ORAL ARGUMENT NOT YET SCHEDULED 

Nos. 10–1347 et al. 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

________________ 

HONEYWELL INTERNATIONAL INC. AND 

E. I. DU PONT DE NEMOURS AND COMPANY, 

 Petitioners, 

v. 

ENVIRONMENTAL PROTECTION AGENCY 

AND LISA PEREZ JACKSON, 

 Respondents.

________________ 

On Petitions for Review of 

Rules of the Environmental Protection Agency 

________________ 

OPENING BRIEF OF PETITIONERS 

________________ 

Chet M. Thompson 

Robert J. Meyers 

David Y. Chung 

CROWELL & MORING LLP 

1001 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004-2595 

(202) 624-2500 

Counsel for E. I. du Pont de Nemours 

and Company 

Timothy K. Webster 

James R. Wedeking 

SIDLEY AUSTIN LLP 

1501 K Street, NW 

Washington, DC 20005 

(202) 736-8000 

Richard Ayres 

Jessica Olson 

AYRES LAW GROUP 

1615 L Street, N.W., Suite 1350 

Washington, D.C. 20036 

(202) 452-9200 

Counsel for Honeywell International 

Inc. 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Parties. Parties to this proceeding are Petitioners Honeywell International 

Inc. and E.I. Du Pont de Nemours & Company and Respondents United States 

Environmental Protection Agency (“EPA”) and Lisa P. Jackson in her official 

capacity as the Administrator of the EPA. On December 8, 2010, this Court 

granted the motion of Arkema Inc., Solvay Fluorides, LLC and Solvay Solexis, 

Inc. to intervene on behalf of Respondents. There are no amici. 

Rulings Under Review. The following final Agency actions by the EPA 

are under review: 

1) EPA’s approval of an April 18, 2008, request by Arkema Inc. to transfer 

hydrochlorofluorocarbon (“HCFC”) -142b baseline production allowances to 

HCFC-22 baseline production allowances; 

2) EPA’s approval of a February 15, 2008, request by Solvay Solexis, Inc. 

and Solvay Fluorides LLC to transfer HCFC-142b baseline consumption 

allowances to HCFC-22 baseline consumption allowances; 

3) EPA’s approval of an April 19, 2008, request by Arkema Inc. to transfer 

HCFC-142b baseline consumption allowances to HCFC-22 baseline consumption 

allowances; and 

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4) EPA’s approval of a March 5, 2008, request by Solvay Solexis, Inc. and 

Solvay Fluorides LLC to transfer HCFC-142b baseline consumption allowances to 

HCFC-22 baseline consumption allowances. 

The approvals are found in the Joint Appendix. 

Related Cases. Arkema Inc. v. Environmental Protection Agency, 

Consolidated Case Nos. 09-1318, 09-1335, was decided on August 27, 2010. That 

case does not involve a challenge to the final actions under review here but rather 

to a subsequent rule published in the Federal Register. 

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RULE 26.1 STATEMENT 

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Local 

Rule 26.1 of the United States Court of Appeals for the District of Columbia 

Circuit, Petitioners Honeywell International Inc. and E. I. DuPont de Nemours and 

Company (“DuPont”) submit the following disclosure statements: 

Honeywell International Inc. is a publicly-financed, multinational 

corporation with a broad array of products in the aerospace, control systems, 

transportation, and specialty materials businesses. Among its specialty chemical 

products are hydrochlorofluorocarbons (“HCFCs”), which are regulated pursuant 

to Title VI of the Clean Air Act, 42 U.S.C. §§ 7671-7671q. Specifically, 

Honeywell is a recipient of baseline production and consumption allowances for 

HCFC-142b and HCFC-22 from the U.S. Environmental Protection Agency. 

Honeywell has no parent corporations. The only publicly-held company that has a 

10% or greater ownership interest in Honeywell is State Street Corporation. 

DuPont is a publicly-financed company that provides products and services 

worldwide in a wide range of areas, including agriculture, nutrition, electronics, 

communications, safety and protection, home and construction, and transportation 

and apparel. Relevant to this litigation, DuPont’s business includes the production, 

importation, and sales of HCFCs. DuPont has no parent company and no publiclyheld company owns 10% or more of its shares. 

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TABLE OF CONTENTS 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i

RULE 26.1 STATEMENT ...................................................................................... iii

TABLE OF AUTHORITIES .................................................................................... vi

GLOSSARY ............................................................................................................... x

INTRODUCTION ..................................................................................................... 1

JURISDICTIONAL STATEMENT .......................................................................... 2

STATUTES AND REGULATIONS ......................................................................... 3

STATEMENT OF ISSUES ....................................................................................... 3

STATEMENT OF FACTS ........................................................................................ 4

SUMMARY OF ARGUMENT ............................................................................... 12

STANDING ............................................................................................................. 14

STANDARD OF REVIEW ..................................................................................... 17

ARGUMENT ........................................................................................................... 17

I. THIS COURT HAS JURISDICTION OVER THE PETITIONS ................ 17

A. The Petitions Are Timely Because EPA Did Not Publish Notice Of 

The 2008 Approvals In The Federal Register ..................................... 17

B. If, Arguendo, The Initial Period For Filing Had Expired, The Petitions 

Are Timely Because They Are Based Solely On Grounds Arising 

After The Close Of The Original Period And Were Filed Within 60 

Days After Those Grounds Arose ....................................................... 19

C. Neither Petitioners Nor The Court Are Obligated To Await EPA 

Action On The Petitions For Reconsideration .................................... 22

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II. EPA UNLAWFULLY APPROVED INTERPOLLUTANT TRANSFERS 

TO BE EFFECTIVE BEYOND THE 2003-2009 STEPDOWN PERIOD 

 ....................................................................................................................... 25

A. The 2008 Approvals Were Inconsistent With The Plain Language Of 

The CAA ............................................................................................. 26

B. The 2008 Approvals Were A Change In EPA’s Interpretation 

Accomplished Without Adherence To Procedural Requirements ...... 29

C. The Record Does Not Support the 2008 Approvals ........................... 35

III. EPA’S APPROVAL OF PERMANENT INTERPOLLUTANT 

TRANSFERS DEPRIVED PETITIONERS OF DUE PROCESS OF LAW 

 ....................................................................................................................... 39

CONCLUSION ........................................................................................................ 44

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TABLE OF AUTHORITIES 

 Page(s) 

CASES

Alaska Prof’l Hunters Ass’n v. FAA, 

177 F.3d 1030 (D.C. Cir. 1999) .......................................................................... 34 

*Am. Portland Cement Alliance v. EPA, 

101 F.3d 772 (D.C. Cir. 1996) ...................................................................... 20, 40 

Am. Road & Transp. Builders Ass’n v. EPA, 

588 F.3d 1109 (D.C. Cir. 2009) .......................................................................... 25 

*Arkema Inc. v. EPA, 

618 F.3d 1 (D.C. Cir. 2010) ................................... 1, 5, 10, 15, 21, 30, 34, 39, 40 

Baldwin v. Hale, 

68 U.S. (Wall.) 223 (1864) ................................................................................. 42 

Bd. of Regents of State Colleges v. Roth, 

408 U.S. 564 (1972) ............................................................................................ 39 

Bell v. Burson, 

402 U.S. 535 (1971) ............................................................................................ 39 

C&W Fish Co. v. Fox, 

931 F.2d 1556 (D.C. Cir. 1991) .......................................................................... 38 

Chevron, U.S.A., Inc. v. NRDC, 

467 U.S. 837 (1984) ............................................................................................ 27 

Ciba-Geigy Corp. v. EPA, 

46 F.3d 1208 (D.C. Cir. 1995) ............................................................................ 25 

Cooper Indus., Inc. v. Aviall Servs., Inc., 

543 U.S. 157 (2004) ............................................................................................ 28 

Dunn v. Commodity Futures Trading Comm’n, 

519 U.S. 465 (1997) ............................................................................................ 28 

* Indicates authorities primarily relied upon 

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Envtl. Def. v. EPA, 

467 F.3d 1329 (D.C. Cir. 2006) .......................................................................... 22 

Goldberg v. Kelly, 

397 U.S. 254 (1970) ............................................................................................ 42 

Graceba Total Commc’ns v. FCC, 

115 F.3d 1038 (D.C. Cir. 1997) .......................................................................... 43 

Halbach v. Great-West Life & Annuity Ins. Co., 

561 F.3d 872 (8th Cir. 2009) .............................................................................. 39 

Henderson v. Lujan, 

964 F.2d 1179 (D.C. Cir. 1992) .......................................................................... 43 

*Kennecott Utah Copper v. U.S. Dep’t of Interior, 

88 F.3d 1191 (D.C. Cir. 1996) ............................................................................ 21 

La. Energy & Power Auth. v. FERC, 

141 F.3d 364 (D.C. Cir. 1998) ............................................................................ 17 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) ............................................................................................ 14 

Mathews v. Eldridge, 

424 U.S. 319 (1976) ............................................................................................ 42 

*Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29 (1983) ........................................................................................ 35, 38 

Natural Resources Defense Council v. Thomas, 

845 F.2d 1088 (D.C. Cir. 1988) .................................................................... 23, 24 

Oljato Chapter of Navajo Tribe v. Train, 

515 F.2d 654 (D.C. Cir. 1975) ............................................................................ 24 

*Paralyzed Veterans of Am. v. DC Arena LP, 

117 F.3d 579 (D.C. Cir. 1997) ...................................................................... 30, 34 

* Indicates authorities primarily relied upon 

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Russello v. United States, 

464 U.S. 16 (1983) .............................................................................................. 27 

Sherley v. Sebelius, 

610 F.3d 69 (D.C. Cir. 2010) .............................................................................. 16 

Small Refiner Lead Phase-Down Task Force v. EPA, 

705 F.2d 506 (D.C. Cir. 1983) ............................................................................ 17 

Stilwell v. Office of Thrift Supervision, 

569 F.3d 514 (D.C. Cir. 2009) ............................................................................ 16 

Telecommunications Research & Action Center v. FCC, 

800 F.2d 1181 (D.C. Cir. 1986) .......................................................................... 35 

Union Oil Co. v. EPA, 

821 F.2d 678 (D.C. Cir. 1987) ............................................................................ 19 

West Penn Power Co. v. EPA, 

860 F.2d 581 (3d Cir. 1988) ............................................................................... 23 

STATUTES AND REGULATIONS 

42 U.S.C. § 1857h-5 (1975 pocket part) .................................................................. 24 

42 U.S.C. § 7607 ..............................................................................17, 18, 19, 23, 38 

42 U.S.C. § 7671 ........................................................................................................ 5 

42 U.S.C. § 7671d ...................................................................................................... 5 

42 U.S.C. § 7671e ................................................................................................ 6, 34 

42 U.S.C. § 7671f ............................................................................................. 5, 7, 27 

40 C.F.R. pt. 82 ........................................................................................................ 15 

40 C.F.R. § 82.3 ................................................................................................. 5, 6, 8 

40 C.F.R. § 82.15 ....................................................................................................... 6 

* Indicates authorities primarily relied upon 

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40 C.F.R. § 82.16 ................................................................................................. 8, 41 

40 C.F.R. § 82.17 ............................................................................................. 5, 6, 15 

40 C.F.R. § 82.19 ............................................................................................. 5, 6, 15 

40 C.F.R. § 82.23 .............................................................. 7, 8, 20, 33, 35, 36, 37, 38 

64 Fed. Reg. 16,373 (April 5, 1999) ............................................................ 30, 31, 32 

66 Fed. Reg. 38,064 (July 20, 2001) ........................................................................ 32 

68 Fed. Reg. 2,820 (Jan. 21, 2003) ........................................................ 5, 6, 7, 26, 33 

73 Fed. Reg. 78,680 (Dec. 23, 2008) ................................................... 8, 9, 18, 19, 21 

74 Fed. Reg. 66,412 (Dec. 15, 2009) .................................. 10, 15, 18, 21, 37, 41, 43 

76 Fed. Reg. 47,451 (Aug. 5, 2011)............................................................. 12, 16, 41 

OTHER AUTHORITIES 

S. Rep. No. 101-228 (1989) ..................................................................................... 23 

Montreal Protocol on Substances that Deplete the Ozone Layer, 

Sept. 16, 1987, art. 2, 26 I.L.M. 1550 (entered into force Jan. 1, 1989) ................... 5 

1 A Legislative History of the Clean Air Act Amendments of 1990 

(Comm. Print 1993) ................................................................................................. 29 

5 A Legislative History of the Clean Air Act Amendments of 1990 

(Comm. Print 1993) ................................................................................................. 23 

* Indicates authorities primarily relied upon 

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GLOSSARY 

Abbreviation 

2003 Rule Protection of Stratospheric Ozone: Allowance System for 

Controlling HCFC Production, Import and Export, 68 

Fed. Reg. 2,820 (Jan. 21, 2003) 

2008 Approvals The four 2008 interpollutant transfer approvals at issue in 

this matter (see Jurisdictional Statement for a list) 

APA Administrative Procedure Act 

CAA Clean Air Act 

EPA Environmental Protection Agency 

EPA Response to 

MTD 

EPA’s Substantive Response to Intervenors’ Motion to 

Dismiss, No. 10-1347, Doc. No. 1296479 (filed Mar. 4, 

2011) 

HCFCs Hydrochlorofluorocarbons 

HCFC-22 Hydrochlorofluorocarbon 22 

HCFC-142b Hydrochlorofluorocarbon 142b 

Intervenors’ MTD Joint Motion of Arkema Inc., Solvay Fluorides LLC, and 

Solvay Solexis, Inc. to Dismiss Petitions for Lack of 

Jurisdiction, No. 10-1347, Doc. No. 1287346 (filed Jan. 

11, 2011) 

ODP Ozone-depeltion potential 

Petitions Petitions for review in this matter 

Final 2010-2014 

Stepdown Rule 

Protection of Stratospheric Ozone: Adjustments to the 

Allowance System for Controlling HCFC Production, 

Import, and Export, 74 Fed. Reg. 66,412 (Dec. 15, 2009) 

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Proposed 2010-2014 

Stepdown Rule 

Protection of Stratospheric Ozone: Adjustments to the 

Allowance System for Controlling HCFC Production, 

Import, and Export, 73 Fed. Reg. 78,680 (Dec. 23, 2008) 

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INTRODUCTION 

Title VI of the Clean Air Act (“CAA”), 42 U.S.C. §§ 7671-7671q, 

establishes a regime that reduces and eventually eliminates ozone-depleting 

substances from domestic production and importation. Only those companies that 

possess “allowances” allocated by the Environmental Protection Agency (“EPA”) 

to produce or import the designated substances may do so. In 2008, EPA approved 

four requests by Arkema Inc., Solvay Fluorides, LLC, and Solvay Solexis 

(collectively, “Intervenors”) to transfer allowances to produce and import from one 

type of ozone-depleting substance to another. These “interpollutant” transfer 

requests were made near the end of the 2003-2009 regulatory period during which 

total production and importation had been limited by EPA as a step towards a total 

phaseout. Subsequently, EPA promulgated a rule establishing allocations for the 

next regulatory period, 2010-2014, during which further reductions were required, 

and did not account for Intervenors’ 2008 transfers. This Court, in Arkema Inc. v. 

EPA, 618 F.3d 1 (D.C. Cir. 2010), vacated that rule in part, holding that EPA 

retroactively deprived the transferors of vested rights in their allowances. 

This case is a challenge to EPA’s approvals of the four interpollutant 

transfers in 2008, an issue not addressed by Arkema. Because EPA limits the total 

number of allowances available for allocation in any one year, permitting 

interpollutant transfers to carry forward from one regulatory period to the next 

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reduces the allowances available to other market participants such as Honeywell 

International Inc. and E. I. du Pont de Nemours and Company (“Petitioners”). 

Such reduction harms the Petitioners economically. 

The Court has jurisdiction to hear this matter. The petitions for review were 

timely filed, and the central issue was ripened by the Arkema Court’s findings. 

The interpollutant transfer approvals are inconsistent with the CAA, were granted 

without adherence to applicable regulatory and procedural requirements in 

contravention of EPA’s stated interpretation of its regulations, and deprived 

Petitioners of due process of law. 

JURISDICTIONAL STATEMENT 

The Court has jurisdiction under CAA Section 307(b)(1), 42 U.S.C. 

§ 7607(b)(1). Petitioners seek review of four final actions taken by EPA (the 

“2008 Approvals”): 

1) Approval of an April 18, 2008, request by Arkema Inc. to transfer 

hydrochlorofluorocarbons (“HCFC”) -142b baseline production allowances to 

HCFC-22 baseline production allowances (JA__); 

2) Approval of a February 15, 2008, request by Solvay Solexis, Inc. and 

Solvay Fluorides, LLC to transfer HCFC-142b baseline consumption allowances to 

HCFC-22 baseline consumption allowances (JA__); 

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3) Approval of an April 19, 2008, request by Arkema Inc. to transfer 

HCFC-142b baseline consumption allowances to HCFC-22 baseline consumption 

allowances (JA__); and 

4) Approval of a March 5, 2008, request by by Solvay Solexis, Inc. and 

Solvay Fluorides, LLC to transfer HCFC-142b baseline consumption allowances to 

HCFC-22 baseline consumption allowances (JA__). 

On October 26, 2010, Petitioners timely requested that EPA reconsider and 

rescind the 2008 Approvals. See Pet. for Reconsideration (Oct. 26, 2010) (JA__). 

Timely petitions for review of each final action were filed in this Court and 

subsequently consolidated. 

STATUTES AND REGULATIONS 

The pertinent statutes and regulations are reproduced in the addendum. See 

Appendix A. 

STATEMENT OF ISSUES 

1) Whether the petitions for review (“Petitions”) are timely given that EPA 

did not publish notice of the four 2008 Approvals in the Federal Register before 

the Petitions were filed. 

2) Whether the Petitions are timely, alternatively, because they were filed 

within 60 days of new grounds that arose solely after the close of the initial period 

for judicial review, namely, the Arkema Court’s findings. 

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3) Whether EPA acted contrary to the CAA when it approved permanent 

interpollutant transfers of allowances that, according to Arkema, must persist 

beyond the regulatory stepdown period (2003-2009) that existed at that time. 

4) Whether EPA’s approvals of permanent interpollutant transfers 

effectively reversed, without notice and comment rulemaking, the Agency’s 

original interpretation of its regulations that such transfers must be subject to the 

phasedown of the transferred substance. 

5) Whether the 2008 Approvals were unlawful on the record here because 

EPA failed to follow its own regulatory requirements to approve interpollutant 

transfers of allowances. 

6) Whether Petitioners, whose shares of both HCFC-22 allowances and the 

market were diminished by the 2008 Approvals, were denied the due process of 

law because they were neither notified of nor provided an opportunity to comment 

on those approvals. 

STATEMENT OF FACTS 

Under the Montreal Protocol on Substances that Deplete the Ozone Layer, 

Sept. 16, 1987, art. 2, 26 I.L.M. 1550 (entered into force Jan. 1, 1989) (“Montreal 

Protocol”) and implementing provisions in the CAA, HCFCs, a class of ozonedepleting substances, are to be phased out in the United States. This case concerns 

rights to “produce” and “consume” HCFCs – specifically HCFC-22 and HCFCUSCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 16 of 139
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142b. HCFC-22 is used primarily as a refrigerant and HCFC-142b is used 

primarily in the production of insulating foam. The rights to produce and consume 

HCFC-22 and HCFC-142b are conferred by allocations of “allowances” by EPA. 

42 U.S.C. §§ 7671d, 7671f. 

HCFC-22 and HCFC-142b allowances fall into two categories: production 

allowances, which were originally granted to five companies that historically 

manufactured HCFC-22 and HFCF-142b, and consumption allowances, which 

were granted to seventeen additional companies that historically imported HCFC22 and HCFC-142b. 40 C.F.R. §§ 82.17 (Table) & 82.19 (Table) (2003); 42 

U.S.C. §§ 7671(6), (11); 40 C.F.R. § 82.3 (definitions). EPA allocates allowances 

under a “market-based cap and trade regulatory system,” Arkema v. EPA, 618 F.3d 

1, 2 (D.C. Cir. 2010), and reduces the number of allowances available under the 

cap in successive “stepdown” periods. Production and consumption of HCFC-22 

and 142b are to be completely phased out by 2020, and all HCFCs by 2030. 42 

U.S.C. § 7671d(c); 68 Fed. Reg. 2,820, 2,821 (Jan. 21, 2003).1

 Additionally, 

 

1

 The HCFC stepdown periods established by the Montreal Protocol are: 

• 2004-2009 (the United States adjusted this period to include 2003) 

• 2010-2014 

• 2015-2019 

• 2020-2030 

26 I.L.M. 1550, Art. 2F(2)-(6). 

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Congress authorized EPA to accelerate the phaseout of HCFCs. 42 U.S.C. 

§ 7671e. For example, EPA exercised that authority by phasing down the 

production and consumption of HCFC-142b by 99.53% in 2010. The market for 

newly produced HCFCs in the United States exists only as a consequence of the 

CAA and EPA regulations because HCFCs may not lawfully be produced or 

consumed without allowances allocated by EPA. Id. §§ 7413(b), (c), (d); 40 

C.F.R. § 82.15(a), (c). 

Allowances are granted to participating companies in a two-step process. 

First, EPA apportions “baseline production allowances” and “baseline 

consumption allowances” to individual companies. 40 C.F.R. §§ 82.3 

(definitions), 82.17 (production), 82.19 (consumption). This apportionment alone, 

however, is insufficient to permit production or consumption. Second, EPA grants 

separately-defined “production allowances” and “consumption allowances” for 

each year within a regulatory period. Id. §§ 82.3 (definitions), 82.15(a), (b). 

Those allowances are the product of baseline times the phasedown percent EPA 

has set for any given year. Id. 82.16. In other words, baselines establishes relative 

market share of those who may produce or consume HCFCs, but not the actual 

amount of HCFCs that may be produced or consumed. 

In 2003, EPA apportioned HCFC baseline and granted production and 

consumption allowances for the 2003-2009 stepdown period. 68 Fed. Reg. 2,820 

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(Jan. 21, 2003) (“2003 Rule”). EPA established each company’s share of baseline 

allowances following an analysis of historic production and consumption of 

HCFCs during 1994-1997. Id. at 2,831-33. EPA was clear that it was allocating 

each company’s baseline of HCFC allowances “on a one-time basis,” id. at 2,823, 

and that the same number of allowances would not necessarily be granted for 

future stepdown periods. Id. at 2,832. 

The CAA authorizes two forms of HCFC allowance trading: transfers of 

allowances for one type of HCFC to those of another, known as “interpollutant” 

transfers, and transfers of allowances between companies, known as “intercompany” transfers. 42 U.S.C. § 7671f. With regard to interpollutant transfers, 

Congress provided that the rules “shall permit a production allowance for a 

substance for any year to be transferred for a production allowance for another 

substance for the same year on an ozone depletion basis.” Id. § 7671f(b)(1) 

(emphasis added). Inter-company transfers, by contrast, are not limited to “the 

same year.” Id. § 7671f(c). 

When EPA established the first HCFC stepdown period in 2003, it 

simultaneously promulgated regulations codifying the interpollutant and intercompany trading regimes for HCFCs. See 40 C.F.R. § 82.23; 68 Fed. Reg. at 

2,833-34. Those rules provide similar but not identical procedures for 

interpollutant and inter-company transfers. For example, in both cases the 

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transferor must have sufficient allowances to effectuate the transfer. 40 C.F.R.

§ 82.23(a)(ii)(A), (b)(4). Interpollutant transfers, however, are only permitted 

“during the control period and during the 30 days after the end of a control period,” 

id. § 82.23(b)(2), echoing the statutory limitation on interpollutant transfers to “the 

same year.”2

In early 2008, Intervenors sought EPA approval for four interpollutant 

transfers of HCFC-142b production and consumption allowances.3

 Petitioners 

were not informed or aware of these requests. See Declaration of David Diggs ¶6 

(“Diggs Decl.”) (Appendix B); Declaration of Jane Austin ¶6 (“Austin Decl.”) 

(Appendix B). EPA subsequently issued four letters approving the transfers – the 

2008 Approvals. (JA__- __). 

In December 2008, EPA issued a notice of proposed rulemaking concerning 

the allocation and phasedown of HCFC production and consumption allowances 

for the 2010-2014 stepdown period. See 73 Fed. Reg. 78,680 (Dec. 23, 2008) 

(“Proposed 2010-2014 Stepdown Rule”). In that notice, EPA identified five 

regulatory options, one of which was based on the allocation scheme used by EPA 

 

2

 Each calendar year is defined to mean a “control period.” 40 C.F.R. § 82.3; see 

also 40 C.F.R. § 82.16(a) (each year in the 2003-2009 stepdown period is a 

“control period”). 

3

 In two cases, the transfer was both an interpollutant and inter-company transfer 

between affiliated entities. (JA__, __). Petitioners do not challenge the intercompany aspect of those transfers. 

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for the 2003-2009 stepdown period. Under that option, EPA proposed two 

alternatives: to allocate allowances in a manner that would have the effect of 

carrying Intervenors’ 2008 interpollutant transfers over into the 2010-2014 

stepdown period, or to not do so. Id. at 78,687, 78,693. 

As far as Petitioners know, this notice of proposed rulemaking was the first 

time EPA suggested in a public context that Intervenors had made interpollutant 

transfers. The Agency did not, however, provide any specific information as to the 

number of transfer requests, when they occurred, the Agency’s response, and the 

terms or conditions, if any, under which the requests were approved. See generally

73 Fed. Reg. at 78,680, 78,693 (merely noting that the proposed baseline reflects 

transfers); see also Diggs Decl. ¶6; Austin Decl. ¶6; EPA’s Substantive Response 

to Intervenors’ Motion to Dismiss, Doc. No. 1296479 (filed March 4, 2011) (“EPA 

Resp. to MTD”) at 5 (“Indeed, neither the Proposed Rule nor its preamble ever 

mentions the specific inter-pollutant transfer by Arkema and Solvay that 

Petitioners challenge in this case”). EPA did not indicate that it considered the 

unspecified interpollutant transfers that had occurred to be such that the Agency 

was required to carry them forward into the 2010-2014 stepdown period or that 

they would not be subject to the phasedown of HCFC-142b. Instead, EPA 

indicated that there were advantages and disadvantages to all the different options 

presented. 73 Fed. Reg. at 78,687. 

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In December 2009, EPA issued a final rule allocating HCFCs for the 2010-

2014 stepdown period. 74 Fed. Reg. 66,412 (Dec. 15, 2009) (the “Final 2010-2014 

Stepdown Rule”). In that rule, EPA decided not to enlarge Intervenors HCFC-22 

baseline allowances for 2010-2014 by carrying their prior transfers forward. 

Shortly thereafter, the Intervenors filed petitions to review that rule in this Court.4

 

EPA argued, inter alia, that the Final Rule was prospective only and that HCFC 

allowances were privileges granted by the Agency’s regulations, not vested rights. 

 Brief of Respondent Environmental Protection Agency, No. 09-1318, Doc. No. 

1237311 (filed Mar. 30, 2010) at 58. 

On August 27, 2010, the Court vacated the Final 2010-2014 Stepdown Rule 

in part. Arkema Inc. v. EPA, 618 F.3d 1 (D.C. Cir. 2010). A divided Court held 

that Intervenors had vested rights in the 2008 approved allowance transfers that 

EPA could not retroactively abridge. Id. at 9. The Court focused on whether 

EPA’s “practice” of implementing the interpollutant transfer regulations differed 

 

4

 No notice of those petitions was provided to Petitioners here by Intervenors or 

Respondents (nor did Petitioners here otherwise become aware of them until after 

the Court had rendered its decision, Diggs Decl. ¶6, Austin Decl. ¶6). Petitioners 

here sought unsuccessfully to intervene in that case out-of-time once they learned 

of it. Honeywell International Inc., et al.’s Motion for Leave to Intervene Out of 

Time, No. 09-1318, Doc. No. 1271928 (Filed Oct. 15, 2010); DuPont Motion for 

Leave to File Motion to Intervene Out of Time, No. 09-1318, Doc. No. 1272251 

(Filed Oct. 18, 2010). 

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11 

impermissibly from the “policy” position EPA took in the Final 2010-2014 

Stepdown Rule. E.g., id. at 6, 8. 

Specifically, the Court relied on three types of documents as record evidence 

of EPA’s “practice”: (i) the 2008 interpollutant transfer forms and cover letters 

submitted by Intervenors; (ii) EPA’s approvals of those transfers; and (iii) 

confirmation letters sent by EPA to Intervenors regarding the interpollutant 

transfers in anticipation of the Proposed 2010-2014 Stepdown Rule. Id. at 7-8. 

From these documents, and in light of the Proposed 2010-2014 Stepdown Rule, the 

Court found that the “record thus reflects that EPA’s practice under the 2003 Rule 

[i.e., the rule establishing the transfer regulations] was to allow Petitioners’ 

baseline transfers of interpollutant allowances.” Id. at 8. Having granted such 

transfers, the Court further held that EPA could not retroactively exclude those 

allowances from the Final 2010-2014 Stepdown Rule because Intervenors had 

vested rights in them. Id. at 7. Given that the record contained documentation 

only of the 2008 transfers, the Court did not examine EPA’s “practice” of granting 

interpollutant transfers prior to the 2008 transfers. 

The Court neither considered nor decided whether the 2008 Approvals were 

themselves valid, as the case at hand only challenged the Final 2010-2014 

Stepdown Rule. 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 23 of 139
12 

Petitioners are injured by the 2008 Approvals to the extent they carry the 

transfers beyond the 2003-2009 stepdown period, and because they necessarily 

reduce the allowances and market shares of other participants. Diggs Decl. ¶¶10-

12; Austin Decl. ¶¶8-10. In general, any changes to either the specific 2010-2014 

allocation of HCFC-22 allowances to individual companies or to the total number 

of allowances available for allocation will have economic consequences for all 

allowance-holders, including Petitioners. Diggs Decl. ¶¶10-12; Austin Decl. ¶8. 

For example, on remand following Arkema, EPA has reduced Petitioners’ HCFC22 production and consumption allowances from the amount that would have been 

annually allocated under the Final 2010-2014 Stepdown Rule. This deprived 

Petitioners of allowances and significantly reduced Petitioners’ share of the HCFC22 market, with considerable adverse economic effect. See 76 Fed. Reg. 47,451 

(Aug. 5, 2011) (interim final rule following Arkema increased Intervenors’ HCFC22 baseline and decreased the number of Petitioners’ 2011 allowances and share of 

the HCFC-22 market); see also Diggs Decl. ¶11; Austin Decl. ¶9. 

SUMMARY OF ARGUMENT 

The Court has jurisdiction over the Petitions for two reasons. First, EPA did 

not publish notice of the 2008 Approvals in the Federal Register before the 

Petitions were filed, and therefore the CAA’s 60-day period for judicial review had 

not yet expired. Second, the Arkema findings provided new grounds for the 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 24 of 139
13 

challenges, which were then timely filed within the CAA’s 60-day period for 

petitions based on “grounds arising after” the close of the original filing period. 

Furthermore, the CAA is clear that the 2008 Approvals are final action subject to 

judicial review, notwithstanding Petitioners’ year-old petition for reconsideration 

to EPA, and even Respondent agrees that the Petitions are ripe now. (See

Argument I). 

The validity of the 2008 Approvals was not at issue in Arkema, which was a 

challenge only to the Final 2010-2014 Stepdown Rule. To the extent that the 2008 

Approvals have the effect of perpetuating Intervenors’ interpollutant transfers 

beyond the 2003-2009 stepdown period, they were unlawful for three reasons: 

First, they violated the plain language of the CAA, which only permits 

interpollutant transfers of one type of HCFC allowances for “any year” to another 

HCFC for the “same year.” Second, they conflicted with the Agency’s original 

interpretation of its transfer regulations that the “phasedown follows the 

allowance” – in other words, that any interpollutant transfer is subject to the 

phasedown of the transferred chemical. EPA may not change this interpretation 

without notice-and-comment rulemaking. Third, they were inconsistent with 

EPA’s interpollutant transfer regulations and the requirements of reasoned 

decision-making. (See Argument II). 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 25 of 139
14 

Finally, Petitioners’ rights to their allowances were abridged by the 2008 

Approvals without due process of law. The market for these allowances is a “zero 

sum game,” meaning a shift in one participant’s share of the baseline necessarily 

affects all others. Petitioners have just as much of an interest in their share of the 

overall market as Intervenors. Arkema stands for the proposition that baseline 

allowances are vested rights. Yet, the associated property interest is necessarily 

broader than just baseline allowances because production and consumption 

allowances are also required to produce and consume HCFCs. The 2008 

Approvals diminished Petitioners’ rights in both, and EPA should not have granted 

those approvals without notice to Petitioners and an opportunity to be heard. (See

Argument III). 

STANDING 

Petitioners are regulated entities directly and significantly affected by EPA’s 

2008 Approvals because, following the Court’s Arkema decision, EPA treats the 

Approvals as having granted permanent baseline interpollutant transfers to 

Intervenors that survive beyond the 2003-2009 stepdown period. The three-part 

test for Article III standing is well-established and requires: (1) injury in fact; (2) a 

causal connection between the injury and the conduct complained of; and 

(3) redressability by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560-61 (1992). Petitioners satisfy these requirements. 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 26 of 139
15 

The challenged approvals directly affect and injure Petitioners. Petitioners 

produce and consume HCFCs and are therefore regulated by EPA’s HCFC 

production and consumption allowance allocation regime. See 40 C.F.R. pt. 82, 

subpart A. EPA’s “market-based cap and trade regulatory system,” Arkema, 618 

F.3d at 2, establishes a zero-sum game relationship between companies engaged in 

the production and consumption of HCFCs. The total amount of allowances is 

“capped” and declines as EPA phases out HCFCs. See 74 Fed. Reg. at 66,415, 

66,418; see also Austin Decl. ¶8; Diggs Decl. ¶4. EPA allocates production and 

consumption allowances to individual companies as a percentage of total baseline 

allowances that EPA previously established. See 40 C.F.R. §§ 82.17 and 82.19. 

Accordingly, the permanent enlargement of the number of one individual 

company’s baseline allowances necessarily affects all other companies in the 

market because those other companies will each have a smaller percentage of the 

total annual allowances allocated to them in future periods, as well as a smaller 

percentage of the total market. EPA recognizes that to meet Arkema, “EPA must 

extract the corresponding production allowances ... from the allowances of 

DuPont, Honeywell and other suppliers.” EPA Resp. to MTD at 3. For example, 

in its 2011 interim rule, EPA increased the HCFC-22 baseline allowances 

apportioned to Intervenors, and allocated Intervenors additional allowances, to the 

detriment of Petitioners and all other allowance recipients. 76 Fed. Reg. at 47,462, 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 27 of 139
16 

47,467-68; see also Austin Decl. ¶9 (decrease of Petitioner DuPont’s market share 

resulted in a decrease of allowances by approximately 16%); Diggs Decl. ¶¶11-12 

(decrease in Petitioner Honeywell’s allowances by approximately 16%). 

These decreases in Petitioners’ production and consumption allowances and 

market share of baseline allowances themselves have resulted, and will continue to 

result, in significant economic harm to Petitioners. Austin Decl. ¶9; Diggs Decl. 

¶12. Such harm satisfies the injury in fact requirement. See Stilwell v. Office of 

Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir. 2009) (substantial probability of 

economic harm is sufficient to establish standing). 

Additionally, parties “suffer constitutional injury in fact when agencies lift 

regulatory restrictions on their competitors or otherwise allow increased 

competition.” Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010); accord 

Stilwell, 569 F.3d at 518 (citing Clinton v. City of New York, 524 U.S. 417, 432-33 

(1998) as support that parties have “standing based on probable economic injury 

caused by government action changing market conditions”). 

Causation and redressability are virtually self-evident. The decreases in 

Petitioners’ production and consumption allowances and market share of baseline 

allowances, and the associated economic losses, are “fairly traceable” to EPA’s 

approval of permanent interpollutant transfers to Intervenors, as determined by 

Arkema. And these injuries “would be redressed by a favorable decision of this 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 28 of 139
17 

court vacating” those transfers. La. Energy & Power Auth. v. FERC, 141 F.3d 364, 

367 (D.C. Cir. 1998). Without the permanent transfers, there would be no injury. 

STANDARD OF REVIEW 

The Court “may reverse any [EPA] action found to be ... arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 

U.S.C. § 7607(d)(9)(A). It may also reverse any action that it finds “to be ... 

without observance of procedure required by law, if ... such failure ... is arbitrary 

and capricious,” id. § 7607(d)(9)(D), and the error is “so serious and related to 

matters of such central relevance to the rule that there is a substantial likelihood 

that the rule would have been significantly changed if such errors had not been 

made,” id. § 7607(d)(8). This Court has held that this last requirement means that 

“[a]t a minimum, failure to observe the basic APA procedures, if reversible error 

under the APA, is reversible error under the [CAA] as well.” Small Refiner Lead 

Phase-Down Task Force v. EPA, 705 F.2d 506, 523, 543-44 (D.C. Cir. 1983). 

ARGUMENT 

I. THIS COURT HAS JURISDICTION OVER THE PETITIONS 

A. The Petitions Are Timely Because EPA Did Not Publish Notice Of 

The 2008 Approvals In The Federal Register 

Section 307(b)(1) of the CAA provides, in pertinent part, that petitions for 

review of final EPA action must be filed “within sixty days from the date notice of 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 29 of 139
18 

such promulgation, approval, or action appears in the Federal Register[.]” 42 

U.S.C. § 7607(b)(1). 

Here, Petitioners seek review of the 2008 Approvals. There is no dispute 

that EPA did not publish contemporaneous notice of them in the Federal Register. 

See, e.g., EPA Resp. to MTD (Doc. No. 1296479) at 4 (the 2008 Approvals have 

never been published in the Federal Register).5

 Neither the Proposed nor the Final 

2010-2014 Stepdown Rules include publication of the 2008 approvals. See 

generally 74 Fed. Reg. 66,412; 73 Fed. Reg. 78,680; EPA Resp. to MTD at 5. For 

that matter, EPA did not publish or make available to the general public the 2008 

Approvals at any time before the Petitions in this case were filed. 

To the extent that the existence of the approved interpollutant transfers could 

be inferred from Proposed 2010-2014 Stepdown Rule, that inference would not 

constitute publication in the Federal Register. The notice merely stated that “[t]he 

proposed company-specific baselines also reflect readjustments resulting from 

approved inter-pollutant and/or inter-company transfers of baseline allowances,” 

 

5

 Intervenors filed a motion to dismiss in this case contending that Court lacks 

jurisdiction. See Joint Motion of Arkema Inc., Solvay Fluorides LLC, and Solvay 

Solexis, Inc. to Dismiss Petitions for Lack of Jurisdiction, Doc. No. 1287346 (filed 

Jan. 11, 2011) (“Intervenors’ MTD”). After EPA filed its response and before 

Petitioners filed theirs, the Court issued an order directing the parties to address the 

issues raised in the motion in their opening and response briefs. Doc. No. 1301398 

(Apr. 4, 2011). 

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73 Fed. Reg. at 78,693, but it failed to specify how many transfers EPA approved, 

when it did so, or under what terms. See Union Oil Co. v. EPA, 821 F.2d 678, 681-

82 (D.C. Cir. 1987) (holding that the Federal Register notice must include “the 

factual data on which the proposed rule is based” and “the major legal 

interpretations and policy considerations underlying the proposed rule.”); see also 

Diggs Decl. ¶6; Austin Decl. ¶6; EPA Resp. to MTD at 5. 

Because EPA has not published notice of the 2008 Approvals in the Federal 

Register, the 60-day period for challenging those approvals did not expire prior to 

the date the Petitions were filed. The Petitions are therefore timely. 

B. If, Arguendo, The Initial Period For Filing Had Expired, The 

Petitions Are Timely Because They Are Based Solely On Grounds 

Arising After The Close Of The Original Period And Were Filed 

Within 60 Days After Those Grounds Arose 

Assuming, arguendo, that there was an original filing period that had 

expired, the Arkema decision reset the filing clock. The CAA provides that 

petitions for review are timely filed where they are “based solely on grounds 

arising after” the close of the original 60-day filing period and were “filed within 

sixty days after such grounds ar[o]se.” 42 U.S.C. § 7607(b)(1). Clearly, EPA 

originally did not view the 2008 Approvals as granting vested rights to 

interpollutant transfers such that the Agency would be required to carry such 

transfers forward into later stepdown periods. That aspect of the 2008 Approvals 

was established by Arkema on August 27, 2010, over the opposition of EPA and is 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 31 of 139
20 

the new ground for the present Petitions. The Petitions were timely filed on 

October 26, 2010, within 60 days of the Arkema decision, and therefore this Court 

has jurisdiction. 

Petitioners had no basis to file the Petitions prior to the Arkema decision. 

First, Petitioners had no actual or constructive notice of the 2008 Approvals when 

they were issued, and therefore could not have filed petitions for review. See

Diggs Decl. ¶6; Austin Decl. ¶6.6

 Second, even if the Proposed 2010-2014 Stepdown Rule had notified 

Petitioners of the 2008 Approvals, Petitioners could not have petitioned to review 

them at that time.7

 A proposed rule is just that: a proposal, not final action. A 

petition to review any proposed rule would have been given short shrift by a 

reviewing court. Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C. 

Cir. 1996) (“Where, as here, a proposed regulation is still in ‘flux,’ review is 

 

6

 Petitioners did not obtain copies of the 2008 Approvals (and related 

correspondence between EPA and Intervenors critical to the Arkema decision) until 

after the Arkema decision was issued. Diggs Decl. ¶8; Austin Decl. ¶6. EPA 

regulations provide only for notice to the transfer applicant. 40 C.F.R. 

§ 82.23(b)(4). See also EPA Resp. to MTD at 9. Neither the transfer requests, the 

2008 Approvals, nor any related correspondence were included by EPA in the 

rukemaking record for the Final 2010-2014 Stepdown Rule. See Docket No. EPAHQ-OAR-2008-0496, available at, http://www.regulations.gov/#!docketDetail;dct 

=FR%252BPR%252BN% 252BO%252BSR;rpp=10;po=0;D=EPA-HQ-OAR2008-0496. 

7

 That proposal implied the existence of Intervenors’ interpollutant transfers but 

did not provide any details about them or include the 2008 Approvals. 

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21 

premature, and this court has no jurisdiction ....”) (internal quotations omitted). 

As EPA has made clear in this litigation, the Proposed 2010-2014 Stepdown Rule 

“dispelled any notion” that prior approved transfers “must be recognized in 

subsequent regulatory periods.” EPA Resp. to MTD at 16. EPA admits that, at the 

time of the proposal, it “had not yet decided whether it would, in fact, recognize 

such transfers in establishing the 2010-2014 baselines” and that “EPA itself did not 

believe that” it was required to do so. Id. at 17-18; see also 73 Fed. Reg. at 78,687. 

Indeed, EPA takes the position that it “would have [had] ample ground to move to 

dismiss” such a challenge. See EPA Resp. to MTD at 17. 

Finally, EPA’s decision not to carry over the interpollutant transfers in the 

Final 2010-2014 Stepdown Rule, see 74 Fed. Reg. at 66,421, confirms that 

Petitioners had no reason to file these challenges prior to the Arkema ruling. 

Petitioners could not have challenged Agency action that was favorable to them, as 

any concerns about the permanence of the 2008 Approvals was clearly unripe in 

light of EPA’s decision that they were not permanent. 

The Arkema decision provided a new ground to challenge the 2008 

Approvals. Because of that decision, transfers approved in 2008 have effect 

beyond the 2003-2009 stepdown period. See 618 F.3d at 10. The Arkema decision 

undeniably changed “the stakes of a court challenge” to EPA’s approvals. 

Kennecott Utah Copper v. U.S. Dep’t of Interior, 88 F.3d 1191, 1214 (D.C. Cir. 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 33 of 139
22 

1996) (the Court’s vacatur of a 1994 rulemaking “constructively reopened” an 

earlier 1986 rulemaking “by the change in the regulatory context” and that failing 

to allow a challenge to the 1986 agency action beyond the statutory deadline 

“would be to deny the significance of our own earlier ruling”). Additionally, the 

“regulatory context” has changed in a way that “could not have been reasonably 

anticipated by the regulated entity and is onerous to its interests.” Envtl. Def. v. 

EPA, 467 F.3d 1329, 1334 (D.C. Cir. 2006). 

The Arkema decision was the first judicial decision that allowance holders 

have vested rights in their allowances. Petitioners stand to suffer economic loss if 

they have no opportunity to challenge EPA’s 2008 Approvals given the weight 

those Approvals carry after Arkema. The holding in that case is the “ground 

arising after” the close the original filing period for these Petitions. Petitioners 

filed within 60 days of the Arkema decision, and thus their Petitions are timely. 

C. Neither Petitioners Nor The Court Are Obligated To Await EPA 

Action On The Petitions For Reconsideration 

This Court can review the Petitions without waiting for EPA to act on the 

pending reconsideration petition. Intervenors have argued that because EPA has 

not yet responded to that petition, this Court lacks jurisdiction over this case or 

must refrain from addressing this case until EPA has acted. Intervenors’ MTD at 

19-20. These arguments lack merit. 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 34 of 139
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First, the CAA plainly contradicts Intervenors’ jurisdictional argument by 

stating that “[t]he filing of a petition for reconsideration by the Administrator of 

any otherwise final rule or action shall not affect the finality of such rule or action 

for purposes of judicial review[.]” 42 U.S.C. § 7607(b)(1). Congress amended 

Section 307(b)(1) in 1990 in part to clarify that petitions for reconsideration do not 

affect finality for judicial review purposes. See 5 A Legislative History of the 

Clean Air Act Amendments of 1990 (Comm. Print 1993) at 8,712 (“This 

amendment overrules West Penn Power Co. v. EPA, 860 F.2d 581 (3d Cir. 1988), 

which held that the pendency of a petition for agency reconsideration rendered the 

challenged agency action non-final for purposes of judicial review. Contrary to the 

analysis and decision in that case ... Congress intended EPA rulemaking action to 

be final upon final promulgation, not upon a decision on reconsideration”); see 

also S. Rep. No. 101-228, at 372 (1989) (Conf. Rep.). 

Nor does Natural Resources Defense Council v. Thomas, 845 F.2d 1088 

(D.C. Cir. 1988), support Intervenors’ argument. See Intervenors’ MTD at 20; 845 

F.2d. at 1091-92. In that case, the Court invoked the prudential doctrine of 

ripeness to remand a rulemaking petition to EPA for further consideration in part 

because petitioners had not demonstrated that the rule at issue had any impact on 

their “day-to-day affairs” and in part because the “agency has had no chance to 

crystallize its own decision in a proper rulemaking.” Id. at 1088, 1091-93. Thus, 

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24 

because Petitioners’ request for reconsideration does not affect the finality of the 

2008 Approvals and because the petitions for review here were timely filed, this 

Court has jurisdiction. 

Second, Intervenors erroneously cite Oljato Chapter of Navajo Tribe v. 

Train, 515 F.2d 654 (D.C. Cir. 1975), and its progeny for the proposition that this 

Court must await EPA’s response to petitions for reconsideration before 

proceeding with judicial review, implying that the controversy is otherwise not 

ripe. See Intervenors’ MTD at 19-20. In Oljato, the Court endorsed EPA’s 

suggested procedures governing petitions for revisions of CAA standards of 

performance based on new grounds arising after the initial deadline for seeking 

judicial review under then-existing Section 307(b)(1) (42 U.S.C. § 1857h-5(b)(1) 

(1975 pocket part)): (i) a person seeking reconsideration should petition EPA for 

reconsideration, providing supporting materials or references to supporting 

materials; (ii) EPA should respond to the petition and set forth the reasons 

supporting its response; and (iii) if the petition is denied, the person may seek 

judicial review. See Oljato, 515 F.2d at 666. The purpose of this process was to 

provide the Agency with an opportunity to “crystallize” its thinking and to “make 

an adequate record” for judicial review when a party has requested EPA to revise a 

standard of performance based on newly developed technical data. Natural Res. 

Defense Council, 845 F.2d. at 1091-92. Thus, the “Oljato rule” derives from 

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25 

“ripeness” concerns, not jurisdictional requirements.

8 Ciba-Geigy Corp. v. EPA, 

46 F.3d 1208, 1210 (D.C. Cir. 1995). 

Oljato and its progeny are distinguishable from the case at bar because they 

“involved claims that new information called for a rule change−not that a potential 

claim had become newly justiciable.” Am. Road & Transp. Builders Ass’n v. EPA, 

588 F.3d 1109, 1114 (D.C. Cir. 2009). Here, unlike Oljato, Petitioners are not 

seeking reconsideration or revision of a prior standard or rulemaking based on new 

information. Rather, Petitioners have requested only that EPA reconsider its legal 

authority for granting Intervenors’ 2008 interpollutant transfers. In other words, 

this case deals with claims that have become newly justiciable, not ones calling for 

rule revisions based on new information. See supra Argument I.B. It is therefore 

ripe for review. 

II. EPA UNLAWFULLY APPROVED INTERPOLLUTANT 

TRANSFERS TO BE EFFECTIVE BEYOND THE 2003-2009 

STEPDOWN PERIOD 

The Arkema decision holds that the Agency’s 2008 Approvals effected 

permanent baseline interpollutant transfers that affect the allocation of allowances 

beyond the 2003-2009 stepdown period.9

 The Arkema Court, however, was not 

 

8

 To the extent Oljato was based on the CAA itself, it has been overruled by the 

CAA Amendments of 1990 as discussed above. 

9

 Petitioners are not challenging Intervenors’ interpollutant transfers as they apply 

to 2008 and 2009. Both of those years were within the 2003-2009 stepdown 

 (cont.) 

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26 

presented with a challenge to the validity of the 2008 Approvals as neither EPA 

(which granted them) nor Intervenors (which requested them) had any reason to 

question them. Consequently, the Court assumed their validity and interpreted 

their effect in reaching the conclusion that the Final 2010-2014 Stepdown Rule 

was impermissibly retroactive. Thus, the legality of those interpollutant transfers 

has not been addressed by any court and is now ripe for resolution. Because 

creation of allowances not subject to reduction and elimination is not consistent 

with the CAA and EPA’s regulations and prior interpretive statements, the 2008 

Approvals must be vacated. 

A. The 2008 Approvals Were Inconsistent With The Plain Language 

Of The CAA 

While the Arkema Court decided that Petitioners there have vested rights 

created by their interpollutant transfers that EPA could not retroactively eliminate, 

it never expressly examined the statutory language that governs EPA’s 

interpollutant transfer regime. In fact, no court has interpreted that language. 

Thus, in judging the propriety of the 2008 Approvals, this Court should apply 

 

(cont.) 

period, and therefore Intervenors had allowances of HCFC-142b to transfer to 

HCFC-22 for each individual year. See 68 Fed. Reg. at 2,851-53 (HCFC-142b 

allowances granted through 2009). Instead, Petitioners are challenging the 

permanence of the 2008 Approvals, i.e., the extent to which they increased 

Intervenors’ HCFC-22 baseline beyond the 2003-2009 stepdown period or became 

immutable such that they would not be phased down when HCFC-142b was 

phased down. 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 38 of 139
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Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984) and first determine 

whether Congress spoke clearly to the point at issue. 

Congress has spoken clearly and directly. The CAA only permits 

interpollutant transfers on a year-to-year basis: “The rules under this section shall 

permit a production allowance for a substance for any year to be transferred for a 

production allowance for another substance for the same year on an ozone 

depletion weighted basis.” 42 U.S.C. § 7671f(b)(1) (emphases added); see also id.

§ 7671f(d) (same for consumption allowances). By contrast, Congress did not 

impose the “same year” limitation on inter-company transfers: “The rules under 

this section shall permit 2 or more persons to transfer production allowances 

(including interpollutant transfers which meet the requirements of subsections (a) 

and (b) of this section) if the transferor of such allowances will be subject, under 

such rules, to an enforceable and quantifiable reduction in annual production.” Id.

§ 7671f(c). 

This demonstrates that Congress intended to treat interpollutant and intercompany transfers differently, and that the “same year” limitation on interpollutant 

transfers was intentional. This Court must give meaning to this distinction. See 

Russello v. United States, 464 U.S. 16, 23 (1983) (holding that courts must give 

meaning to the distinction made by Congress). 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 39 of 139
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To ignore this distinction would render the “same year” restriction mere 

surplusage, in violation of the “settled rule that [courts] must, if possible, construe 

a statute to give every word some operative effect.” Cooper Indus., Inc. v. Aviall 

Servs., Inc., 543 U.S. 157, 167 (2004); accord Dunn v. Commodity Futures 

Trading Comm’n, 519 U.S. 465, 472 (1997) (“[L]egislative enactments should not 

be construed to render their provisions mere surplusage.”). For example, a 

permanent interpollutant transfer done in 2008 would effectuate a transfer of 

allowances from one substance to another substance not only in the “same year” as 

the actual transfer (2008), but also in subsequent years (e.g., 2010-2014). 

The legislative history of this section confirms that Congress intended 

interpollutant transfers to be “same year” transfers only. According to the ChafeeBaucus Statement of Senate Managers, interpollutant transfers were intended to 

limited within a given year: 

EXCHANGE AUTHORITY – NEW SECTION 607 

Senate bill. The Senate bill makes it unlawful for any 

person to produce substances covered by the bill in 

annual quantities greater than specified percentages “of 

the combined ozone depletion weighted amount of such 

substances produced by such person during” the baseline 

year. As a result, a producer may decide to reduce CFC11 by an amount greater than is required in a given year

and, in the same year, be authorized to produce a greater 

amount of CFC-113 than would otherwise be allowed. 

With the exception of such interpollutant transfers, the 

bill does not authorize the exchange of production 

allowances. 

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House amendment. The House amendment does not 

authorize interpollutant transfers. It does, however, 

direct the Administrator to promulgate regulations 

regarding the exchange of production allowances. Such 

exchanges must meet certain conditions, including a 

requirement that any exchange result in an overall 

reduction in production greater than the reduction that 

would have occurred in the absence of the exchange. 

Conference agreement. The Administrator is directed to 

promulgate regulations that will authorize interpollutant 

transfers, as in the Senate bill, and trades with other 

persons, as in the House amendment. 

1 A Legislative History of the Clean Air Act Amendments of 1990 (Comm. Print 

1993) at 927 (emphasis added). Thus, when Congress adopted the CAA 

Amendments of 1990, it incorporated the “same year” limitation on interpollutant 

transfers. 

B. The 2008 Approvals Were A Change In EPA’s Interpretation 

Accomplished Without Adherence To Procedural Requirements 

 EPA’s regulations set the rules by which market participants are allocated 

allowances. Fairness to those participants requires that EPA only change those 

rules prospectively. The allowances are rights and have an economic value, and 

even-handed treatment of all market participants requires a level playing field. 

EPA could not have sanctioned permanent, immutable transfers disproportionately 

enriching those who made them because doing so would have been flatly 

inconsistent with prior Agency interpretations. While the Arkema Court focused 

on the shift in EPA’s policy between the 2008 Approvals and the Final 2010-2014 

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30 

Proposed Rule based on the transfer forms submitted by Intervenors and other 

private correspondence, see 618 F.3d at 7-8; supra p. 11, it did not explore whether 

the 2008 Approvals themselves represented an impermissible change in EPA’s 

preexisting interpretations without adherence to required notice and comment 

rulemaking procedures. If the 2008 Approvals created immutable allowance 

transfers in direct conflict with prior EPA interpretations, they could not stand 

without notice and comment rulemaking that would inform all participants of the 

new tilt of the playing field. See, e.g., Paralyzed Veterans of Am. v. DC Arena LP, 

117 F.3d 579, 586 (D.C. Cir. 1997). A careful examination of the history of EPA’s 

HCFC allowance allocation and transfer regime reveals a direct conflict. 

When EPA first confronted the issue of allocating HCFC allowances and 

establishing a trading system, it suggested two basic approaches, an “absolute 

allowance” system and an “ODP [ozone-depletion potential]-weighted system.” 

64 Fed. Reg. 16,373, 16,376 (April 5, 1999) (advanced notice of proposed 

rulemaking). Under the former, allowances would be granted on a chemical-bychemical basis. Under the latter, a single pool of allowances would be granted that 

could be used for any HCFC, with the precise amount to be determined according 

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31 

to each HCFC’s ODP.10 In that advanced notice of proposed rulemaking, EPA 

solicited comments and noted various potential concerns with each approach and 

the resulting trading schemes. In doing so, it several times discussed the special 

case of attempted permanent trades of any HCFC that was later to be phased down 

or out, using HCHC-141b (which was scheduled to be phased out by 2003) as the 

example: 

It is important to note that, under any scenario, when the 

phaseout date for HCFC-141b is reached in 2003, all 

HCFC-141b consumption (production + imports - 

exports) will cease. Those who did not participate in the 

HCFC-141b market will not be affected in 2003. 

However, those who did participate in the HCFC-141b 

market—through, for example, producing or importing 

HCFC-141b—would no longer receive any allowances 

associated with their historic HCFC-141b activity, and 

thus any authorization to produce or import HCFC–141b. 

Likewise, any company that, through a baseline trade, 

received allowances associated with historic HCFC–

141b would no longer receive any allowances associated 

with the baseline trade in 2003.

64 Fed. Reg. 16,378 (emphasis added). See also id. at 16,380 (permanent transfers 

under an ODP-weighted system would be problematical because the amount 

attributable to a phased-down HCFC would be difficult to trace and phase down). 

This interpretation stands for the principle that the “phasedown follows the 

 

10 For example, a pool of 1000 allowances could be used to produce 65 kilograms 

of HCFC-142b, because that HCFC has an ODP of 0.065 (i.e., 1000 x 0.065 = 65). 

Id. at 16,376. 

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32 

allowance” when a trade is involved. Otherwise, a trade could be used to avoid the 

phasedown. 

Two years later, EPA proposed the “absolute allowance” scheme and a 

trading regime. 66 Fed. Reg. 38,064 (July 20, 2001). One of the key 

considerations in favor of this decision was that transfers of HCFCs that are phased 

down or out would be more difficult to track once transferred in an ODP-weighted 

system. Id. at 38,068-69. It continued the theme explicated in the advanced 

notice: transfers of allowances of an HCFC that are later phased down or out must 

suffer the same consequence. Id. (“If permanent inter-pollutant trades had been 

made [prior to the phaseout], an amount equal to the ODP-weighted kilograms of 

the baseline HCFC-141b allowances that had been received in the transfer would 

be deducted from the baseline allocation”); see also id. at 38,073, 38,086. The 

restriction was crisply laid out by EPA in one example: 

If a person purchases permanent baseline allowances, of 

HCFC–141b, for example, then conducts an interpollutant trade within the company, that person would 

deduct the ODP-weighted equivalent consumption of the 

HCFC–141b that was traded to them on a permanent 

basis. In our example, in 2003, the purchaser of 

allowances associated with HCFC–141b would have that 

number of ODP-weighted allowances associated with 

HCFC–141b deducted, even if it had conducted an interpollutant trade within the company for another HCFC.

Id. at 38,078-79 (emphasis added). 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 44 of 139
33 

The principle that the “phasedown follows the allowance,” including 

interpollutant transfers, was crystallized two years later when EPA adopted its 

chemical-by-chemical allowance and trading schemes. See 68 Fed. Reg. 2,820 

(Jan. 21, 2003). In the preamble, EPA reiterated the “phasedown follows the 

allowance” principle. After first discussing a hypothetical inter-company transfer 

of allowances, the Agency went on to state that: 

Subsequent interpollutant transfers of these baseline 

allowances would also be permitted. However, at the 

time of a reduction step or a phaseout of the substance, 

the current holder of baseline allowances that were 

received in a permanent transfer would be the person 

who would have them deducted.

Id. at 2,835 (emphasis added). Similar words where incorporated directly into the 

transfer regulations. 40 C.F.R. § 82.23(d) (“A person receiving a permanent 

transfer of baseline production allowances or baseline consumption allowances 

(the transferee) for a specific class II controlled substance will be the person who 

has their baseline allowances adjusted in accordance with phaseout schedules in 

this section.”). 

EPA clearly and consistently interpreted its regulations as containing a 

“phasedown follows the allowance” principle. Thus, HCFC market participants 

cannot use the inter-pollutant transfer mechanism to perpetuate allowances for one 

HCFC that is being phased down by conducting an inter-pollutant transfer to 

another HCFC that is not being phased down (or that is being phased down to a 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 45 of 139
34 

lesser degree than the transferred chemical). This approach is in keeping with both 

the letter and intent of the CAA. Without it, market participants would have the 

ability to conduct inter-pollutant transfers of expiring HCFC allowances and evade 

the phasedown of the original chemical. Permitting such legerdemain would be 

inconsistent with the with the Montreal Protocol as well as discretion Congress 

granted to EPA to accelerate the phaseout of HCFCs, 42 U.S.C. § 7671e(a), which 

EPA has already invoked to phase out both HCFC-142b and 22 before the 2030 

statutory deadline.11 

EPA was not free to act in a manner inconsistent with its prior interpretation 

that the “phasedown follows the allowance” without first going through notice and 

comment rulemaking, which would inform all market participants of the new 

interpretation. See, e.g., Alaska Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030, 

1033-34 (D.C. Cir. 1999); Paralyzed Veterans, 117 F.3d at 586. EPA did not 

engage in this process. Yet, that is what the Arkema Court said EPA did when it 

 

11 Furthermore, nowhere does Arkema specifically address the issue of whether 

EPA’s 2008 Approvals caused the transferred allowances to avoid being phased 

down or out along with the transferred chemical. It only held that EPA’s failure to 

honor the transferred allowances in the Final 2010-2014 Stepdown Rule was 

impermissibly retroactive. 618 F.3d at 9. 

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35 

approved interpollutant transfers that would carry forward beyond the existing 

regulatory stepdown period. Thus, the 2008 Approvals must be vacated.12 

C. The Record Does Not Support the 2008 Approvals 

Assuming, arguendo, the CAA allows permanent interpollutant baseline 

transfers, the 2008 Approvals should still be vacated because the administrative 

record here is devoid of any evidence that EPA conducted the analyses required to 

meet its own regulations or engaged in reasoned decision-making. See 40 C.F.R. 

§ 82.23(b); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 

29, 48-49 (1983) (“we have frequently reiterated that an agency must cogently 

explain why an agency has exercised its discretion in a given manner”) (citations 

omitted).13 

 

12 Even if this Court is inclined to view EPA’s treatment of allowances associated 

with trades as mere policy, the result is the same. To alter a policy position, an 

agency must provide “a reasoned explanation for its departure from prior norms.” 

Telecommunications Research & Action Center v. FCC, 800 F.2d 1181, 1185 

(D.C. Cir. 1986). EPA did not do this either. 

13 The certified administrative record here contains just four documents, the four 

2008 Approvals. See Doc. No. 1926773. The certification goes on to note that due 

to the connection between the instant Petitions and the Arkema case, EPA is also 

presenting the Court with the administrative record for the Final 2010-2014 

Stepdown Rule at issue in the Arkema case, including some documents that were 

not in the record certified to that Court. See id. at 3. Of course, the administrative 

record for the Final 2010-2014 Stepdown Rule is not evidence of the information 

actually considered by EPA in making the 2008 Approvals. The great majority of 

material in the record of the Final 2010-2014 Stepdown Rule is wholly unrelated to 

the 2008 Approvals. The only documents that do relate to the approvals are among 

the material EPA added after the fact and that was not in the certified Arkema

 (cont.) 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 47 of 139
36 

First, EPA’s own rules unequivocally require that the Agency, upon receipt 

of an interpollutant transfer request, “determine whether the records maintained by 

EPA indicate that the convertor possesses unexpended allowances sufficient to 

cover the transfer claim on the date the transfer claim is processed (i.e., the 

quantity (in kilograms) to be converted plus 0.1 percent of that quantity (in 

kilograms)).” 40 C.F.R. § 82.23(b)(4). Here – while there is no evidence of the 

steps EPA took upon receipt of the four interpollutant transfer requests – EPA 

presumably checked its records of the number of unexpended allowances then held 

by the Intervenors against the number of allowances they sought to transfer. If so, 

EPA apparently confirmed that Intervenors had enough unexpended HCFC-142b 

allowance for 2008 and 2009 to accomplish the transfers in those years, as 

Intervenors requested. (JA__, __) (Intervenors’ cover letters for the transfers 

seeking approval for transfers for 2008 and 2009). There is no evidence, however, 

that the Agency confirmed the availability of unexpended allowances beyond 

2009, and in fact it could not have done so because no such allowances for 2010 or 

later had yet been allocated to any market participant. 

 

(cont.) 

record. See Document No. 1926773 at pp. 14-15; compare id. with Document No. 

1227362 (certified record in Arkema case). 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 48 of 139
37 

The hazard of approving interpollutant transfers beyond the close of a 

stepdown period is well illustrated by EPA’s decision in the Final 2010-2014 

Stepdown Rule to phase out 99.53% of HCFC-142b. 74 Fed. Reg. at 66,429. At 

the time of the 2008 Approvals, EPA had not made its final HCFC-142b phase-out 

decision, and therefore it could not have verified that Intervenors had sufficient 

unexpended HCFC-142b allowances to transfer for years beyond 2009, the final 

year of the existing period. If the decision as to future years had been made by that 

time, EPA would have known it had to reduce the number of allowances that could 

be transferred by 99.53%. Instead of being able to collectively transfer 34,653,771 

kilograms of HCFC-142b (the total of the 2008 Approvals), Intervenors would 

only have been able to transfer a maximum of 154,178 kilograms for 2010 because 

of the 99.53% reduction. This outcome would have been consistent with EPA’s 

prior interpretation that the “phasedown follows the allowance.” See supra 

Argument II.B. 

Second, EPA’s rules only provide express authority for interpollutant 

transfers “during the control period and during the 30 days after the end of a 

control period.” 40 C.F.R. § 82.23(b)(2). There is no similar restriction on intercompany transfers. Compare 40 C.F.R. § 82.23(a) with (b)(2). As noted above, 

Intervenors had allowances for the 2008 and 2009 control periods that they were 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 49 of 139
38 

free to transfer, on a year-to-year basis, to other pollutants within those control 

periods. But, they could not have gone further than that.14 

The interpollutant transfer regulations limit EPA’s authority, and EPA failed 

to meet those requirements when it approved the “permanent” interpollutant 

transfers in this case. Even if EPA had residual authority to go beyond its 

regulations on a case-by-case basis, it did not meet the minimum requirements of 

the CAA for doing so. In such circumstances, EPA would have to have complied 

with the CAA’s procedural requirements, see 42 U.S.C. § 7607(d)(2)-(6), in 

addition to engaging in reasoned decision-making, see State Farm, 463 U.S. at 52 

– neither of which occurred here.15

 

14 In fact, it is not clear that EPA could have approved the interpollutant transfers 

for 2009, as the transfer requests were not made during the correct control period. 

However, Petitioners are not challenging the transfers as applied to 2009 (or 2008). 

See supra n.9. 

15 Finally, approval authority in the regulations is granted to the “Administrator.” 

40 C.F.R. § 82.23(b)(4). Here, the record is devoid of any evidence that the person 

who approved the transfers (see JA__-__) was authorized to do so by the 

Administrator. If no such authorization exists, the 2008 Approvals are invalid. 

See generally C&W Fish Co. v. Fox, 931 F.2d 1556, 1559-61 (D.C. Cir. 1991) 

(subordinate officials require formal delegation to exercise authority vested in the 

agency head). 

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39 

III. EPA’S APPROVAL OF PERMANENT INTERPOLLUTANT 

TRANSFERS DEPRIVED PETITIONERS OF DUE PROCESS OF 

LAW 

EPA’s approval of interpollutant transfers that persist beyond the 2003-2009 

stepdown period divested Petitioners of both HCFC-22 allowances and part of their 

share of the HCFC-22 market without the due process of law. Arkema held that 

market participants have vested rights in their baseline allowances. 618 F.3d at 7. 

They are thus a form of property rights that cannot be diminished or taken without 

due process. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571-72, 

576 (1972) (“property interests protected by procedural due process extend well 

beyond actual ownership of real estate, chattels, or money” and “may take many 

forms”); Halbach v. Great-West Life & Annuity Ins. Co., 561 F.3d 872, 877 (8th 

Cir. 2009) (“[a] ‘vested right’ is commonly defined as a ‘right that so completely 

and definitely belongs to a person that it cannot be impaired or taken away without 

that person’s consent.’”) (quoting Black’s Law Dict. 1349 (8th ed. 2004)); Bell v. 

Burson, 402 U.S. 535 (1971) (licenses cannot be suspended or revoked without due 

process). The property interest at stake here is broader than just baseline 

allowances because baseline allowances alone are insufficient to authorize 

production or consumption. See supra p. 6. The complete bundle of Petitioners’ 

rights include both their baseline, which establishes market share, and their 

production and consumption allowances, which are necessary to produce and 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 51 of 139
40 

consume HCFC-22. Both were diminished by the 2008 Approvals, and Petitioners 

were never provided with notice of the Intervenors’ 2008 transfers or an 

opportunity to be heard or contest EPA’s decision to approve them. 

First, it is uncontested that neither Petitioners, nor any other market 

participants, were notified of the Intervenors’ 2008 transfers. Neither the 

Intervenors’ transfer requests nor 2008 Approvals were made public. See EPA 

Resp. to MTD at 9 (“Each of these non-objection notices was sent only to the 

requesting party (two to Arkema and two to Solvay)”); 618 F.3d at 7-8 (describing 

non-public correspondence between Intervenors and Respondent regarding 

transfers of allowances). There was no contemporaneous notice of these transfer 

requests or the 2008 Approvals in the Federal Register. The subsequent Proposed 

2010-2014 Stepdown Rule never “mentions the specific interpollutant transfers by 

Arkema and Solvay that Petitioners challenge in this case.” EPA Resp. to MTD at 

5. Petitioners learned of their existence after the Proposed 2010-2014 Stepdown 

Rule was issued, and did not see them until after the Arkema decision was 

rendered. Diggs Decl. ¶¶6, 8; Austin Decl. ¶6 . 

Second, it is uncontested that Petitioners had no timely opportunity to be 

heard about the validity of the Intervenors’ transfer requests. Nor could Petitioners 

challenge a proposed rulemaking. Am. Portland Cement Alliance, 101 F.3d at 777. 

Only after the Intervenors succeeded in vacating the Final Rule were the transfers 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 52 of 139
41 

made effective, for the first time, in an interim rule on remand from the Arkema 

Court. See 76 Fed. Reg. at 47,467-68. 

Third, as is made clear from the example in the table below, both 

Petitioners’ pools of 2011 production and consumption allowances, and thus their 

HCFC-22 market share of baseline allowances, decreased significantly as a direct 

result of the 2008 Approvals: 

 HCFC-22 

Production 

HCFC-22 

Consumption 

Allowances granted to Petitioners in 

Final 2010-2014 Stepdown Rule 

30,406,194 

kg 

28,198,794 

kg 

Allowances granted to Petitioners in 

the 2011 Interim Rule 

25,605,216 

kg 

23,746,353 

kg 

Petitioners’ Decrease in Allowances 15.8% 15.8% 

See 76 Fed. Reg. at 47,461-62 (EPA must reduce allowances from 38% of baseline 

under the 2009 Final Rule to 32% of baseline under the 2011 interim final rule to 

reflect 2008 approvals); Diggs Decl. ¶ 12.16 Even before the 2011 interim final 

 

16 In the 2011 interim rule, EPA elected to maintain the “zero sum game” cap on 

allowances by increasing Intervenors’ share of baseline allowances, maintaining all 

other parties’ baselines, and then decreasing all parties’ allowances by a higher 

phase-down percentage (68% rather than 62%) than it otherwise would have. 

Compare 74 Fed. Reg. at 66,466 (table for 40 C.F.R. § 82.16 showing HCFC-22 

allowances equal to 38% of baseline for 2011); with 76 Fed. Reg. at 47,467 

(revised table for 40 C.F.R. § 82.16 showing HCFC-22 allowances equal to 32% of 

baseline for 2011 after 2008 transfers). Regardless of the method, the net result is 

the same: Petitioners have far fewer actual production and consumption 

allowances than they otherwise would have had if EPA had not issued the 2008 

Approvals. 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 53 of 139
42 

rule, EPA had acknowledged to the Court that the 2008 Approvals deprived 

Petitioners of allowances: “EPA must extract the corresponding production 

allowances ... from the allowances of DuPont, Honeywell and other suppliers.” 

EPA Resp. to MTD at 3; see also Motion of Arkema Inc. for Leave to Intervene, 

Doc. No. 1336514 (filed Oct. 19, 2011) at 11 (“Petitioners are, of course, adverse 

to Arkema, since an increased share of allowances for Arkema necessarily means 

a decreased share of allowances for Honeywell and DuPont.” (emphasis added)). 

To have the allowances “extracted” by operation of the 2008 Approvals 

without an opportunity to be heard is a denial of due process. “Parties whose 

rights are to be affected are entitled to be heard; and in order that they may enjoy 

that right they must first be notified.” Baldwin v. Hale, 68 U.S. (Wall.) 223, 233 

(1864). With few exceptions, due process requires notification and a right to be 

heard before the deprivation of a protected interest. Goldberg v. Kelly, 397 U.S. 

254, 262-63 (1970) (prior notice and hearing required where the party’s interest 

outweighs “the governmental interest in summary adjudication”). Whenever the 

government deprives one of a property interest that person must be afforded the 

opportunity to protect his or her rights. Mathews v. Eldridge, 424 U.S. 319, 333 

(1976). 

Petitioners seek only basic and essential due process here: they should have 

been given notice of EPA’s proposed action to either approve or disapprove the 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 54 of 139
43 

transfers in such a way that would render them permanent and an opportunity to be 

heard before that action was taken. This would have allowed market participants 

to defend their own interests. It would also have allowed EPA to explicate its 

position on the permanence of the transfers, if approved.17 

EPA’s interpollutant transfer regulations do not, of course, require EPA to 

provide other market participants notice of transfer requests and an opportunity to 

be heard. But those regulations do not foreclose Petitioners’ due process claim 

because they do not trump constitutional requirements. Graceba Total Commc’ns. 

v. FCC, 115 F.3d 1038, 1040 (D.C. Cir. 1997) (“we permit both constitutional and 

statutory challenges to an agency’s application or reconsideration of a previously 

promulgated rule, even if the period for review of the initial rulemaking has 

expired.”) (citing cases). Henderson v. Lujan, 964 F.2d 1179, 1183 (D.C. Cir. 

1992) (“regulations ... regardless of their longstanding character, do not 

undermine” plaintiff’s First Amendment challenge). 

Because no notice was given, market participants did not have that 

opportunity to address the 2008 Approvals until at least the Proposed 2010-2014 

Stepdown Rule. See 74 Fed. Reg. at 66,421 (“Commenters pointed out that 

 

17 Knowledge of these proceedings would also have allowed Petitioners and other 

market participants to challenge the 2008 Approvals promptly, before they 

impacted the Final 2010-2014 Stepdown Rule. 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 55 of 139
44 

adjusting the baselines to reflect intra-company, interpollutant transfers could 

create incentives for future manipulation of the allocation system in anticipation of 

the future control periods.”). By then, however, it was too late. 

For these reasons, the 2008 Approvals have an adverse economic effect on 

Petitioners’ property, and they were granted without affording Petitioners due 

process of law. 

CONCLUSION 

For the foregoing reasons, the Court should vacate the 2008 Approvals. 

December 1, 2011 

/s/ Chet M. Thompson

Chet M. Thompson 

Robert J. Meyers 

David Y. Chung 

CROWELL & MORING LLP 

1001 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004-2595 

(202) 624-2500 

Counsel for E. I. du Pont de Nemours 

and Company 

Respectfully submitted, 

/s/ Timothy K. Webster

Timothy K. Webster 

James R. Wedeking 

SIDLEY AUSTIN LLP 

1501 K Street, NW 

Washington, DC 20005 

(202) 736-8000 

Richard Ayres 

Jessica Olson 

AYRES LAW GROUP 

1615 L Street, N.W., Suite 1350 

Washington, D.C. 20036 

(202) 452-9200 

Counsel for Honeywell International 

Inc. 

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45 

CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitations of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because it contains 9,955 words (as determined 

by the Microsoft Word 2007 word-processing system used to prepare the brief), 

excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 

32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because it has been prepared in a proportionally 

spaced typeface using the Microsoft Word 2007 word-processing system in 14-

point Times New Roman font. 

 /s/ Timothy K. Webster

 Timothy K. Webster 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 57 of 139
46 

CERTIFICATE OF SERVICE 

I certify that on this 1st day of December, 2011, I caused the foregoing 

Opening Brief of Petitioners to be filed via the Court’s CM/ECF System. All 

participants in the case are registered CM/ECF users and will be served by the 

appellate CM/ECF system. 

 /s/ Timothy K. Webster

 Timothy K. Webster 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 58 of 139
APPENDIX A

Addendum 

 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 59 of 139
STATUTORY ADDENDUM 

42 U.S.C. § 7607 (2010) ........................................................................................................ADD-1 

42 U.S.C. § 7671 (2010) ........................................................................................................ADD-8 

42 U.S.C. § 7671d (2010) ....................................................................................................ADD-11 

42 U.S.C. § 7671f (2010) .....................................................................................................ADD-14 

40 C.F.R. § 82.3 (2010) .......................................................................................................ADD-17 

40 C.F.R. § 82.15 (2010) .....................................................................................................ADD-26 

40 C.F.R. § 82.16 (2010) .....................................................................................................ADD-30 

40 C.F.R. § 82.17 (2003) .....................................................................................................ADD-36 

40 C.F.R. § 82.17 (2009) .....................................................................................................ADD-38 

40 C.F.R. § 82.19 (2003) .....................................................................................................ADD-40 

40 C.F.R. § 82.19 (2009) .....................................................................................................ADD-43 

40 C.F.R. § 82.23 (2010) .....................................................................................................ADD-46 

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 60 of 139
42 U.S.C. § 7607 (2010) 

 

ADD-1

USCA Case #10-1347 Document #1345222 Filed: 12/01/2011 Page 61 of 139
Page 6421 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7607 

1See References in Text note below.

2So in original. Probably should be ‘‘this’’.

3So in original. 4So in original. Probably should be ‘‘subsection,’’.

emption shall (A) promptly notify the Administrator of

such exemption and the justification therefor; (B) review the necessity for each such exemption annually;

and (C) report to the Administrator annually all such

exemptions in effect. Exemptions granted pursuant to

this section shall be for a period not to exceed one year.

Additional exemptions may be granted for periods not

to exceed one year upon the making of a new determination by the head of the Federal agency concerned.

(2) The Administrator may, by rule or regulation, exempt any or all Federal agencies from any or all of the

provisions of this Order with respect to any class or

classes of contracts, grants, or loans, which (A) involve

less than specified dollar amounts, or (B) have a minimal potential impact upon the environment, or (C) involve persons who are not prime contractors or direct

recipients of Federal assistance by way of contracts,

grants, or loans.

(b) Federal agencies shall reconsider any exemption

granted under subsection (a) whenever requested to do

so by the Administrator.

(c) The Administrator shall annually notify the

President and the Congress of all exemptions granted,

or in effect, under this Order during the preceding year.

SEC. 9. Related Actions. The imposition of any sanction or penalty under or pursuant to this Order shall

not relieve any person of any legal duty to comply with

any provisions of the Air Act or the Water Act.

SEC. 10. Applicability. This Order shall not apply to

contracts, grants, or loans involving the use of facilities located outside the United States.

SEC. 11. Uniformity. Rules, regulations, standards, and

guidelines issued pursuant to this order and section 508

of the Water Act [33 U.S.C. 1368] shall, to the maximum

extent feasible, be uniform with regulations issued pursuant to this order, Executive Order No. 11602 of June

29, 1971 [formerly set out above], and section 306 of the

Air Act [this section].

SEC. 12. Order Superseded. Executive Order No. 11602 of

June 29, 1971, is hereby superseded.

RICHARD NIXON. 

§ 7607. Administrative proceedings and judicial

review 

(a) Administrative subpenas; confidentiality; witnesses

In connection with any determination under

section 7410(f) of this title, or for purposes of obtaining information under section 7521(b)(4) 1 or

7545(c)(3) of this title, any investigation, monitoring, reporting requirement, entry, compliance inspection, or administrative enforcement

proceeding under the 2 chapter (including but

not limited to section 7413, section 7414, section

7420, section 7429, section 7477, section 7524, section 7525, section 7542, section 7603, or section

7606 of this title),,3 the Administrator may issue

subpenas for the attendance and testimony of

witnesses and the production of relevant papers,

books, and documents, and he may administer

oaths. Except for emission data, upon a showing

satisfactory to the Administrator by such owner

or operator that such papers, books, documents,

or information or particular part thereof, if

made public, would divulge trade secrets or secret processes of such owner or operator, the Administrator shall consider such record, report,

or information or particular portion thereof

confidential in accordance with the purposes of

section 1905 of title 18, except that such paper,

book, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this chapter, to persons carrying out the National Academy of Sciences’ study and investigation provided for in

section 7521(c) of this title, or when relevant in

any proceeding under this chapter. Witnesses

summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the

United States. In case of contumacy or refusal

to obey a subpena served upon any person under

this subparagraph,4 the district court of the

United States for any district in which such person is found or resides or transacts business,

upon application by the United States and after

notice to such person, shall have jurisdiction to

issue an order requiring such person to appear

and give testimony before the Administrator to

appear and produce papers, books, and documents before the Administrator, or both, and

any failure to obey such order of the court may

be punished by such court as a contempt thereof.

(b) Judicial review

(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement

under section 7412 of this title, any standard of

performance or requirement under section 7411

of this title,,3 any standard under section 7521 of

this title (other than a standard required to be

prescribed under section 7521(b)(1) of this title),

any determination under section 7521(b)(5) 1 of

this title, any control or prohibition under section 7545 of this title, any standard under section 7571 of this title, any rule issued under section 7413, 7419, or under section 7420 of this title,

or any other nationally applicable regulations

promulgated, or final action taken, by the Administrator under this chapter may be filed only

in the United States Court of Appeals for the

District of Columbia. A petition for review of

the Administrator’s action in approving or promulgating any implementation plan under section 7410 of this title or section 7411(d) of this

title, any order under section 7411(j) of this title,

under section 7412 of this title, under section

7419 of this title, or under section 7420 of this

title, or his action under section

1857c–10(c)(2)(A), (B), or (C) of this title (as in effect before August 7, 1977) or under regulations

thereunder, or revising regulations for enhanced

monitoring and compliance certification programs under section 7414(a)(3) of this title, or

any other final action of the Administrator

under this chapter (including any denial or disapproval by the Administrator under subchapter

I of this chapter) which is locally or regionally

applicable may be filed only in the United

States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a

petition for review of any action referred to in

such sentence may be filed only in the United

States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and pubADD-2

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5So in original. The word ‘‘to’’ probably should not appear.

lishes that such action is based on such a determination. Any petition for review under this

subsection shall be filed within sixty days from

the date notice of such promulgation, approval,

or action appears in the Federal Register, except

that if such petition is based solely on grounds

arising after such sixtieth day, then any petition for review under this subsection shall be

filed within sixty days after such grounds arise.

The filing of a petition for reconsideration by

the Administrator of any otherwise final rule or

action shall not affect the finality of such rule

or action for purposes of judicial review nor extend the time within which a petition for judicial review of such rule or action under this section may be filed, and shall not postpone the effectiveness of such rule or action.

(2) Action of the Administrator with respect to

which review could have been obtained under

paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement. Where a final decision by the Administrator defers performance of any nondiscretionary statutory action to a later time, any person

may challenge the deferral pursuant to paragraph (1).

(c) Additional evidence

In any judicial proceeding in which review is

sought of a determination under this chapter required to be made on the record after notice and

opportunity for hearing, if any party applies to

the court for leave to adduce additional evidence, and shows to the satisfaction of the court

that such additional evidence is material and

that there were reasonable grounds for the failure to adduce such evidence in the proceeding

before the Administrator, the court may order

such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and

conditions as to 5 the court may deem proper.

The Administrator may modify his findings as

to the facts, or make new findings, by reason of

the additional evidence so taken and he shall

file such modified or new findings, and his recommendation, if any, for the modification or

setting aside of his original determination, with

the return of such additional evidence.

(d) Rulemaking

(1) This subsection applies to—

(A) the promulgation or revision of any national ambient air quality standard under section 7409 of this title,

(B) the promulgation or revision of an implementation plan by the Administrator under

section 7410(c) of this title,

(C) the promulgation or revision of any

standard of performance under section 7411 of

this title, or emission standard or limitation

under section 7412(d) of this title, any standard

under section 7412(f) of this title, or any regulation under section 7412(g)(1)(D) and (F) of

this title, or any regulation under section

7412(m) or (n) of this title,

(D) the promulgation of any requirement for

solid waste combustion under section 7429 of

this title,

(E) the promulgation or revision of any regulation pertaining to any fuel or fuel additive

under section 7545 of this title,

(F) the promulgation or revision of any aircraft emission standard under section 7571 of

this title,

(G) the promulgation or revision of any regulation under subchapter IV–A of this chapter

(relating to control of acid deposition),

(H) promulgation or revision of regulations

pertaining to primary nonferrous smelter orders under section 7419 of this title (but not including the granting or denying of any such

order), 

(I) promulgation or revision of regulations

under subchapter VI of this chapter (relating

to stratosphere and ozone protection),

(J) promulgation or revision of regulations

under part C of subchapter I of this chapter

(relating to prevention of significant deterioration of air quality and protection of

visibility), 

(K) promulgation or revision of regulations

under section 7521 of this title and test procedures for new motor vehicles or engines under

section 7525 of this title, and the revision of a

standard under section 7521(a)(3) of this title,

(L) promulgation or revision of regulations

for noncompliance penalties under section 7420

of this title,

(M) promulgation or revision of any regulations promulgated under section 7541 of this

title (relating to warranties and compliance

by vehicles in actual use),

(N) action of the Administrator under section 7426 of this title (relating to interstate

pollution abatement),

(O) the promulgation or revision of any regulation pertaining to consumer and commercial products under section 7511b(e) of this

title, 

(P) the promulgation or revision of any regulation pertaining to field citations under section 7413(d)(3) of this title,

(Q) the promulgation or revision of any regulation pertaining to urban buses or the cleanfuel vehicle, clean-fuel fleet, and clean fuel

programs under part C of subchapter II of this

chapter, 

(R) the promulgation or revision of any regulation pertaining to nonroad engines or

nonroad vehicles under section 7547 of this

title, 

(S) the promulgation or revision of any regulation relating to motor vehicle compliance

program fees under section 7552 of this title,

(T) the promulgation or revision of any regulation under subchapter IV–A of this chapter

(relating to acid deposition),

(U) the promulgation or revision of any regulation under section 7511b(f) of this title pertaining to marine vessels, and

(V) such other actions as the Administrator

may determine.

The provisions of section 553 through 557 and

section 706 of title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies. This subsection shall not apply in the case of any rule or

circumstance referred to in subparagraphs (A) or

(B) of subsection 553(b) of title 5.

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(2) Not later than the date of proposal of any

action to which this subsection applies, the Administrator shall establish a rulemaking docket

for such action (hereinafter in this subsection

referred to as a ‘‘rule’’). Whenever a rule applies

only within a particular State, a second (identical) docket shall be simultaneously established in the appropriate regional office of the

Environmental Protection Agency.

(3) In the case of any rule to which this subsection applies, notice of proposed rulemaking

shall be published in the Federal Register, as

provided under section 553(b) of title 5, shall be

accompanied by a statement of its basis and

purpose and shall specify the period available

for public comment (hereinafter referred to as

the ‘‘comment period’’). The notice of proposed

rulemaking shall also state the docket number,

the location or locations of the docket, and the

times it will be open to public inspection. The

statement of basis and purpose shall include a

summary of—

(A) the factual data on which the proposed

rule is based;

(B) the methodology used in obtaining the

data and in analyzing the data; and

(C) the major legal interpretations and policy considerations underlying the proposed

rule. 

The statement shall also set forth or summarize

and provide a reference to any pertinent findings, recommendations, and comments by the

Scientific Review Committee established under

section 7409(d) of this title and the National

Academy of Sciences, and, if the proposal differs

in any important respect from any of these recommendations, an explanation of the reasons for

such differences. All data, information, and documents referred to in this paragraph on which

the proposed rule relies shall be included in the

docket on the date of publication of the proposed rule.

(4)(A) The rulemaking docket required under

paragraph (2) shall be open for inspection by the

public at reasonable times specified in the notice of proposed rulemaking. Any person may

copy documents contained in the docket. The

Administrator shall provide copying facilities

which may be used at the expense of the person

seeking copies, but the Administrator may

waive or reduce such expenses in such instances

as the public interest requires. Any person may

request copies by mail if the person pays the expenses, including personnel costs to do the copying.

(B)(i) Promptly upon receipt by the agency, all

written comments and documentary information on the proposed rule received from any person for inclusion in the docket during the comment period shall be placed in the docket. The

transcript of public hearings, if any, on the proposed rule shall also be included in the docket

promptly upon receipt from the person who

transcribed such hearings. All documents which

become available after the proposed rule has

been published and which the Administrator determines are of central relevance to the rulemaking shall be placed in the docket as soon as

possible after their availability.

(ii) The drafts of proposed rules submitted by

the Administrator to the Office of Management

and Budget for any interagency review process

prior to proposal of any such rule, all documents

accompanying such drafts, and all written comments thereon by other agencies and all written

responses to such written comments by the Administrator shall be placed in the docket no

later than the date of proposal of the rule. The

drafts of the final rule submitted for such review

process prior to promulgation and all such written comments thereon, all documents accompanying such drafts, and written responses

thereto shall be placed in the docket no later

than the date of promulgation.

(5) In promulgating a rule to which this subsection applies (i) the Administrator shall allow

any person to submit written comments, data,

or documentary information; (ii) the Administrator shall give interested persons an opportunity for the oral presentation of data, views,

or arguments, in addition to an opportunity to

make written submissions; (iii) a transcript

shall be kept of any oral presentation; and (iv)

the Administrator shall keep the record of such

proceeding open for thirty days after completion

of the proceeding to provide an opportunity for

submission of rebuttal and supplementary information.

(6)(A) The promulgated rule shall be accompanied by (i) a statement of basis and purpose

like that referred to in paragraph (3) with respect to a proposed rule and (ii) an explanation

of the reasons for any major changes in the promulgated rule from the proposed rule.

(B) The promulgated rule shall also be accompanied by a response to each of the significant

comments, criticisms, and new data submitted

in written or oral presentations during the comment period.

(C) The promulgated rule may not be based (in

part or whole) on any information or data which

has not been placed in the docket as of the date

of such promulgation.

(7)(A) The record for judicial review shall consist exclusively of the material referred to in

paragraph (3), clause (i) of paragraph (4)(B), and

subparagraphs (A) and (B) of paragraph (6).

(B) Only an objection to a rule or procedure

which was raised with reasonable specificity

during the period for public comment (including

any public hearing) may be raised during judicial review. If the person raising an objection

can demonstrate to the Administrator that it

was impracticable to raise such objection within

such time or if the grounds for such objection

arose after the period for public comment (but

within the time specified for judicial review)

and if such objection is of central relevance to

the outcome of the rule, the Administrator shall

convene a proceeding for reconsideration of the

rule and provide the same procedural rights as

would have been afforded had the information

been available at the time the rule was proposed. If the Administrator refuses to convene

such a proceeding, such person may seek review

of such refusal in the United States court of appeals for the appropriate circuit (as provided in

subsection (b) of this section). Such reconsideration shall not postpone the effectiveness of the

rule. The effectiveness of the rule may be stayed

during such reconsideration, however, by the

Administrator or the court for a period not to

exceed three months.

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6So in original. Probably should be ‘‘sections’’.

(8) The sole forum for challenging procedural

determinations made by the Administrator

under this subsection shall be in the United

States court of appeals for the appropriate circuit (as provided in subsection (b) of this section) at the time of the substantive review of

the rule. No interlocutory appeals shall be permitted with respect to such procedural determinations. In reviewing alleged procedural errors, the court may invalidate the rule only if

the errors were so serious and related to matters

of such central relevance to the rule that there

is a substantial likelihood that the rule would

have been significantly changed if such errors

had not been made.

(9) In the case of review of any action of the

Administrator to which this subsection applies,

the court may reverse any such action found to

be— 

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory

right; or

(D) without observance of procedure required by law, if (i) such failure to observe

such procedure is arbitrary or capricious, (ii)

the requirement of paragraph (7)(B) has been

met, and (iii) the condition of the last sentence of paragraph (8) is met.

(10) Each statutory deadline for promulgation

of rules to which this subsection applies which

requires promulgation less than six months

after date of proposal may be extended to not

more than six months after date of proposal by

the Administrator upon a determination that

such extension is necessary to afford the public,

and the agency, adequate opportunity to carry

out the purposes of this subsection.

(11) The requirements of this subsection shall

take effect with respect to any rule the proposal

of which occurs after ninety days after August 7,

1977. 

(e) Other methods of judicial review not authorized

Nothing in this chapter shall be construed to

authorize judicial review of regulations or orders of the Administrator under this chapter, except as provided in this section.

(f) Costs

In any judicial proceeding under this section,

the court may award costs of litigation (including reasonable attorney and expert witness fees)

whenever it determines that such award is appropriate.

(g) Stay, injunction, or similar relief in proceedings relating to noncompliance penalties

In any action respecting the promulgation of

regulations under section 7420 of this title or the

administration or enforcement of section 7420 of

this title no court shall grant any stay, injunctive, or similar relief before final judgment by

such court in such action.

(h) Public participation

It is the intent of Congress that, consistent

with the policy of subchapter II of chapter 5 of

title 5, the Administrator in promulgating any

regulation under this chapter, including a regulation subject to a deadline, shall ensure a reasonable period for public participation of at

least 30 days, except as otherwise expressly provided in section6 7407(d), 7502(a), 7511(a) and (b),

and 7512(a) and (b) of this title.

(July 14, 1955, ch. 360, title III, §307, as added

Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1707;

amended Pub. L. 92–157, title III, §302(a), Nov. 18,

1971, 85 Stat. 464; Pub. L. 93–319, §6(c), June 22,

1974, 88 Stat. 259; Pub. L. 95–95, title III, §§303(d),

305(a), (c), (f)–(h), Aug. 7, 1977, 91 Stat. 772, 776,

777; Pub. L. 95–190, §14(a)(79), (80), Nov. 16, 1977,

91 Stat. 1404; Pub. L. 101–549, title I, §§108(p),

110(5), title III, §302(g), (h), title VII, §§702(c),

703, 706, 707(h), 710(b), Nov. 15, 1990, 104 Stat. 2469,

2470, 2574, 2681–2684.)

REFERENCES IN TEXT

Section 7521(b)(4) of this title, referred to in subsec.

(a), was repealed by Pub. L. 101–549, title II, §230(2),

Nov. 15, 1990, 104 Stat. 2529.

Section 7521(b)(5) of this title, referred to in subsec.

(b)(1), was repealed by Pub. L. 101–549, title II, §230(3),

Nov. 15, 1990, 104 Stat. 2529.

Section 1857c–10(c)(2)(A), (B), or (C) of this title (as in

effect before August 7, 1977), referred to in subsec.

(b)(1), was in the original ‘‘section 119(c)(2)(A), (B), or

(C) (as in effect before the date of enactment of the

Clean Air Act Amendments of 1977)’’, meaning section

119 of act July 14, 1955, ch. 360, title I, as added June 22,

1974, Pub. L. 93–319, §3, 88 Stat. 248, (which was classified to section 1857c–10 of this title) as in effect prior to

the enactment of Pub. L. 95–95, Aug. 7, 1977, 91 Stat. 691,

effective Aug. 7, 1977. Section 112(b)(1) of Pub. L. 95–95

repealed section 119 of act July 14, 1955, ch. 360, title I,

as added by Pub. L. 93–319, and provided that all references to such section 119 in any subsequent enactment which supersedes Pub. L. 93–319 shall be construed

to refer to section 113(d) of the Clean Air Act and to

paragraph (5) thereof in particular which is classified

to subsec. (d)(5) of section 7413 of this title. Section

7413(d) of this title was subsequently amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104

Stat. 2672, and, as so amended, no longer relates to

final compliance orders. Section 117(b) of Pub. L. 95–95

added a new section 119 of act July 14, 1955, which is

classified to section 7419 of this title.

Part C of subchapter I of this chapter, referred to in

subsec. (d)(1)(J), was in the original ‘‘subtitle C of title

I’’, and was translated as reading ‘‘part C of title I’’ to

reflect the probable intent of Congress, because title I

does not contain subtitles.

CODIFICATION

In subsec. (h), ‘‘subchapter II of chapter 5 of title 5’’

was substituted for ‘‘the Administrative Procedures

Act’’ on authority of Pub. L. 89–554, §7(b), Sept. 6, 1966,

80 Stat. 631, the first section of which enacted Title 5,

Government Organization and Employees.

Section was formerly classified to section 1857h–5 of

this title.

PRIOR PROVISIONS

A prior section 307 of act July 14, 1955, was renumbered section 314 by Pub. L. 91–604 and is classified to

section 7614 of this title.

Another prior section 307 of act July 14, 1955, ch. 360,

title III, formerly §14, as added Dec. 17, 1963, Pub. L.

88–206, §1, 77 Stat. 401, was renumbered section 307 by

Pub. L. 89–272, renumbered section 310 by Pub. L. 90–148,

and renumbered section 317 by Pub. L. 91–604, and is set

out as a Short Title note under section 7401 of this

title. 

ADD-5

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AMENDMENTS

1990—Subsec. (a). Pub. L. 101–549, §703, struck out par.

(1) designation at beginning, inserted provisions authorizing issuance of subpoenas and administration of

oaths for purposes of investigations, monitoring, reporting requirements, entries, compliance inspections,

or administrative enforcement proceedings under this

chapter, and struck out ‘‘or section 7521(b)(5)’’ after

‘‘section 7410(f)’’.

Subsec. (b)(1). Pub. L. 101–549, §706(2), which directed

amendment of second sentence by striking ‘‘under section 7413(d) of this title’’ immediately before ‘‘under

section 7419 of this title’’, was executed by striking

‘‘under section 7413(d) of this title,’’ before ‘‘under section 7419 of this title’’, to reflect the probable intent of

Congress. 

Pub. L. 101–549, §706(1), inserted at end: ‘‘The filing of

a petition for reconsideration by the Administrator of

any otherwise final rule or action shall not affect the

finality of such rule or action for purposes of judicial

review nor extend the time within which a petition for

judicial review of such rule or action under this section

may be filed, and shall not postpone the effectiveness

of such rule or action.’’

Pub. L. 101–549, §702(c), inserted ‘‘or revising regulations for enhanced monitoring and compliance certification programs under section 7414(a)(3) of this title,’’

before ‘‘or any other final action of the Administrator’’.

Pub. L. 101–549, §302(g), substituted ‘‘section 7412’’ for

‘‘section 7412(c)’’.

Subsec. (b)(2). Pub. L. 101–549, §707(h), inserted sentence at end authorizing challenge to deferrals of performance of nondiscretionary statutory actions.

Subsec. (d)(1)(C). Pub. L. 101–549, §110(5)(A), amended

subpar. (C) generally. Prior to amendment, subpar. (C)

read as follows: ‘‘the promulgation or revision of any

standard of performance under section 7411 of this title

or emission standard under section 7412 of this title,’’.

Subsec. (d)(1)(D), (E). Pub. L. 101–549, §302(h), added

subpar. (D) and redesignated former subpar. (D) as (E).

Former subpar. (E) redesignated (F).

Subsec. (d)(1)(F). Pub. L. 101–549, §302(h), redesignated

subpar. (E) as (F). Former subpar. (F) redesignated (G).

Pub. L. 101–549, §110(5)(B), amended subpar. (F) generally. Prior to amendment, subpar. (F) read as follows:

‘‘promulgation or revision of regulations pertaining to

orders for coal conversion under section 7413(d)(5) of

this title (but not including orders granting or denying

any such orders),’’.

Subsec. (d)(1)(G), (H). Pub. L. 101–549, §302(h), redesignated subpars. (F) and (G) as (G) and (H), respectively.

Former subpar. (H) redesignated (I).

Subsec. (d)(1)(I). Pub. L. 101–549, §710(b), which directed that subpar. (H) be amended by substituting

‘‘subchapter VI of this chapter’’ for ‘‘part B of subchapter I of this chapter’’, was executed by making the

substitution in subpar. (I), to reflect the probable intent of Congress and the intervening redesignation of

subpar. (H) as (I) by Pub. L. 101–549, §302(h), see below.

Pub. L. 101–549, §302(h), redesignated subpar. (H) as

(I). Former subpar. (I) redesignated (J).

Subsec. (d)(1)(J) to (M). Pub. L. 101–549, §302(h), redesignated subpars. (I) to (L) as (J) to (M), respectively.

Former subpar. (M) redesignated (N).

Subsec. (d)(1)(N). Pub. L. 101–549, §302(h), redesignated

subpar. (M) as (N). Former subpar. (N) redesignated (O).

Pub. L. 101–549, §110(5)(C), added subpar. (N) and redesignated former subpar. (N) as (U).

Subsec. (d)(1)(O) to (T). Pub. L. 101–549, §302(h), redesignated subpars. (N) to (S) as (O) to (T), respectively.

Former subpar. (T) redesignated (U).

Pub. L. 101–549, §110(5)(C), added subpars. (O) to (T).

Subsec. (d)(1)(U). Pub. L. 101–549, §302(h), redesignated

subpar. (T) as (U). Former subpar. (U) redesignated (V).

Pub. L. 101–549, §110(5)(C), redesignated former subpar. (N) as (U).

Subsec. (d)(1)(V). Pub. L. 101–549, §302(h), redesignated

subpar. (U) as (V).

Subsec. (h). Pub. L. 101–549, §108(p), added subsec. (h).

1977—Subsec. (b)(1). Pub. L. 95–190 in text relating to

filing of petitions for review in the United States Court

of Appeals for the District of Columbia inserted provision respecting requirements under sections 7411 and

7412 of this title, and substituted provisions authorizing

review of any rule issued under section 7413, 7419, or

7420 of this title, for provisions authorizing review of

any rule or order issued under section 7420 of this title,

relating to noncompliance penalties, and in text relating to filing of petitions for review in the United States

Court of Appeals for the appropriate circuit inserted

provision respecting review under section 7411(j),

7412(c), 7413(d), or 7419 of this title, provision authorizing review under section 1857c–10(c)(2)(A), (B), or (C) to

the period prior to Aug. 7, 1977, and provisions authorizing review of denials or disapprovals by the Administrator under subchapter I of this chapter.

Pub. L. 95–95, §305(c), (h), inserted rules or orders issued under section 7420 of this title (relating to noncompliance penalties) and any other nationally applicable regulations promulgated, or final action taken,

by the Administrator under this chapter to the enumeration of actions of the Administrator for which a

petition for review may be filed only in the United

States Court of Appeals for the District of Columbia,

added the approval or promulgation by the Administrator of orders under section 7420 of this title, or any

other final action of the Administrator under this

chapter which is locally or regionally applicable to the

enumeration of actions by the Administrator for which

a petition for review may be filed only in the United

States Court of Appeals for the appropriate circuit, inserted provision that petitions otherwise capable of

being filed in the Court of Appeals for the appropriate

circuit may be filed only in the Court of Appeals for the

District of Columbia if the action is based on a determination of nationwide scope, and increased from 30

days to 60 days the period during which the petition

must be filed.

Subsec. (d). Pub. L. 95–95, §305(a), added subsec. (d).

Subsec. (e). Pub. L. 95–95, §303(d), added subsec. (e).

Subsec. (f). Pub. L. 95–95, §305(f), added subsec. (f).

Subsec. (g). Pub. L. 95–95, §305(g), added subsec. (g).

1974—Subsec. (b)(1). Pub. L. 93–319 inserted reference

to the Administrator’s action under section

1857c–10(c)(2)(A), (B), or (C) of this title or under regulations thereunder and substituted reference to the filing

of a petition within 30 days from the date of promulgation, approval, or action for reference to the filing of a

petition within 30 days from the date of promulgation

or approval.

1971—Subsec. (a)(1). Pub. L. 92–157 substituted reference to section ‘‘7545(c)(3)’’ for ‘‘7545(c)(4)’’ of this

title. 

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

TERMINATION OF ADVISORY COMMITTEES

Advisory committees established after Jan. 5, 1973, to

terminate not later than the expiration of the 2-year

period beginning on the date of their establishment,

unless, in the case of a committee established by the

President or an officer of the Federal Government, such

committee is renewed by appropriate action prior to

the expiration of such 2-year period, or in the case of

a committee established by the Congress, its duration

is otherwise provided for by law. See section 14 of Pub.

L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced by or against the Administrator or any other

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officer or employee of the United States in his official

capacity or in relation to the discharge of his official

duties under act July 14, 1955, the Clean Air Act, as in

effect immediately prior to the enactment of Pub. L.

95–95 [Aug. 7, 1977], not to abate by reason of the taking

effect of Pub. L. 95–95, see section 406(a) of Pub. L.

95–95, set out as an Effective Date of 1977 Amendment

note under section 7401 of this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant to act July 14, 1955, the Clean Air Act, as in effect

immediately prior to the date of enactment of Pub. L.

95–95 [Aug. 7, 1977] to continue in full force and effect

until modified or rescinded in accordance with act July

14, 1955, as amended by Pub. L. 95–95 [this chapter], see

section 406(b) of Pub. L. 95–95, set out as an Effective

Date of 1977 Amendment note under section 7401 of this

title. 

§ 7608. Mandatory licensing

Whenever the Attorney General determines,

upon application of the Administrator—

(1) that—

(A) in the implementation of the requirements of section 7411, 7412, or 7521 of this

title, a right under any United States letters

patent, which is being used or intended for

public or commercial use and not otherwise

reasonably available, is necessary to enable

any person required to comply with such

limitation to so comply, and

(B) there are no reasonable alternative

methods to accomplish such purpose, and

(2) that the unavailability of such right may

result in a substantial lessening of competition or tendency to create a monopoly in any

line of commerce in any section of the country,

the Attorney General may so certify to a district court of the United States, which may

issue an order requiring the person who owns

such patent to license it on such reasonable

terms and conditions as the court, after hearing,

may determine. Such certification may be made

to the district court for the district in which the

person owning the patent resides, does business,

or is found.

(July 14, 1955, ch. 360, title III, § 308, as added

Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1708.)

CODIFICATION

Section was formerly classified to section 1857h–6 of

this title.

PRIOR PROVISIONS

A prior section 308 of act July 14, 1955, was renumbered section 315 by Pub. L. 91–604 and is classified to

section 7615 of this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant to act July 14, 1955, the Clean Air Act, as in effect

immediately prior to the date of enactment of Pub. L.

95–95 [Aug. 7, 1977] to continue in full force and effect

until modified or rescinded in accordance with act July

14, 1955, as amended by Pub. L. 95–95 [this chapter], see

section 406(b) of Pub. L. 95–95, set out as an Effective

Date of 1977 Amendment note under section 7401 of this

title. 

§ 7609. Policy review

(a) Environmental impact

The Administrator shall review and comment

in writing on the environmental impact of any

matter relating to duties and responsibilities

granted pursuant to this chapter or other provisions of the authority of the Administrator, contained in any (1) legislation proposed by any

Federal department or agency, (2) newly authorized Federal projects for construction and any

major Federal agency action (other than a

project for construction) to which section

4332(2)(C) of this title applies, and (3) proposed

regulations published by any department or

agency of the Federal Government. Such written comment shall be made public at the conclusion of any such review.

(b) Unsatisfactory legislation, action, or regulation

In the event the Administrator determines

that any such legislation, action, or regulation

is unsatisfactory from the standpoint of public

health or welfare or environmental quality, he

shall publish his determination and the matter

shall be referred to the Council on Environmental Quality.

(July 14, 1955, ch. 360, title III, § 309, as added

Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1709.)

CODIFICATION

Section was formerly classified to section 1857h–7 of

this title.

PRIOR PROVISIONS

A prior section 309 of act July 14, 1955, ch. 360, title

III, formerly §13, as added Dec. 17, 1963, Pub. L. 88–206,

§1, 77 Stat. 401; renumbered §306, Oct. 20, 1965, Pub. L.

89–272, title I, §101(4), 79 Stat. 992; renumbered §309,

Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 506; renumbered

§316, Dec. 31, 1970, Pub. L. 91–604, §12(a), 84 Stat. 1705,

related to appropriations and was classified to section

1857l of this title, prior to repeal by section 306 of Pub.

L. 95–95. See section 7626 of this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant to act July 14, 1955, the Clean Air Act, as in effect

immediately prior to the date of enactment of Pub. L.

95–95 [Aug. 7, 1977] to continue in full force and effect

until modified or rescinded in accordance with act July

14, 1955, as amended by Pub. L. 95–95 [this chapter], see

section 406(b) of Pub. L. 95–95, set out as an Effective

Date of 1977 Amendment note under section 7401 of this

title. 

§ 7610. Other authority

(a) Authority and responsibilities under other

laws not affected

Except as provided in subsection (b) of this

section, this chapter shall not be construed as

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the Regulatory Flexibility Act [5 U.S.C. 601 et

seq.], and the Equal Access to Justice Act;

(3) review information to be issued by the

Small Business Stationary Source Technical

and Environmental Compliance Assistance

Program for small business stationary sources

to ensure that the information is understandable by the layperson; and

(4) have the Small Business Stationary

Source Technical and Environmental Compliance Assistance Program serve as the secretariat for the development and dissemination of such reports and advisory opinions.

(e) Compliance Advisory Panel

(1) There shall be created a Compliance Advisory Panel (hereinafter referred to as the

‘‘Panel’’) on the State level of not less than 7 individuals. This Panel shall—

(A) render advisory opinions concerning the

effectiveness of the small business stationary

source technical and environmental compliance assistance program, difficulties encountered, and degree and severity of enforcement;

(B) make periodic reports to the Administrator concerning the compliance of the State

Small Business Stationary Source Technical

and Environmental Compliance Assistance

Program with the requirements of the Paperwork Reduction Act,2 the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], and the Equal Access to Justice Act;

(C) review information for small business

stationary sources to assure such information

is understandable by the layperson; and

(D) have the Small Business Stationary

Source Technical and Environmental Compliance Assistance Program serve as the secretariat for the development and dissemination of such reports and advisory opinions.

(2) The Panel shall consist of—

(A) 2 members, who are not owners, or representatives of owners, of small business stationary sources, selected by the Governor to

represent the general public;

(B) 2 members selected by the State legislature who are owners, or who represent owners,

of small business stationary sources (1 member each by the majority and minority leadership of the lower house, or in the case of a unicameral State legislature, 2 members each

shall be selected by the majority leadership

and the minority leadership, respectively, of

such legislature, and subparagraph (C) shall

not apply);

(C) 2 members selected by the State legislature who are owners, or who represent owners,

of small business stationary sources (1 member each by the majority and minority leadership of the upper house, or the equivalent

State entity); and

(D) 1 member selected by the head of the department or agency of the State responsible

for air pollution permit programs to represent

that agency.

(f) Fees

The State (or the Administrator) may reduce

any fee required under this chapter to take into

account the financial resources of small business stationary sources.

(g) Continuous emission monitors

In developing regulations and CTGs under this

chapter that contain continuous emission monitoring requirements, the Administrator, consistent with the requirements of this chapter,

before applying such requirements to small business stationary sources, shall consider the necessity and appropriateness of such requirements for such sources. Nothing in this subsection shall affect the applicability of subchapter IV–A of this chapter provisions relating

to continuous emissions monitoring.

(h) Control technique guidelines

The Administrator shall consider, consistent

with the requirements of this chapter, the size,

type, and technical capabilities of small business stationary sources (and sources which are

eligible under subsection (c)(2) of this section to

be treated as small business stationary sources)

in developing CTGs applicable to such sources

under this chapter.

(July 14, 1955, ch. 360, title V, §507, as added Pub.

L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat.

2645.) 

REFERENCES IN TEXT

The Small Business Act, referred to in subsec.

(c)(1)(B), is Pub. L. 85–536, §2(1 et seq.), July 18, 1958, 72

Stat. 384, which is classified generally to chapter 14A

(§631 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short

Title note set out under section 631 of Title 15 and

Tables. 

The Paperwork Reduction Act, referred to in subsecs.

(d)(2) and (e)(1)(B), probably means the Paperwork Reduction Act of 1980, Pub. L. 96–511, Dec. 11, 1980, 94 Stat.

2812, as amended, which was classified principally to

chapter 35 (§3501 et seq.) of Title 44, Public Printing

and Documents, prior to the general amendment of

that chapter by Pub. L. 104–13, §2, May 22, 1995, 109

Stat. 163. For complete classification of this Act to the

Code, see Short Title of 1980 Amendment note set out

under section 101 of Title 44 and Tables.

The Regulatory Flexibility Act, referred to in subsecs. (d)(2) and (e)(1)(B), is Pub. L. 96–354, Sept. 19, 1980,

94 Stat. 1164, which is classified generally to chapter 6

(§601 et seq.) of Title 5, Government Organization and

Employees. For complete classification of this Act to

the Code, see Short Title note set out under section 601

of Title 5 and Tables.

The Equal Access to Justice Act, referred to in subsecs. (d)(2) and (e)(1)(B), is title II of Pub. L. 96–481, Oct.

21, 1980, 94 Stat. 2325. For complete classification of this

Act to the Code, see Short Title note set out under section 504 of Title 5.

SUBCHAPTER VI—STRATOSPHERIC OZONE

PROTECTION 

§ 7671. Definitions

As used in this subchapter—

(1) Appliance

The term ‘‘appliance’’ means any device

which contains and uses a class I or class II

substance as a refrigerant and which is used

for household or commercial purposes, including any air conditioner, refrigerator, chiller,

or freezer.

(2) Baseline year

The term ‘‘baseline year’’ means—

(A) the calendar year 1986, in the case of

any class I substance listed in Group I or II

under section 7671a(a) of this title,

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(B) the calendar year 1989, in the case of

any class I substance listed in Group III, IV,

or V under section 7671a(a) of this title, and

(C) a representative calendar year selected

by the Administrator, in the case of—

(i) any substance added to the list of

class I substances after the publication of

the initial list under section 7671a(a) of

this title, and

(ii) any class II substance.

(3) Class I substance

The term ‘‘class I substance’’ means each of

the substances listed as provided in section

7671a(a) of this title.

(4) Class II substance

The term ‘‘class II substance’’ means each of

the substances listed as provided in section

7671a(b) of this title.

(5) Commissioner

The term ‘‘Commissioner’’ means the Commissioner of the Food and Drug Administration.

(6) Consumption

The term ‘‘consumption’’ means, with respect to any substance, the amount of that

substance produced in the United States, plus

the amount imported, minus the amount exported to Parties to the Montreal Protocol.

Such term shall be construed in a manner consistent with the Montreal Protocol.

(7) Import

The term ‘‘import’’ means to land on, bring

into, or introduce into, or attempt to land on,

bring into, or introduce into, any place subject

to the jurisdiction of the United States,

whether or not such landing, bringing, or introduction constitutes an importation within

the meaning of the customs laws of the United

States. 

(8) Medical device

The term ‘‘medical device’’ means any device (as defined in the Federal Food, Drug, and

Cosmetic Act (21 U.S.C. 321)), diagnostic product, drug (as defined in the Federal Food,

Drug, and Cosmetic Act), and drug delivery

system— 

(A) if such device, product, drug, or drug

delivery system utilizes a class I or class II

substance for which no safe and effective alternative has been developed, and where necessary, approved by the Commissioner; and

(B) if such device, product, drug, or drug

delivery system, has, after notice and opportunity for public comment, been approved

and determined to be essential by the Commissioner in consultation with the Administrator.

(9) Montreal Protocol

The terms ‘‘Montreal Protocol’’ and ‘‘the

Protocol’’ mean the Montreal Protocol on

Substances that Deplete the Ozone Layer, a

protocol to the Vienna Convention for the

Protection of the Ozone Layer, including adjustments adopted by Parties thereto and

amendments that have entered into force.

(10) Ozone-depletion potential

The term ‘‘ozone-depletion potential’’ means

a factor established by the Administrator to

reflect the ozone-depletion potential of a substance, on a mass per kilogram basis, as compared to chlorofluorocarbon-11 (CFC–11). Such

factor shall be based upon the substance’s atmospheric lifetime, the molecular weight of

bromine and chlorine, and the substance’s

ability to be photolytically disassociated, and

upon other factors determined to be an accurate measure of relative ozone-depletion potential.

(11) Produce, produced, and production

The terms ‘‘produce’’, ‘‘produced’’, and ‘‘production’’, refer to the manufacture of a substance from any raw material or feedstock

chemical, but such terms do not include—

(A) the manufacture of a substance that is

used and entirely consumed (except for trace

quantities) in the manufacture of other

chemicals, or

(B) the reuse or recycling of a substance.

(July 14, 1955, ch. 360, title VI, §601, as added

Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104

Stat. 2649.)

REFERENCES IN TEXT

The customs laws of the United States, referred to in

par. (7), are classified generally to Title 19, Customs

Duties. 

The Federal Food, Drug, and Cosmetic Act, referred

to in par. (8), is act June 25, 1938, ch. 675, 52 Stat. 1040,

as amended, which is classified generally to chapter 9

(§301 et seq.) of Title 21, Food and Drugs. For complete

classification of this Act to the Code, see section 301 of

Title 21 and Tables.

§ 7671a. Listing of class I and class II substances

(a) List of class I substances

Within 60 days after November 15, 1990, the Administrator shall publish an initial list of class

I substances, which list shall contain the following substances:

Group I

chlorofluorocarbon-11 (CFC–11)

chlorofluorocarbon-12 (CFC–12)

chlorofluorocarbon-113 (CFC–113)

chlorofluorocarbon-114 (CFC–114)

chlorofluorocarbon-115 (CFC–115)

Group II

halon-1211 

halon-1301 

halon-2402 

Group III

chlorofluorocarbon-13 (CFC–13)

chlorofluorocarbon-111 (CFC–111)

chlorofluorocarbon-112 (CFC–112)

chlorofluorocarbon-211 (CFC–211)

chlorofluorocarbon-212 (CFC–212)

chlorofluorocarbon-213 (CFC–213)

chlorofluorocarbon-214 (CFC–214)

chlorofluorocarbon-215 (CFC–215)

chlorofluorocarbon-216 (CFC–216)

chlorofluorocarbon-217 (CFC–217)

Group IV

carbon tetrachloride

Group V

methyl chloroform

The initial list under this subsection shall also

include the isomers of the substances listed

above, other than 1,1,2-trichloroethane (an isomer of methyl chloroform). Pursuant to subADD-10

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The Administrator shall not authorize production under this paragraph for purposes of fire

safety or explosion prevention training or testing of fire suppression or explosion prevention

equipment. In no event shall the Administrator

grant an exception under this paragraph that

permits production after December 31, 1999.

(2) The Administrator shall periodically monitor and assess the status of efforts to obtain

substitutes for the substances referred to in

paragraph (1) for purposes of fire suppression or

explosion prevention and the probability of such

substitutes being available by December 31, 1999.

The Administrator, as part of such assessment,

shall consider any relevant assessments under

the Montreal Protocol and the actions of the

Parties pursuant to Article 2B of the Montreal

Protocol in identifying essential uses and in permitting a level of production or consumption

that is necessary to satisfy such uses for which

no adequate alternatives are available after December 31, 1999. The Administrator shall report

to Congress the results of such assessment in

1994 and again in 1998.

(3) Notwithstanding the termination of production set forth in subsection (b) of this section, the Administrator, after notice and opportunity for public comment, may, to the extent

consistent with the Montreal Protocol, authorize the production of limited quantities of

halon-1211, halon-1301, and halon-2402 in the period after December 31, 1999, and before December 31, 2004, solely for purposes of fire suppression or explosion prevention in association with

domestic production of crude oil and natural gas

energy supplies on the North Slope of Alaska, if

the Administrator, in consultation with the Administrator of the United States Fire Administration, determines that no safe and effective

substitute has been developed and that such authorization is necessary for fire suppression and

explosion prevention purposes. The Administrator shall not authorize production under the

paragraph for purposes of fire safety or explosion prevention training or testing of fire suppression or explosion prevention equipment. In

no event shall the Administrator authorize

under this paragraph any person to produce any

such halon in an amount greater than 3 percent

of that produced by such person during the baseline year.

(h) Methyl bromide

Notwithstanding subsections (b) and (d) of this

section, the Administrator shall not terminate

production of methyl bromide prior to January

1, 2005. The Administrator shall promulgate

rules for reductions in, and terminate the production, importation, and consumption of,

methyl bromide under a schedule that is in accordance with, but not more stringent than, the

phaseout schedule of the Montreal Protocol

Treaty as in effect on October 21, 1998.

(July 14, 1955, ch. 360, title VI, §604, as added

Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104

Stat. 2655; amended Pub. L. 105–277, div. A,

§101(a) [title VII, §764], Oct. 21, 1998, 112 Stat.

2681, 2681–36.)

AMENDMENTS

1998—Subsec. (d)(5), (6). Pub. L. 105–277, §101(a) [title

VII, §764(b)], added pars. (5) and (6).

Subsec. (e)(3). Pub. L. 105–277, §101(a) [title VII,

§764(c)], added par. (3).

Subsec. (h). Pub. L. 105–277, §101(a) [title VII, §764(a)],

added subsec. (h).

§ 7671d. Phase-out of production and consumption of class II substances

(a) Restriction of use of class II substances

Effective January 1, 2015, it shall be unlawful

for any person to introduce into interstate commerce or use any class II substance unless such

substance— 

(1) has been used, recovered, and recycled;

(2) is used and entirely consumed (except for

trace quantities) in the production of other

chemicals; or

(3) is used as a refrigerant in appliances

manufactured prior to January 1, 2020.

As used in this subsection, the term ‘‘refrigerant’’ means any class II substance used for

heat transfer in a refrigerating system.

(b) Production phase-out

(1) Effective January 1, 2015, it shall be unlawful for any person to produce any class II substance in an annual quantity greater than the

quantity of such substance produced by such

person during the baseline year.

(2) Effective January 1, 2030, it shall be unlawful for any person to produce any class II substance.

(c) Regulations regarding production and consumption of class II substances

By December 31, 1999, the Administrator shall

promulgate regulations phasing out the production, and restricting the use, of class II substances in accordance with this section, subject

to any acceleration of the phase-out of production under section 7671e of this title. The Administrator shall also promulgate regulations to insure that the consumption of class II substances

in the United States is phased out and terminated in accordance with the same schedule

(subject to the same exceptions and other provisions) as is applicable to the phase-out and termination of production of class II substances

under this subchapter.

(d) Exceptions

(1) Medical devices

(A) In general

Notwithstanding the termination of production required under subsection (b)(2) of

this section and the restriction on use referred to in subsection (a) of this section,

the Administrator, after notice and opportunity for public comment, shall, to the extent such action is consistent with the Montreal Protocol, authorize the production and

use of limited quantities of class II substances solely for purposes of use in medical

devices if such authorization is determined

by the Commissioner, in consultation with

the Administrator, to be necessary for use in

medical devices.

(B) Cap on exception

Under no circumstances may the authority

set forth in subparagraph (A) be applied to

authorize any person to produce a class II

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substance in annual quantities greater than

10 percent of that produced by such person

during the baseline year.

(2) Developing countries

(A) In general

Notwithstanding the provisions of subsection (a) or (b) of this section, the Administrator, after notice and opportunity for

public comment, may authorize the production of limited quantities of a class II substance in excess of the quantities otherwise

permitted under such provisions solely for

export to and use in developing countries

that are Parties to the Montreal Protocol, as

determined by the Administrator. Any production authorized under this subsection

shall be solely for purposes of satisfying the

basic domestic needs of such countries.

(B) Cap on exception

(i) Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a

class II substance in any year following the

effective date of subsection (b)(1) of this section and before the year 2030 in annual quantities greater than 110 percent of the quantity of such substance produced by such person during the baseline year.

(ii) Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a

class II substance in the year 2030, or any

year thereafter, in an annual quantity greater than 15 percent of the quantity of such

substance produced by such person during

the baseline year.

(iii) Each exception authorized under this

paragraph shall terminate no later than January 1, 2040.

(July 14, 1955, ch. 360, title VI, §605, as added

Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104

Stat. 2658.)

§ 7671e. Accelerated schedule

(a) In general

The Administrator shall promulgate regulations, after notice and opportunity for public

comment, which establish a schedule for phasing

out the production and consumption of class I

and class II substances (or use of class II substances) that is more stringent than set forth in

section 7671c or 7671d of this title, or both, if—

(1) based on an assessment of credible current scientific information (including any assessment under the Montreal Protocol) regarding harmful effects on the stratospheric ozone

layer associated with a class I or class II substance, the Administrator determines that

such more stringent schedule may be necessary to protect human health and the environment against such effects,

(2) based on the availability of substitutes

for listed substances, the Administrator determines that such more stringent schedule is

practicable, taking into account technological

achievability, safety, and other relevant factors, or

(3) the Montreal Protocol is modified to include a schedule to control or reduce production, consumption, or use of any substance

more rapidly than the applicable schedule

under this subchapter.

In making any determination under paragraphs

(1) and (2), the Administrator shall consider the

status of the period remaining under the applicable schedule under this subchapter.

(b) Petition

Any person may petition the Administrator to

promulgate regulations under this section. The

Administrator shall grant or deny the petition

within 180 days after receipt of any such petition. If the Administrator denies the petition,

the Administrator shall publish an explanation

of why the petition was denied. If the Administrator grants such petition, such final regulations shall be promulgated within 1 year. Any

petition under this subsection shall include a

showing by the petitioner that there are data

adequate to support the petition. If the Administrator determines that information is not sufficient to make a determination under this subsection, the Administrator shall use any authority available to the Administrator, under any

law administered by the Administrator, to acquire such information.

(July 14, 1955, ch. 360, title VI, §606, as added

Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104

Stat. 2660.)

§ 7671f. Exchange authority

(a) Transfers

The Administrator shall, within 10 months

after November 15, 1990, promulgate rules under

this subchapter providing for the issuance of allowances for the production of class I and II substances in accordance with the requirements of

this subchapter and governing the transfer of

such allowances. Such rules shall insure that

the transactions under the authority of this section will result in greater total reductions in

the production in each year of class I and class

II substances than would occur in that year in

the absence of such transactions.

(b) Interpollutant transfers

(1) The rules under this section shall permit a

production allowance for a substance for any

year to be transferred for a production allowance for another substance for the same year on

an ozone depletion weighted basis.

(2) Allowances for substances in each group of

class I substances (as listed pursuant to section

7671a of this title) may only be transferred for

allowances for other substances in the same

Group. 

(3) The Administrator shall, as appropriate,

establish groups of class II substances for trading purposes and assign class II substances to

such groups. In the case of class II substances,

allowances may only be transferred for allowances for other class II substances that are in

the same Group.

(c) Trades with other persons

The rules under this section shall permit 2 or

more persons to transfer production allowances

(including interpollutant transfers which meet

the requirements of subsections (a) and (b) of

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substance in annual quantities greater than

10 percent of that produced by such person

during the baseline year.

(2) Developing countries

(A) In general

Notwithstanding the provisions of subsection (a) or (b) of this section, the Administrator, after notice and opportunity for

public comment, may authorize the production of limited quantities of a class II substance in excess of the quantities otherwise

permitted under such provisions solely for

export to and use in developing countries

that are Parties to the Montreal Protocol, as

determined by the Administrator. Any production authorized under this subsection

shall be solely for purposes of satisfying the

basic domestic needs of such countries.

(B) Cap on exception

(i) Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a

class II substance in any year following the

effective date of subsection (b)(1) of this section and before the year 2030 in annual quantities greater than 110 percent of the quantity of such substance produced by such person during the baseline year.

(ii) Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a

class II substance in the year 2030, or any

year thereafter, in an annual quantity greater than 15 percent of the quantity of such

substance produced by such person during

the baseline year.

(iii) Each exception authorized under this

paragraph shall terminate no later than January 1, 2040.

(July 14, 1955, ch. 360, title VI, §605, as added

Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104

Stat. 2658.)

§ 7671e. Accelerated schedule

(a) In general

The Administrator shall promulgate regulations, after notice and opportunity for public

comment, which establish a schedule for phasing

out the production and consumption of class I

and class II substances (or use of class II substances) that is more stringent than set forth in

section 7671c or 7671d of this title, or both, if—

(1) based on an assessment of credible current scientific information (including any assessment under the Montreal Protocol) regarding harmful effects on the stratospheric ozone

layer associated with a class I or class II substance, the Administrator determines that

such more stringent schedule may be necessary to protect human health and the environment against such effects,

(2) based on the availability of substitutes

for listed substances, the Administrator determines that such more stringent schedule is

practicable, taking into account technological

achievability, safety, and other relevant factors, or

(3) the Montreal Protocol is modified to include a schedule to control or reduce production, consumption, or use of any substance

more rapidly than the applicable schedule

under this subchapter.

In making any determination under paragraphs

(1) and (2), the Administrator shall consider the

status of the period remaining under the applicable schedule under this subchapter.

(b) Petition

Any person may petition the Administrator to

promulgate regulations under this section. The

Administrator shall grant or deny the petition

within 180 days after receipt of any such petition. If the Administrator denies the petition,

the Administrator shall publish an explanation

of why the petition was denied. If the Administrator grants such petition, such final regulations shall be promulgated within 1 year. Any

petition under this subsection shall include a

showing by the petitioner that there are data

adequate to support the petition. If the Administrator determines that information is not sufficient to make a determination under this subsection, the Administrator shall use any authority available to the Administrator, under any

law administered by the Administrator, to acquire such information.

(July 14, 1955, ch. 360, title VI, §606, as added

Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104

Stat. 2660.)

§ 7671f. Exchange authority

(a) Transfers

The Administrator shall, within 10 months

after November 15, 1990, promulgate rules under

this subchapter providing for the issuance of allowances for the production of class I and II substances in accordance with the requirements of

this subchapter and governing the transfer of

such allowances. Such rules shall insure that

the transactions under the authority of this section will result in greater total reductions in

the production in each year of class I and class

II substances than would occur in that year in

the absence of such transactions.

(b) Interpollutant transfers

(1) The rules under this section shall permit a

production allowance for a substance for any

year to be transferred for a production allowance for another substance for the same year on

an ozone depletion weighted basis.

(2) Allowances for substances in each group of

class I substances (as listed pursuant to section

7671a of this title) may only be transferred for

allowances for other substances in the same

Group. 

(3) The Administrator shall, as appropriate,

establish groups of class II substances for trading purposes and assign class II substances to

such groups. In the case of class II substances,

allowances may only be transferred for allowances for other class II substances that are in

the same Group.

(c) Trades with other persons

The rules under this section shall permit 2 or

more persons to transfer production allowances

(including interpollutant transfers which meet

the requirements of subsections (a) and (b) of

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this section) if the transferor of such allowances

will be subject, under such rules, to an enforceable and quantifiable reduction in annual production which—

(1) exceeds the reduction otherwise applicable to the transferor under this subchapter,

(2) exceeds the production allowances transferred to the transferee, and

(3) would not have occurred in the absence of

such transaction.

(d) Consumption

The rules under this section shall also provide

for the issuance of consumption allowances in

accordance with the requirements of this subchapter and for the trading of such allowances

in the same manner as is applicable under this

section to the trading of production allowances

under this section.

(July 14, 1955, ch. 360, title VI, §607, as added

Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104

Stat. 2660.)

§ 7671g. National recycling and emission reduction program

(a) In general

(1) The Administrator shall, by not later than

January 1, 1992, promulgate regulations establishing standards and requirements regarding

the use and disposal of class I substances during

the service, repair, or disposal of appliances and

industrial process refrigeration. Such standards

and requirements shall become effective not

later than July 1, 1992.

(2) The Administrator shall, within 4 years

after November 15, 1990, promulgate regulations

establishing standards and requirements regarding use and disposal of class I and II substances

not covered by paragraph (1), including the use

and disposal of class II substances during service, repair, or disposal of appliances and industrial process refrigeration. Such standards and

requirements shall become effective not later

than 12 months after promulgation of the regulations.

(3) The regulations under this subsection shall

include requirements that—

(A) reduce the use and emission of such substances to the lowest achievable level, and

(B) maximize the recapture and recycling of

such substances.

Such regulations may include requirements to

use alternative substances (including substances

which are not class I or class II substances) or to

minimize use of class I or class II substances, or

to promote the use of safe alternatives pursuant

to section 7671k of this title or any combination

of the foregoing.

(b) Safe disposal

The regulations under subsection (a) of this

section shall establish standards and requirements for the safe disposal of class I and II substances. Such regulations shall include each of

the following—

(1) Requirements that class I or class II substances contained in bulk in appliances, machines or other goods shall be removed from

each such appliance, machine or other good

prior to the disposal of such items or their delivery for recycling.

(2) Requirements that any appliance, machine or other good containing a class I or

class II substance in bulk shall not be manufactured, sold, or distributed in interstate

commerce or offered for sale or distribution in

interstate commerce unless it is equipped with

a servicing aperture or an equally effective design feature which will facilitate the recapture

of such substance during service and repair or

disposal of such item.

(3) Requirements that any product in which

a class I or class II substance is incorporated

so as to constitute an inherent element of

such product shall be disposed of in a manner

that reduces, to the maximum extent practicable, the release of such substance into the

environment. If the Administrator determines

that the application of this paragraph to any

product would result in producing only insignificant environmental benefits, the Administrator shall include in such regulations an exception for such product.

(c) Prohibitions

(1) Effective July 1, 1992, it shall be unlawful

for any person, in the course of maintaining,

servicing, repairing, or disposing of an appliance

or industrial process refrigeration, to knowingly

vent or otherwise knowingly release or dispose

of any class I or class II substance used as a refrigerant in such appliance (or industrial process

refrigeration) in a manner which permits such

substance to enter the environment. De minimis

releases associated with good faith attempts to

recapture and recycle or safely dispose of any

such substance shall not be subject to the prohibition set forth in the preceding sentence.

(2) Effective 5 years after November 15, 1990,

paragraph (1) shall also apply to the venting, release, or disposal of any substitute substance for

a class I or class II substance by any person

maintaining, servicing, repairing, or disposing

of an appliance or industrial process refrigeration which contains and uses as a refrigerant

any such substance, unless the Administrator

determines that venting, releasing, or disposing

of such substance does not pose a threat to the

environment. For purposes of this paragraph,

the term ‘‘appliance’’ includes any device which

contains and uses as a refrigerant a substitute

substance and which is used for household or

commercial purposes, including any air conditioner, refrigerator, chiller, or freezer.

(July 14, 1955, ch. 360, title VI, §608, as added

Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104

Stat. 2661.)

§ 7671h. Servicing of motor vehicle air conditioners

(a) Regulations

Within 1 year after November 15, 1990, the Administrator shall promulgate regulations in accordance with this section establishing standards and requirements regarding the servicing of

motor vehicle air conditioners.

(b) Definitions

As used in this section—

(1) The term ‘‘refrigerant’’ means any class I

or class II substance used in a motor vehicle

air conditioner. Effective 5 years after NovemADD-16

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40 C.F.R. § 82.3 (2010) 

 

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§ 82.1 40 CFR Ch. I (7–1–10 Edition) 

APPENDIX E TO SUBPART G—UNACCEPTABLE

SUBSTITUTES LISTED IN THE JANUARY 26, 

1999 FINAL RULE, EFFECTIVE JANUARY 26, 

1999 

APPENDIX F TO SUBPART G—UNACCEPTABLE

SUBSTITUTES LISTED IN THE JANUARY 26, 

1999 FINAL RULE, EFFECTIVE JANUARY 26, 

1999 

APPENDIX G TO SUBPART G—SUBSTITUTES

SUBJECT TO USE RESTRICTIONS AND UNACCEPTABLE SUBSTITUTES LISTED IN THE

MARCH 3, 1999, FINAL RULE, EFFECTIVE

APRIL 2, 1999 

APPENDIX H TO SUBPART G—SUBSTITUTES

SUBJECT TO USE RESTRICTIONS AND UNACCEPTABLE SUBSTITUTES, EFFECTIVE MAY

28, 1999 

APPENDIX I TO SUBPART G—SUBSTITUTES SUBJECT TO USE RESTRICTIONS, LISTED IN THE

APRIL 26, 2000, FINAL RULE, EFFECTIVE

MAY 26, 2000 

APPENDIX J TO SUBPART G—SUBSTITUTES

LISTED IN THE JANUARY 29, 2002 FINAL

RULE, EFFECTIVE APRIL 1, 2002 

APPENDIX K TO SUBPART G—SUBSTITUTES

SUBJECT TO USE RESTRICTIONS AND UNACCEPTABLE SUBSTITUTES LISTED IN THE

JULY 22, 2002, FINAL RULE, EFFECTIVE AUGUST 21, 2002 

APPENDIX L TO SUBPART G—SUBSTITUTES

LISTED IN THE JANUARY 27, 2003, FINAL

RULE, EFFECTIVE MARCH 28, 2003 

APPENDIX M TO SUBPART G—UNACCEPTABLE

SUBSTITUTES LISTED IN THE SEPTEMBER

30, 2004 FINAL RULE, EFFECTIVE NOVEMBER 29, 2004 

APPENDIX N TO SUBPART G [RESERVED] 

APPENDIX O TO SUBPART—SUBSTITUTES LISTED IN THE SEPTEMBER 27, 2006 FINAL RULE, 

EFFECTIVE NOVEMBER 27, 2006 

APPENDIX P TO SUBPART G—SUBSTITUTES

LISTED IN THE SEPTEMBER 27, 2006 FINAL

RULE, EFFECTIVE NOVEMBER 27, 2006 

APPENDIX Q TO SUBPART G—UNACCEPTABLE

SUBSTITUTES LISTED IN THE MARCH 28, 

2007 FINAL RULE, EFFECTIVE MAY 29, 2007 

Subpart H—Halon Emissions Reduction 

82.250 Purpose and scope. 

82.260 Definitions. 

82.270 Prohibitions. 

Subpart I—Ban on Refrigeration and AirConditioning Appliances Containing 

HCFCs 

82.300 Purpose. 

82.302 Definitions. 

82.304 Prohibitions. 

82.306 Prohibited products. 

AUTHORITY: 42 U.S.C. 7414, 7601, 7671–7671q. 

SOURCE: 57 FR 33787, July 30, 1992, unless 

otherwise noted. 

Subpart A—Production and 

Consumption Controls 

SOURCE: 60 FR 24986, May 10, 1995, unless 

otherwise noted. 

§ 82.1 Purpose and scope. 

(a) The purpose of the regulations in 

this subpart is to implement the Montreal Protocol on Substances that Deplete the Ozone Layer and sections 602, 

603, 604, 605, 606, 607, 614 and 616 of the 

Clean Air Act Amendments of 1990, 

Public Law 101–549. The Protocol and 

section 604 impose limits on the production and consumption (defined as 

production plus imports minus exports, 

excluding transhipments and used controlled substances) of certain ozone-depleting substances, according to specified schedules. The Protocol also requires each nation that becomes a 

Party to the agreement to impose certain restrictions on trade in ozone-depleting substances with non-Parties. 

(b) This subpart applies to any person 

that produces, transforms, destroys, 

imports or exports a controlled substance or imports or exports a controlled product. 

[63 FR 41642, Aug. 4, 1998] 

§ 82.2 [Reserved] 

§ 82.3 Definitions for class I and class 

II controlled substances. 

As used in this subpart, the term: 

Administrator means the Administrator of the United States Environmental Protection Agency or his authorized representative. For purposes 

of reports and petitions, the Administrator must be written at the following 

mailing address: EPA (6205J), Global 

Programs Division, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460. 

Aircraft halon bottle means a vessel 

used as a component of an aircraft fire 

suppression system containing halon1301 approved under FAA rules for installation in a certificated aircraft. 

Appliance means any device which 

contains and uses a refrigerant and 

which is used for household or commercial purposes, including any air conditioner, refrigerator, chiller, or freezer. 

Applicator means the person who applies methyl bromide. 


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Environmental Protection Agency § 82.3 

Approved critical use(s) means those 

uses of methyl bromide listed in Column A of appendix L to this subpart as 

further clarified in Columns B and C of 

that appendix. 

Approved critical user(s) means a person who: 

(1) For the applicable control period, 

applied to EPA for a critical use exemption or is a member of a consortium that applied to EPA for a critical 

use exemption for a use and location of 

use that was included in the U.S. nomination, authorized by a Decision of the 

Parties to the Montreal Protocol, and 

then finally determined by EPA in a 

notice-and-comment rulemaking to be 

an approved critical use; and 

(2) Has an area in the applicable location of use that requires methyl bromide fumigation because the person 

reasonably expects that the area will 

be subject to a limiting critical condition during the applicable control period. 

Article 5 allowances means the allowances apportioned under §82.9(a), 

§82.11(a)(2), and §82.18(a). 

Baseline consumption allowances 

means the consumption allowances apportioned under §82.6 and §82.19. 

Baseline production allowances means 

the production allowances apportioned 

under §82.5 and §82.17. 

Beijing Amendments means the Montreal Protocol, as amended at the Eleventh Meeting of the Parties to the 

Montreal Protocol in Beijing in 1999. 

Calculated level means the weighted 

amount of a controlled substance determined by multiplying the amount 

(in kilograms) of the controlled substance by that substance’s ozone depletion potential (ODP) weight listed in 

appendix A or appendix B to this subpart. 

Class I refers to the controlled substances listed in appendix A to this 

subpart. 

Class II refers to the controlled substances listed in appendix B to this 

subpart. 

Commodity Owner, Shipper or their 

Agent means the person requesting that 

an applicator use methyl bromide for 

quarantine or preshipment applications. 

Completely destroy means to cause the 

expiration of a controlled substance at 

a destruction efficiency of 98 percent or 

greater, using one of the destruction 

technologies approved by the Parties. 

Complying with the Protocol, when referring to a foreign state not Party to 

the 1987 Montreal Protocol, the London 

Amendments, or the Copenhagen 

Amendments, means that the nonParty has been determined as complying with the Protocol, as indicated 

in appendix C to this subpart, by a 

meeting of the Parties as noted in the 

records of the directorate of the United 

Nations Secretariat. 

Confer means to shift the essentialuse allowances obtained under §82.8 

from the holder of the unexpended essential-use allowances to a person for 

the production of a specified controlled 

substance, or to shift the HCFC–141b 

exemption allowances granted under 

§82.16(h) from the holder of the unexpended HCFC–141b exemption allowances to a person for the production or 

import of the controlled substance. 

Consortium means an organization 

representing a group of methyl bromide users that has collectively submitted an application for a critical use 

exemption on behalf of all members of 

the group. The members of a consortium shall be determined on the basis 

of the rules established by the organization. Members may either be required to formally join the consortium 

(e.g., by submitting an application or 

paying dues) or may automatically become members upon meeting particular criteria (e.g., a grower of a specific crop in a particular region). 

Consumption means the production 

plus imports minus exports of a controlled substance (other than 

transhipments, or used controlled substances). 

Consumption allowances means the 

privileges granted by this subpart to 

produce and import controlled substances; however, consumption allowances may be used to produce controlled substances only in conjunction 

with production allowances. A person’s 

consumption allowances for class I substances are the total of the allowances 

obtained under §§82.6 and 82.7 and 82.10, 

as may be modified under §82.12 (transfer of allowances). A person’s consumption allowances for class II controlled 


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§ 82.3 40 CFR Ch. I (7–1–10 Edition) 

substances are the total of the allowances obtained under §§82.19 and 82.20, 

as may be modified under §82.23. 

Control period means the period from 

January 1, 1992 through December 31, 

1992, and each twelve-month period 

from January 1 through December 31, 

thereafter. 

Controlled product means a product 

that contains a controlled substance 

listed as a Class I, Group I or II substance in appendix A to this subpart. 

Controlled products include, but are 

not limited to, those products listed in 

appendix D to this subpart. 

Controlled products belong to one or 

more of the following six categories of 

products: 

(1) Automobile and truck air conditioning units (whether incorporated in 

vehicles or not); 

(2) Domestic and commercial refrigeration and air-conditioning/heat pump 

equipment (whether containing controlled substances as a refrigerant and/ 

or in insulating material of the product), e.g. Refrigerators, Freezers, Dehumidifiers, Water coolers, Ice machines, 

Air-conditioning and heat pump units; 

(3) Aerosol products, except medical 

aerosols; 

(4) Portable fire extinguishers; 

(5) Insulation boards, panels and pipe 

covers; 

(6) Pre-polymers. 

Controlled substance means any substance listed in appendix A or appendix 

B to this subpart, whether existing 

alone or in a mixture, but excluding 

any such substance or mixture that is 

in a manufactured product other than 

a container used for the transportation 

or storage of the substance or mixture. 

Thus, any amount of a listed substance 

in appendix A or appendix B to this 

subpart that is not part of a use system 

containing the substance is a controlled substance. If a listed substance 

or mixture must first be transferred 

from a bulk container to another container, vessel, or piece of equipment in 

order to realize its intended use, the 

listed substance or mixture is a ‘‘controlled substance.’’ The inadvertent or 

coincidental creation of insignificant 

quantities of a listed substance in appendix A or appendix B to this subpart; 

during a chemical manufacturing process, resulting from unreacted feedstock, from the listed substance’s use 

as a process agent present as a trace 

quantity in the chemical substance 

being manufactured, or as an unintended byproduct of research and development applications, is not deemed 

a controlled substance. Controlled substances are divided into two classes, 

Class I in appendix A to this subpart, 

and Class II listed in appendix B to this 

subpart. Class I substances are further 

divided into eight groups, Group I, 

Group II, Group III, Group IV, Group V, 

Group VI, Group VII, and Group VIII, 

as set forth in appendix A to this subpart. 

Copenhagen Amendments means the 

Montreal Protocol on Substances That 

Deplete the Ozone Layer, as amended 

at the Fourth Meeting of the Parties to 

the Montreal Protocol in Copenhagen 

in 1992. 

Critical stock allowance (CSA) means 

the right granted by this subpart to 

sell one (1) kilogram of class I, Group 

VI controlled substances from inventory produced or imported prior to the 

January 1, 2005 phaseout date for an approved critical use during the specified 

control period to the extent permitted 

by federal and state pesticide statutes 

and regulations other than the Clean 

Air Act and regulations in this part. A 

person’s critical stock allowances are 

the total of the allowances obtained 

under §82.8(c) as may be modified under 

§82.12 (transfer of allowances). 

Critical stock allowance (CSA) holder 

means an entity to which EPA allocates a quantity of critical stock allowances as reflected under §82.8(c), or 

who receives a quantity of critical 

stock allowances through a transfer 

under §82.12. 

Critical use means a circumstance in 

which the following two conditions are 

satisfied: 

(1) There are no technically and economically feasible alternatives or substitutes for methyl bromide available 

that are acceptable from the standpoint of environment and health and 

are suitable to the crops and circumstances involved, and 

(2) The lack of availability of methyl 

bromide for a particular use would result in significant market disruption. 

Critical use allowance (CUA) means 

the privilege granted by this subpart to 


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Environmental Protection Agency § 82.3 

produce or import one (1) kilogram of 

methyl bromide for an approved critical use during the specified control period. A person’s critical use allowances 

are the total of the allowances obtained under §82.8(c) as may be modified under §82.12 (transfer of allowances). 

Critical use allowance for pre-plant uses 

means the privilege granted by this 

subpart to produce or import one (1) 

kilogram of methyl bromide solely for 

an approved critical use in pre-plant 

categories specified in Appendix L to 

this subpart during the specified control period. A person’s critical use allowances for pre-plant uses are the 

total of the allowances obtained under 

§82.8(c) as may be modified under §82.12 

(transfer of allowances). 

Critical use allowance for post-harvest 

uses means the privilege granted by 

this subpart to produce or import one 

(1) kilogram of methyl bromide solely 

for an approved critical use in postharvest categories specified in appendix L to this subpart during the specified control period. A person’s critical 

use allowances for post-harvest uses 

are the total of the allowances obtained under §82.8(c) as may be modified under §82.12 (transfer of allowances). 

Critical use allowance (CUA) holder 

means an entity to which EPA allocates a quantity of critical use allowances as reflected in §82.8(c) or who receives a quantity of critical use allowances through a transfer under §82.12. 

Critical use methyl bromide means the 

class I, Group VI controlled substance 

produced or imported through expending a critical use allowance or that 

portion of inventory produced or imported prior to the January 1, 2005 

phaseout date that is sold only for approved critical uses through expending 

a critical stock allowance. 

Destruction means the expiration of a 

controlled substance to the destruction 

efficiency actually achieved, unless 

considered completely destroyed as defined in this section. Such destruction 

does not result in a commercially useful end product and uses one of the following controlled processes approved 

by the Parties to the Protocol: 

(1) Liquid injection incineration; 

(2) Reactor cracking; 

(3) Gaseous/fume oxidation; 

(4) Rotary kiln incineration; 

(5) Cement kiln; 

(6) Radio frequency plasma; or 

(7) Municipal waste incinerators only 

for the destruction of foams. 

Distributor of methyl bromide means 

the person directly selling a class I, 

Group VI controlled substance to an 

applicator. 

Essential Metered Dose Inhaler (Essential MDI) means metered dose inhalers 

for the treatment of asthma and chronic obstructive pulmonary disease, approved by the Food and Drug Administration or by another Party’s analogous health authority before December 

31, 2000, and considered to be essential 

by the Party where the MDI product 

will eventually be sold. In addition, if 

the MDI product is to be sold in the 

U.S., the active moiety contained in 

the MDI must be listed as essential at 

21 CFR 2.125(e). 

Essential-Use Allowances means the 

privileges granted by §82.4(n) to 

produce class I substances, as determined by allocation decisions made by 

the Parties to the Montreal Protocol 

and in accordance with the restrictions 

delineated in the Clean Air Act Amendments of 1990. 

Essential-Use Chlorofluorocarbons (Essential-use CFCs) are the CFCs (CFC-11, 

CFC-12, or CFC-114) produced under the 

authority of essential-use allowances 

and not the allowances themselves. Essential-use CFCs include CFCs imported or produced by U.S. entities 

under the authority of essential-use allowances for use in essential metered 

dose inhalers, as well as CFCs imported 

or produced by non-U.S. entities under 

the authority of privileges granted by 

the Parties and the national authority 

of another country for use in essential 

metered dose inhalers. 

Essential-Uses means those uses of 

controlled substances designated by 

the Parties to the Protocol to be necessary for the health and safety of, or 

critical for the functioning of, society; 

and for which there are no available 

technically and economically feasible 

alternatives or substitutes that are acceptable from the standpoint of environment and health. Beginning January 1, 2000 (January 1, 2002 for methyl 


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§ 82.3 40 CFR Ch. I (7–1–10 Edition) 

1Taiwan is not considered a foreign state. 

chloroform) the essential use designations for class I substances must be 

made in accordance with the provisions 

of the Clean Air Act Amendments of 

1990. 

Export means the transport of virgin 

or used controlled substances from inside the United States or its territories 

to persons outside the United States or 

its territories, excluding United States 

military bases and ships for on-board 

use. 

Export production allowances means 

the privileges granted by §82.18(b) to 

produce HCFC-141b for export following 

the phaseout of HCFC-141b on January 

1, 2003. 

Exporter means the person who contracts to sell controlled substances for 

export or transfers controlled substances to his affiliate in another country. 

Facility means any process equipment 

(e.g., reactor, distillation column) used 

to convert raw materials or feedstock 

chemicals into controlled substances 

or consume controlled substances in 

the production of other chemicals. 

Foreign state means an entity which 

is recognized as a sovereign nation or 

country other than the United States 

of America. 1

Foreign state not Party to or Non-Party 

means a foreign state that has not deposited instruments of ratification, acceptance, or other form of approval 

with the Directorate of the United Nations Secretariat, evidencing the foreign state’s ratification of the provisions of the 1987 Montreal Protocol, the 

London Amendments, or of the Copenhagen Amendments, as specified. 

Formulator means an entity that distributes a class II controlled substance(s) or blends of a class II controlled substance(s) to persons who use 

the controlled substance(s) for a specific application identified in the formulator’s petition for HCFC-141b exemption allowances. 

HCFC-141b exemption allowances 

means the privileges granted to a 

HCFC-141b formulator; an agency, department, or instrumentality of the 

U.S.; or a non-governmental space vehicle entity by this subpart to order 

production of or to import HCFC-141b, 

as determined in accordance with 

§82.16(h). 

Heel means the amount of a controlled substance that remains in a 

container after it is discharged or offloaded (that is no more than ten percent of the volume of the container). 

Hydrostatic testing means checking a 

gas pressure vessel for leaks or flaws. 

The vessel is filled with a nearly incompressible liquid—usually water or 

oil—and examined for leaks or permanent changes in shape. 

Import means to land on, bring into, 

or introduce into, or attempt to land 

on, bring into, or introduce into any 

place subject to the jurisdiction of the 

United States whether or not such 

landing, bringing, or introduction constitutes an importation within the 

meaning of the customs laws of the 

United States, with the following exemptions: 

(1) Off-loading used or excess controlled substances or controlled products from a ship during servicing, 

(2) Bringing controlled substances 

into the U.S. from Mexico where the 

controlled substance had been admitted into Mexico in bond and was of U.S. 

origin, and 

(3) Bringing a controlled product into 

the U.S. when transported in a consignment of personal or household effects 

or in a similar non-commercial situation normally exempted from U.S. Customs attention. 

Importer means any person who imports a controlled substance or a controlled product into the United States. 

‘‘Importer’’ includes the person primarily liable for the payment of any 

duties on the merchandise or an authorized agent acting on his or her behalf. The term also includes, as appropriate: 

(1) The consignee; 

(2) The importer of record (listed on 

U.S. Customs Service forms for imported controlled substances, used controlled substances or controlled products); 

(3) The actual owner; or 

(4) The transferee, if the right to 

draw merchandise in a bonded warehouse has been transferred. 

Individual shipment means the kilograms of a used controlled substance 

for which a person may make one (1) 


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Environmental Protection Agency § 82.3 

U.S. Customs entry as, as identified in 

the non-objection letter from the Administrator under §§82.13(g) and 

82.24(c)(4). 

Interstate commerce means the distribution or transportation of any controlled substance between one state, 

territory, possession or the District of 

Columbia, and another state, territory, 

possession or the District of Columbia, 

or the sale, use or manufacture of any 

controlled substance in more than one 

state, territory, possession or District 

of Columbia. The entry points for 

which a controlled substance is introduced into interstate commerce are the 

release of a controlled substance from 

the facility in which the controlled 

substance was manufactured, the entry 

into a warehouse from which the domestic manufacturer releases the controlled substance for sale or distribution, and at the site of United States 

customs clearance. 

Limiting critical condition means the 

regulatory, technical, and economic 

circumstances listed in Column C of 

Appendix L to this subpart that establish conditions of critical use for methyl bromide in a fumigation area. 

Location of use means the geographic 

area (such as a state, region, or the entire United States) covered by an application for a critical use exemption in 

which the limiting critical condition 

may occur. 

London Amendments means the Montreal Protocol, as amended at the Second Meeting of the Parties to the Montreal Protocol in London in 1990. 

Manufactured, for an appliance, 

means the date upon which the appliance’s refrigerant circuit is complete, 

the appliance can function, the appliance holds a full refrigerant charge, 

and the appliance is ready for use for 

its intended purposes; and for a precharged appliance component, means 

the date that such component is completely produced by the original equipment manufacture, charged with refrigerant, and is ready for initial sale 

or distribution in interstate commerce. 

Montreal Anniversary amendments 

means the Montreal Protocol, as 

amended at the Ninth Meeting of the 

Parties to the Montreal Protocol in 

Montreal in 1997. 

Montreal Protocol means the Montreal 

Protocol on Substances that Deplete 

the Ozone Layer, a protocol to the Vienna Convention for the Protection of 

the Ozone Layer, including adjustments adopted by the Parties thereto 

and amendments that have entered 

into force. 

1987 Montreal Protocol means the 

Montreal Protocol, as originally adopted by the Parties in 1987. 

Nations complying with, but not joining, the Protocol means any nation listed in Appendix C, Annex 2, to this subpart. 

Non-Objection notice means the privilege granted by the Administrator to 

import a specific individual shipment 

of used controlled substance in accordance with §§82.13(g) and 82.24(c)(3) and 

(4). 

Party means any foreign state that is 

listed in Appendix C to this subpart 

(pursuant to instruments of ratification, acceptance, or approval deposited 

with the Depositary of the United Nations Secretariat), as having ratified 

the specified control measure in effect 

under the Montreal Protocol. Thus, for 

purposes of the trade bans specified in 

§82.4(l)(2) pursuant to the London 

Amendments, only those foreign states 

that are listed in Appendix C to this 

subpart as having ratified both the 1987 

Montreal Protocol and the London 

Amendments shall be deemed to be 

Parties. 

Person means any individual or legal 

entity, including an individual, corporation, partnership, association, 

state, municipality, political subdivision of a state, Indian tribe; any agency, department, or instrumentality of 

the United States; and any officer, 

agent, or employee thereof. 

Plant means one or more facilities at 

the same location owned by or under 

common control of the same person. 

Preshipment applications, with respect 

to class I, Group VI controlled substances, are those non-quarantine applications applied within 21 days prior 

to export to meet the official requirements of the importing country or existing official requirements of the exporting country. Official requirements 

are those which are performed by, or 


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§ 82.3 40 CFR Ch. I (7–1–10 Edition) 

authorized by, a national plant, animal, environmental, health or stored 

product authority. 

Production means the manufacture of 

a controlled substance from any raw 

material or feedstock chemical, but 

does not include: 

(1) The manufacture of a controlled 

substance that is subsequently transformed; 

(2) The reuse or recycling of a controlled substance; 

(3) Amounts that are destroyed by 

the approved technologies; or 

(4) Amounts that are spilled or vented unintentionally. 

Production allowances means the 

privileges granted by this subpart to 

produce controlled substances; however, production allowances may be 

used to produce controlled substances 

only in conjunction with consumption 

allowances. A person’s production allowances for class I substances are the 

total of the allowances obtained under 

§§82.5, 82.7 and 82.9, and as may be 

modified under §82.12 (transfer of allowances). A person’s production allowances for class II controlled substances 

are the total of the allowances obtained under §82.17 and as may be 

modified under §§82.18 and 82.23. 

Quarantine applications, with respect 

to class I, Group VI controlled substances, are treatments to prevent the 

introduction, establishment and/or 

spread of quarantine pests (including 

diseases), or to ensure their official 

control, where: (1) Official control is 

that performed by, or authorized by, a 

national (including state, tribal or 

local) plant, animal or environmental 

protection or health authority; (2) 

quarantine pests are pests of potential 

importance to the areas endangered 

thereby and not yet present there, or 

present but not widely distributed and 

being officially controlled. This definition excludes treatments of commodities not entering or leaving the United 

States or any State (or political subdivision thereof). 

Source facility means the location at 

which a used controlled substance was 

recovered from a piece of equipment, 

including the name of the company responsible for, or owning the piece of 

equipment, a contact person at the location, the mailing address for that 

specific location, and a phone number 

and a fax number for the contact person at the location. 

Space vehicle means a man-made device, either manned or unmanned, designed for operation beyond earth’s atmosphere. This definition includes integral equipment such as models, 

mock-ups, prototypes, molds, jigs, tooling, hardware jackets, and test coupons. Also included is auxiliary equipment associated with tests, transport, 

and storage, which through contamination can compromise the space vehicle 

performance. 

Third party applicator means an applicator of critical use methyl bromide 

who fumigates or treats commodities, 

structures, crops, or land on behalf of 

an approved critical user. 

Transform means to use and entirely 

consume (except for trace quantities) a 

controlled substance in the manufacture of other chemicals for commercial 

purposes. 

Transhipment means the continuous 

shipment of a controlled substance, 

from a foreign state of origin through 

the United States or its territories, to 

a second foreign state of final destination, as long as the shipment does not 

enter into United States jurisdiction. A 

transhipment, as it moves through the 

United States or its territories, cannot 

be re-packaged, sorted or otherwise 

changed in condition. 

Unexpended Article 5 allowances means 

Article 5 allowances that have not been 

used. At any time in any control period 

a person’s unexpended Article 5 allowances are the total of the level of Article 5 allowances the person has authorization under this subpart to hold at 

that time for that control period, 

minus the level of controlled substances that the person has produced in 

that control period until that time. 

Unexpended consumption allowances 

means consumption allowances that 

have not been used. At any time in any 

control period a person’s unexpended 

consumption allowances are the total 

of the level of consumption allowances 

the person has authorization under this 

subpart to hold at that time for that 

control period, minus the level of controlled substances that the person has 

produced or imported (not including 


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Environmental Protection Agency § 82.4 

transhipments and used controlled substances) in that control period until 

that time. 

Unexpended critical stock allowance 

(CSA) means critical stock allowances 

against which methyl bromide has not 

yet been sold for an approved critical 

use. 

Unexpended critical use allowances 

(CUA) means critical use allowances 

against which methyl bromide has not 

yet been produced or imported. At any 

time in any control period a person’s 

unexpended critical use allowances are 

the total of the level of critical use allowances the person holds at that time 

for that control period, minus the level 

of class I, Group VI controlled substances that the person has produced 

or has imported solely for approved 

critical uses in that control period. 

Unexpended destruction and transformation credits means destruction and 

transformation credits that have not 

been used. At any time in any control 

period a person’s unexpended destruction and transformation credits are the 

total of the level of destruction and 

transformation credits the person has 

authorization under this subpart to 

hold at that time for that control period, minus the level of controlled substances that the person has produced 

or imported (not including 

transhipments and used controlled substances) in that control period until 

that time. 

Unexpended essential-use allowances 

means essential-use allowances that 

have not been used. At any time in any 

control period a person’s unexpended 

essential-use allowances are the total 

of the level of essential-use allowances 

the person has authorization under this 

subpart to hold at that time for that 

control period, minus the level of controlled substances that the person has 

imported or had produced in that control period until that time. 

Unexpended export production allowances means export production allowances that have not been used. A person’s unexpended export production allowances are the total of the quantity 

of the export production allowances 

the person has authorization under 

§82.18(h) to hold for that control period, minus the quantity of class II 

controlled substances that the person 

has produced at that time during the 

same control period. 

Unexpended HCFC-141b exemption allowances means HCFC-141b exemption 

allowances that have not been used. A 

person’s unexpended HCFC-141b exemption allowances are the total of the 

quantity of the HCFC-141b exemption 

allowances the person has authorization under §82.16(h) to hold for that 

control period, minus the quantity of 

HCFC-141b that the person has had produced or has had imported at that time 

during the same control period. 

Unexpended production allowances 

means production allowances that have 

not been used. At any time in any control period a person’s unexpended production allowances are the total of the 

level of production allowances he has 

authorization under this subpart to 

hold at that time for that control period, minus the level of controlled substances that the person has produced in 

that control period until that time. 

Used controlled substances means controlled substances that have been recovered from their intended use systems (may include controlled substances that have been, or may be subsequently, recycled or reclaimed). 

[60 FR 24986, May 10, 1995, as amended at 63 

FR 41642, Aug. 4, 1998; 66 FR 37767, July 19, 

2001; 67 FR 6359, Feb. 11, 2002; 67 FR 79872, 

Dec. 31, 2002; 67 FR 251, Jan. 2, 2003; 68 FR 

2847, Jan. 21, 2003; 68 FR 42891, July 18, 2003; 

69 FR 4064, Jan. 28, 2004; 69 FR 77001, Dec. 23, 

2004; 70 FR 77047, Dec. 29, 2005; 71 FR 41171, 

July 20, 2006; 74 FR 10188, Mar. 10, 2009; 74 FR 

66445, Dec. 15, 2009] 

§ 82.4 Prohibitions for class I controlled substances. 

(a)(1) Prior to January 1, 1996, for all 

Groups of class I controlled substances, 

and prior to January 1, 2005, for class I, 

Group VI controlled substances, no person may produce, at any time in any 

control period, (except that are transformed or destroyed domestically or by 

a person of another Party) in excess of 

the amount of unexpended production 

allowances or unexpended Article 5 allowances for that substance held by 

that person under the authority of this 

subpart at that time for that control 

period. Every kilogram of excess production constitutes a separate violation of this subpart. 


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40 C.F.R. § 82.15 (2010) 

 

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Environmental Protection Agency § 82.15 

along with the name of the entity on 

whose behalf the material is held; 

(iv) The number of unexpended and 

expended critical stock allowances; 

(v) The amount of methyl bromide 

produced or imported prior to the January 1, 2005 phaseout date owned by the 

reporting entity, as well as quantities 

held by the reporting entity on behalf 

of another entity, specifying the name 

of the entity on whose behalf the material is held. 

(dd) Every approved critical user purchasing an amount of critical use 

methyl bromide or purchasing fumigation services with critical use methyl 

bromide must, for each request, identify the use as a critical use and certify 

being an approved critical user. The approved critical user certification will 

state, in part: ‘‘I certify, under penalty 

of law, I am an approved critical user 

and I will use this quantity of methyl 

bromide for an approved critical use. 

My action conforms to the requirements associated with the critical use 

exemption published in 40 CFR part 82. 

I am aware that any agricultural commodity within a treatment chamber, 

facility or field I fumigate with critical 

use methyl bromide cannot subsequently or concurrently be fumigated 

with non-critical use methyl bromide 

during the same control period, excepting a QPS treatment or a treatment for 

a different use (e.g., a different crop or 

commodity). I will not use this quantity of methyl bromide for a treatment 

chamber, facility, or field that I previously fumigated with non-critical use 

methyl bromide during the same control period, excepting a QPS treatment 

or a treatment for a different use (e.g., 

a different crop or commodity), unless 

a local township limit now prevents me 

from using methyl bromide alternatives or I have now become an approved critical user as a result of rulemaking.’’ The certification will also 

identify the type of critical use methyl 

bromide purchased, the location of the 

treatment, the crop or commodity 

treated, the quantity of critical use 

methyl bromide purchased, and the 

acreage/square footage treated, and 

will be signed and dated by the approved critical user. 

[60 FR 24986, May 10, 1995] 

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting §82.13 see the List of CFR 

Sections Affected which appears in the Finding Aids section of the printed volume and 

on GPO Access. 

§ 82.15 Prohibitions for class II controlled substances. 

(a) Production. (1) Effective January 

21, 2003, no person may produce class II 

controlled substances for which EPA 

has apportioned baseline production 

and consumption allowances, in excess 

of the quantity of unexpended production allowances, unexpended Article 5 

allowances, unexpended export production allowances, or conferred unexpended HCFC–141b exemption allowances held by that person for that substance under the authority of this subpart at that time in that control period, unless the substances are transformed or destroyed domestically or by 

a person of another Party, or unless 

they are produced using an exemption 

granted in paragraph (f) of this section. 

Every kilogram of excess production 

constitutes a separate violation of this 

subpart. 

(2) Effective January 21, 2003, no person may use production allowances to 

produce a quantity of class II controlled substance unless that person 

holds under the authority of this subpart at the same time consumption allowances sufficient to cover that quantity of class II controlled substances. 

No person may use consumption allowances to produce a quantity of class II 

controlled substances unless the person 

holds under authority of this subpart 

at the same time production allowances sufficient to cover that quantity 

of class II controlled substances. 

(b) Import. (1) Effective January 21, 

2003, no person may import class II 

controlled substances (other than 

transhipments, heels or used class II 

controlled substances) for which EPA 

has apportioned baseline production 

and consumption allowances , in excess 

of the quantity of unexpended consumption allowances, or conferred unexpended HCFC–141b exemption allowances held by that person under the authority of this subpart at that time in 

that control period, unless the substances are for use in a process resulting in their transformation or their destruction, or unless they are produced 


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§ 82.15 40 CFR Ch. I (7–1–10 Edition) 

using an exemption granted in paragraph (f) of this section. Every kilogram of excess import constitutes a 

separate violation of this subpart. 

(2) Effective January 21, 2003, no person may import, at any time in any 

control period, a used class II controlled substance for which EPA has 

apportioned baseline production and 

consumption allowances, without having submitted a petition to the Administrator and received a non-objection 

notice in accordance with §82.24(c)(3) 

and (4). A person issued a non-objection 

notice for the import of an individual 

shipment of used class II controlled 

substances may not transfer or confer 

the right to import, and may not import any more than the exact quantity 

(in kilograms) of the used class II controlled substance stated in the non-objection notice. Every kilogram of import of used class II controlled substance in excess of the quantity stated 

in the non-objection notice issued by 

the Administrator in accordance with 

§82.24(c)(3) and (4) constitutes a separate violation of this subpart. 

(c) Production with Article 5 allowances. No person may introduce into 

U.S. interstate commerce any class II 

controlled substance produced with Article 5 allowances, except for export to 

an Article 5 Party as listed in Annex 4 

of Appendix C of this subpart. Every 

kilogram of a class II controlled substance produced with Article 5 allowances that is introduced into interstate 

commerce other than for export to an 

Article 5 Party constitutes a separate 

violation under this subpart. No person 

may export any class II controlled substance produced with Article 5 allowances to a non-Article 5 Party. Every 

kilogram of a class II controlled substance that was produced with Article 

5 allowances that is exported to a nonArticle 5 Party constitutes a separate 

violation under this subpart. 

(d) Production with export production allowances. No person may introduce into U.S. interstate commerce 

any class II controlled substance produced with export production allowances. Every kilogram of a class II controlled substance that was produced 

with export production allowances that 

is introduced into U.S. interstate commerce constitutes a separate violation 

under this subpart. 

(e) Trade with Parties. No person 

may import or export any quantity of 

a class II controlled substance listed in 

Appendix A to this subpart, from or to 

any foreign state that is not either: 

(1) A Party to the Montreal Protocol 

that has ratified the Beijing Amendments. Parties that have ratified the 

Beijing Amendments as of June 17, 2004 

are listed in annex 1 to Appendix C of 

this subpart. Or, 

(2) A Party to the Montreal Protocol 

that has provided notice, certification, 

and data in accordance with Decision 

XV/3(c)(i), (ii), and (iii) respectively, to 

the Ozone Secretariat. A list of Parties 

that have provided notice, certification 

and data in accordance with Decision 

XV/3(c)(i), (ii), and (iii) respectively, by 

June 17, 2004 can be found in annex 3 to 

Appendix C of this subpart and on a list 

maintained by the Ozone Secretariat. 

Or, 

(3) A Party to the Montreal Protocol 

operating under Article 5(1) to the 

Montreal Protocol. A list of Parties operating under Article 5(1) to the Montreal Protocol as of June 17, 2004 can be 

found in annex 4 to Appendix C of this 

subpart. 

(f) Exemptions. (1) Medical Devices 

[Reserved] 

(g) Introduction into interstate commerce or use. (1) Effective January 1, 

2010, no person may introduce into 

interstate commerce or use HCFC–141b 

(unless used, recovered, and recycled) 

for any purpose except for use in a 

process resulting in its transformation 

or its destruction; for export to Article 

5 Parties under §82.18(a); for HCFC–141b 

exemption needs; as a transhipment or 

heel; or for exemptions permitted in 

paragraph (f) of this section. 

(2)(i) Effective January 1, 2010, no 

person may introduce into interstate 

commerce or use HCFC–22 or HCFC– 

142b (unless used, recovered, and recycled) for any purpose other than for use 

in a process resulting in its transformation or its destruction; for use as 

a refrigerant in equipment manufactured before January 1, 2010; for export 

to Article 5 Parties under §82.18(a); as 

a transhipment or heel; or for exemptions permitted in paragraph (f) of this 

section. 


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Environmental Protection Agency § 82.16 

(ii) Introduction into interstate commerce and use of HCFC–22 is not subject to the prohibitions in paragraph 

(g)(2)(i) of this section if the HCFC–22 

is for use in medical equipment prior to 

January 1, 2015; for use in thermostatic 

expansion valves prior to January 1, 

2015; or for use as a refrigerant in appliances manufactured before January 1, 

2012, provided that the components are 

manufactured prior to January 1, 2010, 

and are specified in a building permit 

or a contract dated before January 1, 

2010, for use on a particular project. 

(3) Effective January 1, 2015, no person may introduce into interstate commerce or use HCFC–141b (unless used, 

recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for export to Article 5 Parties under §82.18(a), as a transhipment 

or heel; or for exemptions permitted in 

paragraph (f) of this section. 

(4) Effective January 1, 2015, no person may introduce into interstate commerce or use any class II controlled 

substance not governed by paragraphs 

(g)(1) through (3) of this section (unless 

used, recovered, and recycled) for any 

purpose other than for use in a process 

resulting in its transformation or its 

destruction; for use as a refrigerant in 

equipment manufactured before January 1, 2020; for export to Article 5 Parties under §82.18(a); as a transhipment 

or heel; or for exemptions permitted in 

paragraph (f) of this section. 

(5) Effective January 1, 2030, no person may introduce into interstate commerce or use any class II controlled 

substance (unless used, recovered, and 

recycled) for any purpose other than 

for use in a process resulting in its 

transformation or its destruction; for 

export to Article 5 Parties under 

§82.18(a); as a transhipment or heel; or 

for exemptions permitted in paragraph 

(f) of this section. 

(6) Effective January 1, 2040, no person may introduce into interstate commerce or use any class II controlled 

substance (unless used, recovered, and 

recycled) for any purpose other than 

for use in a process resulting in its 

transformation or its destruction, as a 

transhipment or heel, or for exemptions permitted in paragraph (f) of this 

section. 

[68 FR 2848, Jan. 21, 2003, as amended at 69 

FR 34031, June 17, 2004; 71 FR 41171, July 20, 

2006; 74 FR 66445, Dec. 15, 2009] 

§ 82.16 Phaseout schedule of class II 

controlled substances. 

(a) In each control period as indicated in the following table, each person is granted the specified percentage 

of baseline production allowances and 

baseline consumption allowances for 

the specified class II controlled substances apportioned under §§82.17 and 

82.19: 

Control period Percent of 

HCFC–141b 

Percent of 

HCFC–22 

Percent of 

HCFC–142b 

Percent of 

HCFC–123 

Percent of 

HCFC–124 

Percent of 

HCFC– 

225ca 

Percent of 

HCFC– 

225cb 

2003 0 100 100 .................... .................... ....................

2004 0 100 100 .................... .................... ....................

2005 0 100 100 .................... .................... ....................

2006 0 100 100 .................... .................... ....................

2007 0 100 100 .................... .................... ....................

2008 0 100 100 .................... .................... ....................

2009 0 100 100 .................... .................... ....................

2010 0 41.9 0.47 125 125 125 125 

2011 0 38.0 0.47 125 125 125 125 

2012 0 34.1 0.47 125 125 125 125 

2013 0 30.1 0.47 125 125 125 125 

2014 0 26.1 0.47 125 125 125 125 

(b) Effective January 1, 2003, no person may produce HCFC-141b except for 

use in a process resulting in its transformation or its destruction, for export 

under §82.18(a) using unexpended Article 5 allowances, for export under 

§82.18(b) using unexpended export production allowances, for HCFC-141b exemption needs using unexpended 

HCFC-141b exemption allowances, or 

for exemptions permitted in §82.15(f). 

Effective January 1, 2003, no person 


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40 C.F.R. § 82.16 (2010) 

 

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Environmental Protection Agency § 82.16 

(ii) Introduction into interstate commerce and use of HCFC–22 is not subject to the prohibitions in paragraph 

(g)(2)(i) of this section if the HCFC–22 

is for use in medical equipment prior to 

January 1, 2015; for use in thermostatic 

expansion valves prior to January 1, 

2015; or for use as a refrigerant in appliances manufactured before January 1, 

2012, provided that the components are 

manufactured prior to January 1, 2010, 

and are specified in a building permit 

or a contract dated before January 1, 

2010, for use on a particular project. 

(3) Effective January 1, 2015, no person may introduce into interstate commerce or use HCFC–141b (unless used, 

recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for export to Article 5 Parties under §82.18(a), as a transhipment 

or heel; or for exemptions permitted in 

paragraph (f) of this section. 

(4) Effective January 1, 2015, no person may introduce into interstate commerce or use any class II controlled 

substance not governed by paragraphs 

(g)(1) through (3) of this section (unless 

used, recovered, and recycled) for any 

purpose other than for use in a process 

resulting in its transformation or its 

destruction; for use as a refrigerant in 

equipment manufactured before January 1, 2020; for export to Article 5 Parties under §82.18(a); as a transhipment 

or heel; or for exemptions permitted in 

paragraph (f) of this section. 

(5) Effective January 1, 2030, no person may introduce into interstate commerce or use any class II controlled 

substance (unless used, recovered, and 

recycled) for any purpose other than 

for use in a process resulting in its 

transformation or its destruction; for 

export to Article 5 Parties under 

§82.18(a); as a transhipment or heel; or 

for exemptions permitted in paragraph 

(f) of this section. 

(6) Effective January 1, 2040, no person may introduce into interstate commerce or use any class II controlled 

substance (unless used, recovered, and 

recycled) for any purpose other than 

for use in a process resulting in its 

transformation or its destruction, as a 

transhipment or heel, or for exemptions permitted in paragraph (f) of this 

section. 

[68 FR 2848, Jan. 21, 2003, as amended at 69 

FR 34031, June 17, 2004; 71 FR 41171, July 20, 

2006; 74 FR 66445, Dec. 15, 2009] 

§ 82.16 Phaseout schedule of class II 

controlled substances. 

(a) In each control period as indicated in the following table, each person is granted the specified percentage 

of baseline production allowances and 

baseline consumption allowances for 

the specified class II controlled substances apportioned under §§82.17 and 

82.19: 

Control period Percent of 

HCFC–141b 

Percent of 

HCFC–22 

Percent of 

HCFC–142b 

Percent of 

HCFC–123 

Percent of 

HCFC–124 

Percent of 

HCFC– 

225ca 

Percent of 

HCFC– 

225cb 

2003 0 100 100 .................... .................... ....................

2004 0 100 100 .................... .................... ....................

2005 0 100 100 .................... .................... ....................

2006 0 100 100 .................... .................... ....................

2007 0 100 100 .................... .................... ....................

2008 0 100 100 .................... .................... ....................

2009 0 100 100 .................... .................... ....................

2010 0 41.9 0.47 125 125 125 125 

2011 0 38.0 0.47 125 125 125 125 

2012 0 34.1 0.47 125 125 125 125 

2013 0 30.1 0.47 125 125 125 125 

2014 0 26.1 0.47 125 125 125 125 

(b) Effective January 1, 2003, no person may produce HCFC-141b except for 

use in a process resulting in its transformation or its destruction, for export 

under §82.18(a) using unexpended Article 5 allowances, for export under 

§82.18(b) using unexpended export production allowances, for HCFC-141b exemption needs using unexpended 

HCFC-141b exemption allowances, or 

for exemptions permitted in §82.15(f). 

Effective January 1, 2003, no person 


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§ 82.16 40 CFR Ch. I (7–1–10 Edition) 

may import HCFC-141b (other than 

transhipments, heels or used class II 

controlled substances) in excess of the 

quantity of unexpended HCFC-141b exemption allowances held by that person except for use in a process resulting in its transformation or its destruction, or for exemptions permitted 

in §82.15(f). 

(c) Effective January 1, 2010, no person may produce HCFC-22 or HCFC142b for any purpose other than for use 

in a process resulting in their transformation or their destruction, for use 

in equipment manufactured before January 1, 2010, for export under §82.18(a) 

using unexpended Article 5 allowances, 

or for export under §82.18(b) using unexpended export production allowances, or for exemptions permitted in 

§82.15(f). Effective January 1, 2010, no 

person may import HCFC-22 or HCFC142b (other than transhipments, heels 

or used class II controlled substances) 

for any purpose other than for use in a 

process resulting in their transformation or their destruction, for exemptions permitted in §82.15(f), or for 

use in equipment manufactured prior 

to January 1, 2010. 

(d) Effective January 1, 2015, no person may produce class II controlled 

substances not previously controlled, 

for any purpose other than for use in a 

process resulting in their transformation or their destruction, for use 

as a refrigerant in equipment manufactured before January 1, 2020, for export 

under §82.18(a) using unexpended Article 5 allowances, or for export under 

§82.18(b) using unexpended export production allowances, or for exemptions 

permitted in §82.15(f). Effective January 1, 2015, no person may import class 

II controlled substances not subject to 

the requirements of paragraph (b) or (c) 

of this section (other than 

transhipments, heels or used class II 

controlled substances) for any purpose 

other than for use in a process resulting in their transformation or their destruction, for exemptions permitted in 

§82.15(f), or for use as a refrigerant in 

equipment manufactured prior to January 1, 2020. 

(e) Effective January 1, 2020, no person may produce HCFC-22 or HCFC142b for any purpose other than for use 

in a process resulting in their transformation or their destruction, for export under §82.18(a) using unexpended 

Article 5 allowances, or for export 

under §82.18(b) using unexpended export production allowances, or for exemptions permitted in §82.15(f). Effective January 1, 2020, no person may import HCFC-22 or HCFC-142b for any 

purpose other than for use in a process 

resulting in their transformation or 

their destruction, or for exemptions 

permitted in §82.15(f). 

(f) Effective January 1, 2030, no person may produce class II controlled 

substances, for any purpose other than 

for use in a process resulting in their 

transformation or their destruction, 

for export under §82.18(a) using unexpended Article 5 allowances, or for exemptions permitted in §82.15(f). Effective January 1, 2030, no person may import class II controlled substances for 

any purpose other than for use in a 

process resulting in their transformation or their destruction, or for 

exemptions permitted in §82.15(f). 

(g) Effective January 1, 2040, no person may produce class II controlled 

substances for any purpose other than 

for use in a process resulting in their 

transformation or their destruction, or 

for exemptions permitted in §82.15(f). 

(h) Petition for HCFC-141b exemption 

allowances. 

(1) Effective January 21, 2003, a formulator of HCFC–141b, an agency, department, or instrumentality of the 

U.S., or a non-governmental space vehicle entity, may petition EPA for 

HCFC–141b exemption allowances for 

the production or import of HCFC–141b 

after the phaseout date, in accordance 

with this section. Except as provided in 

paragraphs (h)(4) and (7) of this section, 

a petitioner must submit the following 

information to the Director of EPA’s 

Office of Atmospheric Programs no 

later than April 21, 2003, for the 2003 

control period; and, for any subsequent 

control period, no later than October 

31st of the year preceding the control 

period for which the HCFC–141b exemption allowances are requested: 

(i) Name and address of the HCFC141b formulator, U.S. government entity or non-governmental space vehicle 

entity; 


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Environmental Protection Agency § 82.16 

(ii) Name of contact person, phone 

number, fax number and e-mail address; 

(iii) Quantity (in kilograms) of 

HCFC-141b needed for each relevant 

calendar year, supported by documentation about past use for at least 

the previous three years; 

(iv) Quantities of HCFC-141b, if any, 

contained in systems that were sold to 

other systems houses for at least the 

previous three years; 

(v) Description of the markets and 

applications served by the use of 

HCFC-141b or systems based on HCFC141b; 

(vi) Technical description of processes in which HCFC-141b is being used; 

(vii) Technical description of the specific conditions under which the product will be applied; 

(viii) Technical description of why alternatives and substitutes are not sufficient to eliminate the use of HCFC141b; 

(ix) Amount of stockpiled HCFC-141b 

(on-hand, taken title to, or available 

from a supplier) along with a detailed 

analysis showing why stockpiled, recovered or recycled quantities are 

deemed to be unavailable, or technically or commercially infeasible for 

use (for example, taking into consideration undue costs for storage and 

transportation); 

(x) An estimate of the number of control periods over which such an exemption would be necessary; 

(xi) A detailed description of continuing investigations into and 

progress on possible alternatives and 

substitutes; 

(xii) A list of alternatives considered, 

purchased or sampled, including dates 

and copies of receipts for verification; 

(xiii) A summary of the petitioner’s 

in-house development program including summaries of all relevant test results and their significance to subsequent decision-making and technology 

selection. Full supporting test data 

must be available on request including 

alternative tested and date on which it 

was tested; 

(xiv) A clear statement of the preferred technical option(s) being pursued at the time of the petition and the 

reasoning for this selection; 

(xv) A summary of product test results conducted on the preferred technical option(s) by accredited organizations in order to determine whether 

products meet applicable codes. Relevant test reports and certifications 

must be made available on request; and 

(xvi) A description of the further development testing to be carried out 

over the number of control periods 

identified under paragraph (h)(1)(x) of 

this section. 

(2) Within 21 business days of receipt 

of the petition, the Director of EPA’s 

Office of Atmospheric Programs will 

issue to a HCFC-141b formulator, agency, department, or instrumentality of 

the U.S., or non-governmental space 

vehicle entity that has petitioned for 

HCFC-141b exemption allowances, 

based on information received in accordance with paragraph (h)(1) of this 

section, a notice indicating one of the 

following: 

(i) A determination by the Director 

of EPA’s Office of Atmospheric Programs to grant a specific quantity of 

HCFC-141b exemption allowances (in 

kilograms) for the production or import of HCFC-141b in a specified control 

period based on an assessment that 

HCFC-141b is necessary to maintain either safety, or operational or technical 

viability; 

(ii) A determination by the Director 

of EPA’s Office of Atmospheric Programs to request additional information because the information received 

in accordance with paragraph (h)(1) of 

this section is not sufficient to decide 

whether to grant or deny HCFC-141b 

exemption allowances. The Director of 

EPA’s Office of Atmospheric Programs 

will decide whether to grant or deny 

HCFC-141b exemption allowances within 30 days of receipt of the additional 

information. However, if the petitioner 

fails to submit the additional information within 20 days of the request, such 

failure constitutes a basis for denying 

the petition for HCFC-141b exemption 

allowances. 

(iii) A determination by the Director 

of EPA’s Office of Atmospheric Programs to deny a grant of HCFC-141b exemption allowances due to one or more 

of the following reasons: 

(A) The needs can be met by the use 

of a substance other than HCFC-141b; 


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§ 82.16 40 CFR Ch. I (7–1–10 Edition) 

(B) The needs can be met by the use 

of existing supplies of HCFC-141b; 

(C) There is evidence of fraud or misrepresentation; 

(D) Approval of the HCFC-141b exemption allowances would be inconsistent with U.S. obligations under the 

provisions of the Montreal Protocol 

(including Decisions agreed by the Parties); 

(E) Approval of the HCFC-141b exemption allowances would be inconsistent with the Clean Air Act; 

(F) There is an inadequate demonstration of efforts undertaken to research and implement alternatives; or 

(G) Granting the HCFC-141b exemption allowances may reasonably be expected to endanger human health or 

the environment. 

(3) Within ten working days after receipt of a notice outlining a determination by the Director of EPA’s Office of 

Atmospheric Programs to deny a grant 

of HCFC-141b exemption allowances 

due to one or more of the reasons in 

paragraph (h)(2)(iii) of this section, the 

petitioner may file with the Director of 

EPA’s Office of Atmospheric Programs 

a one-time appeal with elaborated information. The Director of EPA’s Office of Atmospheric Programs may affirm the determination to deny a grant 

of HCFC-141b exemption allowances or 

make a determination to grant HCFC141b exemption allowance, in light of 

the available evidence submitted with 

the appeal. If no appeal is submitted by 

the tenth day after receipt of the notice outlining a determination by the 

Director of EPA’s Office of Atmospheric Programs to deny a grant of 

HCFC-141b exemption allowances, the 

denial will be final on that day. 

(4) Any entity that has previously petitioned for HCFC-141b exemption allowances under paragraph (h)(1) of this 

section may file a petition for renewal 

for a subsequent control period by October 31st of the year preceding that 

control period. The petition for renewal must contain the following information: 

(i) Name and address of the HCFC141b formulator, U.S. government entity or non-governmental space vehicle 

entity; 

(ii) Name of contact person, phone 

number, fax number and e-mail address; 

(iii) Quantity (in kilograms) of 

HCFC-141b needed for the control period; 

(iv) Description of markets and applications being served by the use of 

HCFC-141b; 

(v) A technical description of the 

process in which HCFC-141b is still 

being used; 

(vi) A technical description of the 

specific conditions under which the 

product is still being applied; 

(vii) Technical description of why alternatives and substitutes are still not 

sufficient to eliminate the use of 

HCFC-141b; 

(viii) Amount of stockpiled HCFC141b (on-hand, taken title to, or available from a supplier) along with a detailed analysis showing why stockpiled, recovered or recycled quantities 

are deemed to be technically or economically infeasible for use; and 

(ix) A detailed description of continuing investigations into and 

progress on possible alternatives and 

substitutes and how this activity differs from information given in the previous request. 

(5) A person granted HCFC-141b exemption allowances by the Director of 

EPA’s Office of Atmospheric Programs 

under paragraph (h)(2)(i) or (h)(3) of 

this section may request a quantity of 

HCFC-141b be produced or imported in 

the specified control period listed in 

the notice by conferring the rights to 

produce or import to a producer or importer. 

(6) The HCFC-141b exemption allowances held by one entity do not automatically transfer to an acquiring entity. Any entity acquiring another company holding HCFC-141b exemption allowances must submit a renewal application in accordance with paragraph 

(h)(4) of this section at the time of the 

acquisition in order to qualify for the 

HCFC-141b exemption allowances. 

(7) A formulator for, or an agency, 

department, or instrumentality of the 

U.S., or a non-governmental space vehicle entity that has previously petitioned for and been granted HCFC–141b 

exemption allowances under paragraphs (h)(1) through (4) of this section 


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Environmental Protection Agency § 82.18 

is granted, on January 1 of each control period beginning January 1, 2007, 

HCFC–141b exemption allowances 

equivalent to 10% more than the highest amount previously granted under 

paragraphs (h)(1) through (4) of this 

section to that petitioner for space vehicle uses or defense applications. 

(8) A formulator for, or an agency, 

department, or instrumentality of the 

U.S.; or a non-governmental space vehicle entity that has previously petitioned for and been granted HCFC–141b 

exemption allowances under paragraphs (h)(1) through (4) of this section 

but now seeks to obtain allowances in 

addition to those granted under paragraph (h)(7) of this section must submit 

a new petition in accordance with paragraph (h)(1) of this section. 

[68 FR 2848, Jan. 21, 2003, as amended at 71 

FR 41171, July 20, 2006; 74 FR 66446, Dec. 15, 

2009] 

§ 82.17 Apportionment of baseline production allowances for class II controlled substances. 

Effective January 1, 2010, the following persons are apportioned baseline production allowances for HCFC– 

22, HCFC–141b, HCFC–142b, HCFC–123, 

HCFC–124, HCFC–225ca, and HCFC– 

225cb, as set forth in the following 

table: 

Person Controlled substance Allowances (kg) 

AGC Chemicals 

Americas.

HCFC–225ca ............. 266,608 

HCFC–225cb ............. 373,952 

Arkema ...................... HCFC–22 ................... 28,219,223 

HCFC–141b ............... 24,647,925 

HCFC–142b ............... 16,131,096 

DuPont ....................... HCFC–22 ................... 42,638,049 

HCFC–124 ................. 2,269,210 

Honeywell .................. HCFC–22 ................... 37,378,252 

HCFC–141b ............... 28,705,200 

HCFC–142b ............... 2,417,534 

HCFC–124 ................. 1,759,681 

MDA Manufacturing ... HCFC–22 ................... 2,383,835 

Solvay Solexis ........... HCFC–142b ............... 6,541,764 

[ 74 FR 66446, Dec. 15, 2009] 

§ 82.18 Availability of production in 

addition to baseline production allowances for class II controlled substances. 

(a) Article 5 allowances. (1) Effective 

January 1, 2003, a person apportioned 

baseline production allowances for 

HCFC–141b, HCFC–22, or HCFC–142b 

under §82.17 is also apportioned Article 

5 allowances, equal to 15 percent of 

their baseline production allowances, 

for the specified HCFC for each control 

period up until December 31, 2009, to be 

used for the production of the specified 

HCFC for export only to foreign states 

listed in Annex 4 of Appendix C to this 

subpart. 

(2) Effective January 1, 2010, a person 

apportioned baseline production allowances under §82.17 for HCFC–141b, 

HCFC–22, or HCFC–142b is also apportioned Article 5 allowances, equal to 10 

percent of their baseline production allowances, for the specified HCFC for 

each control period up until December 

31, 2019, to be used for the production of 

the specified HCFC for export only to 

foreign states listed in Annex 4 of Appendix C to this subpart. 

(3) Effective January 1, 2015, a person 

apportioned baseline production allowances under §82.17 for HCFC–123, HCFC– 

124, HCFC–225ca, and HCFC–225cb is 

also apportioned Article 5 allowances, 

equal to 10 percent of their baseline 

production allowances, for the specified HCFC for each control period up 

until December 31, 2019, to be used for 

the production of the specified HCFC 

for export only to foreign states listed 

in Annex 4 of Appendix C to this subpart. 

(b) Export Production Allowances. (1) 

Effective January 1, 2003, a person apportioned baseline production allowances for HCFC–141b under §82.17 is 

also apportioned export production allowances, equal to 100 percent of their 

baseline production allowances, for 

HCFC–141b for each control period up 

until December 31, 2009, to be used for 

the production of HCFC–141b for export 

only, in accordance with this section. 

(2) [Reserved] 

(c) International trades of production 

allowances, export production allowances 

and Article 5 allowances. (1) A person 


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40 C.F.R. § 82.17 (2003) 

 

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Environmental Protection Agency § 82.18

§ 82.17 Apportionment of baseline production allowances for class II controlled substances. 

Effective January 1, 2003, the following persons are apportioned baseline production allowances for HCFC–

141b, HCFC–22, or HCFC–142b as set 

forth in the following table:

Person Controlled substance Allowances(kg.) 

AlliedSignal (Honeywell) .................................................................... HCFC–22 ....................................................... 37,378,252

HCFC–141b ................................................... 28,705,200

HCFC–142b ................................................... 2,417,534

Ausimont USA ................................................................................... HCFC–142b ................................................... 6,541,764

DuPont Company .............................................................................. HCFC–22 ....................................................... 42,638,049

Elf Atochem (ATOFINA) .................................................................... HCFC–22 ....................................................... 28,219,223

HCFC–141b ................................................... 24,647,925

HCFC–142b ................................................... 16,131,096

LaRoche Industries ........................................................................... HCFC–141b ................................................... 17,756,508

MDA Manufacturing ........................................................................... HCFC–22 ....................................................... 2,383,835

[68 FR 2848, Jan. 21, 2003]

§ 82.18 Availability of production in 

addition to baseline production allowances for class II controlled substances. 

(a) Article 5 allowances. (1) Effective 

January 1, 2003, a person apportioned 

baseline production allowances under 

§82.17 is also apportioned Article 5 allowances, equal to 15 percent of their 

baseline production allowances for the 

specified HCFC for each control period 

up until December 31, 2014, to be used 

for the production of the specified 

HCFC for export only to foreign states 

listed in Appendix E to this subpart. 

(2) Effective January 1, 2015, for all 

HCFCs, a person apportioned baseline 

production allowances under §82.17 is 

also apportioned Article 5 allowances, 

equal to 10 percent of their baseline 

production allowances for the specified 

HCFC for each control period up until 

December 31, 2029, to be used for the 

production of the specified HCFC for 

export only to foreign states listed in 

Appendix E to this subpart. 

(3) Effective January 1, 2030, for all 

HCFCs, a person apportioned baseline 

production allowances under §82.17 is 

also apportioned Article 5 allowances, 

equal to 15 percent of their baseline 

production allowances for the specified 

HCFC for each control period up until 

December 31, 2039, to be used for the 

production of the specified HCFC for 

export only to foreign states listed in 

Appendix E to this subpart. 

(b) Export production allowances. (1) 

Effective January 1, 2003, a person apportioned baseline production allowances for HCFC–141b under §82.17 is 

also apportioned export production allowances equal to 100 percent of their 

baseline production allowances for 

HCFC–141b for each control period up 

until December 31, 2029, to be used for 

the production of HCFC–141b for export 

only, in accordance with this section. 

(2) [Reserved] 

(c) International trades of production 

allowances, export production allowances 

and Article 5 allowances. (1) A person 

may increase or decrease its production allowances, export production allowances, or Article 5 allowances, for a 

specified control period through trades 

with another Party to the Protocol as 

set forth in this paragraph (c). Effective January 1, 2004, a nation listed either: in Appendix L of this subpart that 

is also listed in Appendix C, Annex 1 of 

the Protocol as having ratified the Beijing Amendments, or in Appendix C, 

Annex 1 of the Protocol as having ratified the Copenhagen Amendments but 

not listed in Appendix L of this subpart, or in Appendix C, Annex 2 of the 

Protocol, as being a foreign state complying with the Beijing Amendments if 

the foreign state is listed in Appendix 

L of this subpart, or as being a foreign 

state complying with the Copenhagen 

Amendments if the foreign state is not 

listed in Appendix L of this subpart 

must agree either to trade to the person for the current control period some 

quantity of production that the nation 

is permitted under the Montreal Protocol or to receive from the person for 


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40 C.F.R. § 82.17 (2009) 

 

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§ 82.17 40 CFR Ch. I (7–1–09 Edition) 

sufficient to eliminate the use of 

HCFC-141b; 

(viii) Amount of stockpiled HCFC141b (on-hand, taken title to, or available from a supplier) along with a detailed analysis showing why stockpiled, recovered or recycled quantities 

are deemed to be technically or economically infeasible for use; and 

(ix) A detailed description of continuing investigations into and 

progress on possible alternatives and 

substitutes and how this activity differs from information given in the previous request. 

(5) A person granted HCFC-141b exemption allowances by the Director of 

EPA’s Office of Atmospheric Programs 

under paragraph (h)(2)(i) or (h)(3) of 

this section may request a quantity of 

HCFC-141b be produced or imported in 

the specified control period listed in 

the notice by conferring the rights to 

produce or import to a producer or importer. 

(6) The HCFC-141b exemption allowances held by one entity do not automatically transfer to an acquiring entity. Any entity acquiring another company holding HCFC-141b exemption allowances must submit a renewal application in accordance with paragraph 

(h)(4) of this section at the time of the 

acquisition in order to qualify for the 

HCFC-141b exemption allowances. 

(7) A formulator for, or an agency, 

department, or instrumentality of the 

U.S., or a non-governmental space vehicle entity that has previously petitioned for and been granted HCFC–141b 

exemption allowances under paragraphs (h)(1) through (4) of this section 

is granted, on January 1 of each control period beginning January 1, 2007, 

HCFC–141b exemption allowances 

equivalent to 10% more than the highest amount previously granted under 

paragraphs (h)(1) through (4) of this 

section to that petitioner for space vehicle uses or defense applications. 

(8) A formulator for, or an agency, 

department, or instrumentality of the 

U.S.; or a non-governmental space vehicle entity that has previously petitioned for and been granted HCFC–141b 

exemption allowances under paragraphs (h)(1) through (4) of this section 

but now seeks to obtain allowances in 

addition to those granted under paragraph (h)(7) of this section must submit 

a new petition in accordance with paragraph (h)(1) of this section. 

[68 FR 2848, Jan. 21, 2003, as amended at 71 

FR 41171, July 20, 2006] 

§ 82.17 Apportionment of baseline production allowances for class II controlled substances. 

Effective January 1, 2003, the following persons are apportioned baseline production allowances for HCFC141b, HCFC-22, or HCFC-142b as set 

forth in the following table: 

Person Controlled substance Allowances(kg.) 

AlliedSignal (Honeywell) .................................................................... HCFC-22 ....................................................... 37,378,252 

HCFC-141b ................................................... 28,705,200 

HCFC-142b ................................................... 2,417,534 

Ausimont USA ................................................................................... HCFC-142b ................................................... 6,541,764 

DuPont Company .............................................................................. HCFC-22 ....................................................... 42,638,049 

Elf Atochem (ATOFINA) .................................................................... HCFC-22 ....................................................... 28,219,223 

HCFC-141b ................................................... 24,647,925 

HCFC-142b ................................................... 16,131,096 

LaRoche Industries ........................................................................... HCFC-141b ................................................... 17,756,508 

MDA Manufacturing ........................................................................... HCFC-22 ....................................................... 2,383,835 

[68 FR 2848, Jan. 21, 2003] 

§ 82.18 Availability of production in 

addition to baseline production allowances for class II controlled substances. 

(a) Article 5 allowances. (1) Effective 

January 1, 2003, a person apportioned 

baseline production allowances under 

§82.17 is also apportioned Article 5 allowances, equal to 15 percent of their 

baseline production allowances for the 

specified HCFC for each control period 

up until December 31, 2014, to be used 

for the production of the specified 


erowe on DSK5CLS3C1PROD with CFR

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40 C.F.R. § 82.19 (2003) 

 

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Environmental Protection Agency § 82.19

(A) The unexpended production allowances, unexpended export production allowances or unexpended Article 

5 allowances held by the trade or minus 

the quantity traded; or 

(B) The unexpended production allowances held by the trader minus the 

amount by which the U.S. average annual production of the class II controlled substance being traded for the 

three years prior to the trade is less 

than the total allowable production of 

that class II controlled substance 

under this subpart minus the amount 

traded; or 

(C) The total U.S. allowable production of the class II controlled substance 

being traded minus the three-year average of the actual annual U.S. production of the class II controlled substance 

prior to the control period of the trade. 

(6) Revised notices of production limits for subsequent traders. If after one 

person obtains approval of a trade of 

allowable production of a class II controlled substance to a Party and other 

persons obtain approval for trades of 

the same class II controlled substance 

during the same control period, the Administrator will issue revised notices. 

The notices will revise the production 

limits for each of the other persons 

trading to equal the lesser of: 

(i) The unexpended production allowances, unexpended export production 

allowances or unexpended Article 5 allowances held by the trader under this 

subpart minus the quantity traded; or 

(ii) The result of the following set of 

calculations: 

(A) The total U.S. allowable production of the class II controlled substance 

minus the three-year average of the actual annual U.S. production of the 

class II controlled substance prior to 

the control period of the trade; 

(B) The quantity traded divided by 

the total quantity traded by all the 

other persons trading the same class II 

controlled substance in the same control period; 

(C) The result of paragraph 

(c)(6)(ii)(A) of this section multiplied 

by the result of paragraph (c)(6)(ii)(B) 

of this section; 

(D) The quantity derived in paragraph (c)(6)(i) of this section, minus the 

result of paragraph (c)(6)(ii)(C) of this 

section; 

(7) Production limit for previous 

traders. The Administrator will also 

issue a notice revising the production 

limit for each trader who previously 

obtained approval of a trade of the 

class II controlled substance to a Party 

in the same control period to equal the 

result of the following set of calculations: 

(i) The total U.S. allowable production of the class II controlled substance 

minus the three-year average of the actual annual U.S. production of the 

class II controlled substance prior to 

the control period of the trade; 

(ii) The quantity traded by the person divided by the quantity traded by 

all the persons who have traded that 

class II controlled substance in that 

control period; 

(iii) The result of paragraph (c)(7)(i) 

of this section multiplied by the result 

of paragraph (c)(7)(ii) of this section. 

(iv) The unexpended production allowances, unexpended export production allowances or unexpended Article 

5 allowances held by the person plus 

the result of paragraph (c)(7)(iii) of this 

section; 

(8) Effective date of revised production limits. The change in production 

allowances, export production allowances or Article 5 allowances will be effective on the date that the notice is 

issued. 

[68 FR 2848, Jan. 21, 2003]

§ 82.19 Apportionment of baseline consumption allowances for class II 

controlled substances. 

(a) Effective January 1, 2003, the following persons are apportioned baseline consumption allowances for HCFC–

141b, HCFC–22, or HCFC–142b as set 

forth in the following table:

Person Controlled substance Allowances 

(kg) 

ABCO Refrigeration Supply .............................................................. HCFC–22 ....................................................... 279,366

Air Systems ....................................................................................... HCFC–22 ....................................................... 13,514

Allied (Honeywell) .............................................................................. HCFC–22 ....................................................... 35,392,492

HCFC–141b ................................................... 20,749,489


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§ 82.20 40 CFR Ch. I (7–1–03 Edition)

Person Controlled substance Allowances 

(kg) 

HCFC–142b ................................................... 1,315,819

Altair Industries .................................................................................. HCFC–22 ....................................................... 279,935

Ausimont USA ................................................................................... HCFC–22 ....................................................... 99,643

HCFC–142b ................................................... 3,047,386

Automatic Equipment Sales of VA .................................................... HCFC–22 ....................................................... 54,088

Condor Products ............................................................................... HCFC–22 ....................................................... 666,171

Continental ........................................................................................ HCFC–141b ................................................... 20,315

Discount Refrigerants ........................................................................ HCFC–22 ....................................................... 375,328

HCFC–141b ................................................... 994

DuPont Company .............................................................................. HCFC–22 ....................................................... 38,814,862

HCFC–141b ................................................... 9,049

HCFC–142b ................................................... 52,797

Elf Atochem (ATOFINA) .................................................................... HCFC–22 ....................................................... 29,524,481

HCFC–141b ................................................... 25,405,570

HCFC–142b ................................................... 16,672,675

Full Circle .......................................................................................... HCFC–22 ....................................................... 14,865

HG Refrigeration Supply ................................................................... HCFC–22 ....................................................... 40,068

ICC Chemical Corp. .......................................................................... HCFC–141b ................................................... 81,225

ICI Americas (INEOS) ....................................................................... HCFC–22 ....................................................... 2,546,305

Kivlan & Co. (Dynatemp) .................................................................. HCFC–22 ....................................................... 2,028,980

Klomar Ship Supply ........................................................................... HCFC–22 ....................................................... 8,585

LaRoche Industries ........................................................................... HCFC–141b ................................................... 16,097,869

MDA Manufacturing ........................................................................... HCFC–22 ....................................................... 2,541,545

Mondy-Global .................................................................................... HCFC–22 ....................................................... 281,824

National Refrigerants ......................................................................... HCFC–22 ....................................................... 5,480,315

Refricenter of Miami .......................................................................... HCFC–22 ....................................................... 381,293

Refricentro ......................................................................................... HCFC–22 ....................................................... 45,979

Rhone-Poulenc .................................................................................. HCFC–22 ....................................................... 52,090

R-Lines .............................................................................................. HCFC–22 ....................................................... 63,172

Saez .................................................................................................. HCFC–22 ....................................................... 37,936

Solvay Fluorides ................................................................................ HCFC–22 ....................................................... 313,966

HCFC–141b ................................................... 3,940,115

TESCO Distributors ........................................................................... HCFC–22 ....................................................... 48,049

Tulstar Products ................................................................................ HCFC–141b ................................................... 89,913

[68 FR 2848, Jan. 21, 2003]

§ 82.20 Availability of consumption allowances in addition to baseline 

consumption allowances for class II 

controlled substances. 

(a) A person may obtain at any time 

during the control period, in accordance with the provisions of this section, consumption allowances equivalent to the quantity of class II controlled substances that the person exported from the U.S. and its territories 

to a foreign state, in accordance with 

this section, when that quantity of 

class II controlled substance was produced in the U.S. with expended consumption allowances. 

(1) The exporter must submit to the 

Administrator a request for consumption allowances setting forth the following: 

(i) The identities and addresses of the 

exporter and the recipient of the exports; 

(ii) The exporter’s Employer Identification Number; 

(iii) The names and telephone numbers of contact persons for the exporter 

and the recipient; 

(iv) The quantity (in kilograms) and 

type of class II controlled substances 

reported; 

(v) The source of the class II controlled substances and the date purchased; 

(vi) The date on which, and the port 

from which, the class II controlled substances were exported from the U.S. or 

its territories; 

(vii) The country to which the class 

II controlled substances were exported; 

(viii) A copy of the bill of lading and 

the invoice indicating the net quantity 

(in kilograms) of class II controlled 

substances shipped and documenting 

the sale of the class II controlled substances to the purchaser; 

(ix) The commodity codes of the class 

II controlled substances reported; and 

(x) A written statement from the producer that the class II controlled substances were produced with expended 

allowances. 


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40 C.F.R. § 82.19 (2009) 

 

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499 

Environmental Protection Agency § 82.19 

(C) The result of paragraph 

(c)(6)(ii)(A) of this section multiplied 

by the result of paragraph (c)(6)(ii)(B) 

of this section; 

(D) The quantity derived in paragraph (c)(6)(i) of this section, minus the 

result of paragraph (c)(6)(ii)(C) of this 

section; 

(7) Production limit for previous 

traders. The Administrator will also 

issue a notice revising the production 

limit for each trader who previously 

obtained approval of a trade of the 

class II controlled substance to a Party 

in the same control period to equal the 

result of the following set of calculations: 

(i) The total U.S. allowable production of the class II controlled substance 

minus the three-year average of the actual annual U.S. production of the 

class II controlled substance prior to 

the control period of the trade; 

(ii) The quantity traded by the person divided by the quantity traded by 

all the persons who have traded that 

class II controlled substance in that 

control period; 

(iii) The result of paragraph (c)(7)(i) 

of this section multiplied by the result 

of paragraph (c)(7)(ii) of this section. 

(iv) The unexpended production allowances, unexpended export production allowances or unexpended Article 

5 allowances held by the person plus 

the result of paragraph (c)(7)(iii) of this 

section; 

(8) Effective date of revised production limits. The change in production 

allowances, export production allowances or Article 5 allowances will be effective on the date that the notice is 

issued. 

[68 FR 2848, Jan. 21, 2003] 

§ 82.19 Apportionment of baseline consumption allowances for class II 

controlled substances. 

(a) Effective January 1, 2003, the following persons are apportioned baseline consumption allowances for HCFC141b, HCFC-22, or HCFC-142b as set 

forth in the following table: 

Person Controlled substance Allowances (kg) 

ABCO Refrigeration Supply .............................................................. HCFC-22 ....................................................... 279,366 

Air Systems ....................................................................................... HCFC-22 ....................................................... 13,514 

Allied (Honeywell) .............................................................................. HCFC-22 ....................................................... 35,392,492 

HCFC-141b ................................................... 20,749,489 

HCFC-142b ................................................... 1,315,819 

Altair Industries .................................................................................. HCFC-22 ....................................................... 279,935 

Ausimont USA ................................................................................... HCFC-22 ....................................................... 99,643 

HCFC-142b ................................................... 3,047,386 

Automatic Equipment Sales of VA .................................................... HCFC-22 ....................................................... 54,088 

Condor Products ............................................................................... HCFC-22 ....................................................... 666,171 

Continental ........................................................................................ HCFC-141b ................................................... 20,315 

Discount Refrigerants ........................................................................ HCFC-22 ....................................................... 375,328 

HCFC-141b ................................................... 994 

DuPont Company .............................................................................. HCFC-22 ....................................................... 38,814,862 

HCFC-141b ................................................... 9,049 

HCFC-142b ................................................... 52,797 

Elf Atochem (ATOFINA) .................................................................... HCFC-22 ....................................................... 29,524,481 

HCFC-141b ................................................... 25,405,570 

HCFC-142b ................................................... 16,672,675 

Full Circle .......................................................................................... HCFC-22 ....................................................... 14,865 

HG Refrigeration Supply ................................................................... HCFC-22 ....................................................... 40,068 

ICC Chemical Corp. .......................................................................... HCFC-141b ................................................... 81,225 

ICI Americas (INEOS) ....................................................................... HCFC-22 ....................................................... 2,546,305 

Kivlan & Co. (Dynatemp) .................................................................. HCFC-22 ....................................................... 2,028,980 

Klomar Ship Supply ........................................................................... HCFC-22 ....................................................... 8,585 

LaRoche Industries ........................................................................... HCFC-141b ................................................... 16,097,869 

MDA Manufacturing ........................................................................... HCFC-22 ....................................................... 2,541,545 

Mondy-Global .................................................................................... HCFC-22 ....................................................... 281,824 

National Refrigerants ......................................................................... HCFC-22 ....................................................... 5,480,315 

Refricenter of Miami .......................................................................... HCFC-22 ....................................................... 381,293 

Refricentro ......................................................................................... HCFC-22 ....................................................... 45,979 

Rhone-Poulenc .................................................................................. HCFC-22 ....................................................... 52,090 

R-Lines .............................................................................................. HCFC-22 ....................................................... 63,172 

Saez .................................................................................................. HCFC-22 ....................................................... 37,936 

Solvay Fluorides ................................................................................ HCFC-22 ....................................................... 313,966 

HCFC-141b ................................................... 3,940,115 

TESCO Distributors ........................................................................... HCFC-22 ....................................................... 48,049 


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500 

§ 82.20 40 CFR Ch. I (7–1–09 Edition) 

Person Controlled substance Allowances 

(kg) 

Tulstar Products ................................................................................ HCFC-141b ................................................... 89,913 

[68 FR 2848, Jan. 21, 2003] 

§ 82.20 Availability of consumption allowances in addition to baseline 

consumption allowances for class II 

controlled substances. 

(a) A person may obtain at any time 

during the control period, in accordance with the provisions of this section, consumption allowances equivalent to the quantity of class II controlled substances that the person exported from the U.S. and its territories 

to a foreign state, in accordance with 

this section, when that quantity of 

class II controlled substance was produced in the U.S. or imported into the 

U.S. with expended consumption allowances. 

(1) The exporter must submit to the 

Administrator a request for consumption allowances setting forth the following: 

(i) The identities and addresses of the 

exporter and the recipient of the exports; 

(ii) The exporter’s Employer Identification Number; 

(iii) The names and telephone numbers of contact persons for the exporter 

and the recipient; 

(iv) The quantity (in kilograms) and 

type of class II controlled substances 

reported; 

(v) The source of the class II controlled substances and the date purchased; 

(vi) The date on which, and the port 

from which, the class II controlled substances were exported from the U.S. or 

its territories; 

(vii) The country to which the class 

II controlled substances were exported; 

(viii) A copy of the bill of lading and 

the invoice indicating the net quantity 

(in kilograms) of class II controlled 

substances shipped and documenting 

the sale of the class II controlled substances to the purchaser; 

(ix) The commodity codes of the class 

II controlled substances reported; and 

(x) A written statement from the producer that the class II controlled substances were produced with expended 

allowances or a written statement 

from the importer that the class II controlled substances were imported with 

expended allowances. 

(2) The Administrator will review the 

information and documentation submitted under paragraph (a)(1) of this 

section and will issue a notice. 

(i) The Administrator will determine 

the quantity of class II controlled substances that the documentation 

verifies was exported and issue consumption allowances equivalent to the 

quantity of class II controlled substances that were exported. 

(A) The grant of the consumption allowances will be effective on the date 

the notice is issued. 

(B) The consumption allowances will 

be granted to the person the exporter 

indicates, whether it is the producer, 

the importer, or the exporter. 

(ii) The Administrator will issue a 

notice that the consumption allowances are not granted if the Administrator determines that the information 

and documentation do not satisfactorily substantiate the exporter’s 

claims. 

(b) International trades of consumption 

allowances. (1) A person may increase 

its consumption allowances for a specified control period through trades with 

another Party to the Protocol as set 

forth in this paragraph (b). A person 

may only receive consumption from 

Poland or Norway, or both, and only if 

the nation agrees to trade to the person for the current control period some 

quantity of consumption that the nation is permitted under the Montreal 

Protocol. 

(2) Trade from a Party—Information 

requirements. A person must submit 

the following information to the Administrator: 

(i) A signed document from the principal diplomatic representative in the 

Polish or Norwegian embassy in the 

U.S. stating that the appropriate authority within that nation will establish or revise consumption limits for 


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40 C.F.R. § 82.23 (2010) 

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626 

§§ 82.21–82.22 40 CFR Ch. I (7–1–10 Edition) 

prior to the trade minus the consumption traded. 

(ii) A person requesting a consumption trade from Poland or Norway 

must also submit to the Administrator 

a true copy of the document that sets 

forth the following: 

(A) The identity and address of the 

person; 

(B) The identity of the Party; 

(C) The names and telephone numbers of contact persons for the person 

and for the Party; 

(D) The chemical type and quantity 

(in kilograms) of consumption being 

traded; 

(E) Documentation that the Party 

possesses the necessary quantity of unexpended consumption rights; 

(F) The control period(s) to which the 

trade applies; and 

(3) Notice of trade. If the request 

meets the requirement of paragraph 

(b)(2) of this section for trades from 

Parties, the Administrator will issue 

the person a notice. The notice will 

grant consumption allowances and 

specify the control period to which the 

trade applies. The Administrator may 

disapprove the trade request if it does 

not meet the requirements of paragraph (b)(2) of this section. 

(4) Trade from a Party. The Administrator will issue a notice revising the 

allowances held by the recipient of the 

trade to equal the unexpended consumption allowances held by the recipient of the trade under this subpart 

plus the quantity of allowable consumption traded from the Party. 

(5) Effective date of revised consumption 

limits. The change in consumption allowances will be effective on the date 

that the notice is issued. 

[68 FR 2848, Jan. 21, 2003, as amended at 71 

FR 41172, July 20, 2006] 

§§ 82.21–82.22 [Reserved] 

§ 82.23 Transfers of allowances of class 

II controlled substances. 

(a) Inter-company transfers. Effective 

January 1, 2003, a person (‘‘transferor’’) 

may transfer to any other person 

(‘‘transferee’’) any quantity of the 

transferor’s class II consumption allowances, production allowances, export production allowances, or Article 

5 allowances for the same type of allowance as follows: 

(i) The transferor must submit to the 

Administrator a transfer claim setting 

forth the following: 

(A) The identities and addresses of 

the transferor and the transferee; 

(B) The name and telephone numbers 

of contact persons for the transferor 

and the transferee; 

(C) The type of allowances being 

transferred, including the names of the 

class II controlled substances for which 

allowances are to be transferred; 

(D) The quantity (in kilograms) of allowances being transferred; 

(E) The control period(s) for which 

the allowances are being transferred; 

(F) The quantity of unexpended allowances of the type and for the control period being transferred that the 

transferor holds under authority of 

this subpart on the date the claim is 

submitted to EPA; and 

(G) For trades of consumption allowances, production allowances, export 

production allowances, or Article 5 allowances, the quantity of the 0.1 percent offset applied to the unweighted 

quantity traded that will be deducted 

from the transferor’s allowance balance. 

(ii) The Administrator will determine 

whether the records maintained by 

EPA indicate that the transferor possesses unexpended allowances sufficient to cover the transfer claim on the 

date the transfer claim is processed. 

The transfer claim is the quantity (in 

kilograms) to be transferred plus, in 

the case of transfers of production or 

consumption allowances, 0.1 percent of 

that quantity. The Administrator will 

take into account any previous transfers, any production, and allowable imports and exports of class II controlled 

substances reported by the transferor. 

Within three working days of receiving 

a complete transfer claim, the Administrator will take action to notify the 

transferor and transferee as follows: 

(A) The Administrator will issue a 

notice indicating that EPA does not 

object to the transfer if EPA’s records 

show that the transferor has sufficient 

unexpended allowances to cover the 

transfer claim. In the case of transfers 

of production or consumption allowances, EPA will reduce the transferor’s 


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Environmental Protection Agency § 82.23 

balance of unexpended allowances by 

the quantity to be transferred plus 0.1 

percent of that quantity. In the case of 

transfers of export production or Article 5 allowances, EPA will reduce the 

transferor’s balance of unexpended allowances, respectively, by the quantity 

to be transferred. The transferor and 

the transferee may proceed with the 

transfer when EPA issues a no objection notice. However, if EPA ultimately finds that the transferor did 

not have sufficient unexpended allowances to cover the claim, the transferor 

and transferee, where applicable, will 

be held liable for any knowing violations of the regulations of this subpart 

that occur as a result of, or in conjunction with, the improper transfer. 

(B) The Administrator will issue a 

notice disallowing the transfer if EPA’s 

records show that the transferor has 

insufficient unexpended allowances to 

cover the transfer claim, or that the 

transferor has failed to respond to one 

or more Agency requests to supply information needed to make a determination. Either party may file a notice of appeal, with supporting reasons, 

with the Administrator within 10 working days after receipt of notification. 

The Administrator may affirm or vacate the disallowance. If no appeal is 

taken by the tenth working day after 

notification, the disallowance shall be 

final on that day. 

(iii) The transferor and transferee 

may proceed with the transfer if the 

Administrator does not respond to a 

transfer claim within the three working days specified in paragraph 

(a)(1)(ii) of this section. In the case of 

transfers of production or consumption 

allowances, EPA will reduce the transferor’s balance of unexpended allowances by the quantity to be transferred 

plus 0.1 percent of that quantity. In the 

case of transfers of export production 

allowances or Article 5 allowances, 

EPA will reduce the transferor’s balance of unexpended allowances by the 

quantity to be transferred plus 0.1 percent of that quantity. If EPA ultimately finds that the transferor did 

not have sufficient unexpended allowances to cover the claim, the transferor 

and/or the transferee, where applicable, 

will be held liable for any knowing violations of the regulations of this subpart that occur as a result of, or in 

conjunction with, the improper transfer. 

(b) Inter-pollutant transfers. (1) Effective January 1, 2003, a person (transferor) may convert consumption allowances or production allowances for one 

class II controlled substance to the 

same type of allowance for another 

class II controlled substance listed in 

Appendix B of this subpart, following 

the procedures described in paragraph 

(b)(3) of this section. 

(2) Inter-pollutant transfers will be 

permitted at any time during the control period and during the 30 days after 

the end of a control period. 

(3) The transferor must submit to the 

Administrator a transfer claim that includes the following: 

(i) The identity and address of the 

transferor; 

(ii) The name and telephone number 

of a contact person for the transferor; 

(iii) The type of allowances being 

converted, including the names of the 

class II controlled substances for which 

allowances are to be converted; 

(iv) The quantity (in kilograms) and 

type of allowances to be converted; 

(v) The quantity (in kilograms) of allowances to be subtracted from the 

transferor’s unexpended allowances for 

the first class II controlled substance, 

to be equal to 100.1 percent of the quantity of allowances converted; 

(vi) The quantity (in kilograms) of 

allowances to be added to the transferee’s unexpended allowances for the 

second class II controlled substance, to 

be equal to the quantity (in kilograms) 

of allowances for the first class II controlled substance being converted multiplied by the quotient of the ozone depletion potential of the first class II 

controlled substance divided by the 

ozone depletion potential of the second 

class II controlled substance, as listed 

in Appendix B to this subpart; 

(vii) The control period(s) for which 

the allowances are being converted; 

and 

(viii) The quantity (in kilograms) of 

unexpended allowances of the type and 

for the control period being converted 

that the transferor holds under authority of this subpart as of the date the 

claim is submitted to EPA. 


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§ 82.24 40 CFR Ch. I (7–1–10 Edition) 

(4) The Administrator will determine 

whether the records maintained by 

EPA indicate that the convertor possesses unexpended allowances sufficient to cover the transfer claim on the 

date the transfer claim is processed 

(i.e., the quantity (in kilograms) to be 

converted plus 0.1 percent of that quantity (in kilograms)). EPA will take into 

account any previous transfers, and 

any production, imports (not including 

transshipments or used class II controlled substances), or exports (not including transhipments or used class II 

controlled substances) of class II controlled substances reported by the convertor. Within three working days of 

receiving a complete transfer claim, 

the Administrator will take action to 

notify the convertor as follows: 

(i) The Administrator will issue a notice indicating that EPA does not object to the transfer if EPA’s records 

show that the convertor has sufficient 

unexpended allowances to cover the 

transfer claim. EPA will reduce the 

transferor’s balance of unexpended allowances by the quantity to be converted plus 0.1 percent of that quantity 

(in kilograms). When EPA issues a no 

objection notice, the transferor may 

proceed with the transfer. However, if 

EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, 

the transferor will be held liable for 

any violations of the regulations of 

this subpart that occur as a result of, 

or in conjunction with, the improper 

transfer. 

(ii) The Administrator will issue a 

notice disallowing the transfer if EPA’s 

records show that the transferor has 

insufficient unexpended allowances to 

cover the transfer claim, or that the 

transferor has failed to respond to one 

or more Agency requests to supply information needed to make a determination. The transferor may file a notice of appeal, with supporting reasons, 

with the Administrator within 10 working days after receipt of notification. 

The Administrator may affirm or vacate the disallowance. If no appeal is 

taken by the tenth working day after 

notification, the disallowance shall be 

final on that day. 

(iii) The transferor may proceed with 

the transfer if the Administrator does 

not respond to a transfer claim within 

the three working days specified in 

paragraph (b)(4) of this section. EPA 

will reduce the transferor’s balance of 

unexpended allowances by the quantity 

(in kilograms) to be converted plus 0.1 

percent of that quantity (in kilograms). The transferor will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer if EPA ultimately finds 

that the transferor did not have sufficient unexpended allowances or credits 

to cover the claim. 

(c) Inter-company transfers and Interpollutant transfers. If a person requests 

an inter-company transfer and an 

inter-pollutant transfer simultaneously, the quantity (in kilograms) 

subtracted from the transferor’s unexpended production or consumption allowances for the first class II controlled substance will be equal to 100.1 

percent of the quantity (in kilograms) 

of allowances that are being converted 

and transferred. 

(d) A person receiving a permanent 

transfer of baseline production allowances or baseline consumption allowances (the transferee) for a specific 

class II controlled substance will be the 

person who has their baseline allowances adjusted in accordance with 

phaseout schedules in this section. 

[68 FR 2848, Jan. 21, 2003] 

§ 82.24 Recordkeeping and reporting 

requirements for class II controlled 

substances. 

(a) Recordkeeping and reporting. Any 

person who produces, imports, exports, 

transforms, or destroys class II controlled substances must comply with 

the following recordkeeping and reporting requirements: 

(1) Reports required by this section 

must be mailed to the Administrator 

within 30 days of the end of the applicable reporting period, unless otherwise specified. 

(2) Revisions of reports that are required by this section must be mailed 

to the Administrator within 180 days of 

the end of the applicable reporting period, unless otherwise specified. 

(3) Records and copies of reports required by this section must be retained 

for three years. 


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APPENDIX B

Declarations 

 

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Declaration of David Diggs 

 

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Declaration of Jane Austin 

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EXHIBIT 1 

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EXHIBIT 2 

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