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22 ELR 10316 | Environmental Law Reporter | copyright © 1992 | All rights reserved Chapter 13. Stratospheric Ozone ProtectionTheodore L. Garrett and Sonya D. WinnerEditors' Summary: This Article is the third in a three-part series on the Clean Air Act and the 1990 amendments. The authors analyze the new permit program mandated by the 1990 amendments, which requires the creation of a state-administered permit program. The authors also analyze the enforcement mechanisms available under the Clean Air Act that are applicable to stationary sources, and the administrative procedures and judicial review provided for in the Act. The authors analyze the Act's new provisions concerning chemicals that destroy stratospheric ozone, and the new requirements for phasing out the production and consumption of ozone-depleting substances. Finally, the authors explore the legislative history of the 1990 amendments, identifying where possible the sources of statutory text, amendments to that text, and analysis of the various pieces of the legislative history. The 1990 amendments reflect Congress' concern that chlorofluorocarbons (CFCs) and certain other chemicals are destroying of the stratospheric ozone layer. This layer of the atmosphere is considered an important shield against the sun's harmful ultraviolet radiation. CFCs are also one of several chemicals associated with global climate change attributed to the greenhouse effect. In September 1987, the Montreal Protocol on Substances That Deplete the Ozone Layer (the Protocol) was signed by more than two dozen nations. Signatories to the protocol agreed to impose limits on CFC consumption and production. Approximately 50 nations, including the United States, are now parties to the Protocol, which entered into force in January 1989.1 The regulations implementing the Montreal Protocol were published by the U.S. Environmental Protection Agency (EPA) in 1988.2 These regulations limit total CFC production and consumption, defined as production plus imports minus exports. Sections 82.5, 82.6, and 82.7 of the regulations apportion baseline production and consumption allowances and require a phased reduction of these allowances. The regulations provide for additional production and consumption allowances, exports to parties to the Protocol, transfers of allowances to other persons, and recordkeeping and reporting requirements.3 Title VI of the 1990 amendments goes beyond the Montreal Protocol. The amendments phase out production and consumption of ozone-depleting substances, regulate the use and disposal of these substances, ban nonessential products containing them, require labeling of products manufactured with and containing such substances, and regulate their replacement with substitutes. I. Production and Consumption Phaseout EPA is required to regulate ozone-depleting substances in two classes.4 Class I substances include specific listed CFCs, halons, carbon tetrachloride, and methyl chloroform. Class II substances are certain listed hydrochlorofluorocarbon chemicals (HCFCs). (These Class I and Class II substances will be referred to collectively as "CFCs" in this chapter.) The lists of Class I and Class II substances in § 602 of the amendments are contained in Appendices 13B and C below. The Administrator may add to the lists of Class I and Class II substances by rule in accord with the criteria in the statute.5 For Class I, EPA may add those substances determined to have an ozone depletion potential of 0.2 or greater. For Class II, EPA may add other substances known or reasonably anticipated to cause or contribute to harmful effects on the stratospheric ozone layer. Sections 604 and 605 contain schedules for the phaseout of production and consumption of Class I and Class II substances, that eliminate all Class I substances by the year 2002 and all Class II substances by the year 2030.6 Class I Substances. The production of Class I substances is limited to a specified percentage each year of the amount produced in the baseline year.7 For most Class I substances, the percentage is 85 percent in 1991 and declines to 15 percent in 1999.8 Effective January 1, 2000, it will be unlawful for any person to produce any amount of a Class I substance, except that the deadline is January 2, 2002, for methyl chloroform.9 The 1990 amendments authorize several types of exceptions and extensions to the phaseout of production of these substances. The Administrator may authorize the production and use of Class I CFCs for essential applications (e.g., nondestructive testing for metal fatigue and corrosion), medical devices, and aviation safety, and for export to developing countries that are parties to the Protocol.10 These exceptions are limited to 10 percent of the amount produced during the baseline year. The statute also contains limited authority for exceptions necessary to protect national security interests and for purposes of fire suppression or explosion prevention.11 EPA is directed to promulgate regulations phasing out the consumption of Class I substances on the same schedule and with the same exceptions applicable to production.12 Class II Substances. Effective January 1, 2015, it will unlawful to sell any Class II HCFC substance unless such sale satisfies one of three use restrictions.13 In particular, the substance must be (1) used, recovered, and recycled; (2) used and entirely consumed (except for trace quantities) in the production of other chemicals; or (3) used as a refrigerant in appliances manufactured before January 1, 2020. After January 1, 2015, production of any Class II substance will be capped at the quantities produced during the baseline year, which is defined as a representative calendar year selected by the EPA Administrator. Effective January 1, 2030, it will be unlawful for any person to produce any Class II substance. The Administrator is given limited authority to grant exceptions for Class II substances for medical devices and exports to developing countries that are parties to the Montreal Protocol.14 All exceptions must terminate by January 1, 2040. EPA is directed to promulgate regulations to ensure that the consumption of Class II substances is phased out and [22 ELR 10317] terminated on the same schedule as the production of these substances, subject to the same exceptions.15 Accelerated Schedule. The Administrator has authority under § 606 to promulgate regulations requiring a more expeditious schedule for the phaseout of production and consumption of CFCs.16 This determination may be based on an assessment of the harmful effects of CFCs, the availability of substitutes and technological achievability, or a modification of the Montreal Protocol adopting a more rapid schedule. Exchange Authority. By September 1991, EPA is to promulgate rules providing for the issuance of allowances for the production and consumption of Class I and Class II substances and for the transfer of such allowances.17 This marketable allowance program is required to ensure that the transactions permitted will result in greater total reductions than would otherwise occur. II. Regulation of Use and Disposal Section 608 requires EPA to promulgate regulations by January 1, 1992, concerning the use and disposal of Class I substances during the service, repair, or disposal of appliances and industrial process refrigeration.18 By November 1994, EPA is to promulgate regulations governing the use and disposal of other ozone-depleting substances.19 The regulations shall include requirements that reduce the use and emissions of such substances to the lowest achievable level and that maximize their recapture and recycling. These regulations are to include requirements for the safe disposal of CFCs, unless regulation of a particular product would result in insignificant environmental benefits. These regulations may include requirements that appliances or machines contain a design feature allowing CFC recapture, be freed of CFCs prior to disposal, or otherwise be disposed of in a manner that reduces the release of CFCs into the environment.19 Effective July 1, 1992, it will be unlawful for any person to knowingly vent or release into the environment any CFC used as a refrigerant while maintaining, repairing, or disposing of an appliance or in industrial process refrigeration.20 Effective November 15, 1995, it will be unlawful to knowingly vent or otherwise release a substitute for a Class I or Class II substance from an appliance or industrial process refrigeration, unless the Administrator determines that such venting or disposal does not threaten the environment. Under § 609, the servicing of motor vehicle air conditioners will be regulated and must be performed by certified personnel.21 EPA is directed to promulgate regulations establishing standards and requirements regarding the servicing of motor vehicle air conditioners by November 15, 1991. III. Nonessential Consumer Products Section 610 requires EPA to promulgate regulations by November 15, 1991, governing the manufacture and sale of nonessential consumer products that release Class I substances into the environment during their manufacture, use, storage, or disposal.22 EPA is required to prohibit the sale or distribution of any such "nonessential" product. The prohibition will apply by statute to plastic party streamers and noise horns, and CFC-containing cleaning fluids for noncommercial electronic and photographic equipment. EPA also may designate other consumer products determined nonessential, taking into account the purpose or intended use of the product, the availability of substitutes, safety, health, and other relevant factors. Medical devices are exempted from § 610. The ban authorized by this provision will take effect on November 15, 1992. Effective January 1, 1994, it will be unlawful to sell any aerosol product or other pressurized dispenser containing a Class II HCFC substance, or any plastic foam product that contains or is manufactured with a Class II substance.23 The Administrator is authorized to grant exemptions for aerosols that are deemed to be essential. Foam products used for insulation or for motor vehicle safety are exempted, as are medical devices. Effective May 15, 1993, containers of Class I or Class II substances and products containing Class I substances must bear a label stating: "Warning: Contains [insert name of substance], a Substance Which Harms Public Health and the Environment by Destroying Ozone in the Upper Atmosphere."24 After May 15, 1993, no product containing a Class II substance may be sold unless it bears this warning label if EPA determines, after notice and public comment, that there are substitute products or manufacturing processes not relying on the use of such substances that reduce the risk to human health and the environment and are currently or potentially available. Effective January 1, 2015, all products containing a Class II substance must be labeled, whether or not substitutes are available. After May 15, 1993, products manufactured with a process using a Class I substance must bear the following label, unless the Agency makes a determination that there are no substitute products: "Warning: Manufactured With [insert name of substance], a Substance Which Harms Public Health and Environment by Destroying Ozone in the Upper Atmosphere."25 For Class II substances, the label is required for products so manufactured if EPA determines that there are substitutes available. Effective January 1, 2015, all products manufactured with a Class I or Class II substance must be labeled.26 V. Replacement and Substitutes for CFCs Section 612 sets forth a policy that Class I and Class II substances shall be replaced by chemicals or other alternative manufacturing processes that reduce overall risks to human health and the environment.27 EPA is required to promulgate regulations by November [22 ELR 10318] 15, 1992, making it unlawful to replace any Class I or Class II substance with any substitute that the Administrator determines may adversely affect human health or the environment, where the Agency has identified an available alternative that reduces the overall risk. The Administrator is required to publish a list of the substitutes that are prohibited and the safe alternatives identified for specific uses. Section 612 also establishes a procedure to petition EPA to add or remove substances from the list.28 Any persons producing a chemical substitute for a Class I substance must provide EPA with their unpublished health and safety studies on the substitute. EPA must be notified not less than 90 days before new or existing chemicals are sold for significant new uses as substitutes for Class I substances.29 Section 615 grants EPA additional authority to regulate ozone-depleting substances. If EPA decides that any "substance, practice, process, or activity" may reasonably be expected to affect the stratosphere and endanger public health and welfare, the Agency may promptly address the problem by regulation.30 EPA is required to submit a copy of the proposed and final rules to Congress. Appendix 13A. Parties to the Montreal Protocol Source: Int'l Env't Rep. Reference File (BNA) 21:3160 (1991). Appendix 13B. Class I Substances * chlorofluorocarbon-11 (CFC-11) chlorofluorocarbon-12 (CFC-12) chlorofluorocarbon-113 (CFC-113) chlorofluorocarbon-114 (CFC-114) chlorofluorocarbon-115 (CFC-115) chlorofluorocarbon-13 (CFC-13) chlorofluorocarbon-111 (CFC-111) chlorofluorocarbon-112 (CFC-112) chlorofluorocarbon-211 (CFC-211) chlorofluorocarbon-212 (CFC-212) chlorofluorocarbon-213 (CFC-213) chlorofluorocarbon-214 (CFC-214) chlorofluorocarbon-215 (CFC-215) chlorofluorocarbon-216 (CFC-216) chlorofluorocarbon-217 (CFC-217) Source: CAA § 602(a), 42 U.S.C. § 7671a(a), ELR STAT. CAA 174. Appendix 13C. Class II Substances hydrochlorofluorocarbon-21 (HCFC-21) hydrochlorofluorocarbon-22 (HCFC-22) hydrochlorofluorocarbon-31 (HCFC-31) hydrochlorofluorocarbon-121 (HCFC-121) hydrochlorofluorocarbon-122 (HCFC-122) hydrochlorofluorocarbon-123 (HCFC-123) hydrochlorofluorocarbon-124 (HCFC-124) hydrochlorofluorocarbon-131 (HCFC-131) hydrochlorofluorocarbon-132 (HCFC-132) hydrochlorofluorocarbon-133 (HCFC-133) hydrochlorofluorocarbon-141 (HCFC-141) hydrochlorofluorocarbon-142 (HCFC-142) hydrochlorofluorocarbon-221 (HCFC-221) hydrochlorofluorocarbon-222 (HCFC-222) hydrochlorofluorocarbon-223 (HCFC-223) hydrochlorofluorocarbon-224 (HCFC-224) hydrochlorofluorocarbon-225 (HCFC-225) hydrochlorofluorocarbon-226 (HCFC-226) hydrochlorofluorocarbon-231 (HCFC-231) hydrochlorofluorocarbon-232 (HCFC-232) hydrochlorofluorocarbon-233 (HCFC-233) hydrochlorofluorocarbon-234 (HCFC-234) hydrochlorofluorocarbon-235 (HCFC-235) hydrochlorofluorocarbon-241 (HCFC-241) hydrochlorofluorocarbon-242 (HCFC-242) hydrochlorofluorocarbon-243 (HCFC-243) hydrochlorofluorocarbon-244 (HCFC-244) hydrochlorofluorocarbon-251 (HCFC-251) hydrochlorofluorocarbon-252 (HCFC-252) hydrochlorofluorocarbon-253 (HCFC-253) hydrochlorofluorocarbon-261 (HCFC-261) hydrochlorofluorocarbon-262 (HCFC-262) hydrochlorofluorocarbon-271 (HCFC-271) Source: CAA § 602(b), 42 U.S.C. § 7671a(b), ELR STAT. CAA 174-75. Appendix 13D. Phaseout of Production and Consumption of Class I and Class II Substances
1. See Appendix 13A. 2. These regulations are codified at 40 C.F.R. pt. 82 (1991). 3. 40 C.F.R. §§ 82.9-.13. 4. Clean Air Act (CAA) § 602, 42 U.S.C. § 7671a, ELR STAT. CAA 174. 5. The Administrator initially listed only the ozone-depleting substances identified in § 602. See 56 Fed. Reg. 2420 (1991). 6. 42 U.S.C. §§ 7671c, 7671d, ELR STAT. CAA 177-78. 7. CAA § 604(a), 42 U.S.C. § 7671c(a), ELR STAT. CAA 177. The baseline year is 1986 for substances listed in groups 1 or 2, and 1989 for the remaining Class I substances. 8. See Appendix 13D. 9. CAA § 604(b), 42 U.S.C. § 7671c(b), ELR STAT. CAA 177. 10. CAA § 604(d)-(e), 42 U.S.C. § 7671c(d)-(e), ELR STAT. CAA 177; see Appendix 13A. 11. CAA § 604(f)-(g), 42 U.S.C. § 7671c(f)-(g), ELR STAT. CAA 177-78. 12. CAA § 604(c), 42 U.S.C. § 7671c(c), ELR STAT. CAA 177. 13. CAA § 605(a), 42 U.S.C. § 7671d(a), ELR STAT. CAA 178. 14. CAA § 605(d), 42 U.S.C. § 7671d(d), ELR STAT. CAA 178. 15. CAA § 605(c), 42 U.S.C. § 7671d(c), ELR STAT. CAA 178. 16. CAA § 606, 42 U.S.C. § 7671e, ELR Stat. CAA 178. 17. CAA § 607, 42 U.S.C. § 7671f, ELR STAT. CAA 179. 18. 42 U.S.C. § 7671g, ELR STAT. CAA 179. 19. CAA § 608(b), 42 U.S.C. § 7671g(b), ELR STAT. 179. 20. CAA § 608(c), 42 U.S.C. § 7671g(c), ELR STAT. CAA 179. 21. 42 U.S.C. § 7671h, ELR STAT. CAA 180. 22. 42 U.S.C. § 7671i, ELR STAT. CAA 180. 23. CAA § 610(d), 42 U.S.C. § 7671i(d), ELR STAT. CAA 180. 24. CAA § 611(b), 42 U.S.C. § 7671j(b), ELR STAT. CAA 181. 25. CAA § 611(d), 42 U.S.C. § 7671j(d), ELR STAT. CAA 181. 26. CAA § 611(e)(5), 42 U.S.C. § 7671j(e)(5), ELR STAT. CAA 181. 27. 42 U.S.C. § 7671k(a), ELR STAT. CAA 181. 28. 42 U.S.C. § 7671k(d), ELR STAT. CAA 182. 29. CAA § 612(e), 42 U.S.C. § 7671k(e), ELR STAT. CAA 182. Under the Toxic Substances Control Act, EPA also has authority to require health and safety reporting and premanufacture notification. See 55 Fed. Reg. 35628 (1990). 30. CAA § 615, 42 U.S.C. § 7671n, ELR STAT. CAA 182. * Isomers of these substances are included except for 1,1,2-trichloromethane (an isomer of methyl chlorofrom). 22 ELR 10316 | Environmental Law Reporter | copyright © 1992 | All rights reserved |