Nominations for Exemptions to the Production and Import Phaseout of Ozone Depleting Substances for Uses Satisfying the Montreal Protocol ``Essential Use'' Criteria

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5092-7]

Nominations for Exemptions to the Production and Import Phaseout

of Ozone Depleting Substances for Uses Satisfying the Montreal Protocol

``Essential Use'' Criteria

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Through this notice, the U.S. Environmental Protection Agency

is requesting applications for consideration at the Seventh Meeting of

the Parties to the Montreal Protocol to be held in late 1995 for

exemptions to the production and import phase-out for ozone-depleting

substances including halons in 1996 and subsequent years, and for all

other Class I substances for production in 1997 and subsequent years

(including CFC-11, CFC-12, CFC-113, CFC-114, CFC-115, CFC-13, CFC-111,

CFC-112, CFC-211, CFC-212, CFC-213, CFC-214, CFC-215, CFC-216, CFC-217,

Carbon Tetrachloride, and Methyl Chloroform).

Nominations for essential use exemptions for production in 1996 for

Class I substances other than halon were solicited in a previous

Federal Register Notice (58 FR 29410; May 20, 1993) and recommendations

by the Montreal Protocol Technology and Economics Assessment Panel have

been forwarded to the Parties for consideration at the Sixth Meeting of

the Parties, to be held October 3-5, 1994. Therefore no additional

applications for essential uses for these Class I substances in 1996

will be considered in this data call. The results of the previous

solicitations and subsequent actions taken by the Protocol Parties are

described in this Notice.

DATES: Applications for essential use exemptions eligible for

consideration at the Seventh Meeting of the Parties must be submitted

to EPA no later than 45 days after date of publication of this notice

in order for the U.S. government to complete its review and to submit

its nominations to the United Nations Environment Programme (UNEP) and

the Protocol Parties by January 1, 1995.

ADDRESSES: Karen Metchis, Program Manager; Essential Use Exemptions;

Mail Stop 6205J; U.S. Environmental Protection Agency; 401 M Street,

S.W.; Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Karen Metchis, Substitutes Analysis

and Review Branch, Stratospheric Protection Division (6205J), Office of

Atmospheric Programs, Environmental Protection Agency, 401 M Street,

S.W., Washington, D.C. 20460; Phone (202) 233-9193; FAX (202) 233-9579.

General information may be obtained from the Stratospheric Ozone

Hotline at 1-800-296-1996 or (202) 775-6677.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background--The Essential Use Nomination Process

II. Summary of Actions to Date

III. Request for Applications for Production of Halons in 1996, and

of All Class I Substances in 1997 and Subsequent Years

I. Background--The Essential Use Nomination Process

As described in previous Federal Register notices, the Parties to

the Montreal Protocol on Substitutes that Deplete the Ozone Layer (the

Parties) agreed during the Fourth Meeting in Copenhagen on November 23-

25, 1992, to accelerate the phase-out schedules for Class I ozone-

depleting substances. Specifically, the Parties agreed to phase out the

production of halons by January 1, 1994 and the production of other

Class I substances, except Methyl Bromide, by January 1, 1996. The

Parties also took decisions and adopted resolutions on a variety of

other matters, including the criteria to be used for allowing

``essential use'' exemptions from the phase out of production and

importation of controlled substances for uses considered essential.

Language regarding essential uses was added to the Protocol provisions

in Article 2 governing the control measures. Decision IV/25 of the

Fourth Meeting of the Protocol details the specific criteria and review

process for granting essential use exemptions. The Parties recognized

the importance of including such an exemption because of the

accelerated phaseout dates for these chemicals.

At the Fifth Meeting of the Parties held on November 17-19, 1993 in

Bangkok, the Parties modified the timetable for the nomination of

essential uses for all controlled substances. Pursuant to Decision V/

18, Parties may nominate production of a controlled substance for uses

meeting the essential use criteria by January 1 of each year. Decisions

on such nominations will be taken by the Parties in that year in which

the nomination is made for production in any subsequent year. In

accordance with this new timetable, the UNEP Montreal Protocol

Technology and Economics Assessment Panel (the Panel) and its relevant

Technical Options Committees will review and develop recommendations on

the nominations and submit their report to the Protocol Parties.

Nominations can be for production in any year after the date on

which the substance is phased out and can be for more than one calendar

year. For example, a nomination could be submitted by January 1, 1995

for a halon essential use Decision at the Meeting of the Parties in

late 1995 to allow for production of halons beginning in 1996. If

adequate supplies of halons were available for 1996, but thought to be

unavailable beginning in 1997, an application in 1995 could request the

production exemption for 1997. The Parties may choose to grant the

production exemption for one or more of the nominated years, but each

approved or pending application can be reconsidered and modified by the

Parties at their annual meetings. In cases where companies believe they

have a use meeting the essential use criteria but where an adequate

supply of the controlled substance is currently available, an

application generally need not be made at this time. Applications for

these uses may be made at a later date for consideration at subsequent

meetings of the Parties, and EPA intends to solicit applications

annually. Thus, the process permits, but does not require, that

applications for essential uses for future years may be made prior to

those years to facilitate planning.

In establishing these essential uses exemptions, the Parties set

out criteria to apply to identify eligible essential uses and

established a process for the Parties to decide which uses would

qualify under this provision. Decision IV/25 states that ``a use of a

controlled substance should qualify as essential only if: (i) It is

necessary for the health, safety or is critical for the functioning of

society (encompassing cultural and intellectual aspects); and (ii)

there are no available technically and economically feasible

alternatives or substitutes that are acceptable from the standpoint of

environment and health''. In addition, the Parties agreed ``that

production and consumption, if any, of a controlled substance, for

essential uses should be permitted only if: (i) All economically

feasible steps have been taken to minimize the essential use and any

associated emission of the controlled substance; and (ii) the

controlled substance is not available in sufficient quantity and

quality from the existing stocks of banked or recycled controlled

substances.''

Any essential use exemptions would also have to comply with the

provisions of the Clean Air Act (CAA). Section 604 authorizes the

granting of specific exemptions from the phaseout schedules contained

in the Clean Air Act. Specific to halons, it allows exemptions for

aviation safety [section 604(d)(3)], national security [section

604(f)], and fire suppression and explosion prevention [section

604(g)]. Other exemptions specified in section 604 include essential

uses of methyl chloroform [section 604(d)(1)]; uses of Class I

substances in medical devices [section 604(d)(2)]; and uses of CFC-114

for national security [section 604(f)]. To the extent that an

accelerated phaseout schedule has been adopted under the Montreal

Protocol, EPA can legally provide exemptions for uses not specified in

the CAA, so long as these exemptions do not exceed the time limits

allowed in the production reduction schedule contained in section

604(a). Since section 604(b) specifies the phaseout date for Class I

substances as 2000 (2002 for methyl chloroform), that section

effectively limits the authority of EPA to provide essential use

exemptions for periods after the CAA's production termination dates,

other than for the specific exemptions authorized by section 604.

The first step in the process to qualify a use as essential under

the Protocol is for the user to carefully consider whether the use of

the controlled substance meets the Protocol criteria. If the user

believes that it does, the user should notify EPA of the candidate use

and provide sufficient information for EPA and the Protocol Parties to

evaluate that use for consistency with the criteria adopted by the

Parties in Copenhagen. The Panel has issued a handbook entitled

``Handbook on Essential Use Nominations,'' available from EPA, to guide

applicants. EPA will review the candidate for exemption and will work

with other interested federal agencies to determine whether or not it

should be submitted to the Ozone Secretariat for further consideration.

Nominations submitted to the Ozone Secretariat by the U.S. or other

Parties will then be directed to the Panel and its Technical Options

Committees which will review submissions and prepare recommendations to

the Parties for exemptions. The Panel will review these nominations to

determine whether the eligibility criteria have been satisfied and will

examine the expected duration of the essential use, emission controls

for the essential use application, sources of already produced

controlled substances that are available to meet the essential use, and

the steps necessary to ensure that alternatives and substitutes are

available as soon as possible for the proposed essential use. The

Parties also instructed the Panel to consider the environmental

acceptability, health effects, economic feasibility, availability and

regulatory status of alternatives and substitutes. The Panel's

recommendations are then considered by the Parties who subsequently

take final action on each proposed nomination. If the Parties decide

that a specified use of a controlled substance is essential, EPA will

propose regulatory changes to reflect decisions by the Parties

consistent with the CAA.

If a user of the controlled substance determines that other

alternatives are not feasible and that sources of future supply do not

exist, the user should prepare and submit to EPA an essential use

application as described below.

II. Summary of Actions to Date

The initial cycle of implementing the essential use Decision has

been completed in the context of halons which were phased out of

production at the end of 1993. EPA issued a Federal Register notice

requesting nominations for essential uses of halons (February 2, 1993;

58 FR 6786). In response, the Agency received over ten nominations, but

was able to work with applicants to resolve their near-term

requirements. As a result, the U.S. did not nominate any uses for

continued halon production in 1994. About a dozen other nations

submitted nominations which were reviewed by the Technical and

Economics Assessment Panel. Because the Panel determined that in each

case alternatives existed or that the existing supply of banked halons

was adequate to meet near-term needs, it did not recommend approval of

any of the nominations. In November of 1993, at the Fifth Meeting, the

Parties unanimously adopted the recommendation of the Panel not to

approve any essential uses for the production or consumption of halons

in 1994.

EPA issued a second notice for essential use nominations for halons

on October 18, 1993 (58 FR 53722). These nominations covered possible

production of halons in 1995 for essential uses. In response to this

inquiry, EPA received no nominations.

Only one nomination (from France) was received by the Panel for

production and consumption of halons for an essential use in 1995. The

Panel did not recommend approval of this nomination.

EPA also issued a Federal Register notice requesting nominations

for essential use applications which would need to continue beyond the

1996 phaseout of consumption and production allowances for CFCs, methyl

chloroform, carbon tetrachloride, and hydrobromofluorocarbons (May 20,

1993, 58 FR 29410). EPA received 20 applications in response to this

notice. For several of these applications, EPA determined that the

criteria contained in Decision IV/25 had not been satisfied. For

example, two applications sought CFCs for servicing existing air-

conditioning equipment. EPA rejected these applications on the basis

that if all economically feasible steps were taken prior to the 1996

phaseout, then a combination of retrofits and existing supplies of

banked and recycled CFCs would be adequate to meet near term

requirements. However, in rejecting these nominations, the United

States noted that servicing existing air-conditioning and refrigeration

remains a major challenge to the successful transition from the use of

CFCs and that a future nomination in this area might be necessary if a

combination of retrofits, replacements, recycling, recovery at

disposal, and banking do not adequately address these needs.

Of the responses to the Federal Register request for essential use

applications, the United States submitted essential use nominations to

the Protocol (letter from Pomerance to UNEP, September 27, 1993) for

the following uses of CFCs:

metered dose inhalers and other selected medical

applications;

a bonding agent for the Space Shuttle;

aerosol wasp killers;

limited use in a specified bonding agent and polymer

application; and

a generic application for laboratory uses under specified

limitations.

Nominations from the U.S. and other countries for over 200 specific

uses were submitted to the Montreal Protocol Secretariat and provided

to the Technical and Economics Assessment Panel for review. In March

1994, the Panel issued the ``1994 Report of the Technology and Economic

Assessment Panel.'' The Report includes the Panel's recommendations for

essential-use production and consumption exemptions. The Panel

recommended that essential use exemptions be granted for nominations

of:

methyl chloroform in solvent bonding of the Space Shuttle;

CFCs used in metered dose inhalers; and

specific controlled substances needed for laboratory and

analytical applications.

For each of the other nominations submitted, the Panel determined

that one or more of the criteria for evaluating an essential use had

not been satisfied. For example, in the case of several of the U.S.

nominations, the Report states that alternatives are available and

therefore the essential use exemption is not warranted.

The next meeting of the Parties is scheduled for October 1994. At

that session the Parties will review the following recommendations by

the Technology and Economic Assessment Panel and make final decisions

on this round of essential use nominations.

Essential Uses Recommendation by the UNEP Technology and Economic

Assessment Panel

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Company Year Chemical (Metric tons)

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Metered Dose Inhalers

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International 1996 CFC-11............ 749.8

Pharmaceutical &

Aerosol Consortium.

CFC-12............ 2353.2

CFC-114........... 314.1

1997 CFC-11............ 658.3

CFC-12............ 2166.5

CFC-114........... 311.4

Sterling Winthrop.. 1996 CFC-12............ 10.2

CFC-114........... 29.6

1997 CFC-12............ 10.5

CFC-114........... 31.7

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Space Shuttle Solvent

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NASA/Thiokol....... 1996 Methyl Chloroform. 56.8

1997 Methyl Chloroform. 56.8

1998 Methyl Chloroform. 56.8

1999 Methyl Chloroform. 56.8

2000 Methyl Chloroform. 56.8

2001 Methyl Chloroform. 56.8

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Laboratory and Analytical Applications

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Global Exemption... 1996 CFCs, Methyl No quantity

Chloroform, specified.

Carbon

Tetrachloride.

1997 CFCs, Methyl No quantity

Chloroform, specified.

Carbon

Tetrachloride.

1998 CFCs, Methyl No quantity

Chloroform, specified.

Carbon

Tetrachloride.

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The nomination for essential uses in 1996, 1997 and 1998 of CFCs,

methyl chloroform and carbon tetrachloride in laboratory and analytical

applications is being recommended by the Technology and Economic

Assessment Panel for a global exemption which will not specify the

quantity granted to each Party. The Panel describes the many analytical

and laboratory procedures for which small quantities of controlled

substances are now used and for which applications were received, such

as: equipment calibration; extraction solvents, diluents, or carriers

for specific chemical analyses; inducing chemical-specific health

effects for biochemical research; and other critical purposes in

research and development where substitutes are not readily available or

where standards set by national and international agencies require

specific use of a controlled substance. The Panel recommendation for a

global exemption pertains only to 1996, 1997 and 1998 and refers to the

manufacture of CFCs, methyl chloroform and carbon tetrachloride of very

high purity to be packaged in small containers.

EPA will be issuing a Notice of Proposed Rulemaking (NPRM) in the

near future which will propose to use the applications that are agreed

to by the Parties to make specific allocations of essential-use

allowances. Although the Panel has received applications for essential-

use exemptions beyond 1997, as described in today's Notice, EPA's

upcoming NPRM will only include those recommendations by the Panel for

1996 and 1997. Future Rulemakings will address Decisions taken by the

Parties for exemptions beyond 1997. Final essential-use allowances

promulgated by EPA may not exceed the exemptions adopted by the

Parties.

III. Request for Applications for Production of Halons in 1996, and of

all Class I Substances in 1997 and Subsequent Years

Through this Notice, EPA requests applications for essential use

exemptions for halons for production in 1996 or after. Eligible

applications will be nominated to the Secretariat for consideration at

the Seventh Meeting of the Parties to be held in September, 1995 or

later. Applications for essential use exemptions for halon should be

submitted to EPA no later than 45 days after the date of publication of

this notice to allow time for a review of the information before the

deadline for submitting nominations to the Secretariat.

Nominations for exemptions for production in 1996 of other Class I

substances have previously been considered, and thus may not be

submitted for consideration at this time (58 FR 29410; May 20, 1993).

However, applications for other Class I substances for essential use

production in 1997 or beyond may be submitted at this time for

consideration in 1995.

As described previously, the Parties established criteria to apply

to identifying essential uses and a process to decide which uses would

qualify under Decision IV/25. The Decision states that ``a use of a

controlled substance should qualify as essential only if: (i) It is

necessary for the health, safety or is critical for the functioning of

society (encompassing cultural and intellectual aspects); and (ii)

there are no available technically and economically feasible

alternatives or substitutes that are acceptable from the standpoint of

environment and health.'' In addition, the Parties agreed ``that

production and consumption, if any, of a controlled substance, for

essential uses should be permitted only if: all economically feasible

steps have been taken to minimize the essential use and any associated

emission of the controlled substance; and the controlled substance is

not available in sufficient quantity and quality from the existing

stocks of banked or recycled controlled substances.'' When submitting a

nomination to the Secretariat, the U.S. must be able to demonstrate

that the proposed applicants meet these criteria. The burden of proof

is on the nominating country, and applications failing to prove that

these criteria have been met will be rejected by the Parties. Thus, it

is incumbent upon applicants to ensure that all applications are

supported by complete and detailed documentation including the types of

information outlined in the Handbook on Essential Use Nominations to

allow EPA to determine whether to submit the applications as

nominations, and to allow EPA to present a strong and credible case

before the Parties and the recommending Panel.

All requests for nominations submitted to EPA must present the

following information in the manner prescribed in the Panel Handbook.

EPA will not forward incomplete or inadequate nominations to the

Montreal Protocol Secretariat for consideration, and therefore

recommends that applicants make every effort to provide the requested

information. Applicants should contact the Essential Use Program

Manager to obtain a copy of the Handbook on Essential Use Nominations,

prepared by the Panel, for guidance on preparing nominations. As noted

in that book, nominations should, at a minimum:

(1) Provide details of the type, quantity and quality of the

controlled substance that is requested to satisfy the use that is the

subject of the nomination. Indicate the period of time and the annual

quantities of the controlled substance that is requested.

(2) Provide a detailed description of the use.

(3) Explain why this use is necessary for health and/or safety, or

why it is critical for the functioning of society.

(4) Explain what other alternatives and substitutes have been

employed to reduce the dependency on the controlled substance for this

application.

(5) Explain what alternatives were investigated and why they were

not considered adequate (technically, economically or legally).

(6) Describe the measures that are proposed to eliminate all

unnecessary emissions. At a minimum, this explanation should include

design considerations and maintenance procedures.

(7) Explain what efforts are being undertaken to employ other

measures for this application in the future.

(8) Explain whether the nomination is being made because national

or international regulations require use of the controlled substance to

achieve compliance. Provide full documentation including the name,

address, phone and fax number of the regulatory authority requiring use

of the controlled substance and provide a full copy or summary of the

regulations. Explain what efforts are being made to change such

regulations or to achieve acceptance on the basis of alternative

measures that would satisfy the intent of the requirement.

(9) Describe the efforts that have been made to acquire stockpiled

or recycled controlled substance for this application both from within

your nation and internationally. Explain what efforts have been made to

establish banks for the controlled substance.

(10) Briefly state any other barriers encountered in attempts to

eliminate the use of the controlled substance for this application.

(11) Demonstrate consistency with CAA provisions on essential uses.

All nominations should be sent to: Karen Metchis, Program Manager,

Essential Use Exemptions, Mail Stop 6205J, Environmental Protection

Agency, Washington, DC 20460, FAX: (202) 233-9579, Phone: (202) 233-

9193.

EPA will work with submitters, other interested federal agencies,

and outside experts to review this information and forward nominations

to the Protocol's Secretariat for consideration as appropriate and

consistent with any CAA limitations.

Dated: October 4, 1994.

Robert D. Brenner,

Acting Assistant Administrator, Office of Air and Radiation.

[FR Doc. 94-25743 Filed 10-17-94; 8:45 am]

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