EPA to start new rule-making on HFCs

The U.S. Environmental Protection Agency (EPA) last week issued a notice of guidance affirming that it would adhere to a Court of Appeals ruling that limits its ability to regulate HFCs while also stating its intention to commence a notice-and-comment rulemaking process to revisit how it can regulate HFCs.

The agency also announced a stakeholder meeting on May 4 at its Washington, D.C., headquarters to enable stakeholders to provide input as part of the rulemaking process.

The EPA’s notice was issued “to dispel confusion and provide regulatory certainty” for end users of refrigeration, air conditioning and other applications affected by the EPA’s Significant New Alternatives Policy (SNAP) program's Final Rule 20 issued on July 20, 2015, which delisted numerous  HFCs for certain applications. That rule was in effect invalidated by the decision last August of the Court of Appeals for the District of Columbia Circuit.

“In the near term EPA will not apply the HFC listings in the 2015 rule, pending a rulemaking,” the agency said in the notice of guidance, its first official response to the court ruling.

At the same time the EPA said it “plans to begin a notice-and-comment rulemaking process to address the remand of the 2015 rule.” The agency added that it “intends to consider the appropriate way to address HFC listings under the SNAP program in light of the court’s opinion” and also consider “the larger implications of the court’s opinion remanding the rule to the agency.”

The court gave the EPA several options for regulating HFCs, including “retroactive disapproval” and the use of other laws such as the Toxic Substances Control Act.

The National Automatic Merchandising Association (NAMA) reacted favorably to the guidance, which confirms the suspension of a January 1, 2019 deadline for phasing out HFCs in vending machines.

“This week’s action delivers the positive result NAMA was working toward, a result that benefits manufacturers and operators alike -- providing valuable, additional time to work through challenges related to a transition away from HFCs,” said NAMA’s Senior Vice President, Eric Dell. 

“Moving ahead, the industry will continue to work together with the EPA on this issue and remains committed to a transition away from HFCs,” he added. “In fact, NAMA is undertaking research to determine optimal next steps and address concerns related to alternative refrigerants.”

The Court of Appeals ruling was issued in the case Mexichem Fluor, Inc. v. EPA. The two plaintiffs in the case were manufacturers of HFCs: Mexican Mexichem Fluor and French company Arkema SA.

The ruling specifically vacated the 2015 EPA FInal Rule 20 "to the extent that it requires manufacturers to replace HFCs with a substitute substance."

In January the court refused to rehear the case. Honeywell, an intervenor, has appealed the case to the U.S. Supreme Court.

Meanwhile, last month the California Air Resources Board (CARB)  adopted a regulation prohibiting the use high-GWP HFCs refrigerants, thereby maintaining in California the HFC prohibitions previously established by the EPA.

The U.S. Congress has also begun to address this issue. In February two U.S. senators – John Kennedy (R-La.) and Tom Carper (D-Del.) – introduced a bipartisan bill, the American Innovation and Manufacturing Act, that would empower the EPA to issue rules phasing down HFCs through a cap-and-trade program and the “advancement of environmentally friendly technologies.” It would also conform to the Kigali Amendment to the Montreal Protocol, which calls for a global phase-down of HFCs.

The Trump Administration is still mulling whether to refer the Kigali Amendment to the U.S. Senate, which would need to ratify it before the U.S. would be committed to the amendment’s HFC phase-down.