[Federal Register Volume 87, Number 98 (Friday, May 20, 2022)]
[Proposed Rules]
[Pages 30852-30855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10853]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2019-0698; FRL-7826.1-3-OAR]
RIN 2060-AV31
Protection of Stratospheric Ozone: Listing of Substitutes Under
the Significant New Alternatives Policy Program; Withdrawal of Proposed
Rule
AGENCY: Environmental Protection Agency (EPA).
[[Page 30853]]
ACTION: Proposed rule; withdrawal and partial withdrawal.
-----------------------------------------------------------------------
SUMMARY: On October 6, 2021, the U.S. Environmental Protection Agency
issued a supplemental proposed rulemaking under the Significant New
Alternatives Policy program to list certain substitutes to ozone-
depleting substances in the foam blowing sector, extruded polystyrene:
Boardstock and billet end-use, as acceptable, subject to narrowed use
limits, from the effective date of a subsequent final rule until
January 1, 2023. This followed EPA's June 12, 2020, initial proposal
which proposed to list three foam blowing agents, which are
hydrofluorocarbon blends, as acceptable. Taking into consideration
information available to EPA since issuance of that initial proposal,
EPA proposed narrowed use limits and time-limited use of the
substitutes in the supplemental proposal. Based on further information
available to EPA, EPA is now withdrawing the proposed listings for the
three foam blowing agents described in the initial and supplemental
proposals. This document summarizes the proposed listings and provides
an explanation for the Agency's decision not to finalize the proposed
actions.
DATES: The U.S. EPA is withdrawing the proposed rule published on
October 6, 2021 (86 FR 55549; FRL-7826.1-02-OAR); and is partially
withdrawing the proposed rule published on June 12, 2020 (85 FR 35874;
FRL-10009-66-OAR), by withdrawing the listings described in the table
(``SUMMARY OF PROPOSED NEW LISTINGS FOR XPS FOAM BLOWING AGENTS'')
published at 85 FR 35888-35889 on June 12, 2020, as of May 20, 2022.
ADDRESSES: EPA established a docket for this action under Docket ID No.
EPA-HQ-OAR-2019-0698. All documents in the docket are listed on the
http://www.regulations.gov website. Although listed in the index, some
information may not be publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard-
copy form. Publicly available docket materials are available
electronically through http://www.regulations.gov.
Out of an abundance of caution for members of the public and our
staff, the EPA Docket Center and Reading Room are closed to the public,
with limited exceptions, to reduce the risk of transmitting COVID-19.
Our Docket Center staff will continue to provide remote customer
service via email, phone, and webform. For further information on the
EPA Docket Center services and the current status, please visit us
online at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: John Feather, U.S. Environmental
Protection Agency, Stratospheric Protection Division; telephone number
202-564-1230; or email address: [email protected]. You may also
visit our website at https://www.epa.gov/ozone-layer-protection for
further information.
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' ``the Agency,'' or ``our'' is used, we mean EPA. Acronyms that
are used in this rulemaking that may be helpful include:
AIM Act--American Innovation and Manufacturing Act
CAA--Clean Air Act
CBI--Confidential Business Information
CFR--Code of Federal Regulations
CO2--Carbon dioxide
EPA--Environmental Protection Agency
FR--Federal Register
GWP--Global Warming Potential
HCFC--Hydrochlorofluorocarbon
HCFO--Hydrochlorofluoroolefin
HFC--Hydrofluorocarbon
HFO--Hydrofluoroolefin
NAICS--North American Industrial Classification System
NPRM--Notice of Proposed Rulemaking
ODS--Ozone-depleting substances
SNAP--Significant New Alternatives Policy
XPS--Extruded Polystyrene: Boardstock and Billet
Table of Contents
I. General Information
A. Does this action apply to me?
B. Why is EPA issuing this withdrawal of the proposed actions?
C. What is the Agency's authority for this action?
II. Background
A. 2020 Notice of Proposed Rulemaking (NPRM)
B. 2021 Supplemental Proposal
C. Comments Received
D. Additional Information That EPA Considered
III. How does EPA intend to proceed?
IV. Impact Analysis
V. Statutory and Executive Order Reviews
I. General Information
A. Does this action apply to me?
This action is directed to the public in general and may be of
particular interest to regulated entities under the following North
American Industrial Classification System (NAICS) codes:
All Other Basic Organic Chemical Manufacturing (NAICS 325199)
Polystyrene Foam Product Manufacturing (NAICS 326140)
B. Why is EPA issuing this withdrawal of the proposed actions?
This document serves the following purposes:
1. It announces to the public that EPA is withdrawing proposed
listings under EPA's Significant New Alternatives Policy (SNAP) program
for three foam blowing agents for which the Agency no longer intends to
issue a final rule; and
2. It officially terminates the ongoing rulemaking activity, which
allows the Agency to close out the individual rulemaking entry for
these actions that appear in EPA's Semiannual Regulatory Agenda.
C. What is the Agency's authority for this action?
EPA's SNAP program implements section 612 of the Clean Air Act
(CAA), including section 612(c) provisions concerning rulemakings that
restrict replacing ozone-depleting substances (ODS) with any substitute
that the Administrator determines may present adverse effects to human
health or the environment where the Administrator has identified an
alternative that (1) reduces the overall risk to human health and the
environment and (2) is currently or potentially available. Section
612(c) also requires EPA to publish lists of those substitutes which
are unacceptable or acceptable for specific uses. Section 612(d) grants
the right to any person to petition EPA to add a substance to, or
delete a substance from, the lists published in accordance with section
612(c). Section 612(e) also requires producers of substitutes for class
I ODS to notify the Agency of introductions of these substances into
interstate commerce for significant new uses, along with unpublished
health and safety studies. The regulations for the SNAP program are
promulgated at 40 CFR part 82, subpart G, and the Agency's process for
reviewing SNAP submissions is described in regulations at 40 CFR
82.180. For additional information on the SNAP program, visit the SNAP
portion of EPA's Ozone Layer Protection website at www.epa.gov/snap.
Copies of the full lists of acceptable substitutes for ODS in all
industrial sectors are available at www.epa.gov/snap/substitutes-sector. For more information on the Agency's process for administering
the SNAP program or criteria for evaluation of substitutes, refer to
the initial SNAP rulemaking published March 18, 1994 (59 FR 13044),
codified at 40 CFR part 82, subpart G. SNAP decisions and the
appropriate Federal Register citations are found at: www.epa.gov/snap/snap-regulations. Substitutes listed as
[[Page 30854]]
unacceptable; acceptable, subject to narrowed use limits; or
acceptable, subject to use conditions, are also listed in the
appendices to 40 CFR part 82, subpart G.
II. Background
A. 2020 Notice of Proposed Rulemaking (NPRM)
As one component of the June 12, 2020, NPRM (85 FR 35874) (``2020
NPRM''),\1\ EPA, as noted in a table titled ``Summary of Proposed New
Listings for XPS Foam Blowing Agents'' on 85 FR 35888-35889, proposed
to list three blends containing hydrofluorocarbon (HFC)-134a as
acceptable foam blowing agents in extruded polystyrene: Boardstock and
billet (XPS): Blends of 40 to 52 percent HFC-134a by weight and the
remainder hydrofluoroolefin (HFO)-1234ze(E); blends of 40 to 52 percent
HFC-134a with 40 to 60 percent HFO-1234ze(E) and 10 to 20 percent each
water and carbon dioxide (CO2) by weight; and blends with a
maximum of 51 percent HFC-134a, 17 to 41 percent HFC-152a, up to 20
percent CO2, and 1 to 13 percent water. EPA proposed to list
those three specific blends of HFC-134a as acceptable in XPS, stating
that ``[t]hese blends have higher [global warming potentials] GWPs and
are otherwise comparable or lower in risk than other alternatives
listed as acceptable; however, EPA is taking this action because the
Agency believes that other acceptable alternatives are not generally
available for most needs under this end-use.'' 85 FR 35888.
---------------------------------------------------------------------------
\1\ Other provisions of that proposal related to refrigeration
and air conditioning and to fire suppression were finalized in a
rule issued May 6, 2021 (86 FR 24444).
---------------------------------------------------------------------------
EPA also stated in the 2020 NPRM that, for substitutes to be
``available'' in the XPS end-use, they must be capable of blowing foam
that meets the technical needs of XPS products including density and
ability to meet testing requirements of building codes and standards,
such as for thermal efficiency, compressive strength, and flame and
smoke generation (85 FR 35888). Further, EPA noted that the company
that initially submitted the three blends to the SNAP program for
review indicated their difficulty meeting requirements for insulation
value (``R-value'') with neat \2\ acceptable blowing agents such as
HFO-1234ze(E), HFC-152a, and CO2.\3\ The submitter indicated
that if in some cases it could meet R-value requirements with those
neat blowing agents, these alternatives were not able to meet other
requirements such as compressive strength, density and thickness, or
fire test results. The submitter also identified challenges with
meeting code requirements for XPS products manufactured with flammable
substitutes (e.g., HFC-152a, light saturated hydrocarbons C3-C6, and
methyl formate) and provided examples of failed test results \4\ (85 FR
35888).
---------------------------------------------------------------------------
\2\ Individual, unblended blowing agents.
\3\ DuPont, 2019. December 17, 2019 Letter from DuPont
Performance Building Solutions to EPA. Docket ID EPA-HQ-OAR-2019-
0698-0008.
\4\ DuPont, 2019. Op. cit.
---------------------------------------------------------------------------
EPA stated that it appeared that only one of the substitutes that
the Agency believed would be available for use in XPS foam as of
January 1, 2021 at the time of the final rule issued July 20, 2015 (80
FR 42870) (``2015 Rule''),\5\ was in fact available, and that it likely
could only be used to meet the needs for some portion of the XPS foams
market.\6\ Based on concerns about ensuring that the needs of the full
XPS foams market in the United States could be met and not limiting the
choice of acceptable substitutes to only one option, EPA proposed to
list three additional blowing agent options for XPS that have been
proven to work for this end-use.
---------------------------------------------------------------------------
\5\ The 2015 Rule, among other things, changed the listings for
certain HFCs and blends from acceptable to unacceptable in various
end-uses in the aerosols, refrigeration and air conditioning, and
foam blowing sectors. After a challenge to the 2015 Rule, the United
States Court of Appeals for the District of Columbia Circuit (``the
court'') issued a partial vacatur of the 2015 Rule ``to the extent
it requires manufacturers to replace HFCs with a substitute
substance'' (see Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 462
(D.C. Cir. 2017)) and remanded the rule to the Agency for further
proceedings. The court also upheld EPA's listing changes as being
reasonable and not ``arbitrary and capricious.'' See Mexichem Fluor
v. EPA, 866 F.3d at 462-63.
\6\ In the 2020 NPRM, EPA further stated that the set of
products that may be able to be manufactured with that substitute,
HFC-152a, would account for a minority of the current market for XPS
(85 FR 35888, footnote 54). As discussed further below, information
available to the Agency since that proposal indicates that the
statement that HFC-152a was being used alone was likely incorrect.
---------------------------------------------------------------------------
B. 2021 Supplemental Proposal
EPA issued a supplemental proposal on October 6, 2021 (86 FR
55549), because of new information on the availability of substitutes
which, among other things, included information on the introduction of
a new substitute, blends of 10 to 99 percent by weight HFO-1336mzz(Z)
and the remainder HFC-152a, which EPA listed as acceptable for use in
XPS on December 11, 2020 (85 FR 79863). In the 2020 NPRM, EPA proposed
to list the three HFC blends for use in XPS as acceptable. In the
supplemental proposal, EPA took another approach by proposing to list
these three HFC blends as acceptable, subject to narrowed use limits,
from the effective date of any final rule to January 1, 2023.
C. Comments Received
EPA received comments on the initial and supplemental proposals
from entities with various interests in foam blowing agents and foam
insulation, including industry organizations for manufacturers of
insulation other than XPS, chemical producers, manufacturers of XPS,
manufacturers of other types of foam insulation, and environmental
organizations. The two proposals addressed similar issues and similar
issues were raised in public comment, with some updated information
related to the supplemental proposal. The comments are briefly
summarized below and are available in full in Docket EPA-HQ-OAR-2019-
0698.
Multiple commenters requested that EPA withdraw the proposal and/or
the supplemental proposal. Commenters raised concerns with the proposed
listings, with some stating that there are other alternatives
commercially available internationally with lower GWP for use in XPS
boardstock. Commenters also provided information on the commercial
availability in the United States of new XPS products using blowing
agents with GWPs lower than 150 from all U.S. manufacturers of XPS. One
major chemical producer added that their lower-GWP replacement foam
blowing agent for HFC-134a used in the XPS end-use has been fully
commercialized and has been manufactured in the United States since
2014. They stated that since then, this product has been adopted by a
number of key XPS foam manufacturers and provides customers significant
GWP-reduction benefits in a market that will continue to value and
require such benefits. A manufacturer of XPS stated that in Europe, a
large manufacturer of XPS with CO2 asserted that
CO2 as a blowing agent is clearly a viable technology with
no supply barrier. A major chemical producer stated that HFO-1234ze(E)
has been used commercially for many years and is used in the
manufacture of XPS products by several firms in several countries
around the globe where there are regulations requiring the use of safer
blowing agents, including a large manufacturer of XPS in Europe. An
environmental organization provided information on European products
that contain CO2 and various blends of either CO2
or HFO-1234ze(E), including products from a European XPS manufacturer.
Some commenters stated that all three U.S. manufacturers of XPS are now
manufacturing products using lower-GWP blowing agents.
[[Page 30855]]
One commenter, a manufacturer of XPS, and the company that
submitted the three blends to the SNAP program for review, had
supported the initial proposal of listing the blends as acceptable, and
in the supplemental proposal supported the option of listing the blends
as acceptable, subject to narrowed use limits, for use in XPS until
January 1, 2023. That company stated that suitable alternatives with
sufficient performance parameters were not available, that these
listings are necessary to bridge the transition to such alternatives,
and that the near-term supply of alternatives was uncertain.
D. Additional Information That EPA Considered
After issuing the supplemental proposal, EPA listed three more
substitutes with lower-GWP as acceptable for use in XPS (January 20,
2022; 87 FR 3037). The three substitutes are: Blends of 10 to 90
percent HFO-1234ze(E) by weight and the remainder
hydrochlorofluoroolefin (HCFO)-1233zd(E); blends of 10 to 90 percent
HFO-1234ze(E) by weight and the remainder HFC-152a; and blends of zero
to 100 percent HFO-1234ze(E), zero to 70 percent methyl formate, zero
to 60 percent HFC-152a, zero to 60 percent CO2, and zero to
60 percent water. At least one of the three U.S. manufacturers of XPS
is using one of these substitutes in manufacturing its products.
III. How does EPA intend to proceed?
Based on our consideration of these comments and the emergence of
new listings of substitutes for this end-use, we believe lower risk
alternatives are available and technically feasible. Accordingly, an
acceptable listing, as proposed in the 2020 NPRM, is not appropriate,
and a rulemaking effort for a limited duration, as proposed in the 2021
Supplemental Proposal, is not warranted. The information above
demonstrates that alternatives are available and technically feasible
that pose overall risk to human health and the environment comparable
to or lower than that of other acceptable substitutes for use in XPS.
The blends of HFC-134a described above remain unacceptable, as listed
in appendix U to 40 CFR part 82 subpart G. This notice serves to
provide transparency and clearly notify the public and those with
particular interest of how we intend to proceed with respect to these
listings.
For these reasons, EPA is withdrawing the proposed rule published
on October 6, 2021 (86 FR 55549; FRL-7826.1-02-OAR), along with
withdrawing the portions of the proposed rule published on June 12,
2020 (85 FR 35874; FRL-10009-66-OAR), that relate to listing as
acceptable the three HFC blends for use in XPS.
IV. Impact Analysis
Because the EPA is not promulgating any regulatory requirements,
there are no compliance costs or impacts associated with this action.
V. Statutory and Executive Order Reviews
This action does not establish new regulatory requirements. Hence,
the requirements of other regulatory statutes and Executive Orders that
generally apply to rulemakings (e.g., the Unfunded Mandate Reform Act)
do not apply to this action.
Michael S. Regan,
Administrator.
[FR Doc. 2022-10853 Filed 5-19-22; 8:45 am]
BILLING CODE 6560-50-P