[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]


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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.

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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.
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    \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).
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    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).
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    \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.
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    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.
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    \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.
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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