[Federal Register Volume 83, Number 229 (Wednesday, November 28, 2018)]
[Rules and Regulations]
[Pages 61127-61134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25891]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[EPA-HQ-OAR-2017-0175; FRL-9987-02-OAR]
RIN 2060-AT52
Air Quality: Revision to the Regulatory Definition of Volatile
Organic Compounds--Exclusion of cis-1,1,1,4,4,4-hexafluorobut-2-ene
(HFO-1336mzz-Z)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On May 1, 2018, the U.S. Environmental Protection Agency (EPA)
published a proposed rule seeking comments in response to a petition
requesting the revision of the EPA's regulatory definition of volatile
organic compounds (VOC) to exempt cis-1,1,1,4,4,4-hexafluorobut-2-ene
(also known as HFO-1336mzz-Z; CAS number 692-49-9). The EPA is now
taking final action to revise the regulatory definition of VOC under
the Clean Air Act (CAA). This final action adds HFO-1336mzz-Z to the
list of compounds excluded from the regulatory definition of VOC on the
basis that this compound makes a negligible contribution to
tropospheric ozone (O3) formation.
DATES: This final rule is effective on January 28, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2017-0175. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
materials, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Dr. Souad Benromdhane, Office of Air
Quality Planning and Standards, Health and Environmental Impacts
Division, Mail Code C539-07, Environmental Protection Agency, Research
Triangle Park, NC 27711; telephone: (919) 541-4359; fax number: (919)
541-5315; email address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Does this action apply to me?
II. Background
A. The EPA's VOC Exemption Policy
B. Petition To List HFO-1336mzz-Z as an Exempt Compound
III. The EPA's Assessment of the Petition
A. Contribution to Tropospheric Ozone Formation
B. Potential Impacts on Other Environmental Endpoints
1. Contribution to Stratospheric Ozone Depletion
2. The Significant New Alternatives Policy (SNAP) Program
Acceptability Findings
3. Toxicity
4. Contribution to Climate Change
C. Response to Comments and Conclusion
IV. Final Action
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
M. Judicial Review
I. Does this action apply to me?
Entities potentially affected by this final rule include, but are
not necessarily limited to, the following: State and local air
pollution control agencies that adopt and implement regulations to
control air emissions of VOC; and industries manufacturing and/or using
HFO-1336mzz-Z for use in polyurethane rigid insulating foams,
refrigeration, and air conditioning. Potential entities that may be
affected by this action include:
[[Page 61128]]
Table 1--Potentially Affected Entities by North American Industrial
Classification System (NAICS) Code
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Description of
Category NAICS code regulated entities
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Industry....................... 326140 Polystyrene Foam
Product Manufacturing.
Industry....................... 326150 Urethane and Other Foam
Product (except
Polystyrene)
Manufacturing.
Industry....................... 333415 Air-Conditioning and
Warm Air Heating
Equipment and
Commercial and
Industrial
Refrigeration
Equipment
Manufacturing.
Industry....................... 3363 Motor Vehicle Parts
Manufacturing.
Industry....................... 336611 Ship Building and
Repairing.
Industry....................... 336612 Boat Building.
Industry....................... 339999 All other Miscellaneous
Manufacturing.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that might be affected by this
deregulatory action. This table lists the types of entities that the
EPA is now aware of that could potentially be affected to some extent
by this action. Other types of entities not listed in the table could
also be affected to some extent. To determine whether your entity is
directly or indirectly affected by this action, you should consult your
state or local air pollution control and/or air quality management
agencies.
II. Background
A. The EPA's VOC Exemption Policy
Tropospheric O3, commonly known as smog, is formed when VOC and
nitrogen oxides (NOX) react in the atmosphere in the presence of
sunlight. Because of the harmful health effects of O3, the EPA and
state governments limit the amount of VOC that can be released into the
atmosphere. VOC form O3 through atmospheric photochemical reactions,
and different VOC have different levels of reactivity. That is,
different VOC do not react to form O3 at the same speed or do not form
O3 to the same extent. Some VOC react slowly or form less O3;
therefore, changes in their emissions have limited effects on local or
regional O3 pollution episodes. It has been the EPA's policy since
1971, that certain organic compounds with a negligible level of
reactivity should be excluded from the regulatory definition of VOC in
order to focus VOC control efforts on compounds that significantly
affect O3 concentrations. The EPA also believes that exempting such
compounds creates an incentive for industry to use negligibly reactive
compounds in place of more highly reactive compounds that are regulated
as VOC. The EPA lists compounds that it has determined to be negligibly
reactive in its regulations as being excluded from the regulatory
definition of VOC (40 CFR 51.100(s)).
The CAA requires the regulation of VOC for various purposes.
Section 302(s) of the CAA specifies that the EPA has the authority to
define the meaning of ``VOC'' and, hence, what compounds shall be
treated as VOC for regulatory purposes. The policy of excluding
negligibly reactive compounds from the regulatory definition of VOC was
first laid out in the ``Recommended Policy on Control of Volatile
Organic Compounds'' (42 FR 35314, July 8, 1977) (from here forward
referred to as the 1977 Recommended Policy) and was supplemented
subsequently with the ``Interim Guidance on Control of Volatile Organic
Compounds in Ozone State Implementation Plans'' (70 FR 54046, September
13, 2005) (from here forward referred to as the 2005 Interim Guidance).
The EPA uses the reactivity of ethane as the threshold for determining
whether a compound has negligible reactivity. Compounds that are less
reactive than, or equally reactive to, ethane under certain assumed
conditions may be deemed negligibly reactive and, therefore, suitable
for exemption from the regulatory definition of VOC. Compounds that are
more reactive than ethane continue to be considered VOC for regulatory
purposes and, therefore, are subject to control requirements. The
selection of ethane as the threshold compound was based on a series of
smog chamber experiments that underlay the 1977 Recommended Policy.
The EPA has used three different metrics to compare the reactivity
of a specific compound to that of ethane: (i) The rate constant for
reaction with the hydroxyl radical (OH) (known as kOH); (ii)
the maximum incremental reactivity (MIR) on a reactivity per unit mass
basis; and (iii) the MIR expressed on a reactivity per mole basis.
Differences between these three metrics are discussed below.
The kOH is the rate constant of the reaction of the
compound with the OH radical in the air. This reaction is often, but
not always, the first and rate-limiting step in a series of chemical
reactions by which a compound breaks down in the air and contributes to
O3 formation. If this step is slow, the compound will likely
not form O3 at a very fast rate. The kOH values
have long been used by the EPA as metrics of photochemical reactivity
and O3-forming activity, and they were the basis for most of
the EPA's early exemptions of negligibly reactive compounds from the
regulatory definition of VOC. The kOH metric is inherently a
molar-based comparison, i.e., it measures the rate at which molecules
react.
The MIR, both by mole and by mass, is a more updated metric of
photochemical reactivity derived from a computer-based photochemical
model, and it has been used as a metric of reactivity since 1995. This
metric considers the complete O3-forming activity of a
compound over multiple hours and through multiple reaction pathways,
not merely the first reaction step with OH. Further explanation of the
MIR metric can be found in Carter (1994).
The EPA has considered the choice between MIRs with a molar or mass
basis for the comparison to ethane in past rulemakings and guidance. In
the 2005 Interim Guidance, the EPA stated:
[A] comparison to ethane on a mass basis strikes the right
balance between a threshold that is low enough to capture compounds
that significantly affect ozone concentrations and a threshold that
is high enough to exempt some compounds that may usefully substitute
for more highly reactive compounds.
When reviewing compounds that have been suggested for VOC-exempt
status, EPA will continue to compare them to ethane using
kOH expressed on a molar basis and MIR values expressed
on a mass basis.
The 2005 Interim Guidance notes that the EPA will consider a
compound to be negligibly reactive if it is equally as or less reactive
than ethane based on either kOH expressed on a molar basis
or MIR values expressed on a mass basis.
The molar comparison of MIR is more consistent with the original
smog chamber experiments, which compared equal molar concentrations of
individual VOCs, supporting the selection of ethane as the threshold,
while the mass-based comparison of MIR is consistent with how MIR
values and other reactivity metrics are applied
[[Page 61129]]
in reactivity-based emission limits. It is, however, important to note
that the mass-based comparison is slightly less restrictive than the
molar-based comparison in that a few more compounds would qualify as
negligibly reactive.
Given the two goals of the exemption policy articulated in the 2005
Interim Guidance, the EPA believes that ethane continues to be an
appropriate threshold for defining negligible reactivity. And, to
encourage the use of environmentally beneficial substitutions, the EPA
believes that a comparison to ethane on a mass basis strikes the right
balance between a threshold that is low enough to capture compounds
that significantly affect O3 concentrations and a threshold
that is high enough to exempt some compounds that may usefully
substitute for more highly reactive compounds.
The 2005 Interim Guidance also noted that concerns have sometimes
been raised about the potential impact of a VOC exemption on
environmental endpoints other than O3 concentrations,
including fine particle formation, air toxics exposures, stratospheric
O3 depletion, and climate change. The EPA has recognized,
however, that there are existing regulatory or non-regulatory programs
that are specifically designed to address these issues, and the EPA
continues to believe in general that the impacts of VOC exemptions on
environmental endpoints other than O3 formation can be
adequately addressed by these programs. The VOC exemption policy is
intended to facilitate attainment of the O3 National Ambient
Air Quality Standards (NAAQS) and VOC exemption decisions will continue
to be based primarily on consideration of a compound's contribution to
O3 formation. However, if the EPA determines that a
particular VOC exemption is likely to result in a significant increase
in the use of a compound and that the increased use would pose a
significant risk to human health or the environment that would not be
addressed adequately by existing programs or policies, then the EPA may
exercise its judgment accordingly in deciding whether to grant an
exemption.
B. Petition To List HFO-1336mzz-Z as an Exempt Compound
DuPont Chemicals & Fluoroproducts (DuPont) submitted a petition to
the EPA on February 14, 2014, requesting that cis-1,1,1,4,4,4-
hexafluorobut-2-ene (HFO-1336mzz-Z; CAS number 692-49-9) be exempted
from the regulatory definition of VOC. The petition was based on the
argument that HFO-1336mzz-Z has low reactivity relative to ethane. The
petitioner indicated that HFO-1336mzz-Z may be used in a variety of
applications as a replacement for foam expansion or blowing agents with
higher global warming potential (GWP) (>700 GWP) for use in
polyurethane rigid insulating foams, among others. It is also a new
developmental refrigerant as a potential working fluid for Organic
Rankine Cycles (ORC).\1\
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\1\ Konstantinos Kontomaris, 2014, HFO-1336mzz-Z High
Temperature Chemical Stability and Use as a Working Fluid in Organic
Rankine Cycles. International Refrigeration and Air Conditioning
Conference. Purdue University: https://www.chemours.com/Refrigerants/en_US/products/Opteon/Stationary_Refrigeration/assets/downloads/2014_Purdue-Paper-Opteon-MZ.pdf.
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To support its petition, DuPont referenced several documents,
including one peer-reviewed journal article on HFO-1336mzz-Z reaction
rates (Baasandorj, M. et al., 2011). DuPont also provided a
supplemental technical report on the MIR of HFO-1336mzz-Z (Carter,
2011a). Per this report, the MIR of HFO-1336mzz-Z is 0.04 gram (g)
O3/g HFO-1336mzz-Z on the mass-based MIR scale. This
reactivity rate is 86 percent lower than that of ethane (0.28 g
O3/g ethane). The reactivity rate kOH for the
gas-phase reaction of OH radicals with HFO-1336mzz-Z (kOH)
has been measured to be 4.91 x 10-13 centimeter (cm)\3\/
molecule-seconds at ~296 degrees Kelvin (K) (Pitts et al., 1983,
Baasandorj et al., 2011). This kOH rate is twice as high as
that of ethane (kOH of ethane = 2.4 x 10-13
cm\3\/molecule-sec at ~298 K) and, therefore, suggests that HFO-
1336mzz-Z is twice as reactive as ethane. In most cases, chemicals with
high kOH values also have high MIR values, but for HFO-
1336mzz-Z, the products that are formed in subsequent reactions are
expected to be poly fluorinated compounds, which do not contribute to
O3 formation (Baasandorj et al., 2011). Based on the current
scientific understanding of tetrafluoroalkene reactions in the
atmosphere, it is unlikely that the actual O3 impact on a
mass basis would equal or exceed that of ethane in the scenarios used
to calculate VOC reactivity (Baasandorj et al., 2011; Carter, 2011a).
To address the potential for stratospheric O3 impacts,
the petitioner contended that, because the atmospheric lifetime of HFO-
1336mzz-Z due to loss by OH reaction was estimated to be ~20 days and
it does not contain chlorine or bromine, it is not expected to
contribute to the depletion of the stratospheric O3 layer.
III. The EPA's Assessment of the Petition
On May 1, 2018, the EPA published a proposed rulemaking (83 FR
19026) seeking comments in response to the petition to revise the EPA's
regulatory definition of VOC for exemption of HFO-1336mzz-Z. The EPA is
taking final action to respond to the petition by exempting HFO-
1336mzz-Z from the regulatory definition of VOC. This action is based
on consideration of the compound's low contribution to tropospheric
O3 and the low likelihood of risk to human health or the
environment, including stratospheric O3 depletion, toxicity,
and climate change. Additional information on these topics is provided
in the following sections.
A. Contribution to Tropospheric Ozone Formation
As noted in studies cited by the petitioner, HFO-1336mzz-Z has a
MIR value of 0.04 g O3/g VOC for ``averaged conditions,''
versus 0.28 g O3/g VOC for ethane (Carter, 2011). Therefore,
the EPA considers HFO-1336mzz-Z to be negligibly reactive and eligible
for VOC-exempt status in accordance with the Agency's long-standing
policy that compounds should so qualify where either reactivity metric
(kOH expressed on a molar basis or MIR expressed on a mass
basis) indicates that the compound is less reactive than ethane. While
the overall atmospheric reactivity of HFO-1336mzz-Z was not studied in
an experimental smog chamber, the chemical mechanism derived from other
chamber studies (Carter, 2011) was used to model the complete formation
of O3 for an entire single day under realistic atmospheric
conditions (Carter, 2011a). Therefore, the EPA believes that the MIR
value calculated in the Carter study submitted by the petitioner is
reliable.
Table 2 presents three reactivity metrics for HFO-1336mzz-Z as they
compare to ethane.
[[Page 61130]]
Table 2--Reactivities of Ethane and HFO-1336mzz-Z
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Maximum
incremental Maximum
kOH (cm\3\/ reactivity incremental
Compound molecule-sec) (MIR) (g O3/ reactivity
mole VOC) (MIR) (g O3/g
VOC)
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Ethane.......................................................... 2.4 x 10-13 8.4 0.28
HFO-1336mzz-Z................................................... 4.91 x 10-13 6.6 0.04
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Notes:
\1.\ kOH value at 298 K for ethane is from Atkinson et al., 2006 (page 3626).
\2.\ kOH value at 296 K for HFO-1336mzz-Z is from Baasandorj, 2011.
\3.\ Mass-based MIR value (g O3/g VOC) of ethane is from Carter, 2011.
\4.\ Mass-based MIR value (g O3/g VOC) of HFO-1336mzz-Z is from a supplemental report by Carter, 2011a.
\5.\ Molar-based MIR (g O3/mole VOC) values were calculated from the mass-based MIR (g O3/g VOC) values using
the number of moles per gram of the relevant organic compound.
The reaction rate of HFO-1336mzz-Z with the OH radical
(kOH) has been measured to be 4.91 x 10-13 cm\3\/
molecule-sec (Baasandorj et al., 2011); other reactions with
O3 and the nitrate radical were negligibly small. The
corresponding reaction rate of ethane with OH is 2.4 x
10-13cm\3\/molecule-sec (Atkinson et al., 2006). The data in
Table 2 show that HFO-1336mzz-Z has a higher kOH value than
ethane, meaning that it initially reacts twice as fast in the
atmosphere as ethane. However, the resulting unsaturated fluorinated
compounds in the atmosphere are short lived and react more slowly to
form O3 (Baasandorj et al., 2011). The mass based MIR is
0.04 g O3/g VOC and much lower than that of ethane.
A molecule of HFO-1336mzz-Z is less reactive than a molecule of
ethane in terms of complete O3-forming activity as shown by
the molar-based MIR (g O3/mole VOC) values. One gram of HFO-
1336mzz-Z has a lower capacity than one gram of ethane to form
O3 in terms of a mass-based MIR. Thus, following the 2005
Interim Guidance in striking a balance between reactivity on a molar
basis as well as a gram basis, the EPA finds HFO-1336mzz-Z to be
eligible for exemption from the regulatory definition of VOC based on
both the molar- and mass-based MIR.
B. Potential Impacts on Other Environmental Endpoints
The EPA's decision to exempt HFO-1336mzz-Z from the regulatory
definition of VOC is based on our findings above. However, as noted in
the 2005 Interim Guidance, the EPA reserves the right to exercise its
judgment in certain cases where an exemption is likely to result in a
significant increase in the use of a compound and a subsequent
significantly increased risk to human health or the environment. In
this case, the EPA does not find that exemption of HFO-1336mzz-Z would
result in an increase of risk to human health or the environment, with
regard to stratospheric O3 depletion, toxicity and climate
change. Additional information on these topics is provided in the
following sections.
1. Contribution to Stratospheric Ozone Depletion
HFO-1336mzz-Z is unlikely to contribute to the depletion of the
stratospheric O3 layer. The O3 depletion
potential (ODP) of HFO-1336mzz-Z is expected to be negligible based on
several lines of evidence: The absence of chlorine or bromine in the
compound and the atmospheric reactions described in Carter (2008).
Because HFO-1336mzz-Z has a kOH value that is twice as high
as that of ethane (see section III.A ``Contribution to Tropospheric
Ozone Formation''), it will decay before it has a chance to reach the
stratosphere and, thus, will not participate in O3
destruction.
2. The Significant New Alternatives Policy (SNAP) Program Acceptability
Findings
The SNAP program is the EPA's program to evaluate and regulate
substitutes for end-uses historically using O3-depleting
chemicals. Under section 612(c) of the CAA, the EPA is required to
identify and publish lists of acceptable and unacceptable substitutes
for class I or class II O3-depleting substances. Per the
SNAP program findings, the ODP of HFO-1336mzz-Z is zero. The SNAP
program has listed HFO-1336mzz-Z as an acceptable substitute for a
number of foam blowing end-uses provided in 79 FR 62863, October 21,
2014 (USEPA, 2014), and as an acceptable substitute in the
refrigeration and air conditioning sector in heat transfer, as well as
in chillers and industrial process air conditioning provided in 81 FR
32241, May 23, 2016 (USEPA, 2016).
3. Toxicity
Based on screening assessments of the health and environmental
risks of HFO-1336mzz-Z, the SNAP program anticipated that users will be
able to use the compound without significantly greater health risks
than presented by use of other available substitutes for the same uses
(USEPA, 2014, 2016).
The EPA anticipates that HFO-1336mzz-Z will be used consistent with
the recommendations specified in the material safety data sheet (SDS)
(DuPont, 2011). According to the SDS, potential health effects from
inhalation of HFO-1336mzz-Z include skin or eye irritation or
frostbite. Exposure to high concentrations of HFO-1336mzz-Z from misuse
or intentional inhalation abuse may cause irregular heartbeat. In
addition, HFO-1336mzz-Z could cause asphyxiation if air is displaced by
vapors in a confined space. The Workplace Environmental Exposure Limit
(WEEL) committee of the Occupational Alliance for Risk Science (OARS)
reviewed available animal toxicity data and recommends a WEEL for the
workplace of 500 parts per million (ppm) (3350 mg/m\3\) time-weighted
average (TWA) for an 8-hour workday as provided in the OARS (OARS,
2014).\2\ This WEEL was derived based on reduced male body weight in
the 13-week rat inhalation toxicity study (Dupont, 2011). The WEEL is
also protective against skeletal fluorosis, which may occur at higher
exposures because of metabolism. The EPA anticipates that users will be
able to meet the WEEL and address potential health risks by following
requirements and recommendations in the SDS and other safety
precautions common to the refrigeration and air conditioning industry.
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\2\ Occupational Alliance for Risk Science (OARS-WEELs)--HFO-
1336mzz-Z, 2014: https://www.tera.org/OARS/HFO-1336mzz-Z%20WEEL%20FINAL.pdf.
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[[Page 61131]]
HFO-1336mzz-Z is not regulated as a hazardous air pollutant (HAP)
under title I of the CAA. Also, it is not listed as a toxic chemical
under section 313 of the Emergency Planning and Community Right-to-Know
Act (EPCRA).
The Toxic Substances Control Act (TSCA) gives the EPA authority to
assess and prevent potential unreasonable risks to human health and the
environment before a new chemical substance is introduced into
commerce. Section 5 of TSCA requires manufacturers and importers to
notify the EPA before manufacturing or importing a new chemical
substance by submitting a Premanufacture Notice (PMN) prior to the
manufacture (including import) of the chemical. Under the TSCA New
Chemicals Program, the EPA then assesses whether an unreasonable risk
may, or will, be presented by the expected manufacturing, processing,
distribution in commerce, use, and disposal of the new substance. The
EPA has determined, however, that domestic manufacturing, use in non-
industrial products, or use other than as described in the PMN may
cause serious chronic health effects. To mitigate risks identified
during the PMN review of HFO-1336mzz-Z, the EPA issued a Significant
New Use Rule (SNUR) under TSCA on June 5, 2015, to require persons to
submit a Significant New Use Notice (SNUN) to the EPA at least 90 days
before they manufacture or process HFO-1336mzz-Z for uses other than
those described in the PMN (80 FR 32003, 32005, June 5, 2015). The
required notification will provide the EPA with the opportunity to
evaluate the intended use and, if necessary, to prohibit or limit that
activity before it occurs. The EPA, therefore, believes that existing
programs address the risk of toxicity associated with the use of HFO-
1336mzz-Z.
4. Contribution to Climate Change
The Intergovernmental Panel on Climate Change (IPCC) Fifth
Assessment Report (IPCC AR5) estimated the lifetime of HFO-1336mzz-Z to
be approximately 22 days (Baasandorj et al., 2011), and the gas-phase
degradation of HFO-1336-mzz-Z is not expected to lead to a significant
formation of atmospherically long-lived species. The radiative
efficiency of HFO-1336-mzz-Z was calculated to be 0.38 watts per square
meter at the earth's surface per part per billion concentration of the
material (W m-2 ppb-1) based on Baasandorj et
al., 2011. The report estimated the resulting 100-year GWP to be 9,
meaning that, over a 100-year period, one ton of HFO-1336mzz-Z traps 9
times as much warming energy as one ton of carbon dioxide
(CO2) (IPCC, 2013). HFO-1336mzz-Z's GWP of 9 is lower than
those of some of the substitutes in a variety of foam blowing end-uses
and in centrifugal and positive displacement chillers, heat transfer,
and industrial process air conditioning. HFO-1336mzz-Z was developed to
replace other chemicals used for similar end-uses with GWP ranging from
725 to 5,750 such as CFC-11, CFC-113, HCFC-141b and HCFC-22. The
petitioner claims that HFO-1336mzz-Z is a better alternative to other
substitutes in foam expansion or blowing agents for use in polyurethane
rigid insulating foams. Thermal test data and energy efficiency trials
indicate that HFO-1336mzz-Z will provide superior insulating value and,
thus, reduces climate change impacts both directly by its relatively
low GWP and indirectly by decreasing energy consumption throughout the
lifecycle of insulated foams in appliances, buildings, refrigerated
storage and transportation.
C. Response to Comments and Conclusion
The EPA received five comments on the May 1, 2018, notice of
proposed rulemaking. One commenter supported the proposed action to
exempt HFO-1336mzz-Z from the EPA's definition of VOC in 40 CFR
51.100(s), one opposed the proposed action, and three raised issues
that were outside the scope of this rulemaking including a discussion
about air and water quality in Asia and Mexico, and climate change.
These three anonymous comments failed to identify any specific issue
that is germane to our proposal to exempt HFO-1336mzz-Z. Substantial
comments and the EPA's responses are provided below.
Comment: One commenter (ID: EPA-HQ-OAR-2017-0175-0010) expressed
concern that ``the EPA should not exempt HFO-1336mzz-Z . . . [and that]
. . . surely there is a reason it was . . . [regulated as a VOC] in the
first place.'' The commenter expressed skepticism that ``other
regulatory groups outside of the EPA'' would prevent the compound from
being used, if there were other environmental impacts than
O3, once the EPA exempted this compound. This commenter also
expressed concern that the petitioner's data ``could potentially be
biased'' and they ``. . . would like to read a proposal that gets its
information from a more unbiased source and considers how it will deal
with possible drawbacks of deregulating HFO-1336mzz-Z.''
Response: The commenter appears to state that HFO-1336mzz-Z should
not be exempted from the definition of VOC simply because it is
currently included in the definition of VOC. This is a circular
argument, and, if followed, the EPA would never be able to exempt any
substances from the definition of VOC, even where, as here, scientific
data supported such an exemption. The commenter does not provide any
scientific evidence that rebuts the petitioner's data supporting the
demonstration that HFO-1336mzz-Z is eligible for this exemption.
The reason HFO-1336mzz-Z is currently regulated as a VOC is because
it meets the EPA's definition of VOC in 40 CFR 51.100(s) as ``any
compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic
acid . . . which participates in atmospheric photochemical reactions.''
[emphasis added] The petitioner submitted data to the EPA that show
HFO-1336mzz-Z negligibly participates in atmospheric photochemical
reactions, presenting a better environmental alternative for similar
industrial applications, and therefore should be excluded from the
definition of VOC. As explained above, our approval would allow states
to encourage VOC substitutions with negligibly reactive compounds that
would reduce O3 formation.
The EPA would like to clarify the statement in the proposal which
referred to ``existing regulatory or non-regulatory programs that are
specifically designed to address'' other environmental issues besides
tropospheric O3 formation, such as fine particle formation,
air toxics exposures, stratospheric O3 depletion, and
climate change. When referring to existing regulatory or non-regulatory
programs, the EPA was not referring to ``other regulatory groups
outside of the EPA,'' as the commenter suggested. Rather, Congress has
granted the EPA with other authorities under the CAA that allow the
Agency to address these issues specifically (e.g., NAAQS program for
fine particle pollution; section 112 for air toxics). As stated in the
2005 Interim Guidance, where an exemption is likely to result in a
significant increase in the use of a compound and a subsequent
significantly increased risk to human health or the environment, the
EPA reserves the right to exercise its judgment and choose not to grant
a petition for an exemption from the definition of VOC, even where the
substance meets the reactivity metrics. However, as explained in
section III.B. of this final rule, the EPA does not believe an
exemption of HFO-1336mzz-
[[Page 61132]]
Z will lead to significant environmental impacts.
To the extent the commenter is raising concerns that the EPA's
action will result in non-EPA organizations treating HFO-1336mzz-Z
differently, we note that this action does not prohibit state and local
air pollution regulatory agencies from regulating HFO-1336mzz-Z. Some
local agencies continue restrictions on the use of certain compounds
that have been excluded from the definition of VOC by the EPA.
With respect to the comment that the petitioner's data could
potentially be biased, the EPA uses credible, peer-reviewed information
in its review of VOC exemption petitions. In this regard, and as
discussed in our proposed rule and in this action, we note that the
journal article submitted by DuPont on HFO-1336mzz-Z reaction rates was
performed by the National Oceanic and Atmospheric Administration and
published in The Journal of Physical Chemistry, a peer-reviewed
journal. The other primary document relied on to support the exemption
petition was authored by the researcher who developed the MIR scale
(Carter, 2011a). Staff in the EPA's Office of Research and Development
reviewed these documents as part of the petition assessment process and
find that they are consistent with current understanding of atmospheric
chemistry. We are not aware of information that would indicate they are
biased.
Therefore, for reasons discussed above, the EPA is finalizing this
rule with no changes. The EPA finds that HFO-1336mzz-Z is negligibly
reactive with respect to its contribution to tropospheric O3
formation and, thus, may be exempted from the EPA's definition of VOC
in 40 CFR 51.100(s). HFO-1336mzz-Z has been listed as acceptable for
use in several industrial and commercial refrigeration and air
conditioning end-uses, as well as for use as a blowing agent under the
SNAP program (USEPA, 2014, 2016). The EPA has also determined that
exemption of HFO-1336mzz-Z from the regulatory definition of VOC will
not result in an increase of risk to human health and the environment,
and, to the extent that use of this compound does have impacts on other
environmental endpoints, those impacts are adequately managed by
existing programs. For example, HFO-1336mzz-Z has a similar or lower
stratospheric O3 depletion potential than available
substitutes in those end-uses, and the toxicity risk from using HFO-
1336mzz-Z is not significantly greater than the risk from using other
available alternatives for the same uses. The EPA has concluded that
non-tropospheric O3-related risks associated with potential
increased use of HFO-1336mzz-Z are adequately managed by SNAP. The EPA
does not expect significant use of HFO-1336mzz-Z in applications not
covered by the SNAP program. To the extent that the compound is used in
other applications not already reviewed under SNAP or under the New
Chemicals Program under TSCA, the SNUR in place under TSCA requires
that any significant new use of a chemical be reported to the EPA using
a SNUN. Any significant new use of HFO-1336mzz-Z would, thus, need to
be evaluated by the EPA, and the EPA will continually review the
availability of acceptable substitute chemicals under the SNAP program.
IV. Final Action
The EPA is responding to the petition by revising its regulatory
definition of VOC at 40 CFR 51.100(s) to add HFO-1336mzz-Z to the list
of compounds that are exempt from the regulatory definition of VOC
because it is less reactive than ethane based on a comparison of mass-
based MIR and molar-based MIR metrics and is, therefore, considered
negligibly reactive. As a result of this action, if an entity which
uses or produces this compound and is subject to the EPA regulations
limiting the use of VOC in a product, limiting the VOC emissions from a
facility, or otherwise controlling the use of VOC for purposes related
to attaining the O3 NAAQS, this compound will not be counted
as a VOC in determining whether these regulatory obligations have been
met. This action would affect whether this compound is considered a VOC
for state regulatory purposes to reduce O3 formation, if a
state relies on the EPA's regulatory definition of VOC. States are not
obligated to exclude from control as a VOC those compounds that the EPA
has found to be negligibly reactive. However, no state may take credit
for controlling this compound in its O3 control strategy.
Consequently, reductions in emissions for this compound will not be
considered or counted in determining whether states have met the rate
of progress requirements for VOC in State Implementation Plans or in
demonstrating attainment of the O3 NAAQS.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is considered an Executive Order 13771 deregulatory
action. This final rule provides meaningful burden reduction by
exempting HFO-1336mzz-Z from the VOC regulatory definition and
relieving manufacturers, distributers, and users from recordkeeping or
reporting requirements. This action is voluntary in nature and has non-
quantifiable cost savings given the unpredictability in who or how much
of it will be used.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. It does not contain any recordkeeping or reporting
requirements.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This action
removes HFO-1336mzz-Z from the regulatory definition of VOC and,
thereby, relieves manufacturers, distributers, and users of the
compound from tropospheric O3 requirements to control
emissions of the compound.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action imposes no enforceable duty on any
state, local or tribal governments, or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
[[Page 61133]]
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175. This final rule removes HFO-1336mzz-Z from the
regulatory definition of VOC and, thereby, relieves manufacturers,
distributers and users from tropospheric O3 requirements to
control emissions of the compound. Thus, Executive Order 13175 does not
apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to Executive Order 13045, because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. Since HFO-1336mzz-Z is utilized in specific industrial
applications where children are not present and dissipates quickly
(e.g., lifetime of 22 days) with short-lived end products, there is no
exposure or disproportionate risk to children. This action removes HFO-
1336mzz-Z from the regulatory definition of VOC and, thereby, relieves
manufacturers, distributers and users from tropospheric O3
requirements to control emissions of the compound.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629 February 16, 1994). This
action removes HFO-1336mzz-Z from the regulatory definition of VOC and,
thereby, relieves manufacturers, distributers, and users of the
compound from tropospheric O3 requirements to control
emissions of the compound.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
M. Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the District of Columbia Circuit Court within 60 days from the date the
final action is published in the Federal Register. Filing a petition
for review by the Administrator of this final action does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review
must be filed, and shall not postpone the effectiveness of such action.
Thus, any petitions for review of this action related to the exemption
of HFO-1336mzz-Z from the regulatory definition of VOC must be filed in
the Court of Appeals for the District of Columbia Circuit within 60
days from the date the final action is published in the Federal
Register.
References
Atkinson, R., Baulch, D.L., Cox, R.A., Crowley, J.N., Hampson, Jr.,
R.F., Hynes, R.G., Jenkin, M.E., Kerr, J.A., Rossi, M.J., and Troe,
J. (2006) Evaluated kinetic and photochemical data for atmospheric
chemistry: Volume II--gas phase reactions of organic species. Atmos.
Chem. Phys. 6: 3625-4055.
Baasandorj, M., Ravishankara, A.R., Burkholder, J.B. (2011)
Atmospheric chemistry of (Z)-CF3CH[boxH]CHCF3: OH radical reaction
rate coefficient and global warming potential. J Phys Chem A. 2011
Sep 29; 115(38):10539-49. doi: 10.1021/jp206195g.
Carter, W.P.L. (1994) Development of ozone reactivity scales for
volatile organic compounds. J. Air Waste Manage, 44: 881-899.
Carter, W.P.L. (2008) Reactivity Estimates for Selected Consumer
Product Compounds, Final Report to California Air Resources Board
Contract No. 06-408, February 19, 2008. http://www.arb.ca.gov/research/reactivity/consumer_products.pdf.
Carter, W.P.L. (2011) SAPRC Atmospheric Chemical Mechanisms and VOC
Reactivity Scales, at http://www.engr.ucr.edu/~carter/SAPRC/. Last
updated in Sept. 14, 2013. Tables of Maximum Incremental Reactivity
(MIR) Values available at http://www.arb.ca.gov/regact/2009/mir2009/mir2009.htm. May 11, 2011.
Carter, W.P.L. (2011a) Estimation of the ground-level atmospheric
ozone formation potentials of Cis 1,1,1,4,4,4-HexaFluoro-2-Butene,
August 8, 2011.
DuPont Haskell. FEA-1100: 90-day inhalation toxicity study in rats;
Unpublished Report DuPont-17453-785-1; Haskell Laboratory of
Industrial Toxicology: Newark, DE, 2011.
IPCC, 2007: Climate Change 2007: The Physical Science Basis.
Contribution of Working Group I to the Fourth Assessment Report of
the Intergovernmental Panel on Climate Change [Solomon, S., D. Qin,
M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor and H.L.
Miller (eds.)]. Cambridge University Press, Cambridge, United
Kingdom and New York, NY, USA, 996 pp.
IPCC, 2013: Climate Change 2013: The Physical Science Basis.
Contribution of Working Group I to the Fifth Assessment Report of
the Intergovernmental Panel on Climate Change [Stocker, T.F., D.
Qin, G.-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels,
Y. Xia, V. Bex and P.M. Midgley (eds.)]. Cambridge University Press,
Cambridge, United Kingdom and New York, NY, USA, 1535 pp.
Pitts, J.N. Jr., Winer, A.M., Aschmann, S.M., Carter, W.P.L., and
Atkinson, K. (1983), Experimental Protocol for Determining Hydroxyl
Radical Reaction Rate Constants Environmental Science Research
Laboratory, ORD, USEPA. EPA600/3-82-038.
USEPA, 2014. Significant New Alternatives Policy Program; Foam
Blowing Sector; Risk Screen on Substitutes in Rigid Polyurethane
Appliance Foam; Rigid Polyurethane and Polyisocyanurate Laminated
Boardstock; Rigid Polyurethane Commercial Refrigeration and Sandwich
Panels; Rigid Polyurethane Slabstock and Other; Flexible
Polyurethane; Integral Skin Polyurethane; and Phenolic Insulation
Board and Bunstock. Substitute: HFO-1336mzz(Z) (Formacel[supreg]
1100); October 10, 2014. Available online at: https://www.gpo.gov/fdsys/pkg/FR-2014-10-21/pdf/2014-24989.pdf.
USEPA, 2016. Significant New Alternatives Policy Program;
Refrigeration and Air Conditioning Sector; Risk Screen on
Substitutes for Use in Chillers and Industrial Process Air
Conditioning Substitute: HFO-1336mzz(Z) (Opteon[supreg] MZ); May 23,
2016. Available online at: https://www.gpo.gov/fdsys/pkg/FR2016-05-23/pdf/2016-12117.pdf.
List of Subjects in 40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Ozone, Reporting and recordkeeping requirements,
Volatile organic compounds.
Dated: November 16, 2018.
Andrew R. Wheeler,
Acting Administrator.
For reasons stated in the preamble, part 51 of chapter I of title
40 of the Code of Federal Regulations is amended as follows:
[[Page 61134]]
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart F--Procedural Requirements
0
2. Section 51.100 is amended by revising paragraph (s)(1) introductory
text to read as follows:
Sec. 51.100 Definitions.
* * * * *
(s) * * *
(1) This includes any such organic compound other than the
following, which have been determined to have negligible photochemical
reactivity: Methane; ethane; methylene chloride (dichloromethane);
1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-
trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11);
dichlorodifluoromethane (CFC-12); chlorodifluoromethane (HCFC-22);
trifluoromethane (HFC-23); 1,2-dichloro 1,1,2,2-tetrafluoroethane (CFC-
114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-
dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-
dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-
142b); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane
(HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane
(HFC-143a); 1,1-difluoroethane (HFC-152a); parachlorobenzotrifluoride
(PCBTF); cyclic, branched, or linear completely methylated siloxanes;
acetone; perchloroethylene (tetrachloroethylene); 3,3-dichloro-
1,1,1,2,2-pentafluoropropane (HCFC-225ca); 1,3-dichloro-1,1,2,2,3-
pentafluoropropane (HCFC-225cb); 1,1,1,2,3,4,4,5,5,5-decafluoropentane
(HFC 43-10mee); difluoromethane (HFC-32); ethylfluoride (HFC-161);
1,1,1,3,3,3-hexafluoropropane (HFC-236fa); 1,1,2,2,3-pentafluoropropane
(HFC-245ca); 1,1,2,3,3-pentafluoropropane (HFC-245ea); 1,1,1,2,3-
pentafluoropropane (HFC-245eb); 1,1,1,3,3-pentafluoropropane (HFC-
245fa); 1,1,1,2,3,3-hexafluoropropane (HFC-236ea); 1,1,1,3,3-
pentafluorobutane (HFC-365mfc); chlorofluoromethane (HCFC-31); 1
chloro-1-fluoroethane (HCFC-151a); 1,2-dichloro-1,1,2-trifluoroethane
(HCFC-123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane
(C4F9OCH3 or HFE-7100); 2-
(difluoromethoxymethyl)-1,1,1,2,3,3,3-heptafluoropropane
((CF3)2CFCF2OCH3); 1-
ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane
(C4F9OC2H5 or HFE-7200); 2-
(ethoxydifluoromethyl)-1,1,1,2,3,3,3-heptafluoropropane
((CF3)2CFCF2OC2H5
); methyl acetate; 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-
C3F7OCH3, HFE-7000); 3-ethoxy- 1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-
(trifluoromethyl) hexane (HFE-7500); 1,1,1,2,3,3,3-heptafluoropropane
(HFC 227ea); methyl formate (HCOOCH3); 1,1,1,2,2,3,4,5,5,5-decafluoro-
3-methoxy-4-trifluoromethyl-pentane (HFE-7300); propylene carbonate;
dimethyl carbonate; trans-1,3,3,3-tetrafluoropropene;
HCF2OCF2H (HFE-134);
HCF2OCF2OCF2H (HFE-236cal2);
HCF2OCF2CF2OCF2H (HFE-
338pcc13);
HCF2OCF2OCF2CF2OCF2
H (H-Galden 1040x or H-Galden ZT 130 (or 150 or 180)); trans 1-chloro-
3,3,3-trifluoroprop-1-ene; 2,3,3,3-tetrafluoropropene; 2-amino-2-
methyl-1-propanol; t-butyl acetate; 1,1,2,2- Tetrafluoro -1-(2,2,2-
trifluoroethoxy) ethane; cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-
1336mzz-Z); and perfluorocarbon compounds which fall into these
classes:
* * * * *
[FR Doc. 2018-25891 Filed 11-27-18; 8:45 am]
BILLING CODE 6560-50-P