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-5318-2]

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 Eighth Meeting of

the Parties to the Montreal Protocol to be held in late 1996 for

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

substances in 1997 and subsequent years (including halons, 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 or

importation in 1996 and beyond for Class I substances were solicited in

previous Federal Register Notices (58 FR 29410, May 20, 1993; 59 FR

52544, October 18, 1994) and recommendations by the Montreal Protocol

Technology and Economics Assessment Panel have been forwarded to the

Parties for consideration at the Seventh Meeting of the Parties, to be

held December 5-7, 1995. 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 Eighth Meeting of the Parties must be submitted to

EPA no later than 30 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, 1996.

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

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

SW.; 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

SW., Washington, D.C. 20460; Phone (202) 233-9193; FAX (202) 233-9577.

General information may be obtained from the Stratospheric Ozone

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

[[Page 54350]]

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 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 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 subsequent years. 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 may be for production or importation in any year after

the date on which the substance is phased out and may be for more than

one calendar year. For example, a nomination could be submitted by

January 1, 1996 for a halon essential use Decision at the Meeting of

the Parties in late 1996 to allow for production of halons beginning in

1997. If adequate supplies of halons were available for 1997, but

thought to be unavailable beginning in 1998, an application in 1996

could request the essential use exemption for production or importation

in 1998. The Parties may choose to grant the exemption for one or more

of the nominated years, but each approved or pending application may be

reconsidered and modified by the Parties at their annual meetings. In

cases where companies believe they have a use that meets 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, applications for essential uses for future years to facilitate

planning.

In establishing these essential uses exemptions, the Parties set

out criteria 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 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 United Nations 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

[[Page 54351]]

reflect decisions by the Parties consistent with the CAA.

If a user of the controlled substance determines that it has a use

that meets the essential use criteria discussed above, the user should

prepare and submit to EPA an essential use application as described

below.

II. Summary of Actions to Date

EPA issued the following Federal Register notices requesting

nominations for essential uses of halons and other Class I substances:

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Year of

Substance production FR notice Meeting

-------------------------------------------\1\------------------------------------------------------------------

Halons.............................. 1994 February 2, 1993, 58 FR 6786 1993--Fifth.

All other class I substances........ 1996 May 20, 1993, 58 FR 29410... 1993--Fifth.

Halons.............................. 1995 October 18, 1993, 58 FR 1994--Sixth.

53722.

Halons other class I substances..... 1995 October 18, 1994, 59 FR 1995--Seventh.

1997 52544.

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\1\ And subsequent years.

Two cycles implementing the essential use Decision have been

completed, and the third will soon be completed when the Parties meet

in December, 1995. To date, the Parties to the Protocol have granted

essential use exemptions only for CFC-11, CFC-12 and CFC-114 for use in

metered dose inhalers (MDIs); methyl chloroform for use as a solvent on

the Space Shuttle; and a global exemption for CFCs, methyl chloroform

and carbon tetrachloride in laboratory uses under specified

limitations. No exemptions have been granted for halons. A more

detailed description of actions taken at the Fifth and Sixth meetings

can be found in a prior Federal Register notice (59 FR 52544, October

18, 1994). EPA subsequently allocated the essential uses allowances

approved by the Parties for the United States (60 FR 24970, May 10,

1995).

In response to the October 18, 1994 Federal Register notice (59 FR

52544) requesting nominations for production of CFCs and halons in 1996

and beyond, EPA received 24 applications. EPA worked with candidates to

ensure applications met the criteria set forth by the Parties.

Subsequently, the United States submitted the five nominations to the

Ozone Secretariat for consideration at the Seventh Meeting. The

nominations were for:

An adjustment to a previously granted exemption for CFC-11

and CFC-12 for use in metered dose inhalers (MDI), 1996 and 1997;

CFC-12 and CFC-114 for MDI treatment of rhinitis, 1996 and

1997;

CFC-11, CFC-12 and CFC-114 for generic MDIs, 1996 and

1997;

Methyl chloroform for use as a solvent on the NASA Space

Shuttle, 1996-2001; and

Methyl chloroform for use as a solvent on the Air Force

Titan Upgraded Solid Rocket Motor, 1996-2001.

Total Essential Use Requests Submitted by the United States

[Metric tonnes]

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1996 1997 1998 1999 2000 2001

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CFC-11.......................... 328 331 ........... ........... ........... ...........

CFC-12.......................... 432 437.2 ........... ........... ........... ...........

CFC-114......................... 19 43.7 ........... ........... ........... ...........

Methyl Chloroform............... 0.29 0.37 57 56.99 56.87 56.87

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Nominations from the U.S. and other countries were submitted to the

Montreal Protocol Secretariat and provided to the Technical and

Economics Assessment Panel for review. In March 1995, the Panel issued

the ``Supplement to the 1994 Assessments'' containing the ``Report of

the Technology and Economic Assessment Panel.'' The Report includes the

Panel's recommendations for essential-use production and consumption

exemptions. The Panel made the following recommendations for

consideration by the Parties:

Methyl chloroform in specific cleaning, bonding and

surface activation applications in rocket motor manufacturing for the

U.S. Space Shuttle and Titan;

Halon 2402 to be used in the Russian Federation for

special hazards fire protection;

For Metered Dose Inhalers (MDIs) for Asthma and Chronic

Obstructive Pulmonary Disease (COPD) (but not for general nasal use)

nominations, the Panel endorses the overall recommendation to grant

necessary quantities while avoiding the possibility of over-supply;

Specific controlled substances needed for laboratory and

analytical applications.

The Panel was unable to recommend the nomination of Poland for CFCs

for servicing of refrigeration equipment.

The Seventh Meeting of the Parties is scheduled for December 5-7,

1995. At that session the Parties will review the recommendations by

the Technology and Economic Assessment Panel and make final decisions

on this round of essential use nominations.

Once the Parties have taken a decision on this year's nominations,

EPA will issue a Notice of Proposed Rulemaking (NPRM) to propose to

grant the exemptions under the Clean Air Act and to make specific

allocations of the essential-use allowances. Despite the predisposition

of the Parties to consider nominations only for two year windows, the

EPA is still requesting that applications include projections of

potential future needs in order to help us plan for future nominations.

Final essential-use allowances promulgated by EPA may not exceed the

exemptions adopted by the Parties.

III. Request for Applications for Production of All Class I Substances

in 1997 and Subsequent Years

Through this Notice, EPA requests applications for essential use

exemptions for all class I substances for 1997 or subsequent years.

Eligible applications will be nominated to the

[[Page 54352]]

Secretariat for consideration at the Eight Meeting of the Parties to be

held in September, 1996 or later. Applications for essential use

exemptions should be submitted to EPA no later than 30 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.

As described previously, the Parties established criteria to

identify 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 uses 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 assist EPA in presenting a strong and credible case

before the Parties and the recommending Panel for those nominations.

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 are 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) 233-9577, 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 6, 1995.

Richard D. Wilson,

Acting Assistant Administrator, Office of Air and Radiation.

[FR Doc. 95-26203 Filed 10-20-95; 8:45 am]

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