Original SBA Suggested Preamble Language

The Role of Economic Concerns for the “Availability” Determination under Clean Air Act 

Section 612 (c )

In the 2004 case, Honeywell International v. EPA, 374 F.3d 1363 (D. C. Cir 2004), the court 

invited EPA to clarify its views on whether economic considerations play a role under Clean Air 

Section 612 (c). In the 2002 final rule, EPA noted that it would allow continued use of HCFC-22 

and HCFC-142b , stating that "there would be significant impact on small businesses" if EPA 

had delisted these chemicals because switching to the alternatives "would be difficult and 

prohibitively costly.”

67 Fed. Reg. 47703, 47706-09. (July 22,2002). The court overturned the EPA rule change 

because the agency failed to explain its position on the relevance of cost considerations in 

section 612 determinations. 

EPA now interprets the section 612 (c ) as permitting the agency to consider both technical 

concerns and practical and economic concerns, such as those cited in the Honeywell decision. 

As in the Honeywell case, EPA may allow the continuance of existing acceptable uses even 

where a new substitute would be technically available, but prohibitively expensive for small 

businesses for certain specific end uses. The transition cost to adopt a substitute chemical could 

be so expensive that a small manufacturer would not be able to recover its research and 

development costs to reformulate a small production line, although it may be practicable for 

larger production lines. EPA requests comment on the EPA interpretation of this provision. In 

addition, the agency requests information about the technical and cost constraints on individuals 

businesses for specific end uses, with the supporting factual information.

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LANGUAGE From 2005 Foam Proposal - November 4, 2005

The decision to grandfather is based on the criteria established in Sierra Club v. EPA (719 F.2D

436 (DC CIR. 1983)). The criteria EPA examines to judge the appropriateness of grandfathering

includes: (1) Is the new rule an abrupt departure from Agency practice, (2) what is the extent the

interested parties relied on the previous rule, (3) what is the burden of the new rule on the 

interested parties and (4) what is the statutory interest in making the new rule effective 

immediately, as opposed to grandfathering interested parties (59 FR 13057). [bold added]

From 1994 SNAP Final RULE: EPA included consideration of “economic burden” in many 

sections of this final rule. 

EPA can decide to cite the 1994 grandfathering discussion, using the same language as the 

November 4, 2005 proposal above, which is similar to the 1994 version below:
March 18, 1994 SNAP Framework Rule:

59 Fed Reg. 13057

Grandfathering of Unacceptable Substitutes

EPA is authorized to permit the continuation of activities otherwise restricted where the

balance of equities supports such grandfathering. Consequently, where appropriate, EPA may grandfather the 

production and use of particular substitutes by setting the effective date of unacceptability listings

in the future. The United States District Court for the District of Columbia Circuit has

established a four-part test to judge the appropriateness of Agency grandfathering (see Sierra Club v. EPA, 719 F.2d 

436 (DC Cir. 1983)). 

This test involves balancing the results of four analyses, including whether the new rule represents an abrupt 

departure from previously established practice, the [*13058] extent to which a party relied on the previous rule, the 

degree of burden which application of the new rule would impose on the party, and the statutory interest in 

applying the new rule immediately. In each rulemaking listing a substitute as unacceptable where grandfathering 

seems appropriate, EPA will conduct these four analyses and weigh their results. Where the balance of equities 

favors grandfathering, EPA will set a delayed effective date for such listings. 

Setting future effective dates to ban the sale and distribution of specific substitutes will allow the Agency to avoid 

penalizing those who in specific applications may have already invested in good faith in alternatives the SNAP 

program determines to be unacceptable. For example, the Agency in this final rule finds unacceptable the use of 

HCFC-141b in solvent applications. New information on stratospheric ozone depletion has increased concern over 

possible adverse human health and environmental effects, and the Agency’s unacceptable determination in the case 

of HCFC-141b reflects these concerns.

One example of several in this 1994 rule applying the use of Sierra Club test 

– for metals cleaning in this situation:

59 Fed Reg. 13096

Metals cleaning. (a) HCFC-141b and its blends. HCFC-141b and its blends are unacceptable

as substitutes for CFC-113 and MCF in metals cleaning, with acceptability subject to

narrowed use limitations to be granted by EPA, if necessary, as CFC-113 replacements

after the effective date of this listing. The effective date for this listing is 30 days after the

date of the final rule for uses of HCFC-141b and its blends in new equipment (including

retrofits made after the effective date) and as of January 1, 1996, for uses of HCFC-141b

and its blends in existing equipment. For purposes of this SNAP determination, 2existing

equipment2 is defined to include equipment that companies have shown a clear intention

to use and have purchased before the effective date of the SNAP determination, even if that

equipment has not yet been installed.

As discussed earlier in this action in Section VI.B., the Agency is authorized to grandfather

existing uses from a prohibition where appropriate under the four-part test established in Sierra

Club v. EPA, supra. The Agency has conducted the four analyses required under this test,

and has concluded that the balance of equities favors a grandfathering period of two years for

uses of HCFC-141b in existing equipment in this application. The prohibition set forth in

this action clearly represents a departure from previously established practice, as use of the
substitute was allowed previously. Existing users of HCFC-141b who switched from class I

substances into this solvent invested in this substitute on the assumption that it would be a

sufficient improvement over the class I use. Prohibiting their use of the substitute immediately

would impose a severe economic burden on these users. These factors taken together outweigh

any statutory interest in applying the new rule immediately to existing users. This is especially

true since the restriction applies immediately to new equipment using HCFC-141b, which

creates no incentive for continued investment in equipment using HCFC-141b in this application.

{Bolded added}

Conclusion: EPA can use the text from 1994 or 2005 (proposal or final) to characterize Sierra Club case, and 

can employ the terms “economic burden” or “burden” and that would satisfy us. I will look for the 2006 

final rule now to see what was used. 

LANGUAGE From 2005 Foam Proposal - November 4, 2005 – 1994 SNAP Sierra Club test 

still intact: 

The decision to grandfather is based on the criteria established in Sierra Club v. EPA (719 F.2D

436 (DC CIR. 1983)). The criteria EPA examines to judge the appropriateness of grandfathering

includes: (1) Is the new rule an abrupt departure from Agency practice, (2) what is the extent the

interested parties relied on the previous rule, (3) what is the burden of the new rule on the 

interested parties and (4) what is the statutory interest in making the new rule effective 

immediately, as opposed to grandfathering interested parties (59 FR 13057). [bold added]

Alternative Suggested Language: Copied Directly from 1994 SNAP Framework:

EPA is authorized to permit the continuation of activities otherwise restricted where the

balance of equities supports such grandfathering. Consequently, where appropriate, EPA may grandfather the 

production and use of particular substitutes by setting the effective date of unacceptability listings

in the future. The United States District Court for the District of Columbia Circuit has

established a four-part test to judge the appropriateness of Agency grandfathering (see Sierra Club v. EPA, 719 F.2d 

436 (DC Cir. 1983)). 

This test involves balancing the results of four analyses, including whether the new rule represents an abrupt 

departure from previously established practice, the [*13058] extent to which a party relied on the previous rule, the 

degree of burden which application of the new rule would impose on the party, and the statutory interest in 

applying the new rule immediately. In each rulemaking listing a substitute as unacceptable where grandfathering 

seems appropriate, EPA will conduct these four analyses and weigh their results. Where the balance of equities 

favors grandfathering, EPA will set a delayed effective date for such listings. [remove bolding] 

Added Sentence: EPA requests comment on the applicability of the Sierra Club test to this proposal in determining 

the length of the appropriate grandfathering of existing uses.