Protection of Stratospheric Ozone: Reconsideration of the Ban on Fire Extinguishers Containing HCFCs

[[Page 37430]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-5535-6]

RIN 2060-AG19

Protection of Stratospheric Ozone: Reconsideration of the Ban on

Fire Extinguishers Containing HCFCs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Through this action EPA is proposing to amend the Class II

Nonessential Products Ban promulgated under Section 610 of the Clean

Air Act Amendments to provide an exemption for portable fire

extinguishing equipment that contains hydrochlorofluorocarbons (HCFCs)

for non-residential applications. EPA is proposing this exemption based

on new information. EPA believes an exemption is necessary to ensure

that an effective substitute to halon, a class I ozone depleter, is

readily available.

EPA believes that this proposed amendment, while decreasing the

regulatory burden on HCFC extinguishant manufacturers and distributors,

will not compromise the goals of protecting public health and the

environment.

DATES: Comments on this proposal must be received by August 19, 1996 at

the address below. A public hearing, if requested, will be held in

Washington, DC. If such a hearing is requested, it will be held on

August 2, 1996, at 9 a.m., and the comment period would then be

extended to September 3, 1996. Anyone who wishes to request a hearing

should call Cindy Newberg at 202/233-9729 by July 25, 1996. Interested

persons may contact the Stratospheric Protection Hotline at 1-800-296-

1996 to learn if a hearing will be held and to obtain the date and

location of any hearing. Any hearing will be strictly limited to the

subject matter of this proposal, the scope of which is discussed below.

The proposed effective date for the changes to the regulatory

language would be 30 days after publication of the final rulemaking in

the Federal Register.

ADDRESSES: Comments on this proposal must be submitted to the Air

Docket Office, Public Docket No. A-93-20 VIII, Waterside Mall (Ground

Floor) Environmental Protection Agency, 401 M Street, SW., Washington,

DC 20460 in room M-1500. Additional comments and materials supporting

this rulemaking are contained in Public Docket No. A-93-20. Dockets may

be inspected from 8 a.m. until 5:30 p.m., Monday through Friday. A

reasonable fee may be charged for copying docket materials.

If a public hearing is convened, it will be held at 501 3rd Street,

NW., first floor conference room, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Program Implementation

Branch, Stratospheric Protection Division, Office of Atmospheric

Programs, Office of Air and Radiation (6205-J), 401 M Street, SW.,

Washington, DC 20460, (202)233-9729. The Stratospheric Ozone

Information Hotline at 1-800-296-1996 can also be contacted for further

information.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in

the following outline:

I. Regulated Entities

II. Background

III. Portable Fire Extinguishers

IV. Summary of Supporting Analysis

A. Executive Order 12866

B. Unfunded Mandates Act

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

I. Regulated Entities

Entities potentially regulated by this action are those that wish

to manufacturer, sell, or distribute in interstate commerce portable

fire extinguishers that contain hydrochlorofluorocarbons (HCFCs) for

non-residential applications. Regulated categories and entities

include:

------------------------------------------------------------------------

Examples of regulated

Category entities

------------------------------------------------------------------------

Industry.................................. Manufacturers of fire

extinguishants.

Manufacturers and

distributors of portable

fire extinguishers.

Fire protection specialists.

------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by this

action. This table lists the types of entities that EPA is now aware

could potentially be affected by this action. Other types of entities

not listed in the table could also be affected. To determine whether

your company is regulated by this action, you should carefully examine

the applicability criteria contained in Section 610(d) of the Clean Air

Amendments of 1990; discussed in regulations published on December 30,

1993 (58 FR 69638); and discussed below. If you have questions

regarding the applicability of this action to a particular entity,

consult the person listed in the preceding FOR FURTHER INFORMATION

CONTACT section.

II. Background

In 1993, EPA promulgated a rulemaking to establish regulations that

implemented the statutory ban on nonessential products containing or

manufactured with class II ozone-depleting substances under Section

610(d) of the Clean Air Act Amendments of 1990 (58 FR 69638). This

final rule was developed by EPA to clarify definitions and to provide

exemptions, as authorized under Section 610(d). EPA was not required to

promulgate regulations since the ban was self-executing. The substances

affected by the Class II Ban are plastic foam products, aerosol

products and pressurized dispensers.

Section 610(d)(1) states that after January 1, 1994, ``it is

unlawful for any person to sell or distribute, or offer for sale or

distribution, in interstate commerce (A) any aerosol product or other

pressurized dispenser which contains a class II substance; or (B) any

plastic foam product which contains, or is manufactured with, a class

II substance.'' Section 610(d)(2) authorizes EPA to grant certain

exceptions and section 610(d)(3) creates exclusions from the class II

ban in certain circumstances.

Section 610(d)(2) authorizes the Administrator to grant exceptions

from the class II ban for aerosols and other pressurized dispensers

where ``the use of the aerosol product or pressurized dispenser is

determined by the Administrator to be essential as a result of

flammability or worker safety concerns,'' and where ``the only

available alternative to use of a class II substance is use of a class

I substance which legally could be substituted for such class II

substance.'' Section 610(d)(3) states that the ban of class II

substances in plastic foam products shall not apply to ``foam

insulation products'' or ``an integral skin, rigid, or semi-rigid foam

utilized to provide for motor vehicle safety in accordance with Federal

Motor Vehicle Safety Standards where no adequate substitute substance

(other than a class I or class II substance) is practicable for

effectively meeting such standards.'' For additional information

concerning this rulemaking and for a complete list of exempted and

excluded products, the reader should review the final regulations

published in the Federal Register December 30, 1993 (58 FR 69638).

These rules are also codified at 40 CFR Part 82 Subpart C.

III. Portable Fire Extinguishers

In the rulemaking, the Agency exempted from the Class II Ban the

use of HCFCs in portable fire extinguishers

[[Page 37431]]

until such time as ``suitable'' substitutes for HCFCs in this

application became ``commercially available'' (58 FR 69646). The

inclusion of fire extinguishers in the class II ban was intended to be

consistent with the class I ban, whereby CFCs used in fire

extinguishers were banned since suitable substitutes were commercially

available (January 15, 1993, 58 FR 4768). EPA distinguished between

total flooding fire suppression systems, which were not identified as

pressurized dispensers, and portable fire extinguishers, which the

Agency interpreted as falling into the category of pressurized

dispensers (58 FR 69647).

Since the Class II Ban became effective, EPA has learned new

information as to significant complications in determining broad

suitability of substitute fire extinguishants. EPA has received two

petitions requesting that the Agency reconsider the Class II Ban as it

relates to portable fire extinguishers. The first request for

reconsideration was submitted by Paul Huston and Associates on March

10, 1995. The second petition was submitted by Alcalde & Fay on behalf

of Halotron, Incorporated, and DuPont on June 22, 1995. Through these

petitions, subsequent verbal and written communications, and additional

research by the Agency, EPA has learned new and compelling information

concerning the availability of fire extinguishants suitable to replace

halon and CFCs in streaming applications.

Portable fire extinguishers for commercial applications present a

unique dilemma, for a variety of reasons. First, their specific

intended use is to protect human life and property. The fire

extinguishant is typically used only in response to a threat to life or

property. Second, one type of extinguishant is not universally suitable

for all situations, in that different types of fires, different

environments in which fires are potentially to be fought, and different

types of property being protected, each dictate a particular set of

characteristics, found in varying degrees in various extinguishants.

Third, the fire protection industry's codes, standards and regulations

are extremely complex, such that states and localities adopt standards

parallel to a national standard at vastly divergent times. Furthermore,

some states and localities have adopted different versions of fire

codes. Additionally, typical insurance industry requirements mandate

conformance with local codes before proper insurance coverage can be

obtained. Given these constraints, for purposes of section 610(d),

determining the suitability and thus, commercial availability, of a

substitute for use generally in portable fire extinguishers for non-

residential applications becomes extremely elusive.

EPA states that ``suitability of the agent implies that an agent is

commercially available, that a fire will be extinguished quickly, and

will result in minimum degradation of the products being protected from

the fire'' (58 FR 69648). EPA has interpreted commercial availability

to mean that the product is widely available for the desired

application and that its use is not precluded in certain situations

(i.e., because some local fire codes have not yet approved its use). In

addition to commercial availability, the portable fire extinguisher

must adequately extinguish the fire without causing undue harm to

persons and not destroy the property it is intended to protect. For

many typical commercial scenarios where halon was used in the past,

only clean agents such as HCFCs can achieve these fire protection

goals.

Suitability is interpreted to apply broadly throughout the nation,

such that no entity has precluded that product's use through regulation

or lack of regulatory modification. Without consistent standards

regarding the use of a substitute in place across the country, EPA

currently believes it would be nearly impossible to responsibly

determine that a substitute used in a non-residential portable fire

extinguisher was ``suitable'' and thus, that such HCFC fire

extinguishers should be subject to the ban.

A logical question one may ask is, ``How can EPA adequately

determine acceptability of potential fire extinguishant substitutes

pursuant to Section 612 of the Clean Air Act and also believe itself

unable to determine suitable fire extinguishant substitutes pursuant to

Section 610(d)?'' The answer lies in the degree of burden entailed in

EPA's determination. Under Section 610(d), the burden is on EPA to

actually decide that one kind of extinguishant cannot be exempted from

the ban by determining that the substitute will be just as effective

and available as the replaced extinguishant. Under Section 612, on the

other hand, the burden on EPA is merely to deem substitutes acceptable

if they do not present other health or environmental hazards. The

latter task does not extend to banning those substances that the

substitute claims to replace, nor does it include an examination of

efficacy. The rulemakings implementing Section 612 and establishing the

Significant New Alternatives Policy (SNAP) Program indicate that EPA

does not review a substitute's ability to effectively perform in the

same manner as the ozone depleter. EPA believes that banning a

substance (as required under Sec. 610(d)) used in the protection of

life and property, based on confusing information regarding the

suitability of the substitute, would be irresponsible.

When EPA promulgated the initial rulemaking that exempted products

from the class II ban in 1993, potential exemptions for other types of

pressurized dispensers that were considered and ultimately denied

usually were denied because there was a suitable substitute already

available and already in use for either the same or for a similar

application. Several of the substitutes were not-in-kind substitutes

and others required significant changes prior to replacing the ozone-

depleting substance with the substitute. Significantly, most of the

identified substitutes for these pressurized dispensers were proven

alternatives for the ozone depleter already used by others for a

similar endeavor. However, for portable fire extinguishers used in non-

residential applications, the potential non-ozone-depleting

replacements that are also clean agents, are not yet in use.

Many of those seeking to replace halon continue to require clean

agents. EPA states that ``non-halocarbon alternatives to Halon 1211 are

already in widespread use in selected commercial applications because

of their effectiveness, and due to the current regulatory climate,

their use has been increasingly adopted wherever possible'' (58 FR

69647). EPA believes where non-gaseous agents can be used, appropriate

consideration for these substitutes already occurs. However, the need

for the continued availability of gaseous agents commonly referred to

as clean agents was the basis for the limited exemption for HCFCs

contained in the initial rulemaking. EPA intended for this exemption to

expire after additional clean agents became available. However, as

stated above, SNAP does not review the efficacy of the acceptable

substitutes; therefore, EPA cannot rely on SNAP review to determine the

efficacy of potential clean agents for purposes of Section 610(d).

Furthermore, since the substitutes are not yet in use, EPA cannot rely

on the findings of other users.

Given that suitability and commercial availability cannot be

determined adequately for purposes of banning this product at this

time, today's action proposes replacing the limited exemption that

already exists with a

[[Page 37432]]

total exemption for portable fire extinguishers for non-residential

applications from the Class II Ban at this time. This change in the

regulatory language would simply serve to clarify the actual situation

for the regulated community and provide a consistent determination

regarding suitability based on current information. Furthermore, it

would relieve the regulated community from the burdensome task of

monitoring federal, state, and local activities concerning the review

of other substitutes and attempting to assess at what point the

standard of commercial availability has been achieved.

If at some future date, compelling information is brought to the

Agency's attention indicating that suitable substitutes are widely

available for fire extinguishing applications, EPA may ultimately

conclude that suitable substitutes are commercially available and

undertake appropriate notice and comment procedures to remove this

exemption. EPA requests comment on this proposal.

IV. Summary of Supporting Analysis

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether this regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant'' regulatory action as

one that is likely to lead to a rule that may:

(1) Have an annual effect on the economy of $100 million or more,

or adversely and materially affect a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlement, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined by OMB and EPA that this proposed action to

amendment to the final rule is not a ``significant regulatory action''

under the terms of Executive Order 12866 and is therefore not subject

to OMB review under the Executive Order.

B. Unfunded Mandates Act

Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded

Mandates Act'') requires that the Agency prepare a budgetary impact

statement before promulgating a rule that includes a Federal mandate

that may result in expenditure by State, local, and tribal governments,

in aggregate, or by the private sector, of $100 million or more in any

one year. Section 203 requires the Agency to establish a plan for

obtaining input from and informing, educating, and advising any small

governments that may be significantly or uniquely affected by the rule.

Under section 205 of the Unfunded Mandates Act, the Agency must

identify and consider a reasonable number of regulatory alternatives

before promulgating a rule for which a budgetary impact statement must

be prepared. The Agency must select from those alternatives the least

costly, most cost-effective, or least burdensome alternative that

achieves the objectives of the rule, unless the Agency explains why

this alternative is not selected or the selection of this alternative

is inconsistent with law.

Because this NPRM is estimated to result in the expenditure by

State, local, and tribal governments or private sector of less than

$100 million in any one year, the Agency has not prepared a budgetary

impact statement or specifically addressed the selection of the least

costly, most cost-effective, or least burdensome alternative. Because

small governments will not be significantly or uniquely affected by

this rule, the Agency is not required to develop a plan with regard to

small governments. As discussed in this preamble, this NPRM proposes to

provide relieve by permitting the use of portable fire extinguishers

that contain HCFCs; and therefore, would increase the flexibility in

choosing a particular fire extinguishant thus reducing the net effect

of the burden of part 82 subpart C of the Stratospheric Protection

regulations on regulated entities, including State, local, and tribal

governments or private sector entities.

C. Paperwork Reduction Act

Any information collection requirements in a rule must be submitted

for approval to the Office of Management and Budget (OMB) under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Because no

informational collection requirements are proposed by today's action,

EPA has determined that the Paperwork Reduction Act does not apply to

this rulemaking and no Information Collection Request document has been

prepared.

D. Regulatory Flexibility Act

EPA has determined that is not necessary to prepare a regulatory

flexibility analysis in connection with this proposed rule. Any impact

this proposed rule will have on small entities will be to provide

relief from regulatory burdens. EPA has determined that this proposed

rule will not have a significant adverse economic impact on a

substantial number of small businesses.

List of Subjects in 40 CFR Part 82

Environmental protection, Administrative practice and procedure,

Air pollution control, Chemicals, Exports, Government procurement,

Imports, Labeling, Reporting and recordkeeping requirements.

Dated: July 3, 1996.

Carol M. Browner,

Administrator.

Title 40, Code of Federal Regulations, part 82, is amended to read

as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

1. The authority citation for part 82 continues to read as follows:

Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

Sec. 82.62 [Amended]

2. Section 82.62 is amended by removing paragraphs (j) and (k).

Sec. 82.68 [Amended]

3. Section 82.68 is amended by removing and reserving paragraphs

(f) and (g).

4. Section 82.70 is amended by revising paragraph (a)(2)(vii) to

read as follows:

Sec. 82.70 Nonessential class II products and exceptions.

* * * * *

(a) * * *

(2) * * *

(vii) Portable fire extinguishing equipment used for non-

residential applications; and

* * * * *

[FR Doc. 96-17904 Filed 7-17-96; 8:45 am]

BILLING CODE 6560-50-P