U.S. EPA to start new rule-making on highly pollutant HFCs

In short term, agency will follow court ruling barring it from replacing HFCs; meeting set for May 4.

By Michael Garry

The U.S. EPA (Environmental Protection Agency) last week issued a notice of guidance affirming that it would adhere to a Court of Appeals ruling that limits its ability to regulate highly pollutant HFCs that are used widely as refrigerants in refrigeration and air-conditioning, while also stating its intention to commence a notice-and-comment rulemaking process to address the ruling.

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 final rule issued on July 20, 2015, delisting 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.

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 Court of Appeals ruling was issued in the 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 rule “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 decision 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.

Originally published on Apr 19, 2018:

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