Protection
of
Stratospheric
Ozone;
Listing
of
Substitutes
in
the
Foam
Sector
Response
to
Late
Comments
This
document
presents
EPA's
response
to
comments
to
the
Notice
of
Data
Availability
(
March
10,
2004,
69
FR
11358)
received
after
the
close
of
the
comment
period
(
April
9,
2004).
EPA
received
seven
late
comments
to
the
NODA.
They
are
found
in
docket
OAR­
2003­
0228
numbers
33­
39.
The
specific
points
raised
in
the
comments
and
the
responses
are
as
follows:

Comment:
One
commenter
provides
comments
on
previous
comments
submitted
to
this
docket
found
at
OAR­
2003­
0228­
22.
This
commenter
disagrees
with
the
comments
in
document
#
22
and
states
the
following:
°
EPA
has
the
authority
under
the
Clean
Air
Act
(
CAA)
to
find
the
use
of
HCFC­
141b
unacceptable
in
foam.
Sections
605,
606
and
610
do
not
limit
EPA's
authority
under
Section
612.
°
EPA's
proposal
does
not
violate
the
North
American
Free
Trade
Agreement
(
NAFTA)
because
finding
HCFC­
141b
unacceptable
for
use
in
foam
would
apply
to
all
HCFC­
141b,
both
foreign
and
domestic.
°
EPA's
grandfathering
policy
does
not
prevent
EPA
from
finding
the
use
of
HCFC­
141b
unacceptable
because
grandfathering
deals
with
"
retroactive
application
of
a
changed
federal
regulation,
not
the
imposition
of
a
new
policy
in
the
future."

Response:
EPA
responds
directly
to
the
comments
found
in
document
#
22
within
the
final
rule.
Generally,
EPA
agrees
with
this
commenter
and
explains
the
Agency's
responses
to
document
#
22
in
detail
in
Section
IV
of
the
final
rule.

Comment:
Three
commenters
recommend
that
if
EPA
finalizes
its
proposal
to
change
the
listing
of
HCFC­
141b
to
unacceptable
in
foam
applications
as
of
January
1,
2005,
that
EPA
allow
continued
use
of
HCFC­
141b
for
research
and
development
purposes
for
their
foreign
customers.

Response:
EPA
addresses
this
recommendation
in
detail
in
Sections
III
and
IV
of
the
final
rule.
The
final
rule
will
allow
the
continued
use
of
HCFC­
141b
in
foam
applications
for
research
and
development
purposes.

Comment:
One
commenter
states
that
it
believes
that
EPA
did
not
provide
the
public
sufficient
notice
and
comment
on
the
proposal
to
change
the
listing
of
HCFC­
141b
to
unacceptable
in
foam.

Response:
EPA
disagrees
with
this
commenter
and
asserts
that
it
has
provided
the
public
with
ample
notice
and
opportunity
to
comment
on
the
proposal
to
list
HCFC­
141b
unacceptable
for
foam
end
uses.
Specifically,
EPA
published
the
Notice
of
Proposed
Rulemaking
(
NPRM)
in
the
Federal
Register
(
FR)
on
July
11,
2000
(
65
FR
42653).
That
notice
explicitly
proposed
to
change
the
listing
of
HCFC­
141b
in
foam
as
unacceptable
and
allowed
60
days
for
public
comment.
Subsequently,
EPA
published
a
Notice
of
Data
Availability
(
NODA)
in
the
FR
on
May
23,
2001
(
66
FR
28408)
sharing
new
information
on
the
technical
feasibility
of
using
alternatives
to
HCFCs
in
foam
and
allowed
30
days
for
public
comment.
In
a
July
2002
final
rule,
EPA
deferred
taking
final
action
on
its
proposal
to
list
HCFC­
141b
as
unacceptable
in
foam
pending
the
development
of
additional
information
regarding
the
feasibility
of
alternatives
(
67
FR
47706).
EPA
published
another
NODA
in
the
FR
on
March
10,
2004
(
69
FR
11385)
requesting
public
comment
on
the
accuracy
of
more
new
information
related
to
the
technical
feasibility
of
using
alternatives
to
HCFC­
141b
in
foam
applications.
That
comment
period
also
lasted
for
30
days.
In
the
March
2004
NODA,
EPA
stated,
"
We
[
EPA]
plan
to
consider
this
information
and
any
comment
received
during
the
comment
period
in
determining
what
future
action
to
take
on
our
July
11,
2000
proposal
regarding
the
use
of
HCFC­
141b
in
foam
blowing
applications."
(
69
FR
11358).
Based
on
these
actions,
EPA
has
provided
sufficient
notice
and
opportunity
to
comment
on
the
2000
proposal
to
change
the
listing
of
HCFC­
141b
from
acceptable
to
unacceptable
for
use
in
foam
applications
as
of
January
1,
2005.
The
public
had
no
fewer
than
three
opportunities
to
provide
information
and
comment
to
EPA,
with
the
most
recent
being
in
March
2004.

In
addition,
EPA
published
a
final
rule
in
2003
that
provided
an
update
on
the
status
of
the
use
of
HCFC­
141b
in
foams
to
the
potentially
effected
entities
(
January
21,
2003,
68
FR
2819).
The
HCFC
Allowance
Allocation
Final
rule
established
the
HCFC­
141b
exemption
allowance
petition
process.
Petitioners
responding
to
that
process
provided
EPA
with
detailed
specific
information
on
the
technical
viability
and
commercial
availability
of
alternatives
to
HCFC­
141b
as
well
as
information
on
the
quantity
of
available
stockpile
of
HCFC­
141b.

Moreover,
the
public
has
been
on
notice
since
1993
that
EPA
considered
HCFCs
transitional
substances
and
that
industry
(
including
the
foam
industry)
should
strive
to
develop
non­
ozone
depleting
alternatives.
Specifically,
a
1993
final
rule
established
the
production
and
import
phaseout
schedule
for
HCFCs
in
the
U.
S.,
starting
with
HCFC­
141b.
The
schedule
identified
January
1,
2003
as
the
phaseout
date
for
HCFC­
141b
(
58
FR
65018).
Based
on
that
rule,
the
foam
industry
had
ten
years
to
identify,
develop
and
test
alternatives
before
HCFC­
141b
was
phased
out
of
production
in
the
U.
S.
Furthermore,
the
1994
Significant
New
Alternatives
Policy
(
SNAP)
final
rule
stated
that
the
approval
of
HCFCs
as
acceptable
alternatives
to
CFCs
was
on
an
interim
basis
while
other
non­
ozone
depleting
alternatives
were
being
developed
(
59
FR
13044).

In
addition
to
the
multiple
regulatory
actions
described
above,
EPA
provided
many
routine
updates
on
the
status
of
the
use
of
HCFC­
141b
in
foam
applications.
For
example,
EPA
produced
factsheets
and
guidance
(
distributed
via
industry
associations
and
posted
on
the
EPA
website),
presented
at
conferences
and
meetings,
including
meetings
with
the
Spray
Polyurethane
Foam
Alliance
(
SPFA)
and
individual
foam
industry
members,
and
annual
presentations
at
the
Alliance
for
the
Polyurethane
Industry
(
API).

Comment:
One
commenter
disagrees
with
the
comments
presented
in
document
#
33
of
the
docket
and
reiterates
their
belief
that
EPA
cannot
change
the
listing
of
HCFC­
141b
to
unacceptable
without
receiving
a
petition
from
the
public
under
Section
612(
d).
The
commenter
further
states
that
HCFC­
141b
remains
as
safe
to
use
as
an
alternative
to
CFC­
11
today
as
it
was
when
it
was
approved
by
SNAP
in
1994.

Response:
EPA
disagrees
with
the
commenter.
Section
IV
of
the
final
rule
addresses
EPA's
ability
to
change
the
listing
of
HCFC­
141b
from
acceptable
to
unacceptable
in
foam
without
a
specific
petition
from
the
public.
As
explained
in
the
2000
proposal,
EPA
has
the
authority
to
amend
its
regulations
and
change
SNAP
determinations
independent
of
any
petitions
(
65
FR
42659).
Nothing
in
the
statute
bans
such
action
and
EPA
believes
that
inherent
in
our
authority
to
promulgate
regulations
initially
is
the
authority
to
review
and
revise
those
regulations
as
the
state
of
science
advances.

The
commenter
misconstrues
EPA's
action
as
concluding
that
circumstances
have
changed
the
safety
of
using
HCFC­
141b
as
compared
with
CFC­
11.
In
doing
so,
the
commenter
also
misconstrues
the
test
that
applies
in
considering
the
acceptability
of
alternatives.
In
this
rulemaking,
EPA
has
concluded
that
as
compared
with
1994
when
HCFC­
141b
was
listed
as
acceptable,
there
are
now
other
alternatives
that
are
currently
or
potentially
available
that
reduce
the
overall
risk
to
human
health
and
the
environment.
This
is
consistent
with
CAA
Section
612(
c).
At
the
time
HCFC­
141b
was
found
acceptable
for
use
as
a
substitute
for
CFC­
11
in
foam
applications,
EPA
put
the
industry
on
notice,
stating
that
HCFCs
were
considered
transitional
substances
and
that
the
Agency
was
finding
them
acceptable
as
an
interim
measure
(
59
FR
13083)
while
other
alternatives
were
being
evaluated
and
developed.
When
EPA
proposed
in
2000
to
change
the
listing
of
HCFC­
141b
from
acceptable
to
unacceptable
for
use
in
foam
blowing,
the
Agency
believed
that
non­
ozone
depleting
alternatives
that
posed
less
risk
to
human
health
and
the
environment
were
technically
and
economically
viable.
Based
on
comments
and
information
received
during
the
comment
period
on
that
proposal,
EPA
deferred
its
decision
on
the
use
of
HCFC­
141b
until
the
after
the
production
and
import
phaseout
occurred
on
January
1,
2003.
As
demonstrated
by
the
2004
NODA
and
data
from
the
HCFC­
141b
exemption
allowance
petitions,
EPA
now
has
information
that
proves
non­
ozone
depleting
alternatives
that
pose
a
lower
risk
to
human
health
and
the
environment
are
technically
viable
and
commercially
available
in
all
major
foam
applications.
Therefore,
EPA
is
issuing
this
final
rule
and
changing
the
listing
of
HCFC­
141b
to
unacceptable
for
use
in
foam
blowing.

Comment:
A
commenter
reiterates
its
belief
that
any
EPA
action
to
find
the
use
of
HCFC­
141b
unacceptable
would
be
in
violation
of
NAFTA
and
the
Montreal
Protocol.
Response:
EPA
disagrees
with
the
commenter
and
addresses
both
of
these
issues
in
detail
in
Section
IV
of
the
final
rule.
EPA's
action
is
related
to
the
use
of
HCFC­
141b
in
foam
applications
in
the
U.
S.
and
is
developed
under
the
authority
of
Section
612
of
the
Clean
Air
Act.
The
rule
does
not
distinguish
whether
the
HCFC­
141b
is
from
a
foreign
or
domestic
source
and
therefore
is
not
in
contravention
of
NAFTA's
non­
discriminatory
clause.
Moreover,
this
action
does
not
prevent
the
production
and
import
of
HCFC­
141b
into
the
U.
S.,
which
is
controlled
by
the
HCFC
Allowance
Allocation
rule
under
the
authority
of
Sections
605
and
606
of
the
CAA.
Further,
this
action
does
not
prevent
the
production
and
import
of
products
containing
HCFC­
141b
into
the
U.
S.,
which
is
controlled
by
the
Nonessential
Products
Ban
final
rule
under
the
authority
of
Section
610
of
the
CAA.
The
assertion
that
this
action
impacts
the
import
of
products
containing
HCFC­
141b
and
necessitates
a
re­
allocation
of
production
allowances
is
inaccurate.

Comment:
One
commenter
states
that
Section
612
of
the
CAA
does
not
give
EPA
the
authority
to
regulate
the
"
replacement"
of
an
ODS
by
a
foreign
producer.
In
other
words,
EPA
cannot
prevent
the
use
of
HCFC­
141b
found
in
spray
foam
systems
blended
in
foreign
countries.

Response:
As
provided
above,
EPA's
rule
does
not
regulate
activities
that
occur
in
foreign
countries.
The
rule
will
prohibit
"
replacement"
of
the
ODS
that
occurs
when
the
blowing
agent
is
reacted
with
the
other
ingredients
of
the
spray
foam
systems
by
the
contractor
who
sprays
the
foam
system
to
create
the
actual
foam
product
(
e.
g.,
roof,
wall,
pipe
insulation).
Because
this
final
rule
finds
the
use
of
HCFC­
141b
in
foam
applications
unacceptable
as
of
January
1,
2005,
the
spraying
of
a
foam
system
containing
HCFC­
141b
in
the
U.
S.,
irrespective
of
where
the
foam
system
is
actually
blended,
would
be
subject
to
this
restriction.

Comment:
One
commenter
disagrees
with
an
industry
comment
found
within
document
#
31
of
the
docket
which
stated
HCFC­
141b
has
a
shelf
life
of
only
one
year.
This
statement
was
found
in
a
transcript
of
a
meeting
EPA
held
with
members
of
SPFA
in
October
2003.
The
industry
member
stated
that
they
required
new
production
of
HCFC­
141b
in
2004
because
they
believed
stockpiled
HCFC­
141b
had
a
shelf
life
of
only
one
year.
EPA
advised
that
member
to
submit
any
documentation
they
had
to
support
that
belief
with
their
HCFC­
141b
exemption
allowance
petition.
The
commenter
to
this
NODA
objected
to
the
statement
by
the
industry
member
regarding
the
shelf
life
of
stockpiled
HCFC­
141b
and
stated
that
they
have
test
data
that
shows
HCFC­
141b
stored
within
industry
guidelines
can
be
stored
for
over
5
years.
They
also
have
patented
additives
and
processes
to
assist
in
storing
and
recovering
contaminated
HCFC­
14.

Response:
This
final
rule
is
related
to
the
use
of
HCFC­
141b
in
foam
applications,
regardless
of
whether
the
HCFC­
141b
is
stockpiled
or
newly
produced.
Although
the
commenter's
data
could
demonstrate
the
shelf
life
of
HCFC­
141b
is
longer
than
1
The
import
of
HCFC­
141b
itself
to
the
U.
S.
has
been
banned
since
January
1,
2003
per
the
1993
phaseout
schedule
(
58
FR
65018)
established
under
the
Montreal
Protocol
and
Sections
605
and
606
of
the
CAA.
what
was
suggested
elsewhere
in
the
docket,
EPA
did
not
make
a
determination
on
the
shelf
life
of
stockpiled
HCFC­
141b
for
this
final
rule.
EPA's
analysis
of
confidential
information
submitted
from
producers,
importers
and
formulators
of
HCFC­
141b
shows
that
any
remaining
HCFC­
141b
stockpiled
by
the
foam
industry
in
the
U.
S.
will
be
depleted
by
the
end
of
2004
(
OAR­
2003­
0228­
0009).
Thus,
even
if
the
issue
of
shelf­
life
could
have
been
relevant
for
this
rulemaking,
such
a
determination
was
not
needed
since
EPA
concluded
stockpiles
would
be
depleted
by
the
end
of
2004.
For
further
details,
EPA
responds
to
issue
of
the
quantity
of
remaining
stockpiled
HCFC­
141b
in
the
U.
S.
in
2005
in
Sections
III
and
IV
of
the
final
rule.

Comment:
One
commenter
recommends
that
EPA
ban
the
import
of
pre­
blended
polyurethane
foam
systems
containing
HCFC­
141b
as
of
January
1,
2005.
They
also
recommend
EPA
ban
the
use
of
all
foam
systems
containing
HCFC­
141b
as
of
January
1,
2006.
They
state
EPA
should
allow
the
use
of
HCFC­
141b
for
another
year
in
order
to
account
for
any
remaining
stockpiled
HCFC­
141b
or
any
inventoried
foam
systems
containing
HCFC­
141b.

Response:
EPA
addresses
all
of
the
issues
the
commenter
raised
in
Sections
III
and
IV
of
the
final
rule,
including
the
import
of
pre­
blended
polyurethane
foam
systems
containing
HCFC­
141b
and
the
use
of
both
stockpiled
HCFC­
141b
and
inventoried
foam
systems
containing
HCFC­
141b.
As
explained
above,
this
action
is
taken
pursuant
to
Section
612
of
the
CAA
which
regulates
the
use
of
HCFC­
141b
in
foam
applications
in
the
U.
S.
and
does
not
provide
the
authority
to
regulate
the
import
of
HCFC­
141b.
1
Also,
as
noted
above
and
in
the
final
rule,
EPA's
analysis
of
the
remaining
HCFC­
141b
stockpiled
by
the
foam
industry
in
the
U.
S.
demonstrates
that
the
stockpile
will
be
exhausted
by
the
end
of
2004.
No
direct
evidence
was
provided
to
show
there
in
fact
would
be
stockpiled
HCFC­
141b
available
for
use
in
the
foam
industry
in
2005.

With
regard
to
the
continued
use
of
stockpiled
foam
systems
containing
HCFC­
141b
in
inventory
at
the
end
of
2004,
there
is
no
data
demonstrating
the
quantity
of
foam
systems
containing
HCFC­
141b
remaining
in
inventory
at
the
end
of
the
2004
would
require
an
entire
calendar
year
to
apply.
In
fact,
as
EPA
explained
in
the
final
rule,
winter
is
historically
the
slowest
time
for
the
spray
foam
sector
so
the
quantity
of
foam
systems
containing
HCFC­
141b
is
expected
to
be
low
at
the
end
of
2004.
Additionally,
the
spray
foam
sector
has
been
on
notice
for
over
10
years
regarding
the
need
to
transition
to
non­
ozone
depleting
alternatives,
which
includes
appropriately
managing
their
stockpiles
of
HCFC­
141b
and
foam
systems
containing
HCFC­
141b
and
transitioning
to
alternatives
as
soon
as
they
are
qualified
(
as
some
companies
have
already
done).
But,
in
order
to
accommodate
those
users
that
may
have
foam
systems
containing
HCFC­
141b
in
inventory
at
the
end
of
2004
due
to
weather
delays,
in
the
final
rule,
EPA
is
allowing
the
use
of
those
systems
through
the
first
quarter
of
2005.
EPA
believes
this
is
a
sufficient
amount
of
time
to
apply
any
inventoried
systems
without
penalizing
those
companies
who
have
invested
in
alternatives
in
good
faith
and
in
accordance
with
the
established
phaseout
schedule
for
HCFC­
141b.

Comment:
Two
commenters
recommend
that
due
to
a
logistical
delay
in
a
SPFA
project
with
Factory
Mutual
(
FM)
to
qualify
foam
roofing
systems
blown
with
alternatives
to
HCFC­
141b,
EPA
should
change
the
listing
of
HCFC­
141b
from
acceptable
to
unacceptable
to
be
effective
January
1,
2006
as
opposed
to
January
1,
2005.
This
delay
was
due
to
FM
failing
to
test
the
samples
submitted
by
SPFA
in
a
timely
manner
and
a
closure
of
the
FM
offices
during
move
scheduled
for
July
and
August
2004.
The
commenters
also
both
request
EPA
reconsider
its
decision
on
the
2003
and
2004
HCFC­
141b
exemption
allowance
petitions.

Response:
While
the
delay
in
the
SPFA/
FM
project
(
sponsored
by
EPA
through
a
three
year
grant
to
SPFA)
is
untimely
for
the
6
different
spray
foam
formulations
(
i.
e.
samples)
that
are
part
of
the
project,
EPA
believes
this
delay
does
not
warrant
a
year's
delay
in
the
effective
date
of
the
unacceptable
listing
decision
for
HCFC­
141b.
In
spray
foam
roofing,
there
may
be
up
to
70
formulations
used
to
make
roofs,
with
typically
about
20
formulations
that
are
used
to
supply
roofing
contractors.
With
respect
to
FM
credentials,
FM
insures
spray
foam
roofs,
not
spray
foam
formulations.
This
is
an
important
distinction
because
the
30­
40%
of
spray
roofs
sold
in
the
U.
S.
with
FM
credentials
cited
by
the
commenters
could
be
based
on
as
little
as
5
or
6
formulations,
sold
by
only
a
few
formulators.
This
application
does
not
represent
the
majority
of
the
spray
foam
roofing
market.
More
to
the
point,
this
delay
in
the
SPFA/
FM
project
does
not
prevent
formulators
that
would
like
to
offer
FM
credentialed
roofs
to
contractors
from
pursuing
FM
credentials
independently
and
by
the
end
of
2004.

Moreover,
the
information
EPA
has
from
the
spray
foam
formulators
demonstrates
alternatives
for
HCFC­
141b
in
spray
foam
are
technically
viable
and
commercially
available
today.
The
commenters
did
not
provide
any
evidence
to
show
that
demand
for
FM
credentialed
spray
roofs
cannot
be
met
by
formulators
with
products
that
are
already
approved
or
are
expected
to
be
approved
by
the
end
of
2004,
independent
of
this
project.
In
fact,
based
on
data
supplied
but
the
industry,
EPA
believes
that
the
demand
in
spray
foam
in
2005,
including
FM
credentialed
spray
roofing,
can
be
met
with
alternatives
that
are
already
approved
or
expected
to
be
approved
later
this
year.
For
these
reasons
and
because
any
further
delay
in
the
transition
to
non­
ozone
depleting
alternatives
penalizes
companies
that
have
made
investments
and
good
faith
efforts
to
transition
to
alternatives
in
a
timely
manner,
EPA
does
not
believe
a
delay
until
2006
is
justified.
The
commenters'
request
that
EPA
reconsider
its
decisions
on
the
individual
2003
and
2004
HCFC­
141b
exemption
allowance
petitions
to
allow
new
production
of
HCFC­
141b
beyond
the
phaseout
date
is
outside
of
the
scope
of
this
rulemaking.
The
HCFC
Allowance
Allocation
rule
established
the
petition
process
for
formulators
of
HCFC­
141b
and
described
the
requirements
for
petitioning
EPA
for
an
exemption
allowance
(
January
21,
2003,
68
FR
2819).
Specifically,
40
CFR
82.16(
h)(
3)
of
the
regulation
states
that
a
petitioner
may
file
a
one­
time
appeal
to
EPA's
denial
of
its
petition
within
10
working
days
of
receipt
of
EPA's
denial.
The
regulatory
deadlines
for
the
petition
process
were
established
in
order
to
bring
the
process
to
an
expeditious
conclusion.
All
of
the
regulatory
deadlines
for
the
HCFC­
141b
exemption
allowance
petition
process
are
set
forth
in
Section
82.16(
h),
and
EPA
has
met
all
of
its
required
deadlines
regarding
petitions
from
2003
and
2004.
Because
the
time
periods
for
filing
appeals
for
both
the
2003
and
2004
petitions
have
expired,
there
is
no
basis
for
appeal
at
this
time.
