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Proposed Regulations Establish Prohibition Dates for Substances in Certain End-Uses Based on EPA’S SNAP Rules 20 and 21 and Consultation with Other USCA States

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Proposed Regulations Establish Prohibition Dates for Substances in Certain End-Uses Based on EPA’S SNAP Rules 20 and 21 and Consultation with Other USCA States MARYLAND REGISTER Proposed Action on Regulations Comparison to Federal Standards Submission and Response Name: Carolyn A Jones Department of the Agency: Environment Address: 1800 Washington Blvd State: MD Zip: 21230 Phone: 410-537-4210 Email: [email protected] In accordance with Executive Order 01.01.1996.03 and memo dated July 26, 1996, the attached document is submitted to the Department of Business and Economic Development for review. The Proposed Action is not more restrictive or stringent than corresponding federal standards. COMAR Codification: 26.11.33.01 - .06 Corresponding Federal Standard: The proposed regulatory action contains prohibitions equivalent to certain sectors of the federal SNAP Rules 20 and 21. The EPA rules are found at 40 CFR, Part 82, Subpart G – Significant New Alternatives Policy Program (SNAP) (Appendices U and V). Discussion/Justification: On August 8, 2017 and April 5, 2019, in two separate decisions, the U.S. Court of Appeals for the D.C. Circuit partially vacated the federal SNAP Rules 20 and 21, which provide the basis for this proposed regulatory action. Specifically, the court partially vacated the SNAP final rules “to the extent they require manufacturers to replace HFCs with a substitute substance,” however, the Court upheld EPA’s listing of the HFCs and HFC blends prohibitions in the rule. Maryland has taken the Court’s decisions into account in writing these regulations. The proposed regulatory action will help Maryland meet its requirements under the state’s Greenhouse Gas Emissions Reduction Act. TO BE COMPLETED BY DBED _-Agree _-Disagree Comments: Name: Date: _-Submit to Governor's Office Governor's Office Response Comments: Date Filed with AELR TO BE COMPLETED BY Committee DSD Transmittal Sheet Date Filed with Division of PROPOSED State Documents OR REPROPOSED Document Number Actions on Regulations Date of Publication in MD Register 1. Desired date of publication in Maryland Register: 7/17/2020 2. COMAR Codification Title Subtitle Chapter Regulation 26 11 33 01 - .06 3. Name of Promulgating Authority Department of the Environment 4. Name of Regulations Coordinator Telephone Number Carolyn A Jones 410-537-4210 Mailing Address 1800 Washington Blvd City State Zip Code Baltimore MD 21230 Email [email protected] 5. Name of Person to Call About this Document Telephone No. Mr. Randy Mosier 410-537-4488 Email Address [email protected] 6. Check applicable items: X- New Regulations _ Amendments to Existing Regulations Date when existing text was downloaded from COMAR online: . _ Repeal of Existing Regulations _ Recodification _ Incorporation by Reference of Documents Requiring DSD Approval _ Reproposal of Substantively Different Text: : Md. R (vol.) (issue) (page nos) (date) Under Maryland Register docket no.: --P. 7. Is there emergency text which is identical to this proposal: Yes X- No _ 8. Incorporation by Reference _ Check if applicable: Incorporation by Reference (IBR) approval form(s) attached and 18 copies of documents proposed for incorporation submitted to DSD. (Submit 18 paper copies of IBR document to DSD and one copy to AELR.) 9. Public Body - Open Meeting _ OPTIONAL - If promulgating authority is a public body, check to include a sentence in the Notice of Proposed Action that proposed action was considered at an open meeting held pursuant to General Provisions Article, §3-302(c), Annotated Code of Maryland. _ OPTIONAL - If promulgating authority is a public body, check to include a paragraph that final action will be considered at an open meeting. 10. Children's Environmental Health and Protection X- Check if the system should send a copy of the proposal to the Children's Environmental Health and Protection Advisory Council. 11. Certificate of Authorized Officer I certify that the attached document is in compliance with the Administrative Procedure Act. I also certify that the attached text has been approved for legality by Roberta R. James, Assistant Attorney General, (telephone #410-537-3748) on 2/7/2020. A written copy of the approval is on file at this agency. Name of Authorized Officer Benjamin H. Grumbles Title Telephone No. Secretary 410-537-3084 Date 6/3/2020 Title 26 DEPARTMENT OF THE ENVIRONMENT Subtitle 11 AIR QUALITY 26.11.33 Prohibitions on Use of Certain Hydrofluorocarbons in Aerosol Propellants, Chillers, Foam, and Stationary Refrigeration End-Uses Authority: Environment Article, §§ 1-404, 2-103, 2-301 – 303, 2-1202 and 2-1205 Annotated Code of Maryland Notice of Proposed Action [] The Secretary of the Department proposes to adopt new Regulations .01 to .06 under new Chapter 33 Prohibitions on Use of Certain Hydrofluorocarbons in Aerosol Propellants, Chillers, Foam, and Stationary Refrigeration End-Uses. Statement of Purpose The purpose of this action is to propose new Regulations .01 to .06 under new chapter COMAR 26.11.33 Prohibitions on Use of Certain Hydrofluorocarbons in Aerosol Propellants, Chillers, Foam, and Stationary Refrigeration End-Uses. This action seeks to reduce hydrofluorocarbon (HFC) emissions by adopting specific United States Significant New Alternatives Policy Programs (SNAP) prohibitions for certain substances in air conditioning and refrigeration equipment, aerosol propellants, and foam end-uses. Background The EPA’s SNAP program implements section 612 of the Clean Air Act (42 U.S.C.7671(k) , which requires EPA to evaluate substitutes for ozone-depleting substances to reduce overall risk to human health and the environment. Through these evaluations, SNAP generates lists of acceptable and unacceptable substitutes for each of the major industrial use sectors. EPA has modified the SNAP lists many times, most often by expanding the list of acceptable substitutes, but in some cases by prohibiting the use of substitutes previously listed as acceptable. EPA’s SNAP program reviews substitutes within a comparative risk framework in the following industrial sectors: Adhesives, Coatings, and Inks; Foam Blowing Agents; Aerosols; Refrigeration and Air Conditioning; Cleaning Solvents; Sterilants; Fire Suppression and Explosion Protection; and Tobacco Expansion. The SNAP program does not provide a static list of alternatives but instead, evolves the list as EPA makes decisions that are informed by its overall understanding of the environmental and human health impacts as well as its current knowledge about available substitutes. The EPA identifies and evaluates substitutes in end-uses that have historically used ozone- depleting substances (ODS); looks at overall risk to human health and the environment of both existing and new substitutes; publishes lists of acceptable and unacceptable substitutes by end-use; promotes the use of acceptable substitutes; and provides the public with information about the potential environmental and human health impacts of substitutes. To arrive at determinations on the acceptability of substitutes, the Agency performs a cross-media analysis of risks to human health and the environment from the use of various substitutes in different industrial and consumer uses that have historically used ODS. EPA reviews characteristics, including the following, when evaluating each proposed substitute: • Ozone depletion potential (ODP), • Global warming potential (GWP), • Toxicity, • Flammability, • Occupational and consumer health/safety, • Local air quality, and • Ecosystem effects. On July 20, 2015, EPA promulgated a final rule entitled, “Protection of Stratospheric Ozone: Change of Listing Status for Certain Substitutes Under the Significant New Alternatives Policy Program,” (SNAP Rule 20) 80 Fed. Reg. 42,870. On December 1, 2016, EPA promulgated a final rule entitled, "Protection of Stratospheric Ozone: New Listings of Substitutes; Changes of Listing Status; and Reinterpretation of Unacceptability for Closed Cell Foam Products Under the Significant New Alternatives Policy Program" (SNAP 21) 81 Fed. Reg. 86,778. EPA SNAP Rules 20 and 21 listed, for purposes substitutes for ozone-depleting substances, a variety of HFCs and HFC blends as (1) unacceptable; (2) acceptable, subject to use conditions; or (3) acceptable, subject to narrowed use limits. Under this rule, EPA evaluated HFCs and HFC blends with a higher global warming potential relative to other alternatives in specific end-uses and determined to modify some of the listings. Specifically, the HFCs and HFC blends identified by EPA were changed from acceptable to unacceptable; acceptable, subject to use conditions; or acceptable, subject to narrowed use limits for certain HFCs and HFC blends in various end-uses in the aerosols, foam blowing, and refrigeration and air conditioning sectors where other alternatives are available or potentially available that pose lower overall risk to human health and the environment. EPA SNAP Rules 20 and 21 were challenged in court and portions of the rules were vacated. Mexichem Fluor, Inc. v. Envtl. Prot. Agency, 866 F.3d 451 (D.C. Cir. 2017) (Mexichem I). Mexichem Fluor, Inc. v. Envtl. Prot. Agency, 760 Fed. App’x. 6 (D.C. Cir. Apr. 5, 2019) (Mexichem II). EPA has said it will not be enforcing any parts of SNAP Rules 20 or 21 at the current time. Given the uncertainty of federal implementation of these SNAP rules, Maryland, along with other U.S. Climate Alliance (USCA) states, is proposing action to reduce certain HFCs and HFC blends that have a high-global warming potential and pose a higher overall risk to human health and the environment. The draft regulation proposes to adopt specific SNAP prohibitions for
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