On April 13, 2018, U.S. EPA published a notice containing information related to the EPA’s Significant New Alternatives Policy program which identifies acceptable and unacceptable substitutes for ozone depleting substances, and in particular, relates to a July 2015 rule prohibiting the use of hydrofluorocarbons (HFCs, powerful greenhouse gases) as replacements for ozone-depleting substances.
EPA’s Significant New Alternatives Policy program expands the list of acceptable substitutes to ozone-depleting substances and lists unacceptable substitutes. Recent EPA rules under the SNAP program have considered global warming potential as a criterion in evaluating the impacts of substances under consideration.
In April 2015, EPA published a rule to name five refrigerants acceptable substitutes to ozone-depleting HCFCs in compliance with the agency’s Significant New Alternatives Policy program. The substitutes are to be used in several end uses, including household and stand-alone commercial refrigerators, vending machines, and room air conditioning units, subject to use conditions. The substitutes (ethane, isobutane, propane, HFC-32, and R-441A) are legal to use in new appliances and are exempt from the Clean Air Act Section 608’s prohibition on venting, release or disposal.
In July 2015, also under the Significant New Alternatives Policy program, EPA made changes to the listing for certain HFCs used in aerosols, refrigeration and air conditioning, and foam blowing, and prohibited the use of HFCs.
D.C. CIRCUIT DECISION
On August 8, 2017, the D.C. Circuit issued a decision in which it vacated the portion of the rule requiring manufacturers to phase out the use of HFCs with high global warming potentials and remanded to EPA for further proceedings. The D.C. Circuit ruled EPA lacked authority to issue the July 2015 rule prohibiting the use of HFCs that are powerful greenhouse gases as replacements for ozone-depleting substances. See Mexichem Fluor, Inc. v. EPA, 866 F.3d 451.
THE RECENT NOTICE
This recent April 2018 notice issued by EPA clarifies that it will not enforce the 2015 rule and announces its intent to begin a notice-and-comment rulemaking process to address the remand of the rule.