[Federal Register Volume 86, Number 186 (Wednesday, September 29, 2021)]
[Proposed Rules]
[Pages 53916-53923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20746]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2021-0253; FRL-8506-01-OAR]
RIN 2060-AV29


Protection of Stratospheric Ozone: Standards Related to the 
Manufacture of Class II Ozone-Depleting Substances for Feedstock; 
Notice of Proposed Rulemaking

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing to require 
the control, capture, and/or destruction of a hydrofluorocarbon that 
would otherwise be emitted from manufacture of 
hydrochlorofluorocarbons. In this proposed rule, EPA is proposing to 
require companies to control, capture, and destroy HFC-23 byproduct 
generated at plants that manufacture class II ozone-depleting 
substances regulated under current Clean Air Act regulations, such as 
HCFC-22. HFC-23 is a very potent greenhouse gas that is generated as a 
byproduct during the manufacture of certain class II ozone-depleting 
substances, including HCFC-22. Under the Clean Air Act and the 
implementing regulations, the production and consumption of class II 
ozone-depleting substances, including HCFC-22, are restricted with 
limited exceptions. One such exception is production for use in 
transformation, or as a feedstock, which is allowed indefinitely. The 
Agency is proposing to limit emissions of HFC-23 from plants 
manufacturing HCFCs. The HFC-23 must be captured and employed for a 
commercial use or destroyed using a technology approved by the 
Environmental Protection Agency, thereby ensuring it is not directly 
emitted.

DATES: Comments on this notice of proposed rulemaking must be received 
on or before November 15, 2021. Any party requesting a public hearing 
must notify the contact listed below under FOR FURTHER INFORMATION 
CONTACT by 5 p.m. Eastern Daylight Time on October 4, 2021. If 
requested, the Environmental Protection Agency (EPA) will hold a 
virtual public hearing on or before October 14, 2021. The date, time, 
and other relevant information for the virtual public hearing will be 
available at https://www.epa.gov/ozone-layer-protection.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2021-0253, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Air and Radiation Docket, Mail Code 28221T, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal 
Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov, including any personal information 
provided. Out of an abundance of caution for members of the public and 
our staff, the EPA Docket Center and Reading Room are closed to the 
public, with limited exceptions, to reduce the risk of transmitting 
COVID-19. Our Docket Center staff will continue to provide remote 
customer service via email, phone, and webform. We encourage the public 
to submit comments via https://www.regulations.gov or email, as there 
may be a delay in processing mail and faxes. Hand deliveries and 
couriers may be received by scheduled appointment only. For further 
information on EPA Docket Center services and the current status, 
please visit us online at https://www.epa.gov/dockets.
    You may find the following suggestions helpful for preparing your 
comments: direct your comments to specific sections of this proposed

[[Page 53917]]

rulemaking and note where your comments may apply to future separate 
actions where possible; explain your views as clearly as possible; 
describe any assumptions that you used; provide any technical 
information or data you used that support your views; provide specific 
examples to illustrate your concerns; offer alternatives; and, make 
sure to submit your comments by the comment period deadline. Please 
provide any published studies or raw data supporting your position. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (e.g., on the web, cloud, or other file sharing 
system).
    EPA recognizes that given the nature of this proposed rulemaking, 
potentially affected entities may wish to submit Confidential Business 
Information (CBI). CBI should not be submitted through https://www.regulations.gov. For submission of confidential comments or data, 
please work with the person listed in the FOR FURTHER INFORMATION 
CONTACT section if submitting a comment containing CBI. For additional 
submission methods, the full EPA public comment policy, information 
about CBI or multimedia submissions, and general guidance on making 
effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kirsten Cappel, U.S. Environmental 
Protection Agency, Stratospheric Protection Division, telephone number: 
202-343-9556; or email address: cappel.kirsten@epa.gov. You may also 
visit our website at https://www.epa.gov/ozone-layer-protection for 
further information.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. Acronyms that are used in this 
rulemaking that may be helpful include:

AIM Act--American Innovation and Manufacturing Act
CAA--Clean Air Act
CBI--Confidential Business Information
CO2--Carbon Dioxide
DRE--Destruction and Removal Efficiency
EPA--Environmental Protection Agency
FR--Federal Register
GHG--Greenhouse Gas
GHGRP--Greenhouse Gas Reporting Program
GWP--Global Warming Potential
HCFC--Hydrochlorofluorocarbon
HFC--Hydrofluorocarbon
IPCC--Intergovernmental Panel on Climate Change
MMTCO2 eq--Million metric tons carbon dioxide equivalent
Montreal Protocol--Montreal Protocol on Substances that Deplete the 
Ozone Layer
ODS--Ozone-depleting substance
Parties to the Montreal Protocol or Party--Nations and regional 
economic integration organizations that have consented to be bound 
by the Montreal Protocol on Substances that Deplete the Ozone Layer

I. General Information

A. Does this proposed action apply to me?

    You may be potentially affected by this action if you manufacture 
class II ozone-depleting substances (ODS) listed at 40 CFR part 82, 
subpart A, Appendix B, and hydrofluorocarbon-23 (HFC-23) is also 
generated as a byproduct at your plant. If you have any questions 
regarding the applicability of this action to a particular entity, 
consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. What action is the Agency proposing?

    The Environmental Protection Agency (EPA) is proposing to require 
the control, capture, and/or destruction of byproduct HFC-23 that would 
otherwise be emitted from plants that manufacture class II ODS (i.e., 
hydrochlorofluorocarbons (HCFCs)), including HCFC-22. Under the Clean 
Air Act (CAA) and EPA's regulations at 40 CFR part 82, controls are in 
place that restrict the production and consumption of HCFCs to 
implement the phaseout of these chemicals. There are limited exceptions 
to these restrictions for the manufacture of HCFCs that are not 
considered to be production under the CAA. One of the exceptions allows 
manufacture of HCFCs for use in a process in which the HCFC is used and 
entirely consumed, except for trace quantities, in the manufacture of 
other chemicals. The process is known as transformation and the 
controlled substances used and consumed are called feedstocks. Under 
this proposed action, any plant that manufactures HCFCs for 
transformation would need to control, capture, and/or destroy HFC-23 
byproduct generated. More specifically, EPA is proposing that no later 
than October 1, 2022, as compared to the amount of HCFCs intentionally 
manufactured on a facility line, no more than 0.1 percent of HFC-23 
generated on the line may be emitted. Rather, such HFC-23 byproduct 
must be captured and employed for a commercial purpose or destroyed 
using a technology approved by EPA.
    This proposed rule is narrow in scope and is expected only to 
affect those plants that continue to manufacture HCFCs under an 
exception to the HCFC phaseout under the CAA and its implementing 
regulations. Based on data from EPA's Greenhouse Gas Reporting Program 
(GHGRP), we are aware of two plants that would fall under the proposed 
requirements. These two plants report their emissions under subpart O 
of the GHGRP (HCFC-22 Production and HFC-23 Destruction), which 
requires owners or operators of facilities that contain HCFC-22 
production or HFC-23 destruction processes to report their emissions 
from those processes. Plant-specific emissions from these processes are 
then published in EPA's Facility Level Information on GreenHouse gases 
Tool (FLIGHT). Interested readers can review the data concerning HFC-23 
reported to EPA for over a decade. Other than the two plants included 
in the GHGRP data, EPA is not aware of any other class II ODS 
production plants in the United States that generate emissions of HFC-
23.\1\ EPA is soliciting comment on whether there are any other plants 
manufacturing class II ODS that have emissions of HFC-23. EPA is also 
aware that there are plants that generate HFC-23 emissions during 
production of HFCs and directs interested readers to ``Phasedown of 
Hydrofluorocarbons: Establishing the Allowance Allocation and Trading 
Program under the American Innovation and Manufacturing Act'' (86 FR 
27150, May 19, 2021), the ``Proposed HFC Allocation Rule,'' to learn 
more about EPA's proposal to implement a similar standard for emissions 
of HFC-23 at those plants.
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    \1\ See, e.g., ``Fluorinated Greenhouse Gas Emissions and 
Supplies Reported to the GHGRP.'' Epa.gov, Environmental Protection 
Agency, 24 Feb. 2021, https://www.epa.gov/ghgreporting/fluorinated-greenhouse-gas-emissions-and-supplies-reported-ghgrp#production.
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    EPA is proposing a compliance date of October 1, 2022. EPA 
recognizes that individual circumstances could arise that make it 
impossible for an individual plant to install necessary controls by 
October 1, 2022, and therefore is proposing a process under which 
companies could seek an extension of the compliance date.

C. What is the Agency's authority for this proposed action?

    Several sections of the CAA provide authority for this proposed 
action.\2\ Section 603 provides authority to establish monitoring and 
reporting requirements for ODS, and section 605

[[Page 53918]]

provides authority to phase out the production and consumption of class 
II substances, to restrict the use of class II ODS, and to promulgate 
regulations associated with the production of class II ODS. EPA's 
regulations implementing the production and consumption controls for 
class II substances, including provisions implementing exceptions to 
those controls, can be found at 40 CFR part 82, subpart A.
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    \2\ The Clean Air Act provisions addressing stratospheric ozone 
protection are codified at 42 U.S.C. 7671-7671q.
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    To the extent that this rulemaking involves recordkeeping and 
reporting requirements, EPA also relies on its authority under section 
114 of the CAA, which authorizes the EPA Administrator to require 
recordkeeping and reporting in carrying out any provision of the CAA 
(with certain exceptions that do not apply here). Additional authority 
for electronic reporting comes from the Government Paperwork 
Elimination Act (44 U.S.C. 3504), which provides ``(1) for the option 
of the electronic maintenance, submission, or disclosure of 
information, when practicable as a substitute for paper; and (2) for 
the use and acceptance of electronic signatures, when practicable.''

II. Background on This Action

A. Class I and Class II ODS Phaseout

    To comply with the United States' obligations under the Montreal 
Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) 
and requirements under Title VI of the CAA, EPA has been implementing a 
system of production and consumption controls for decades to facilitate 
the orderly phaseout of class I and class II ODS.\3\ Under this system, 
EPA allocates allowances for the production and consumption of these 
substances, gradually reducing the number of allowances allocated over 
time. Allocation of production and consumption allowances for most 
class I substances (e.g., chlorofluorocarbons, methyl chloroform, 
carbon tetrachloride, and halons) ended by 1996, and in 2005 for methyl 
bromide. EPA is implementing the phaseout of class II ODS on a 
chemical-by-chemical basis and had stopped allocating production and 
consumption allowances for most HCFCs by 2020. EPA allocated the few 
remaining production and consumption allowances for HCFC-123 and HCFC-
124 in a 2020 rulemaking (85 FR 15258). Under that rule, production and 
consumption allowances for class II substances are reduced to zero by 
2030 (Sec.  82.16). Production and import of HCFCs that are categorized 
as class II ODS without the appropriate allowances is generally 
prohibited unless an exception applies (Sec.  82.15(a) and (b)). The 
Montreal Protocol, the CAA, and EPA's implementing regulations also 
limit the permissible uses of HCFCs, with certain exceptions. 
Additional information on the class II phaseout can be found in EPA's 
prior rulemakings in this area (see, e.g., 68 FR 2819, 79 FR 64254, and 
85 FR 15258).
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    \3\ The current list of substances that are categorized as class 
I substances can be found at 40 CFR part 82, subpart A, Appendix A, 
and as class II substances at 40 CFR part 82, subpart A, Appendix B. 
The class II substances are all HCFCs.
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    As noted previously, there are limited exceptions to these 
production controls under the CAA and EPA's implementing regulations 
(Sec.  82.15(a)). One exception allowed indefinitely under the CAA is 
manufacture for use in a process resulting in the HCFC being 
transformed. Consistent with section 601(11) of the CAA, the definition 
of ``production'' in 40 CFR 82.3 excludes the ``manufacture of a 
controlled substance that is subsequently transformed.'' As defined in 
40 CFR 82.3, ``transform'' means to ``use and entirely consume (except 
for trace quantities) a controlled substance in the manufacture of 
other chemicals for commercial purposes.''

B. The American Innovation and Manufacturing Act

    HFC-23 is a very potent GHG with a 100-year global warming 
potential (GWP) of 14,800 \4\ that is generated as a byproduct during 
the manufacture of certain chemicals, including HCFC-22. In a Technical 
Support Document for EPA's GHGRP, EPA detailed the process by which 
HFC-23 is generated as a byproduct during the manufacture of HCFC-22:
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    \4\ Errata to Table 2.14 of the Intergovernmental Panel on 
Climate Change's (IPCC) Fourth Assessment Report.

    HCFC-22 is produced by the reaction of chloroform 
(CHCl3) and hydrogen fluoride (HF) in the presence of a 
catalyst, SbCl5. The reaction of the catalyst and HF 
produces SbClxFy, (where x + y = 5), which 
reacts with chlorinated hydrocarbons to replace chlorine atoms with 
fluorine. The HF and chloroform are introduced by submerged piping 
into a continuous-flow reactor that contains the catalyst in a 
hydrocarbon mixture of chloroform and partially fluorinated 
intermediates. The vapors leaving the reactor contain HCFC-21 
(CHCl2F), HCFC-22 (CHClF2), HFC-23 
(CHF3), HCl, chloroform, and HF. The under-fluorinated 
intermediates (HCFC-21) and chloroform are then condensed and 
returned to the reactor, along with residual catalyst, to undergo 
further fluorination. The final vapors leaving the condenser are 
primarily HCFC-22, HFC-23, HCl and residual HF. The HCl is recovered 
as a useful byproduct, and the HF is removed. Once separated from 
the HCFC-22, the HFC-23 may be vented to the atmosphere as an 
unwanted by-product, captured for use in a limited number of 
applications, or destroyed.\5\
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    \5\ Technical Support Document for Emissions of HFC-23 from 
Production of HCFC-22: Proposed Rule for Mandatory Reporting of 
Greenhouse Gases, February 6, 2009, available at: https://www.epa.gov/sites/production/files/2015-02/documents/subparto-tsd.pdf.

    Historically, HFC-23 that has not been controlled or captured has 
been vented to the atmosphere. EPA is also aware of limited instances 
where HFC-23 is captured, purified, and used for commercial purposes, 
such as fire suppression, very low temperature refrigeration, and 
semiconductor manufacturing.
    HFC-23 is a regulated substance under the American Innovation and 
Manufacturing Act of 2020 (AIM Act) enacted December 27, 2020, as 
section 103 in Division S, Innovation for the Environment, of the 
Consolidated Appropriations Act, 2021 (Pub. L. 116-260). EPA has 
recently published a proposed rule under AIM Act authority, the 
Proposed HFC Allocation Rule (86 FR 27150, May 19, 2021), that has 
several interrelated proposed approaches linked to HFC-23 emissions. 
Under the primary proposed approach, all creation of HFC-23, whether 
intentional or unintentional, beyond insignificant quantities under 
certain conditions, would be ``production'' covered by AIM Act 
regulations. That proposal would require that HFC-23 be captured and 
controlled to a specific standard and then the HFC-23 could be refined 
for sale, which would require expenditure of AIM Act allowances, or the 
HFC-23 would need to be destroyed.\6\ In the alternative, EPA is 
proposing to require that, in order to be eligible for a production 
allowance under the AIM Act rules, companies must control, capture, and 
destroy HFC-23 emissions from plants producing HFCs listed as regulated 
substances in the AIM Act. Under both proposals, EPA is proposing that, 
no later than October 1, 2022, as compared to the amount of chemical 
intentionally produced on a facility line, no more than 0.1 percent of 
HFC-23 generated as a byproduct on the line may be emitted. EPA also 
proposed a process under which companies could seek an

[[Page 53919]]

extension of the compliance date in certain circumstances. Accordingly, 
the timeline proposed in the Proposed HFC Allocation Rule matches the 
timeline proposed in this rulemaking, such that facilities would have 
no compliance obligations until October 1, 2022, or later if a 
compliance date extension was granted, to allow facilities necessary 
time to install and calibrate equipment. The HFC-23 must be destroyed 
using a technology approved in the context of the AIM Act regulations 
(which are also proposed in the same notice).
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    \6\ If that proposed approach under the AIM Act were to be 
finalized, all generation of HFC-23 would be regulated, including 
HFC-23 generated as a byproduct during production of HCFCs for 
feedstock use. Under such a scenario, EPA anticipates that it would 
not finalize this proposal, but is soliciting comments on whether 
this CAA-specific rulemaking would still be beneficial.
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C. Emission Reduction Commitments

    Studies indicate that HFC-23 emission trends from HCFC-22 
manufacturing largely depend on the magnitude of HCFC-22 manufacturing 
and the effectiveness of HFC-23 destruction associated with that 
manufacture of HCFC-22.\7\ \8\ \9\ HFC-23 has a substantially longer 
atmospheric lifetime and higher GWP than all other HFCs at 14,800. In 
2015, EPA estimated that global controls on byproduct HFC-23 emissions 
from HCFC-22 manufacture would result in cumulative HFC-23 byproduct 
emission reductions of 12,600 MMTCO2 eq through 2050.\10\
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    \7\ Montzka, S.A., L. Kuijpers, M.O. Battle, M. Aydin, K.R. 
Verhulst, E.S. Saltzman, and D.W. Fahey. et al.: Recent increases in 
global HFC-23 emissions, Geophysical Research Letters, 37, L02808, 
doi:10.1029/2009GL041195, 2010.
    \8\ B.R. Miller, M. Rigby, L.J.M. Kuijpers, P.B. Krummel, et 
al.: HFC-23 (CHF3) emission trend response to HCFC-22 
(CHClF2) production and recent HFC-23 emission abatement 
measures, Atmospheric Chemistry and Physics, 10, 7875-7890, 2010.
    \9\ World Meteorological Organization (WMO), Executive Summary: 
Scientific Assessment of Ozone Depletion: 2018, World Meteorological 
Organization, Global Ozone Research and Monitoring Project--Report 
No. 58, 67 pp., Geneva, Switzerland, 2018.
    \10\ Proposed amendment to the Montreal Protocol submitted by 
Canada, Mexico and the United States of America. https://ozone.unep.org/system/files/documents/OEWG-36-3E.pdf.
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    On September 16, 2014, and October 15, 2015, entities in the 
private sector announced commitments to reduce emissions of HFCs.\11\ 
Several of those commitments included reducing HFC-23 byproduct 
emissions. For example, one commitment from 2015 states, in part:
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    \11\ https://obamawhitehouse.archives.gov/the-press-office/2014/09/16/fact-sheet-obama-administration-partners-private-sector-new-commitments- and https://obamawhitehouse.archives.gov/the-press-office/2015/10/15/fact-sheet-obama-administration-and-private-sector-leaders-announce.

    ``Chemours today agreed to control and, to the extent feasible, 
eliminate by-product emissions of HFC-23 at all its fluorochemical 
production facilities worldwide. Furthermore, Chemours today agreed 
to use in the U.S. only feedstock HCFC-22 from producers that 
control and, to the extent feasible, eliminate by-product emissions 
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of HFC-23 at their production facilities in North America.''

And a second 2015 pledge states, in part:

    ``Daikin Industries Ltd. today announced its commitment to 
strictly control and, to the extent feasible, eliminate by-product 
emissions of HFC-23 at its fluorochemical production facilities 
worldwide. Daikin's plant in Decatur, Alabama, was the first plant 
in the U.S. that committed to the destruction of HFC-23 when it 
started operations in 1994.''

    These commitments demonstrate longstanding concerns over and 
efforts to limit HFC-23 byproduct emissions. Further, in a 2021 news 
release, Chemours announced a project to significantly reduce emissions 
at their Louisville, Kentucky, manufacturing site. As stated in the 
news release, the project includes the design, custom-build, and 
installation of proprietary technology to capture at least 99 percent 
of HFC-23 process emissions from the site. The news release is 
available in the docket to this rule (EPA-HQ-OAR-2021-0253).

III. What is EPA proposing in this action?

A. What is EPA proposing to require for manufacturers of class II ODS?

    In this action, EPA is proposing plants that manufacture HCFCs must 
control, capture, and destroy HFC-23 byproduct emissions. More 
specifically, EPA is proposing that, no later than October 1, 2022, as 
compared to the amount of chemical intentionally manufactured on a 
facility line over a certain time period, no more than 0.1 percent of 
HFC-23 generated on the line may be emitted during that same time 
period. After such point, emissions of HFC-23 byproduct that exceed the 
0.1 percent would be treated as violations of an applicable emissions 
limitation in violation of federal law and subject to appropriate 
enforcement action. The proposed 0.1 percent allowable emissions 
standard is mass based, with the mass of the intentionally produced 
substance as the comparison point. In other words, if a line is 
intentionally producing 1,000 pounds of HCFC-22 over a certain time 
period, only one pound of HFC-23 could be emitted over that same time 
period. EPA proposes that any captured HFC-23 must either be refined 
and employed for commercial purposes, in accordance with any other 
governing regulatory requirements, or destroyed.
    Given that the focus of this rulemaking is to minimize HFC-23 
byproduct emissions, it is reasonable to require that if the HFC-23 is 
not being captured and employed for a commercial purpose, in which case 
it is not directly emitted from the HCFC manufacturing facility, HFC-23 
must be destroyed using a technology that has been demonstrated to be 
highly effective in destroying HFC-23. EPA is proposing that HFC-23 
must be destroyed using a technology approved by EPA. HFC-23 is a 
regulated substance under the newly enacted AIM Act. EPA has recently 
published the Proposed HFC Allocation Rule (86 FR 27150, May 19, 2021), 
which includes a proposal to approve specific technologies as 
permissible for the destruction of HFC-23. Because HFC-23 is a 
regulated substance under the AIM Act, it seems most appropriate to 
list approved technologies for the destruction of HFC-23 through the 
Proposed HFC Allocation Rule. Therefore, EPA is not separately 
proposing a list of technologies through this rulemaking. The list of 
technologies proposed for approval through the Proposed HFC Allocation 
Rule is as follows: (1) Gaseous/fume oxidation; (2) Liquid injection 
incineration; (3) Reactor cracking; (4) Rotary kiln incineration; (5) 
Argon plasma arc; (6) Nitrogen plasma arc; (7) Chemical reaction with 
hydrogen and carbon dioxide; and (8) Superheated steam reactor. As 
stated in the preamble of the Proposed HFC Allocation Rule (86 FR 
27183), these technologies are capable of destroying HFC-23 to a 
destruction and removal efficiency (DRE) of 99.99 percent.\12\
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    \12\ The preamble to the Proposed HFC Allocation Rule also 
states that many of the destruction technologies previously approved 
by EPA to destroy ODS have also been found capable of destroying 
HFCs to a minimum DRE of 99.99 percent, citing the 2018 TEAP Report, 
Volume 2: Decision XXIX/4 TEAP Task Force Report on Destruction 
Technologies for Controlled Substances. March 15, 2021. https://ozone.unep.org/sites/default/files/2019-04/TEAP-DecXXIX4-TF-Report-April2018.pdf. In addition, we note that these eight technologies 
are currently included in the list of destruction processes approved 
by EPA for class I and class II ODS, which can be found in the 
definition of ``destruction'' in 40 CFR 82.3.
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    For additional information on these technologies, EPA's basis for 
approving them for destruction of HFC-23, and to participate in the 
public process concerning that Proposed HFC Allocation Rule, please see 
the earlier-cited proposed rule. EPA is soliciting comment on its 
proposed approach to require use of a technology listed as approved 
through the Proposed HFC Allocation Rule, and it is also soliciting 
comment in this rulemaking on whether the same set of destruction 
technologies should be separately listed and approved for HFC-23 
destruction under

[[Page 53920]]

this rulemaking for inclusion in the part 82 regulations.
    As noted previously, the known plants affected by this rulemaking 
have made public commitments to control and, to the extent feasible, 
eliminate byproduct emissions of HFC-23. In recent discussions with 
EPA, affected companies described ongoing efforts to control, capture, 
and destroy HFC-23, including planned facility upgrades.\13\ EPA is 
proposing regulations to establish permanent and federally enforceable 
requirements in addition to these voluntary commitments. EPA 
acknowledges that some plants may need to install and calibrate new 
equipment to meet the standard and therefore is proposing a compliance 
date of October 1, 2022, to allow these plants to complete these 
activities. Based on the actions EPA understands need to be undertaken, 
including building and installing customized equipment, October 1, 
2022, is a reasonable date by which plants should be expected to comply 
with the requirements proposed in this rule, if finalized.
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    \13\ ``Facilities with HFC-23 Emissions'' is available in the 
docket (EPA-HQ-OAR-2021-0253).
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    Moreover, EPA recognizes that individual circumstances could arise 
that make it impossible for an individual plant to install necessary 
controls by October 1, 2022. Therefore, EPA proposes that the Agency 
may grant a six-month deferral of this compliance deadline (with the 
possibility of an additional, one-time six month extension) for 
companies that can demonstrate to EPA that they have taken concrete 
steps to start to improve their HFC-23 control, capture, and 
destruction (such as purchase and installation of necessary equipment) 
at the relevant plants, are reporting under applicable sections of 40 
CFR parts 82, 84,\14\ and 98, and have clear plans to come into full 
compliance with the 0.1 percent HFC-23 limit by the deferred date. 
Alternatively, EPA proposes that the Agency may grant a one-time, one-
year deferral of the October 1, 2022 deadline, with no possible 
extension. EPA is soliciting comment on whether a phased approach of 
two six-month deferrals would provide helpful oversight by EPA on the 
company's progress to ensure regulatory requirements take effect as 
soon as feasible, or whether a single one-time deferral is more 
appropriate in this instance. Under this proposal, companies would need 
to request such a deferral by August 1, 2022. EPA proposes to make a 
determination on an application within 30 days. EPA intends to publicly 
announce any compliance deferrals granted under this process.
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    \14\ EPA has proposed initial implementing regulations for the 
recently enacted AIM Act, which would be codified at 40 CFR part 84. 
This includes proposed recordkeeping and reporting requirements. 
More details can be found in ``Phasedown of Hydrofluorocarbons: 
Establishing the Allowance Allocation and Trading Program under the 
American Innovation and Manufacturing Act'' (86 FR 27150, May 19, 
2021). If the referenced recordkeeping and reporting requirements 
are finalized, EPA is proposing through this document that such 
recordkeeping and reporting requirements would need to be followed 
in order for a facility to be eligible for an extension.
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    EPA proposes that the destruction of captured HFC-23 is not 
required to occur at the same plant where the HFC-23 is generated. 
Destruction of HFC-23 may occur either at the plant where it is 
generated (on-site) or off-site at another plant. In instances where 
captured HFC-23 is destroyed off-site, EPA proposes that the 
transportation to and destruction at the off-site plant would be 
considered in calculating compliance with the 0.1 percent emissions 
standard.
    Destruction of HFC-23 on-site at the plant where it is generated 
occurs very soon after it is generated. Accordingly, EPA proposes that 
if a company utilizes onsite destruction capability, HFC-23 must be 
destroyed within 30 days of its generation. Alternatively, where 
destruction occurs off-site, more time may be needed to allow for 
transportation. To ensure HFC-23 is destroyed in a reasonable amount of 
time and is not inadvertently emitted, EPA is proposing to require that 
off-site HFC-23 destruction occur within 90 days after it is generated. 
These timelines are achievable as a practical matter while being short 
enough to avoid potential malfeasance that could occur over an 
elongated time horizon and to minimize the potential of accidental 
releases. EPA welcomes comment on these timeframes and would consider 
longer time windows if necessary to destroy HFC-23.
    The CAA in section 605(c) provides EPA with the authority to 
promulgate regulations relating to the phase out of production of class 
II substances. Given plants are allowed to continue to manufacture 
HCFCs indefinitely under certain exceptions to the general prohibition 
on their production, such as manufacture as a feedstock for 
transformation, it is reasonable to require them to control, capture, 
and/or destroy HFC-23 emissions associated with such manufacture. As 
noted previously, HFC-23 has a GWP of 14,800, meaning that emitting a 
single kilogram of HFC-23 has about the same effect on the global 
climate over 100 years as emitting 14,800 kilograms of CO2. 
Elevated concentrations of greenhouse gases (GHGs), including HFC-23, 
have been warming the planet, leading to changes in the Earth's climate 
including changes in the frequency and intensity of heat waves, 
precipitation, and extreme weather events, rising seas, and retreating 
snow and ice. The changes taking place in the atmosphere as a result of 
the well-documented buildup of GHGs due to human activities are 
changing the climate at a pace and in a way that threatens human 
health, society, and the natural environment. Extensive additional 
information on climate change is available in numerous scientific 
assessments \15\ and EPA documents, as well as in the technical and 
scientific information supporting them. Two of these documents are 
EPA's 2009 final rule document ``Endangerment and Cause or Contribute 
Findings for Greenhouse Gases Under Section 202(a) of the Clean Air 
Act'' (74 FR 66496, December 15, 2009) and EPA's 2016 Endangerment and 
Cause or Contribute Findings for greenhouse gas emissions from aircraft 
under section 231(a)(2)(A) of the Clean Air Act (81 FR 54422, September 
14, 2016).\16\
---------------------------------------------------------------------------

    \15\ For example, the 2018 National Climate Assessment or the 
2018 IPCC Special Report on 1.5 [deg]C: USGCRP, 2018: Impacts, 
Risks, and Adaptation in the United States: Fourth National Climate 
Assessment, Volume II [Reidmiller, D.R., C.W. Avery, D.R. 
Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C. 
Stewart (eds.)]. U.S. Global Change Research Program, Washington, 
DC, USA, 1515 pp. doi: 10.7930/NCA4.2018 and IPCC, 2018: Global 
Warming of 1.5 [deg]C. An IPCC Special Report on the impacts of 
global warming of 1.5 [deg]C above pre-industrial levels and related 
global greenhouse gas emission pathways, in the context of 
strengthening the global response to the threat of climate change, 
sustainable development, and efforts to eradicate poverty [Masson-
Delmotte, V., P. Zhai, H.-O. P[ouml]rtner, D. Roberts, J. Skea, P.R. 
Shukla, A. Pirani, W. Moufouma-Okia, C. P[eacute]an, R. Pidcock, S. 
Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, 
T. Maycock, M. Tignor, and T. Waterfield (eds.)].
    \16\ In describing these 2009 and 2016 Findings in this 
proposal, EPA is neither reopening nor revisiting them.
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    As noted, EPA is aware of two plants that intentionally manufacture 
HCFCs that generate HFC-23 as a byproduct. Both of these plants 
manufacture HCFC-22 for transformation. The definition in 40 CFR 82.3 
of transformation notes that chemicals used in transformation processes 
are used and entirely consumed, except for trace quantities. As noted 
previously, this is consistent with the exclusion of substances that 
are ``used and entirely consumed (except for trace quantities) in the 
manufacture of other chemicals'' from the definition of produce, 
produced, and production in section 601(11) of the CAA. It is 
reasonable to assume that, in excepting transformation processes from 
the definitions related to production and

[[Page 53921]]

accordingly from the production controls under the ODS phaseout, 
including for HCFCs, Congress's expectation was that HCFCs manufactured 
under this exception would be used and entirely consumed in the 
subsequent transformation processes, thereby resulting in minimal 
environmental effects from the manufactured HCFCs. Accordingly, it is 
reasonable for EPA to place additional controls around the process used 
to manufacture HCFCs intended for transformation in order to minimize 
its environmental effects.

B. What is EPA proposing for recordkeeping and reporting requirements?

    EPA is proposing reporting requirements and corresponding 
recordkeeping requirements for plants that manufacture class II ODS 
with HFC-23 byproduct generation. EPA is proposing a one-time report, 
to be submitted within 45 days after the effective date of the rule, 
containing the following: (i) Information on the capacity to 
manufacture the intended chemical(s) on the line(s) where HFC-23 
byproduct is generated; (ii) a description of actions taken at the 
plant to control the generation and emissions of HFC-23; (iii) 
identification of approved destruction technology and its location 
intended for use for HFC-23 destruction; and (iv) a copy of the DRE 
report associated with the destruction technology. EPA is further 
proposing that any changes to the information provided in the one-time 
report be reflected in a revision submitted to EPA within 60 days of 
the change(s).
    EPA is also proposing quarterly reporting, to be submitted 45 days 
after the end of the applicable reporting period,\17\ for production 
line data on HFC-23: (i) Emissions; (ii) generated, whether captured or 
not; (iii) generated and captured for all uses; (iv) generated and 
captured for feedstock use in the United States; (v) generated and 
captured for destruction; (vi) used for feedstock without prior 
capture; and (vii) destroyed without prior capture. Quantities should 
be reported in kilograms consistent with the existing reporting 
requirements in 40 CFR 82.24 for class II controlled substances.
---------------------------------------------------------------------------

    \17\ There are four quarters or reporting periods in the control 
period. As defined in 40 CFR 82.3, the control period is each 
twelve-month period from January 1 through December 31.
---------------------------------------------------------------------------

    If captured HFC-23 byproduct is destroyed in a subsequent calendar 
year (e.g., it is generated and captured December 15 and destroyed 
January 15 in the following year), EPA is further proposing to require 
the entity that generated the HFC-23 to report that the HFC-23 has been 
destroyed. The information must be submitted within 45 days after 
destruction occurs. In addition, where destruction of HFC-23 occurs at 
a different plant than where it is generated, EPA is proposing to 
require the entity that generated the HFC-23 to report that the HFC-23 
has been destroyed within 90 days of being generated. The information 
must be submitted within 45 days after destruction occurs.
    To ensure that reported values for HFC-23 generation, capture, 
transformation, and destruction are reliable, EPA is proposing to 
require entities to comply with certain monitoring and calculation 
provisions. Specifically, EPA is proposing to require entities to meet 
the same requirements in 40 CFR part 98, subpart L or subpart OO, 
depending on the quantity being reported. These provisions include 
validated methods for measuring concentrations of HFC-23 in process 
streams and the mass flow rates of those streams; accuracy, precision, 
and calibration requirements for instrumentation; and specific 
calculation methods for uncontrolled emissions and for quantities 
transformed and destroyed. EPA proposes to include these reporting 
requirements to ensure that reported data are accurate, precise, and 
comparable over time and across plants and companies.
    Regarding annual plant-level information on HFC-23 generated and 
destroyed, these data are inputs into emission equations that are used 
under GHGRP subpart O to calculate and report emissions of HFC-23, and 
inputs into emission equations are considered ``emission data.'' 
Section 114(c) of the CAA provides that ``emission data'' shall be 
available to the public. EPA generally anticipates that these elements 
related to HFC-23 are emission data and thus will not be treated as 
confidential following their collection.
    EPA is proposing to require records of reports submitted to EPA to 
be kept for five years.

III. Statutory and Executive Order Review

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is an economically significant regulatory action that 
was submitted to the Office of Management and Budget (OMB) for review. 
Any changes made in response to OMB recommendations have been 
documented in the docket. EPA prepared an analysis of the potential 
costs and benefits associated with this action. This analysis, ``Draft 
Regulatory Impact Analysis for Protection of Stratospheric Ozone: 
Standards Related to the Manufacture of Class II Ozone-Depleting 
Substances for Feedstock'' is available in the docket.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to OMB under the PRA. The Information 
Collection Request (ICR) document that EPA prepared has been assigned 
EPA ICR number 1432.37. You can find a copy of the ICR in the docket 
for this rule, and it is briefly summarized here.
    EPA is proposing both a one-time report and quarterly reporting to 
ensure compliance with the proposed limits related to HFC-23 byproduct 
emissions from the manufacture of class II controlled substances or 
HCFCs. Quarterly reporting is consistent with the existing reporting 
requirements in 40 CFR 82.24 for class II controlled substances. The 
ICR addresses the incremental changes to the existing reporting and 
recordkeeping programs that are approved under OMB control number 2060-
0170.
    Respondents/affected entities: Respondents and affected entities 
will be plants that manufacture HCFCs and generate HFC-23 as a 
byproduct.
    Respondent's obligation to respond: Mandatory--sections 603(b) and 
114 of the CAA.
    Estimated number of respondents: 2.
    Frequency of response: Quarterly, annually, and as needed.
    Total estimated burden: 164 hours (per year). Burden is defined at 
5 CFR 1320.3(b).
    Total estimated cost: $20,157 (per year), includes $0 annualized 
capital or operation and maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates and any suggested methods for 
minimizing respondent burden to EPA using the docket identified at the 
beginning of this rule. You may also send your ICR-related comments to 
OMB's Office of Information and Regulatory Affairs via email to 
OIRA_submission@omb.eop.gov, Attention:

[[Page 53922]]

Desk Officer for EPA. Since OMB is required to make a decision 
concerning the ICR between 30 and 60 days after receipt, OMB must 
receive comments no later than October 29, 2021. EPA will respond to 
any ICR-related comments in the final rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities (SISNOSE) under the 
RFA. This action will not impose any requirements on small entities. If 
a rule may have a SISNOSE, the Agency would be required to take certain 
steps to ensure that the interests of small entities were represented 
in the rulemaking process. To determine whether the proposed changes 
would likely have a SISNOSE, EPA identified producers with HFC-23 
emissions under EPA's GHGRP. The small business threshold is defined by 
the SBA as the number of employees in the company and varied between 
100 and 1,500 employees. Because only two plants were identified as 
potentially affected by this action, and neither of those plants are 
owned by small businesses, it can be presumed that this action will 
have no SISNOSE.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local, or tribal governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this action. EPA periodically provides updates on air regulations to 
the National Tribal Air Association and will share information on this 
rulemaking through this and other fora.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is subject to Executive Order 13045 (62 FR 19885, April 
23, 1997) because it is an economically significant regulatory action 
as defined by Executive Order 12866, and EPA believes that the 
environmental health or safety risk addressed by this action has a 
disproportionate effect on children. Accordingly, EPA has evaluated the 
environmental health and welfare effects of climate change on children.
    GHGs, including HFCs, contribute to climate change. The GHG 
emissions reductions from HFC-23 resulting from implementation of this 
rule will further improve children's health. The assessment literature 
cited in EPA's 2009 and 2016 Endangerment Findings concluded that 
certain populations and life stages, including children, the elderly, 
and the poor, are most vulnerable to climate-related health effects. 
The assessment literature since 2016 strengthens these conclusions by 
providing more detailed findings regarding these groups' 
vulnerabilities and the projected impacts they may experience. These 
assessments describe how children's unique physiological and 
developmental factors contribute to making them particularly vulnerable 
to climate change. Impacts to children are expected from heat waves, 
air pollution, infectious and waterborne illnesses, and mental health 
effects resulting from extreme weather events. In addition, children 
are among those especially susceptible to most allergic diseases, as 
well as health effects associated with heat waves, storms, and floods. 
Additional health concerns may arise in low-income households, 
especially those with children, if climate change reduces food 
availability and increases prices, leading to food insecurity within 
households.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This action applies to the manufacture 
of certain regulated substances, none of which are used to supply or 
distribute energy.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not contribute to 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations, and/or 
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, 
February 16, 1994). As discussed in the Regulatory Impact Analysis, 
``Draft Regulatory Impact Analysis for Protection of Stratospheric 
Ozone: Standards Related to the Manufacture of Class II Ozone-Depleting 
Substances for Feedstock,'' one of the plants potentially affected by 
this proposed rule is currently controlling their HFC-23 emissions on-
site, and the other plant plans to install equipment that will capture 
HFC-23 process emissions. Based on this information and as discussed 
further in the Regulatory Impact Analysis, we do not anticipate any 
effects from the proposed rule on the manufacture of HCFC-22.
    This rule, if finalized, will reduce emissions of a potent GHG that 
is generated as a byproduct from the manufacture of certain HCFCs. 
While there are no local effects associated with the release of HFC-23, 
reducing emissions of HFC-23 will contribute to reducing the effects of 
climate change in the longer term, including public health and welfare 
effects that may be unevenly distributed and particularly harmful to 
minority populations, low-income populations, and/or indigenous 
peoples.

List of Subjects in 40 CFR Part 82

    Environmental protection, Air pollution control, Chemicals, 
Emissions, Reporting and recordkeeping requirements.

Michael S. Regan,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 82 as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

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


[[Page 53923]]


0
2. Amend Sec.  82.15 by adding paragraph (a)(3) to read as follows:


Sec.  82.15  Prohibitions for class II controlled substances.

    (a) * * *
    (3) Effective October 1, 2022, no person may manufacture class II 
controlled substances defined in Sec.  82.3 at a plant where HFC-23 
byproduct is generated unless no more than 0.1 percent of HFC-23 
generated is emitted as compared to the amount of class II controlled 
substances intentionally manufactured on the facility line. Any 
captured HFC-23 must be employed for commercial use consistent with the 
requirements outlined in 40 CFR part 84 or destroyed using a technology 
approved by EPA for that purpose in Sec.  84.29. Where destruction 
occurs on-site at the plant where HFC-23 is generated, HFC-23 must be 
destroyed within 30 days of its generation. Captured HFC-23 destroyed 
at a different plant than where it is generated must be destroyed 
within 90 days after its generation. In such instances, emissions 
during the transportation to and destruction at the different plant are 
included in the calculations of whether the manufacturer meets the 0.1 
percent standard.
    (i) Request for extension. A person may submit to the relevant 
Agency official a request for a six-month extension, with the 
possibility of one additional six-month extension of the October 1, 
2022, compliance date. No entity may have a compliance date later than 
October 1, 2023.
    (ii) Timing of request. The extension request must be submitted to 
EPA no later than August 1, 2022, for a first-time extension, or 
February 1, 2023, for a second extension.
    (iii) Content of request. The extension request must contain the 
following information:
    (A) Name of the plant submitting the request; contact information 
for a person at the plant; and the address of the plant.
    (B) A description of the specific actions taken at the plant to 
improve HFC-23 control, capture, and destruction; the plans to meet the 
0.1 percent HFC-23 limit including the expected date by which the 
equipment will be installed and operating; and verification that the 
plant has met all applicable reporting requirements under 40 CFR parts 
82, 84, and 98.
    (iv) Review of request. Starting on the first working day following 
receipt by the relevant Agency official of a complete request for 
extension, the official will initiate review of the information 
submitted and take action within 30 working days.
* * * * *
0
3. Amend Sec.  82.24 by adding paragraph (g) to read as follows:


Sec.  82.24  Recordkeeping and reporting requirements for class II 
controlled substances.

* * * * *
    (g) Manufacturers of class II controlled substances under Sec.  
82.15(a)(3). Any person who manufactures class II controlled substances 
under Sec.  82.15(a)(3) during a control period must comply with the 
following recordkeeping and reporting requirements:
    (1) Reporting. Each manufacturer of a class II controlled substance 
under Sec.  82.15(a)(3) must provide the Administrator with the 
following two reports as required in Sec.  82.24(g)(1)(i) and (ii).
    (i) Within 45 days of the effective date of the final rule, each 
manufacturer must provide the Administrator with a one-time report 
containing the information required in this paragraph (g)(1)(i). Any 
changes to information required in this paragraph (g)(1)(i) must be 
reflected in a revision to the report to be submitted to EPA within 60 
days of the change(s).
    (A) Information on the capacity to manufacture the intended 
chemical on the line(s) on which HFC-23 is generated.
    (B) Description of actions taken at the plant to control the 
generation and emissions of HFC-23.
    (C) Identification of approved destruction technology and its 
location intended for use for HFC-23 destruction.
    (D) A copy of the destruction and removal efficiency report 
associated with the destruction technology.
    (ii) For each quarter, each manufacturer must provide the 
Administrator with a report containing the information required in this 
paragraph (g)(1)(ii).
    (A) Production line data for the quarter on HFC-23 (in kilograms) 
on: Emissions; generated; generated and captured; generated and 
captured for feedstock use in the United States; generated and captured 
for destruction; used for feedstock without prior capture; and 
destroyed without prior capture.
    (iii) If captured HFC-23 is destroyed in a subsequent control 
period, within 45 days after destruction occurs, manufacturers must 
submit information to EPA indicating the HFC-23 has been destroyed.
    (iv) If captured HFC-23 is destroyed at a different plant than 
where it is generated, within 45 days after destruction occurs, 
manufacturers must submit information to EPA indicating the HFC-23 has 
been destroyed. Such report must include the date on which the HFC-23 
was generated and the date on which the HFC-23 was destroyed.
    (v) In developing any required report, the owner/operator of a 
plant that manufacturers class II controlled substances that generates 
HFC-23 must abide by the following monitoring and quality assurance and 
control provisions:
    (A) To calculate the quantities of HFC-23 generated and captured 
for any use, generated and captured for destruction, used for feedstock 
without prior capture, and destroyed without prior capture, plants 
shall comply with the monitoring methods and quality assurance and 
control requirements set forth at 40 CFR 98.414 of this title and the 
calculation methods set forth at Sec.  98.413 of this title, except 
Sec.  98.414(p) of this title shall not apply.
    (B) To calculate the quantity of HFC-23 emitted, plants shall 
comply with the monitoring methods and quality assurance and control 
requirements set forth at Sec.  98.124 of this title and the 
calculation methods set forth at Sec.  98.123 of this title.
    (2) Recordkeeping. Each manufacturer during a control period must 
maintain records of reports provided to the Administrator for five 
years.

[FR Doc. 2021-20746 Filed 9-28-21; 8:45 am]
BILLING CODE 6560-50-P


