cleaning fluids
for electronic and photographic equipment. EPA could have simply
listed the overall product categories in the rule. It is true
that the rules must clearly identify those products subject
to the ban, and that the descriptions cannot be overly vague.
However, EPA does not believe that there is anything vague about
the descriptions used in the rule. EPA believes that they are
all terms with clear meaning in the industries affected and
that any manufacturers or distributors will know if they are
handling a product that falls within the ban.
The fact that EPA specifically listed certain subcategories
of the larger product categories subject to the ban does not
in any way render the overall product category descriptions
vague or unclear. EPA concluded that it would be helpful to
manufacturers and distributors to specifically list as many
product subcategories as the Agency could identify in the rule
to aid the public in identifying products subject to the ban.
EPA attempted to be comprehensive in this listing, but could
not be sure that it had identified all product subtypes within
the overall product categories. The "including but not limited
to" language is included in the final rule to clarify that all
products within the stated product categories are subject to
the ban on sale of nonessential products.
Several commenters stated that the Agency does not have the
authority under the Act to ban the use of CFCs in aerosols.
However, it is clear from the language of section 610 that EPA
is authorized to examine all products which result in the release
of Class I substances into the atmosphere for the purpose of
determining whether they are nonessential. Under section 610(b)(3),
the Administrator has the authority to restrict the use of Class
I substances in products that Congress did not specifically
cite. Congress provided the Agency with criteria to determine
whether a Class I product should be banned (discussed at length
in section III.A.5.), and EPA has acted within these parameters
in considering products for their eligibility for the nonessential
products ban. The fact that CFC use in aerosols is regulated
by the 1978 ban does not affect EPA's authority to regulate
any aerosol uses exempted or excluded from that ban under section
610.
One commenter felt that the broadening of section 610 was
not justified in light of the President's plan to accelerate
the phaseout of ozone-depleting chemicals. The commenter observed
that the accelerated phaseout would eliminate the production
of CFCs by the end of 1995, only a short time after the
nonessential
products ban takes effect. The commenter questioned whether
the environmental benefits of the ban during the period would
justify the burden associated with expanding its scope. As stated
in section I.G. of this preamble, EPA agrees with the commenter
for the most part. Consequently, EPA has limited the scope of
today's rule to the product categories affected by the Class
II ban and those CFC-containing products specifically listed
in the statute. While EPA believes that accelerated phaseout
dates will do much to protect the stratospheric ozone layer,
the Agency is still required to promulgate regulations to ban
those uses of ozone-depleting chemicals it determines are
nonessential.
EPA believes that there is still a compelling argument for banning
the use of CFCs in aerosol products and plastic flexible and
packaging foams (see section I.G. of today's preamble). The
primary reason for prohibiting the use of CFCs in these sectors
is to force them to move to alternatives other than CFCs and
HCFCs prior to January 1, 1994, when the Class II nonessential
products ban takes effect.
One commenter suggested that the scope of the proposed rule
was too narrow, and that other use sectors, such as solvents
and methyl chloroform, should be included. This commenter cited
examples in which manufacturers had phased out the Class I
substances
in various use sectors to justify expanding the scope of the
rule. EPA is aware that substitutes exist for certain solvent
applications of CFCs and particular uses of methyl chloroform.
However, EPA could not properly evaluate the tremendous number
of products manufactured with methyl chloroform within the short
statutory time-frame of this rulemaking. The Agency also felt
that it could not address CFC solvent uses adequately in this
section 610 rulemaking, since they also find use in large numbers
of applications. The Agency believes that the Class I substances
and use sectors not addressed in this rulemaking can be addressed
more effectively under sections 608 or 612. Finally, given the
number of applications to be considered, and given EPA's preferred
approach of addressing products and applications by use category
rather than individually, the Agency feels it would be impractical
and inconsistent to ban products based exclusively on the example
of individual users.
One commenter was concerned that there may be some confusion
over the use of nonessential products and the sales prohibition.
The commenter suggested that EPA confirm that nonessential products
purchased before the effective date may still be used, and that
the Agency is not regulating the use of nonessential products,
merely their sale and distribution. The Agency agrees with the
commenter that section 610 of the Act does not address the use
of products which are determined to be nonessential. The use
of nonessential products purchased prior to the effective dates
for the nonessential products ban is not subject to any restriction
in this regulation, although other laws and regulations regarding
the release of ozone-depleting substances may apply to such
use.
3. President's Moratorium on Regulation
Two commenters questioned whether the nonessential products
rule would be subject to President Bush's rulemaking moratorium.
The President's directive does not allow for certain categories
of regulations to be promulgated without delay. Specifically,
government agencies have been directed not to postpone any
regulation
that is subject to a statutory or judicial deadline which falls
during the period of the moratorium. Since section 610 contains
a statutory deadline for the publication of the final rule,
as well as an effective date of November 15, 1992, the nonessential
rule is exempt from the regulatory moratorium.
4. Section 608 and EPA Authority
One commenter objected to the citation of the Lowest Achievable
Emission Level (LAEL) standards in section 608 as a basis for
restricting the emissions of ozone depleting substances. According
to the commenter, Congress clearly intended to confine product
restrictions to section 610. In particular, the commenter suggested
that the LAEL standards were exclusively intended to cover
emissions
from the appliance and industrial process refrigeration market.
The commenter cited the legislative history behind the creation
of section 608 to support its interpretation of section 608.
The EPA disagrees with the commenter's suggestion that reliance
on section 608 as additional authority for its actions is
unwarranted.
EPA considers section 608 to be a multiple phase emission control
program. The Agency believes that the authority granted under
section 608 (National Emission Reduction Program) may be applied
to today's rulemaking, and that LAEL standards may, in certain
circumstances, have the same practical effect as the nonessential
products ban authorized in section 610.
It is clear from the statute that section 608(a)(1) of the
National Recycling and Emission Reduction Program initially
affects only appliances and industrial process refrigeration,
and the Agency is addressing the recycling of refrigerant in
the appliance and industrial process refrigeration sector in
the section 608 proposal published in the Federal Register on
December 10, 1992 (57 FR 58644). EPA believes, however, that
the commenter is incorrect in suggesting that the section 608
LAEL standards apply only to appliances and industrial process
refrigeration. Section 608(a)(2) requires EPA to promulgate
regulations establishing standards and requirements regarding
use and disposal of Class I and II substances not covered by
paragraph (1) and section 608(a)(3) requires the reduction of
the use and emission of such substances to the lowest achievable
level. EPA believes that this statutory language gives the Agency
the authority to apply the LAEL standards to all sectors using
Class I and Class II substances.
Where adequate substitutes for Class I or Class II substances
are available, EPA may make a determination that the lowest
achievable level is zero. To implement the LAEL standards, the
Agency may issue regulations requiring emission controls, work
practices, the use of alternative substances, or simply setting
a performance standard. A zero level performance standard under
section 608 would amount to an effective ban on the use of Class
I or Class II substances in that product category. EPA similarly
believes that it has authority under section 608 to require
the use of alternatives to certain ozone-depleting substances
in specific uses. Consequently, the Agency believes that the
requirements of sections 608 and 610 may overlap in some instances,
and that reference to the section 608 LAEL standards in this
rulemaking is appropriate.
5. Criteria for Determining Nonessentiality
Several commenters felt that Congress only banned frivolous
products or products which "when used by nonprofessionals would
result in large unwarranted releases of CFCs when measured against
the expected beneficial results of the product's use," and that
EPA in the proposed rule had overstepped its authority by
attempting
to ban products that are considered extremely important. EPA
believes that the specific products selected by Congress reflect
broader criteria for determining a product's status under section
610 than utility alone. Congress specifically cited noise horns
as products in which the use of Class I substances is nonessential.
Noise horns are primarily used in the area of marine safety;
noise horns provide warning and maneuvering signals in case
of an emergency. In addition, the noncommercial use of cleaning
fluids for photographic and electronic equipment is generally
not reviewed as a frivolous end use. Nevertheless, these products
were specifically cited in the statute as examples of nonessential
uses. Finally, Congress also prohibited the sale or distribution
of aerosols and certain foam products containing Class II
substances
after January 1, 1994 in the nonessential products ban. The
products banned in section 610(d) are clearly not all frivolous,
and yet Congress banned them as nonessential products. These
examples indicate that Congress relied on broader criteria than
the utility of the product alone in determining a product's
status under section 610, and section 610(b) specifically
identified
criteria other than the utility of the product for EPA to consider
in determining nonessentiality for the purposes of the Class
I nonessential products ban. Consequently, EPA disagrees with
the commenter's contention.
One commenter who questioned the application of the ban to
any product other than frivolous products cited the legal doctrine
of ejusdem generis. Under this doctrine of statutory
interpretation,
where general words follow specific words in a statutory
enumeration,
the general words are construed to embrace only objects similar
in nature to those objects enumerated by the preceding specific
words. The commenter concluded that under this doctrine EPA's
authority to ban other products is limited to frivolous products
because the specifically enumerated products identified in sections
610(b) (1) and (2) are all frivolous products.
EPA believes that the doctrine of ejusdem generis is
inapplicable
here because the premise underlying the commenter's conclusion
is false. The products specifically listed in sections 610(b)
(1) and (2) are not all frivolous products. Only the first product
listed in 610(b)(1), plastic party streamers, can be considered
frivolous. For the reasons given above, EPA believes that the
other product categories listed in 610(b) (1) and (2) clearly
include products which are not frivolous. As a result, EPA believes
that the specific enumerations in 610(1) and (2) do not limit
the Agency's authority to identify nonessential products under
610(b)(3) that are frivolous. Rather, EPA is required by 610(b)
to consider a number of factors in determining whether a product
is nonessential, including the purpose or intended use of a
product, the technological availability of substitutes, safety,
health, and other relevant factors.
One commenter suggested that even if substitutes for Class
I substances were available, EPA had no authority to ban the
sale or distribution of "extremely important" products under
section 610 unless substitutes were available for both the product
and the Class I substance used in its manufacture. As discussed
above and in the proposed rule, EPA believes that the section
610 statutory ban on noise horns, CFC-containing cleaning fluids
for noncommercial electronic and photographic equipment, as
well as aerosols, pressurized dispensers, and plastic foam products
containing Class II substances, clearly indicates congressional
intent to include important "nonfrivolous" uses of ozone-depleting
substances and products produced with ozone-depleting substances
in the nonessential products ban. Moreover, the statute directed
EPA to consider the "technological availability of substitutes
for such product and for such Class I substance," as well as
the purpose or intended use of the product, in determining whether
a product was nonessential. However, the statute does not
specifically
require EPA to determine that substitutes are available for
both the product and the Class I substance used in its production.
Consequently, EPA believes that the statute authorizes the Agency
to ban a product containing or manufactured with Class I substances
if, when EPA evaluates such a product against the five criteria
mentioned in section 610(b)(3), it determines that adequate
substitutes are available for either the product or the use
of Class I substances in its manufacture. EPA believes that
in cases where such substitutes exist, the Administrator has
the authority to determine that products manufactured with Class
I substances are nonessential, regardless of the importance
of these products. In each case, however, EPA must consider
all five of the criteria in making its determination.
6. Definition of the Term "Product"
The January 16, 1992 proposed rule discussed EPA's definition
of the term "product" at great length. EPA reiterates its belief
that the use of the term "product" in section 610 of the statute
indicates that Congress intended to apply this term to any type
or category of merchandise or commodity offered for sale, as
well as any use of a Class I substance in the manufacture or
packaging of any such merchandise or commodity.
A number of commenters disputed EPA's definition of the term
"product". Several commenters criticized EPA for banning entire
categories of products rather than individual products. EPA
believes that such an approach is appropriate, and that it is
justified by the criteria listed in section 610(b), the statutory
treatment of certain groups of products manufactured with or
containing Class II substances in section 610(d), and by the
tight statutory deadline for promulgation of this regulation.
In determining whether a product is nonessential, section
610(b) of the statute directs the Administrator to "consider
the purpose or intended use of the product, the technological
availability of substitutes for such product and for such Class
I substance, safety, health, and other relevant factors". EPA
reiterates its belief articulated in the proposed rule that
the statutory mandate to consider the technological availability
of substitutes "for such product and for such Class I substance"
clearly indicates Congressional intent to focus on the use of
Class I substances in broad categories of products as well as
in individual products (see NPRM for greater discussion of this
issue).
In addition, Congress banned entire categories of products
in section 610(d)(2) when it banned aerosols, pressurized
dispensers,
and plastic foam products containing Class II substances. EPA
believes that the statutory language of section 610(d)(2) indicates
Congressional intent to address products and the use of ozone-
depleting substances by broad use categories, provided that
some mechanism exists for addressing particular applications
within those categories for which no suitable substitutes exist,
or for which other important concerns might justify an exemption.
EPA employed such a mechanism in its section 610 rulemaking
for the Class I nonessential products ban. In its NPRM, EPA
proposed banning the use of CFCs in two product categories,
aerosol products and flexible and packaging foams, but it also
exempted products for which it had reason to believe that no
satisfactory substitutes were currently available. EPA then
carefully considered requests for exemptions received during
the public comment period in order to address additional products
within these sectors for which no suitable substitutes exist,
or for which other concerns might justify an exemption. As a
result of this procedure, the final rule includes exemptions
from the nonessential ban for several additional products (see
sections III.B and IV.E. of today's preamble).
Finally, there are hundreds of thousands of diverse end uses
for Class I substances, and EPA clearly could not address the
multitude of products and end uses for these substances
individually
given the tight statutory time-frame for promulgating this
regulation.
Consequently, EPA adopted the approach taken by Congress in
section 610(d)(2) and proposed banning broad categories of products
and end uses in the NPRM. EPA then considered any comments
requesting
exemptions for particular applications within these broad
categories
and carefully evaluated the information provided by the commenters
as to why these particular applications should not be covered
by the Class I nonessential products ban. EPA believes that
this approach is equitable, comprehensive, and that it represents
the most effective use of the Agency's resources.
7. Definition of Interstate Commerce and Grandfathering of Existing
Product Inventories
Many commenters addressed the impact of the ban on existing
inventories. The primary concern of all these commenters was
the treatment of existing inventories of nonessential products
after the effective date of the regulation. One commenter, one
of the largest producers of CFCs, stated that the November 15th
compliance date could affect a large number of products containing
up to 50,000 pounds of CFCs.
The commenters expressed concern that banning the sale of
these existing inventories would impose significant economic
burdens on the affected businesses. Moreover, several commenters
observed that recovery and recycling of CFCs from small aerosol
containers is difficult and expensive, and that much of the
ozone depleting chemical used to produce flexible and packaging
foams is released in the foam-blowing process. Consequently,
the recall of such products would result in little environmental
benefit.
Commenters suggested changing the treatment of existing
inventories
in the final rule. One commenter, a major manufacturing
association,
felt that the November 15th compliance date should not apply
to the sale of products to the ultimate consumer. Many other
commenters proposed grandfathering existing inventories of products
that had not been sold by November 15, 1992.
EPA agrees with these commenters that banning the sale of
existing inventories after November 15, 1992, would adversely
affect a number of businesses without providing any appreciable
environmental benefit. The Agency is well aware that redesigning
and modifying production facilities cannot be accomplished
overnight.
EPA is also aware that some of the affected products, such as
spare parts for automobiles, which are packaged with foam, have
unusually long shelf lives. Moreover, EPA recognizes that the
statute contemplated that businesses would have one year to
liquidate existing stocks of nonessential products, and that
the late publication of the final rule allows manufacturers,
distributors, and retailers insufficient time to liquidate existing
inventories and revise manufacturing processes. Congress clearly
intended to give these individuals a year's notice prior to
banning these products. Given the late publication date of the
rule, adhering to the November 15, 1992 date for all nonessential
products would actually contradict Congressional intent in this
regard. However, as of November 15, 1992, the statute clearly
prohibits the sale, distribution, or offer of sale or distribution,
in interstate commerce of nonessential products identified in
EPA regulations (after the effective date of such regulations)
one year after promulgation of the Class I nonessential products
ban rule.
The affected industries could not have known for certain
whether such products would be banned until final promulgation.
Consequently, to provide some measure of relief for certain
industries, with respect to any such products which Congress
anticipated would be banned, EPA has decided to make January
17, 1994 the effective date for the ban on products determined
to be nonessential under section 610(b)(3). This action will
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